IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 AS.No. 713 of 1996() -------------------- OS.147/1991 of PRL.SUB COURT, THIRUVANANTHAPURAM .................... APPELLANTS/PLAINTIFFS: ---------------------------------------- 1. S. INDIRA, WIFE OF V. SREEKUMARAN NAIR, NOW RESIDING AT SREE RAMYAM, K.P. VIII/673, CHOOZHAMPALA, MUKKOLA P.O., THIRUVANANTHAPURAM-695 003. 2. V. SREEKUMARAN NAIR, RESIDING AT DO. DO. BY ADV. SRI.A.N.KUTTAN, SRI.R. SANKARAN. RESPONDENTS/DEFENDANTS: --------------------------------------------- 1. THE SYNDICATE BANK, HEAD OFFICE, MANIPAL, REPRESENTED BY ITS CHAIRMAN, KARNATAKA. 2. THE MANAGER, SYNDICATE BANK (ALL LADIES BRANCH), OVERBRIDGE, THIRUVANANTHAPURAM. BY ADV. SRI.R.S.KALKURA, SRI.P.C.HARIDAS. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 16/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. ........................................... A.S.NO.713 OF 1996 ............................................. Dated this the 16th day of June, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Thiruvananthapuram in O.S.No.147/1991. The suit is one for realisation of the amount of Rs.51,724/= due to the plaintiffs from the defendants. The case of the plaintiffs is that they had pledged 70 grams of jewels with a bank which had been illegally auctioned and adjusted by the defendants. Similarly, value of the insurance policy had been wrongly surrendered and finally the amount due under the Adarsa Deposit Scheme has also been not given. 2. On the other hand the defendants would contend that the plaintiffs had taken a loan from the bank by pledging the ornaments and had also executed an agreement whereby they have accepted and acknowledged the bankers' general lein over the property. 3. The learned trial judge after consideration of the materials had dismissed the suit. it is against that decision : 2 : A.S.NO.713 OF 1996 the plaintiffs have come up in appeal 4. Heard the learned counsel for both sides. The point that arises for determination in the appeal is whether there is anything to interfere with the decision rendered by the trial court. It can be seen that the plaintiffs were conducting a medical shop and for the said purpose, they had availed a loan from the bank. The building in which the medical shop was run had been acquired by the Government and therefore it became impossible for them to conduct the business. In spite of notice the plaintiffs did not take adequate steps to shift their place of business nor did take any care even to save the medicines which they have kept and ultimately the Drugs Inspector has to take the same from the road and produce before the court. The bank also moved a suit for realisation of the amount which ended in decree. It is true that there was an Adarsa Deposit Scheme and amounts were due to the plaintiffs from the same. As early as on 24.10.1983 the amount was credited to the loan account and thus the Adarsa Deposit Scheme was closed. The closure was as early as on 24.10.1983 and : 3 : A.S.NO.713 OF 1996 the plaintiffs did not move their little finger regarding the claim. Therefore, the plaintiffs were conscious about Adarsa Deposit Scheme and only by virtue of the terms and conditions of the loan availed of by them, it has been credited to the loan account and therefore, finding of the trial court that the bank is entitled to credit to the loan account as well as the finding that the claim is barred by limitation is only in order. 5. The second point is with respect to the pledging of 70 grams of gold on two different occasions. It was altogether for a different transaction and since the plaintiffs did not redeem it in time, the bank had to conduct an auction and the amount derived from the auction had been adjusted towards the loan transaction relating to the pledge and balance had been made over the loan account and appropriated towards the amount due to the bank. This also cannot be found fault with as the bankers general lein permits the same. 6. The third point is regarding the Life Insurance Corporation. As soon as the loan transaction became : 4 : A.S.NO.713 OF 1996 incapable of being continued on account of the closure of the business, the defendants had surrendered the policy as per the Rules and therefore it cannot be found fault with. It is contended that the bank has not properly taken any action with respect to the hypotheca and therefore it has resulted in loss to the plaintiffs. It has to be stated that it was the plaintiffs who had obtained the premises and the materials revealed that hypotheca was taken from the road with the help of a Drugs Inspector and produced before the court. The bank authorities also moved an application in the suit for selling of the hypotheca and as the court below has correctly stated, without the permission of the court it cannot be sold as such. So the bank had not acted negligently regarding the hypotheca as well. It has to be stated that the plaintiffs in the suit had executed an agreement which is Ext.B3 wherein it is undertaken that “the borrowers do hereby agree to execute an irrevocable power of attorney in favour of the bank for collecting all the monies receivable as aforesaid and appropriate the same towards the dues due to the bank”. So when an amount is due from the plaintiffs : 5 : A.S.NO.713 OF 1996 to the bank, it is entitled to adjust the said amount towards the loan transaction. By virtue of this provision, the bank is entitled to claim lein and adjust the amount in the account. Therefore the bank has only done in accordance with law and therefore it cannot be found fault with. So from these discussions, I hold that the judgment and decree of the trial court do not call for any interference and therefore, the appeal fails and the same is dismissed but under circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. cl : 6 : A.S.NO.713 OF 1996 M.N. KRISHNAN, J. . .......................................... A.S.NO.713 OF 1996 ............................................. 16th day of June, 2010. J U D G M E N T