IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 RSA.No. 928 of 2010() --------------------- AS.91/2006 of I ADDL.DISTRICT COURT, ERNAKULAM OS.417/2002 of II ADDL.MUNSIFF COURT, ERNAKULAM .................... (S): APPELLANTS/APPELLANTS/PLAINTIFFS ---------------------------------------------------- 1. M.P.MATHAI,S/O.PAULOSE, MOOLAN HOUSE, PEECHANIKKADU,PULIYANAM PO, ANGAMALI. 2. M.P.BABU,S/O.PAULOSE, MOOLAN HOUSE, PEECHANIKKADU,PULIYANAM PO, ANGAMALI. BY ADV. SRI.BIJU ABRAHAM RESPONDENT(S): RESPONDENT/DEFENDANT ----------------------------------- GREATER COCHIN DEVELOPMENT AUTHORITY, COCHIN 20, REPRESENTED BY ITS SECRETARY. ADV. SRI.M.K.THANKAPPAN, SC, GCDA THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ---------------------------------------- R.S.A No. 928 OF 2010 --------------------------------------- Dated this 22nd day of November, 2010 JUDGMENT Plaintiffs are appellants. Suit was one for injunction, both prohibitory and mandatory. Plaintiffs are the owners of the plaint schedule property having an extent of 95.614 cents comprised in Parakaramkulangara South village, Aluva. To put up a residential accommodation in that property, plaintiffs availed a loan agreeing to discharge the same in monthly instalments as agreed upon. Since there was default in repayment of the loan, the defendant initiated proceedings for recovery, which included steps against the plaint property under the Revenue Recovery Act. Plaintiffs laid the suit disputing the claim made by the defendant as the balance amount due, seeking a perpetual prohibitory injunction to restrain the defendant from interfering with their enjoyment over the plaint property and also for a decree of mandatory injunction to return the original documents relating to the property. Suit claim was resisted by the defendant, in which, among other contentions, it was also contended that the plaintiffs have earlier moved this court for almost the identical reliefs canvassed in the suit and in such petition, an opportunity was extended to the plaintiffs to discharge the loan amount permitting them to verify the accounts maintained R.S.A No.928 of 2010 : 2 : to ascertain the outstanding sum due on the loan amount. Though such an opportunity was extended and also for hearing him as well, the repayment of the loan was defaulted despite promising to discharge the sum within one week. Only after discharge of the loan, the defendant is liable to return the document received as security had been canvassed to contend that the plaintiffs are not entitled to the discretionary relief canvassed for. On the materials placed by both sides, the trial court found merit in the contentions raised by the defendant and concluded, the plaintiff is not entitled to the equitable reliefs raised in the suit. Suit being dismissed by the trial court, plaintiffs preferred an appeal. The lower appellate court, after reappreciating the materials, concurring with the finding entered by the trial court, negatived the appeal. Feeling aggrieved by the concurrent decision so rendered by the two courts below, plaintiffs have preferred this appeal. 2. Notice being given, the respondent/defendant has entered appearance. I heard the counsel on both sides. Having regard to the submissions made with reference to the judgments rendered by the two courts below, I find that the conclusion formed by the courts below is based on disputed questions of fact as to whether the plaintiffs are entitled to the discretionary relief of injunction canvassed in the suit. The dispute mainly centered around the R.S.A No.928 of 2010 : 3 : question whether the loan amount due from the plaintiffs as claimed by the defendant is proper and correct. Whereas the plaintiffs have set up a case that they have made payments sufficient to discharge the loan amount the defendant contended that the remittance made by the plaintiffs has to be adjusted as per the terms of the agreement relating to the loan advanced. Perusing the judgment rendered by this court in Writ Appeal No.2453/2007 dated 02/07/2009, it is seen, the same issue was agitated in the Writ Appeal as well and it has been held that going by the conditions of the allotment, the defendant cannot be found fault with in its demands raised as per the agreement. After taking note of the challenges raised by the plaintiffs, this court had accorded an opportunity to them for verification of the accounts maintained by the defendant authority to satisfy themselves as to what is the outstanding amount due on the loan. When such be the case, the suit filed before the court seeking the decretionary relief of injunction, both prohibitory and mandatory, in the given facts of the case was rightly and correctly negatived by both the courts. I find no question of law leave alone any substantial question of law is involved in the appeal. However, at the time of hearing, the learned counsel for the defendant authority fairly submitted that if any representation is moved by the appellants/plaintiffs before the R.S.A No.928 of 2010 : 4 : authority, whatever concession that could be granted will be provided in accordance with the rules, provided, such a representation is filed within a period of one month from today. Submission made by the counsel as above is recorded. It is open to the appellants to avail the opportunity so graciously extended by the respondent, if so advised. Subject to the reservation as indicated above, the appeal is dismissed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge vdv