IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 AS.No. 333 of 1994() ------------------------------- OS.738/1989 of PRL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): / IST DEFENDANT ------------------------------------------------ *N.VARGHESE, AGED 44 YEARS, RESIDING AT VENCODE VADAKANKARA PUTHEN VEEDU, PANACHAMOODU POST, VELLARADA, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. *ADDL. APPELLANT IMPLEADED. 2. JAGADAM.K., W/O. LATE N.VARGHESE, VENCODE VADAKKUMKARA PUTHEN VEEDU, PANACHAMOODU P.O., THIRUVANANTHAPURAM (DT.) 2. FRAGLE ROBERT, VENCODE VADAKKUMKARA, PUTHEN VEEDU, PANCHAMOODU P.O., THIRUVANANTHAPURAM (DIST). 4. FRANCO ROY, VENCODE VADAKKUMKARA, PUTHEN VEEDU, PANACHAMOODU P.O., THIRUVANANTHAPURAM DIST. 5. PREM RUBY, VENCODE VADAKKUMKARA, PUTHEN VEEDU, PANACHAMOODU P.O., THIRUVANANTHAPURAM DIST. *ADDL. APPELLANTS 2 TO 5 ARE IMPLEADED AS THE LEGAL REPRESENTATIVE OF THE DECEASED APPELLANT AS PER ORDER DTD. 9.2.1999 ON CMP. 620/1999. BY ADVS. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.S.P.ARAVINDAKSHAN PILLAI SRI.PIRAPPANCODE V.S.SUDHEER A.S. NO.333/1994 RESPONDENT(S): PLAINTIFF & DEFENDANTS 2 TO 4 ------------------------------------------------------------------------------ 1. CENTRAL BANK OF INDIA, PULIYOORSALAI BRANCH, REP.BY ITS POWER OF ATTORNEY SRI. D.GOPALAKRISHNAN, AGED 45, REGIONAL MANAGER, CENTRAL BANK OF INDIA, RAJDHANI BUILDING, FORT, THIRUVANANTHAPURAM. *2. U.MYTHEEN KHAN ALIAS MYTHEEN KANNU, AGED 40 YEARS, RESIDING AT UMAIKA NILAYAM, PANACHAMOODU P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. (DIED) 3. K.ACHUTHAN NADAR, AGED 60 YEARS, RESIDING AT VENCODE THEKKUMKARA CHARINANAVILAI PUTHEN VEEDU, CHERIAKOLLA P.O., KARAKONAM VIA, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. **4. JUSTUS, PANCHAYAT MEMBER, GREE FIELD HOUSE, KATHIPARAI P.O., KERALA STATE. (DELETED) *ADDL. RESPONDENTS 5 TO 7 IMPLEADED. 5. HABEEBA BEEVI, W/O. U,MYTHEEN KHAN, ALIAS MYTHEEN KANNU, RESIDING AT UMAIKA NILAYAM,, PANACHAMOODU P.O. NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. 6. KAMAR, S/O. U.MYTHEEN KHAN ALIAS MYTHEEN KANNU, RESIDING AT UMAIKA NILAYAM, PANACHAMOODU P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. A.S. NO.333/1994 *7. SUBAIR, S/O. MYTHEEN KHAN, ALIAS MYTHEEN KANNU, RESIDING AT UMAIKA NILAYAM, PANACHAMOODU P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. * ADDL. RESPONDENTS 5 TO 7 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED R2 AS PER ORDER DTD. 26.6.2009 IN CMP. 1692/01. ** THE 4TH RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER ORDER DTD. 25.5.2001 ON CMP. 1363/2001. R1 BY ADVS.SRI. M.P.R.NAIR, SRI.DEVAN RAMACHANDRAN R3 BY ADV. SRI.M.BALAGOVINDAN, R2 TO R4 BY ADV. SRI.M.M.HUSAIN ADDL. R5 TO R7 BYADV. SRI. M.M.HUSSAI THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 21/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ---------------------------------------------------- A.S. NO.333 OF 1994 ---------------------------------- Dated this the 21st day of July, 2009 JUDGMENT THOTTATHIL B. RADHAKRISHNAN, J: The 1st defendant in a suit for recovery of money is the appellant. The plaintiff bank advanced a loan of Rs.1,80,000/- on 17.8.1982 to the 1st defendant for purchasing a truck. Defendants 2 and 3 are the guarantors. On default in repayment, the suit for recovery, including by relief against property, was filed. 2. Defendants 3 and 4 remain ex parte. 3. Defendants 1 and 2 filed written statements. First defendant pleaded that he had availed the loan and defendants 2 and 3 are the guarantors. However, he turned round to challenge the alleged equitable mortgage by depositing of title deeds. The 2nd defendant pleaded that he was only a surety to the transaction. 4. Apart from the contract documents and other documentary evidence admitted to file as Exts.A1 to A32, the agent of the plaintiff gave evidence as PW1 and the 1st defendant A.S. NO.333 OF 1994 2 deposed as DW1. 5. The court below held that the disbursement of the term loan is admitted and the suit is maintainable and not barred by limitation. The plea of the 1st defendant that equitable mortgage was not created was found against. Though the 1st defendant as DW1 denied his signatures, the said signatures essentially tallied with the admitted signatures. There was nothing left in favour of the contesting defendants. 6. Though the transaction was one in the nature of commercial loan, the court below, guided by the reported judgment of this Court in Divisional Manager, LIC of India v. Bhagavathi Amma, (1991 (2) KLT 522), held that the plaintiff is entitled to get interest only at the rate of 6% per annum. 7. With the aforesaid facts and circumstances and in the light of the evidence of DW1, the documentary evidence as also the evidence of PW1, we do not find any ground to interfere with the impugned decree. We may also note that the aforesaid precedent of this Court seems to be overruled by larger quorum. In the result, this appeal fails and the same is accordingly dismissed with costs of the 1st respondent/plaintiff. It is submitted by the learned counsel for the appellant that there was settlement talk between the parties and bank had A.S. NO.333 OF 1994 3 agreed to settle the transaction if a particular amount is paid to the bank. However, he does not know whether the matter was settled. We record these submissions. THOTTATHIL B. RADHAKRISHNAN, JUDGE S.S.SATHEESACHANDRAN, JUDGE. mns