IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932 AS.No. 595 of 2000(F) ------------------------------- (OS.NO.47/1985 OF SUB COURT,THODUPUZHA) .................... APPELLANT/3RD DEFENDANT: -------------------------------------------- T.K. NARAYANAN, AGED 65 YEARS, THOTTUMCHIRA HOUSE, RAJAKKAD, IDUKKI DISTRICT. BY ADVS. SRI.K.K.CHANDRAN PILLAI, SMT. JOMY GEORGE. RESPONDENTS/PLAINTIFFS AND DEFENDANTS NO.1 AND 2: ---------------------------------------------------------------------------------------- 1. UNION BANK OF INDIA, H.O. BOMBAY. 2. R.P. DASADHARAN, AGED 50 YEARS, RESIDING IN NO. 27, PALLIVASAL STREET, BODINAIKANNOOR. 3. R.P. SANKARA KANNAN, AGED 52 YEARS, RESIDING IN NO.27, PALLIVASAL STREET, BODINAIKANNOOR. R1 BY ADV. SRI.O.RAMACHANDRAN NAMBIAR. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 27/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N. KRISHNAN, J. = = = = = = = = = = = A.S. No. 595 OF 2000 = = = = = = = = == = DATED THIS, THE 27TH DAY OF JULY, 2010. J U D G M E N T This is an appeal preferred by the third defendant in O.S.47 of 1985 on the file of the Subordinate Judge's Court, Thodupuzha. The suit was one for realisation of amount with interest and cost by sale of the mortgaged properties and from the defendants. The trial court granted a decree allowing the plaintiff to recover a sum of Rs. 26,338/- with 15% future interest thereon from the date of suit till realisation and costs by sale of the plaint schedule properties and from defendants 1 to 3. 2. The main contention of the third defendant before me is that the principal borrower is the first defendant. A decree has been passed against him as well and there are properties belonging to him which is described as A schedule and there is a mortgage decree with respect to that A schedule. But the Bank has not proceeded against the same and now they are only after the property of the third defendant. Learned counsel would very persuasively submit before me that the appellant is almost 85 years old and is an illiterate person and that he has been dragged into this transaction. Legally when it is proved that he is a party to the transaction and his A.S.595/2000 2 property is given as a security, he cannot escape from the liability. The trial court, after exhaustive consideration of the materials on record, held against him and his properties. I am afraid that the third defendant cannot succeed in getting that decision reversed. Therefore, the only point that arises is whether any leniency can be shown considering the peculiar facts and circumstances of the case. The third defendant is old and he has not enjoyed the usufructs of the loan whereas it has been enjoyed by the first defendant. The Bank did not proceed against the first defendant for realisation of the amount by sale of the property. Therefore, I feel that some concession in interest invoking Section 34 of the Code of Civil Procedure can be granted by reducing the rate of interest to 6% from the date of decree instead of 15%. When it is done, for the amount of Rs. 26,338/- for 21 years up to 30.9.2010, the interest would come to Rs. 33,185/- which when added would make a total of Rs. 59,523/-. If this amount is paid within a period of four months from today, the whole transaction as against the third defendant can be closed. If he fails to pay the amount within the aforesaid four months, then I direct him to pay interest at the rate of 12% on the amount instead of 6% granted by me. I also make it clear that fixation of time for payment of money will not be extended by this Court or by the court below on any ground. It is needless to say that the third defendant has A.S.595/2000 3 to pay the proportionate cost as well. 3. Therefore, the judgment and decree of the trial court is modified, so far as it relates to the third defendant and the third defendant is directed to pay an amount of Rs. 59,523/- (Rupees fifty nine thousand five hundred and twenty three only) with proportionate cost to the plaintiff Bank within a period of four months from today failing which the Bank will be entitled to realise the amount of Rs. 26,338/- with 12% interest from the date of suit till realisation with costs. I also make it clear that no extension of time will be granted for the amount ordered to be paid in the light of the concession granted to the third defendant. M.N. KRISHNAN, (JUDGE) KNC/- A.S.595/2000 4 M.N. KRISHNAN, J. = = = = = = = = = = = A.S. No. 595 OF 2000 = = = = = = = = == = DATED : 27TH JULY, 2010. J U D G M E N T