IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 5TH AUGUST 2010 / 14TH SRAVANA 1932 WP(C).No. 19613 of 2010(B) ---------------------------------------- PETITIONER(S): ----------------------- M/S.NELLAI SONS, REP. BY ITS PARTNER N.PADMANABHAN, RESIDING AT MACHUNGAL VEEDU, NORTH OF IRON BRIDGE, ALAPPUZHA. BY ADV. SRI.K.V.SADANANDA PRABHU RESPONDENT(S): --------------------------- THE KERALA FINANCIAL CORPORATION, THIRUVANANTHAPURAM. REP. BY ITS BRANCH MANAGER, ALAPPUZHA. BY ADV. SRI.A.A.ABUL HASSAN, SC, KFC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S. SIRI JAGAN, J. ---------------------- W.P.(C). No. 19613 of 2010 ------------------------------------ Dated this the 5th day of August, 2010 JUDGMENT The petitioner borrowed amounts from the Kerala Financial Corporation. He defaulted repayment. A suit was filed, which was decreed and execution was taken out by the respondent. The amounts were paid by the petitioner. There was a dispute as to whether the petitioner had paid the entire amount. Ultimately, the lower court, namely, the additional District Court, Alappuzha, considered the execution petition and passed Ext.P1 order, wherein the District court found that petitioner had paid the entire decree debt, which was recorded. But the District Court directed the petitioner to pay an amount of Rs. 5,000/- as costs. Petitioner has now produced Ext.P4 receipt for payment of that amount also. Petitioner's grievance now is that the security documents furnished by the petitioner as security for repayment of the loan amount is not being returned despite discharge of the debt. The petitioner, therefore, seeks the following reliefs: W.P.(C). No. 19613 / 2010 2 i) To issue a writ or other order in the nature of mandamus directing the respondents to return the title deeds if need be after registering the release deed in accordance with the law. ii) To grant such other and further reliefs as are just and essential in the circumstances of the case with cost of this petitioner. 2. The respondent has filed a counter affidavit taking the contention that the petitioner is still liable to pay an amount of Rs.62330/-, which represents Rs. 36,000/- short paid and interest thereof. Therefore, the stand of the respondent is that unless the petitioner pays a further amount of Rs. 62,330/-, the security documents cannot be returned to the petitioner. 3. I have considered the rival contentions in detail. In Ext.P1 order, the District Court held thus: “Heard both sides. I have perused the statement filed by both sides. As per the statement filed by the D.H. on 27.02.2008 the balance payable is Rs. 814779.62. As per the statement filed by the J.D as on 03.03.2008 the balance payable was Rs.753125/-. On 17.03.2008 a sum of Rs.5,00,000/-(Five lakh only) was paid which was received by the counsel on behalf of the D.H as per Memo dated 17.03.2008. On 27.03.2008 again a sum of Rs.253125/-(Rs.Two lakh fifty three thousand one hundred and twenty five only) was paid by the J.D which was received by the counsel on W.P.(C). No. 19613 / 2010 3 behalf of the D.H as per Memo dated 27.03.2008. By virtue of these two payments the J.D had paid the entire decree amount according to the learned counsel for the J.D. Both statements have been filed taking interest at 11% simple. After verifying the statement filed the D.H. I noticed that 5 payments aggregating to Rs. 36,000/- were not given credit to. I have verified the receipts for the above payments. These payments were not incorporated in the statement of the D.H due to an oversight. BY giving credit to the above amount it can be seen that the J.D. had paid the entire decree amount less costs. It is made clear here that the J.D is not bound to pay interest on delayed credit of payments. If so it has to be found that the J.D had paid the entire decree debt less costs. The cost claimed is only Rs. 329/-. The D.H is also not entitled to claim cost by including the same in the statement of account. It is an amount to be allowed by the court. Considering the whole matter and after hearing both sides, I feel that the cost of Rs. 5000/- can be allowed to the D.H. This is the only amount that is now payable by the J.D. This amount are J.D. will pay within one week with this payment full satisfaction of the decree has to be recorded. For payment of cost of Rs.5000/- to 23.06.2008.” 4. That order has not been challenged by the respondent. Therefore, as on today, the respondent is bound by Ext.P1 order of the District court, which categorically holds that the petitioner has paid the entire decree debt less costs. The petitioner has produced receipt for payment of the costs of Rs.5,000/- also. W.P.(C). No. 19613 / 2010 4 That being so, unless Ext.P1 is set aside, the respondent cannot insist on the petitioner paying any further amount as per the decree. Therefore, the respondent is liable to return the security documents furnished by the petitioner as security for the repayment of the loan amount. Accordingly, this writ petition is allowed and the respondent is directed to return the title deeds of the properties given as security for repayment of the loan amount taken by the petitioner and release the charge in respect of thereof as expeditiously. The title deeds shall be returned within a period of two weeks from the date of receipt of a copy of this judgement and the release deed shall be executed as expeditiously as possible at any rate within a period of two months from the date of receipt of a copy of this judgement. S. SIRI JAGAN, JUDGE. ln