IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 AS.No. 284 of 1996() ------------------- OS.925/1990 OF SUB COURT, THRISSUR ................ APPELLANTS (DEFENDANTS 1, 3 TO 6) : ------------------------------------------------------- 1. K.V. VISWANATHAN, PROP: M/S. NICE FOODS, KARAMEL HOUSE, POOTHOLE, THRISSUR – 4. 2. JANARDHANAN, S/O. VELAPPAKUTTY, KARAMEL HOUSE, POOTHOLE, THRISSUR – 4. 3. PADMA SATHYAN, D/O. VELAPPAKUTTY, PUZHEKKADAVIL HOUSE, MARTHUR ROAD, CHEROOR, THRISSUR. 4. DAKSHAYANI SUKUMARAN, D/O. VELAPPAKUTTY, KOMATH KATTIL HOUSE, PERINGOTTUKARA, THRISSUR. 5. VILASINI RAVEENDRAN, VAZHUR HOUSE, VELAPPAD BEACH, VALAPPAD, THRISSUR BY ADVS. SRI. P.K. ASHOKAN SRI. M.R. VENUGOPAL SMT.DHANYA P. ASHOKAN RESPONDENT (PLAINTIFF): --------------------------------------- INDIAN BANK, THRISSUR. BY ADV. SRI. S. EASWARAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 07/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- AS.No. 284 of 1996() -2- ORDER ON C.M.P. NO. 1890/1996 IN AS. NO. 284/1996 DISMISSED 07/10/2010 SD/- THOTTATHIL B. RADHAKRISHNAN, JUDGE SD/- P. BHAVADASAN, JUDGE //TRUE COPY// P.S. TO JUDGE Mn Thottathil B.Radhakrishnan & P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = A.S.284 of 1996-A = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 7th day of October, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.This appeal is by defendant 1 and additional defendants 3 to 6. They are the children of the deceased second defendant. They challenge a decree for realisation of money by enforcing liability under a mortgage created by the late second defendant on 29.1.1985 in favour of the plaintiff bank to support a medium term loan and a cash credit facility extended to the first defendant-first appellant, one of the sons of the second defendant. 2.The mortgage is not disputed. The transaction is not disputed. The balance outstanding is not disputed. The rate of interest in the two AS284/1996 -: 2 :- accounts is also not disputed. The decree for realisation of money from the first defendant, therefore, stands. There is no challenge to that also. 3.The appeal proceeds as if the second defendant died prior to the institution of the suit and her legal representatives having been brought on record only at a later point of time, the suit should be treated as abated. This stand is totally unfounded for reasons more than one. Firstly, one of her legal representatives, namely, the first defendant was already on the array. Secondly, and, more importantly, the suit against the second defendant was one for realisation of money on the basis of a mortgage created by her. Her legal representatives other than the first defendant were brought on record as per order dated 25.11.1993. As already noted, the mortgage was created on 29.1.1985 by the second defendant. Therefore, even if we take it that 25.11.1993 is the date of suit as against AS284/1996 -: 3 :- the second defendant's estate, the suit would be within time and the cause of action is not extinguished, in any manner. Under such circumstances, the decree is beyond challenge. 4.However, we may notice that the medium term loan was for an amount of Rs.28,000/-. The cash credit facility was for an amount of Rs.10,000/-. The MTL carried rate of interest at 15% per annum and the cash credit facility, at the rate of 14% per annum. The lending was for the purpose of a bakery. Therefore, this is a fit case for exercise of authority under Section 34 of the Code of Civil Procedure. In the result, this appeal is partly allowed directing that the rate of interest that would run after the date of the decree, i.e., 31.1.1995 till the date of realisation would be only at the rate of 6% per annum. This will, however, be on condition that the entire decree debt due until 31.1.1995 is paid to the bank by all or any of AS284/1996 -: 4 :- the appellants within an outer limit of three months from now. Otherwise, the decree of the trial court would stand without any alteration and the plaintiff bank will be entitled to execute it in accordance with law. Thottathil B.Radhakrishnan, Judge. P.Bhavadasan, Judge. Sha/1510 AS284/1996 -: 5 :- Thottathil B.Radhakrishnan & P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = = A.S.284 of 1996 = = = = = = = = = = = = = = = = = Judgment 7th October, 2010.