IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 6TH AUGUST 2010 / 15TH SRAVANA 1932 SA.No. 207 of 1999(G) --------------------- AS.93/1994 of PRINCIPAL SUB COURT,ERNAKULAM OS.783/1991 of II ADDL.MUNSIFF COURT, ERNAKULAM .................... APPELLANT/APPELLANT/PLAINTIFF: -------------------------------------- THOMAS JOHN, 1/283, S/O.V.T.JOHN, CRYSTAL PALACE, 1ST FLOOR, NAPIER STREET, FORT KOCHI - 682 001, NOW RESIDING AT 12/18A, MOOLEPADOM ROAD, VAZHAKKAL SOUTH, KOCHI - 30 BY ADV. MR.N.SUKUMARAN MR.N.K.KARNIS MR.PHILIP M.VARUGHESE MR.BOBBY MATHEW RESPONDENT/RESPONDENT/DEFENDANT: --------------------------------------------- STATE BANK OF INDIA, REPRESENTED BY ITS REGIONAL MANAGER, ZONAL OFFICE, SHANMUGHAM ROAD, ERNAKULAM. ADV. MR.P.V.SURENDRANATH MR.E.G.GORDEN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------ S.A.No.207 Of 1999 ---------------------- Dated this the 6th day of August, 2010. J U D G M E N T The plaintiff in O.S.No.783 of 1991 on the file of the II Additional Munsiff Court, Ernakulam, is the appellant. The appeal is directed against the judgment and decree in A.S.No.93 of 1994 of the Principal Sub Court, Ernakulam. The suit was filed for a mandatory injunction directing the defendant to hand over to the plaintiff the original title deed bearing No.2773/81 within a specified time. The trial court held that the plaintiff is not entitled to mandatory injunction as prayed for. The suit was dismissed with costs and confirmed in appeal. Parties hereinafter are referred to as the plaintiff and defendant as arrayed in the suit. 2. Plaintiff purchased an item of property under document No.2773/81. It is averred in the plaint that the said property and the suit property belonging to the plaintiff was taken care of by one George Philip, who is the brother-in-law of the plaintiff. George Philip is having the custody of title deeds belonging to the plaintiff. The plaintiff returned to India from S.A.No.207 Of 1999 ::2:: Gulf country on 28.4.1987. Thereafter he demanded his title deeds from George Philip. But he did not hand over the title deeds. Plaintiff further pleaded that he came to know on enquiry that George Philip had misused the title deeds by availing loan from the banks. It is his further case that he has not authorized George Philip to deal with his properties. George Philip told the plaintiff that the title deeds were lost, therefore the plaintiff issued a paper publication stating the missing of the title deeds. Finally the plaintiff located the title deeds in the custody of George Philip. It is further pleaded that he came to know that George Philip and his associates availed a loan from the bank and the title deeds were deposited with the bank. According to him the transactions entered by George Philip and the bank is not with his consent or knowledge and that he had not executed any document in favour of the bank and therefore the bank is duty bound to handover the title deed to the plaintiff. The suit was filed in the aforesaid context and for the reliefs mentioned above. 3. The sole defendant in the case is the State Bank of India. It is not known why the plaintiff has not made George S.A.No.207 Of 1999 ::3:: Philip as a defendant in the case. In the written statement it is inter alia contended that the attempt of the plaintiff is to recover the title deed in question which was deposited as security for availing the loan. Filing of the suit is with the malafide intention to see whether the title deed in question can be got possession with the motive of dis-entitling the bank from having the security for a very huge claim which the bank is having against the plaintiff and others. The title deed in question has been produced before the bank by a person introduced by name George Philip. The loan was availed from the Bank of Cochin. The said bank has been amalgamated with State Bank of India which is the defendant in the suit. Further in the written statement it is contended that Bank of Cochin had sanctioned different loans in favour of George Philip and his associates, Mohammed Kutty and others. An amount of Rs.5 Lakhs was granted to Muhammed Kutty in the year 1981 and in that connection the title deed in question has been deposited with the Bank of Cochin. The loan was granted on 4.6.1981. The title deed was deposited with the bank by a person introduced by George Philip as Thomas John, S.A.No.207 Of 1999 ::4:: who is the owner of the property. It is further stated that George Philip who is the brother-in-law of the plaintiff is known to the bank staff very well and therefore the bank did not doubt the conduct of George Philip and the documents were accepted as security for the loan transaction. The title deed was deposited with the bank as a security for the loan granted to Mohammed Kutty and for the purpose of creating an equitable mortgage as security for the loam amount. A memorandum of deposit was also created at that time. The person introduced as Thomas John (plaintiff) by George Philip signed in the memorandum as Thomas John and the bank accepted the same as security. There are a large number of other transactions also with George Philip and his associates with the Bank of Cochin. Thus the defendant narrated the circumstances under which the loan was granted after creating equitable mortgage. The defendant prayed for dismissal of the suit. The bank also alleged that the plaintiff was aware of the fraud committed by George Philip and his associates in the matter of deposit of the title deed. In the written statement it is also pleaded that O.S.No.107 of 1987 was filed by S.A.No.207 Of 1999 ::5:: the bank against the plaintiff and others and that a decree has been passed in that suit against the defendants. It is also contended that the document in question has come to the possession of the bank lawfully. 4. The trial court considered the facts, evidence and circumstances on the basis of the oral and documentary evidence adduced by the parties. The property was purchased in the year 1981. Plaintiff alleged that he came to know about the missing of the document in the year 1987. The trial court observed that during the period between 1981 and 87 the plaintiff had come to India on several occasions and it is quite strange to note that the plaintiff did not care to enquire about the title deed or property which he purchased with his savings. The explanation of the plaintiff that even though he wanted the document from George Philip he was told that it is kept under safe custody in the office of the George Philip was not accepted by the trial court. The court observed that any prudent man would try for at least a look of the document when such a quite unsatisfactory reply regarding the document was received from its custodian. The trial court S.A.No.207 Of 1999 ::6:: observed that the plaintiff had been to India on three occasions after purchase of the property. The trial court also noticed the fact that the plaintiff’s eldest son aged 36 years is a permanent resident of Kerala that his son was capable enough to handle the transaction and to look after the properties belonging to his father. On evidence the court observed that the plaintiff has no case that his son was incapable to look after his affairs in the absence of his father. 5. The trial court also on evidence found that the case of the plaintiff regarding the location of the documents in question with the defendant bank appears to be very strange. The court below extracted the publication in the newspaper and rightly held that the publication was not made with the object of getting back the title deed but, for the purpose of getting certified copy of the document in the absence of the original. The trial court held that there is no justification or any reason stated by the plaintiff for not initiating any steps for recovery of the document till January 1989 though he came back to Kerala on 28.4.1987. The trial court also held that the version of the plaintiff regarding his S.A.No.207 Of 1999 ::7:: attempts to locate the document is full of contradictions and that the publication of Ext.A1 notice was purposely made by the plaintiff for the purpose of the case alone and not at all with a sincere and earnest desire to get back the documents. Both the trial court as well as the lower appellate court examined all the facts and circumstances leading to the missing of the document alleged by the plaintiff in the plaint and as PW1. The entire matter was examined in detail for the purpose of finding as to whether the plaintiff is entitled to the relief of mandatory injunction prayed for. The courts below on evidence held that it is clear that the plaintiff was aware of the various business transactions of George Philip and associates but he himself was also a partner of the business in many transactions. Both courts found that there was a hide and seek play by George Philip and his associates in availing loan facility from the defendant bank and that the plaintiff was having full knowledge of the transaction by which loan was sanctioned on the basis of document in question and therefore the courts below concluded that the transaction took place with the clear consent of the plaintiff. The S.A.No.207 Of 1999 ::8:: courts below on facts found that the plaintiff has no case that the document in question reached the hands of the defendant bank on account of any fraud or illegal acts on the part of the defendant bank and on the other hand, the plaintiff could not disprove the allegation of the defendant bank that fraud has been payed in availing the loan on the basis of the document in question. The case has been decided on the basis of facts, evidence and attendant circumstances. There is a full fledged discussion on facts and circumstances by the courts below. No valid grounds are made out by the appellant to interfere with the findings of facts recorded by the courts below. No question of law muchless any substantial question of law arises for consideration in this appeal. In the result, the appeal fails and accordingly, dismissed. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-