IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 RSA.No. 484 of 2008() --------------------- AS.218/2006 of ADDL. DISTRICT COURT, NORTH PARAVUR OS.296/1997 of ADDL.SUB COURT,NORTH PARAVUR .................... APPELLANT/APPELLANT/DEFENDANT ----------------------------------------------------------- MATHEW SEBASTIAN, S/O. DEVASSY, AGED 45, KOORAN VEETIL, PERUMPADANNA MURI, PARAVUR VILLAGE, PARAVUR TALUK. BY ADV. SRI.S.B.PREMACHANDRA PRABHU RESPONDENTS/ RESPONDENTS/PLAINTIFFS -------------------------------------- 1. M. SOORY, AGED 55, S/O. MADHAVAN, KARIPPAYIL HOUSE, CHENGAMANGALAM VILLAGE, PARAVUR TALUK, REP. BY AGENT SHEELA SOORI, D/O.K.N. SREEDHARAN, LAL NIVAS, MANNAM, PARAVOOTHARA MURI, PARAVUR. 2. SHEELA SOORI, D/O. K.N. SREEDHARAN, LAL NIVAS, MANNAM PARAVOOTHARA MURI, PARAVUR VILLAGE, PARAVUR TALUK. ADV. SRI.DINESH R.SHENOY FOR R1 & 2 SRI.A.JOSEPH GEORGE FOR R1 & 2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 484 of 2008 ---------------------------------------- Dated this the 23rd day of July, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. No.218/2006 on the file of the Additional District judge North Paravur, which arises from the judgment and decree in O.S. No.296/1997 on the file of the Additional Sub court, North Paravur. The suit was filed for realisation of money due from the defendant in the suit as per agreement and also for consequential permanent prohibitory injunction. . The trial court partly decreed the suit allowing the plaintiffs to realise Rs.66,462/- with 12% interest from 5.9.1997 till the amount is realised from the defendant in the Suit, and his assets. The lower appellate court modified the trial court's decree on the basis of a concession extended by the learned counsel for the plaintiffs. The learned counsel for the plaintiffs in order to avoid further litigations submitted that his clients are willing to deduct Rs. 7,950/- from the decree amount. Thus a modified decree was passed reducing the amount from 66,462/- to 58,512/- with interest at the rate of 12% from 5-9-1997 till the date of recovery from the defendant. Not being satisfied with the modification by the lower appellate court the defendant filed the Second Appeal. The parties hereinafter referred to as plaintiffs and defendant. The counsel for the defendant/appellant raised several grounds in this Second Appeal which were urged at the time of hearing the first appeal. I have heard the counsel for the plaintiffs and defendant. I find -2- that the grounds urged by the defendant/appellant does not merit consideration for invoking the jurisdiction of this Court under Section 100 C.P.C. The question whether the plaintiffs are entitled to realise any amount from the defendant with interest, and the further question whether the plaintiffs are justified in rescinding the contract, are decided on the basis of facts, evidence and circumstances. The courts below also rightly decided whether the plaintiffs are entitled to get the relief of permanent prohibitory injunction and whether the defendant is entitled to realise the amount claimed in the counter claim, on the basis of the facts evidence and circumstances and therefore I cannot take a different view from the views taken by the fact finding courts. The only other contention raised by the learned counsel for the defendant/appellant is that the grant of 12% interest from 5.9.1997 till the date of realisation may be modified for the reason that the award of 12% interest rate after the date of passing of the trial court's decree is bad in law. After hearing both sides I am of the view that the award of 12% interest rate shall be confined from 5.9.1997 till the date of passing of the trial court's decree and future interest will be at the rate of 6% till the date of realisation To the above extent, the lower appellate court's decree is modified. The Second Appeal is partly allowed. There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) es HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 484 of 2008 ---------------------------- JUDGMENT 23rd July, 2009