IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 RFA.No. 591 of 2010() --------------------- OS.14/2006 of SUB COURT, PATHANAMTHITTA .................... APPELLANTS/DEFENDANTS: -------------------- 1. M.R.RAMAKRISHNAN NAIR, S/O.RAGHAVAN NAIR, KRISHNAVILASOM, (EDAKKUMPLAVELIL MANGATTU VEETTIL), PALAMAROOR, PRAMADOM VILALGE, KUMBAZHA, KOZHENCHERRY TALUK. 2. M.N.SUMANGALAYAMMA, W/O.RAMAKRISHNAN NAIR, -DO- -DO- BY ADV. SRI.S.MUHAMMED HANEEFF SRI.R.KRISHNAKUMAR (CHERTHALA) RESPONDENT(S): --------------- THE FEDERAL BANK LTD., KONNI BRANCH, REP. BY ITS SENIOR MANAGER. BY ADV.SRI.GEORGE VARGHESE (MANACHIRACKEL) THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2010 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & P. BHAVADASAN, JJ. ------------------------------------------- R.F.A.No.591 OF 2010 ------------------------------------------- Dated this the 28th day of October, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. This appeal is by the defendants in a suit for money filed by a scheduled bank. Having looked into the materials, we find that creation of the mortgage and the availing of the facility are not disputed. It was a pure mortgage loan, for which, no reasons have to be stated for availing it. The accrued rate was 17% plus 2% penal interest on default. The court below granted a decree for recovery of the accrued amount with future interest at 19% per annum, quarterly rests from the date of the suit till realization. While we do not find any ground to interfere with the amount of recovery, as regards the principal amount claimed in the plaint, we are of the view that the court below has failed to exercise jurisdiction in terms of Section 34 CPC. Explanation II to Section 34(1) provides that for the purposes of applying the proviso to Section 34(1), the transaction would be a commercial one, only if it is connected with industry, trade or business of the RFA.591/10 2 party incurring the liability. There is neither such plea nor evidence in this regard from the plaintiff. It appears on the basis of submission that the facility was availed for carrying out certain maintenance and additions to the home. In this view of the matter, we are of the opinion that the post suit interest should have been trimmed down to be simple interest at 6% per annum. In the result, we allow this appeal partly and modify the decree by permitting the plaintiff to recover an amount of Rs.2,27,371/-, with future simple interest at the rate of 6% per annum, from the date of suit till recovery of the amount from defendants and their assets. The parties are directed to suffer their respective costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- P.BHAVADASAN, Judge. kkb.29/10.