IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 18TH JULY 2011 / 27TH ASHADHA 1933 AS.No. 535 of 2000() -------------------- OS.786/1995 of ADDL.SUB COURT,KOTTAYAM .................... APPELLANT -------------- FR.K.V.JOSEPH, KALAPURACKAL HOUSE PUTHUPPALLY, KOTTAYAM BY ADV. SRI.JOSE PALLATTUKARAN RESPONDENTS: ---------------------- 1. THE OFFICIAL RECEIVER, DISTRICT COURT, KOTTAYAM 2. SAJAN K VARUGHESE, KANIRAKKATTU VEETTIL KOTTAYAM VILLAGE, KARAPPUZHA KARAPPUZ THIRUVATHUKKAL 3. THOMAS K.VARUGHESE OF -DO- 4. REJI K VARUGHESE OF -DO- 5. THE ORIENTAL FINANCE AND EXCHANGE COMPANY KOTTAYAM ADV. SRI.V.G.ARUN FOR R1 SRI.T.R.HARIKUMAR FOR R1 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 18.07.2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- SA No.535 of 2000-F ------------------------------------- Dated this the 18th day of July 2011 Judgment The first defendant in OS No.786/95 is the appellant. 2. IA No.1828/11 was filed in the appeal, seeking to delete the 5th respondent from the party array and the said IA has been allowed. 3. IP No.10/1987 was pending before the Sub Court, Kottayam in respect of Oriental Finance and Exchange Company. The plaintiff in the suit was appointed as Receiver in the said case. The Receiver had taken possession of the entire assets of the company. From the records, it was revealed that the first defendant had availed a loan of Rs.23,000/- from the company and had executed a promissory note, agreeing to repay the amount on demand. The plaint also stated that 12% interest was also due from the first defendant. The amount was not repaid SA 535/00 2 by the defendant and hence the suit. 4. The first defendant alone contested the suit. He denied the execution of promissory note and pointed out that he had deposited an amount of Rs.25,000/- with the company on 23.08.1986 and he had withdrawn Rs.23,000/- from the said deposit on 01.04.1987. At the time of withdrawing the amount, the company had obtained some signed blank papers from the first defendant and according to him, those papers have been concocted by the officers of the company to draw up the promissory note. On the basis of these contentions, the first defendant prayed for dismissal of the suit. 5. On the pleadings, the trial court raised necessary issues for consideration. The evidence consists of document marked as Ext.A1 from the side of the plaintiff. The defendants examined DW1 and had Exts.B1 and B1(a) marked. 6. The lower court found that if the amount as claimed by the first defendant is deposited i the company, SA 535/00 3 the first defendant has to approach the Insolvency court and make the necessary claim. It also held that the first defendant had availed a loan of Rs.23,000/- from the company as evidenced by Ext.A1. A decree followed. The question is whether the lower appellate court was justified in granting a decree as prayed for. 7. The learned counsel for the appellant pointed out that there is violation of Rule 327(2) of the Civil Rules of Practice. It was also contended that the appellant had deposited Rs.25,000/- with the company and if that be so, that amount should have been adjusted towards the loan taken by him. The lower court has not considered these aspects and therefore, the decree is vitiated. 8. The above arguments are without any basis whatsoever. Rule 327(2) can have no application to the facts of this case. The lower court has held that if the plaintiff has got a contention that the amount deposited by him with the company has to be adjusted towards the loan amount, he is entitled to raise the said contention before SA 535/00 4 the Insolvency Court. The lower court has taken care to fix the interest rate @ 8.5% per annum from 1.4.1987 till the date of decree and @ 6% thereafter, till the date of realisation as Ext.A1 did not contain any rate of interest. The lower court was perfectly justified in granting a decree in favour of the plaintiff. No grounds are made out warranting interference with the judgment and decree of the court below. The appeal is without any merits and it is accordingly dismissed. There will be no order as to costs. P.Bhavadasan, Judge sta SA 535/00 5