IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 W.P(C).No. 27573 of 2008(G) ------------------------------------ AGAINST THE ORDER IN E.P NO.23/2007 IN O.S.NO.14/1991 OF SUB COURT, MANJERI .................... PETITIONER : -------------------- N.PONNAMMA, PROPRIETRIX, EMBASSY OIL MILL, P.O. ARIMANAL, MALAPPURAM DISTRICT. BY ADV. SMT.N.PONNAMMA (PARTY-IN-PERSON). SMT.C.G.PREETHA (AMICUS CURIAE) RESPONDENT : ----------------------- CANARA BANK, MANAGER, WANDOOR BRANCH, WANDOOR, MALAPPURAM DIST. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ------------------------------------- W.P(c) No. 27573 of 2008 ---------------------------- Dated this the 26th day of November, 2008 ORDER The judgment debtor in E.P. No.23 of 2007 in O.S. No.14 of 1991 on the file of the Sub Court, Manjeri is the petitioner. The reliefs prayed for in this writ petition are manifold. The petitioner prays for an opportunity to get a correct enquiry report in Crime No. 420 of 2007 of Vandoor Police Station in Malappuram District registered under Exhibit P3 F.I.R, against the Manager of the Vandoor branch of Canara Bank he having cheated her without disbursing the sanctioned loan amount or amounts at the appropriate time and having falsified the accounts and instituted the suit before the Sub Court for recovery of amounts from her, to stay the revenue recovery proceedings for recovery of amounts allegedly due to the respondent bank and to stay the proceedings in Ext.P1 execution petition in E.P. 23 of 2007 in O.S No. 14 of 1991 aforesaid. 2. Exhibit P4 is the judgment in O.S. No. 14 of 1991. The decreetal portion of the judgment is as follows; “In the result, the suit is decreed. The plaintiff is allowed to realise an amount of Rs. 1,23,102.63 with interest at the rate of W.P(c) No. 27573/ 2008 2 14% per annum from the date of the suit till the date of realisation and also a further amount of Rs.12,418.39 with interest at the rate of 15% per annum from the date of the suit till the date of realisation with the costs of the suit from the defendants and their assets and also by sale of the plaint schedule property.” 3. Thus going by decree in the suit, the respondent/decree holder can have the relief of recovery of Rs.1,23,102.63 with 14% interest per annum from the date of suit (10/01/1991) till the date of realisation and a further amount of Rs.12,418.39 with interest at the rate of 15% per annum from the date of suit (10/01/1991) till the date of realisation with the cost of the suit from the defendants and their assets and also by sale of the schedule properties. 4. Exhibit P1 is the copy of the execution petition. The amount claimed as against column 9 in the execution petition is Rs.1,46,357.02 as the amount allowed by the decree to be recovered. Counsel for the respondent/decree holder submits that there is principal amount under two counts namely Rs.1,23,102.63 and Rs.12,418.39. When those amounts are added it comes to Rs.1,35,521.02 only and not Rs. 1,46,357.02 . The W.P(c) No. 27573/ 2008 3 interest claimed also is found to be not tallying and is not consistent with the decreetal portion of the judgment extracted above. Cumulatively the claim in the E.P. is for a total amount of Rs.4,49,803. 52. 5. The second judgment debtor is the husband of the first judgment debtor and it is submitted that he is no more. With the result decree is sought to be executed as against only the first judgment debtor, proprietrix of the Embassy Oil Mill at Arimanal in kalikavu amsom, for starting which business the judgment debtors availed of a loan from the bank, consequent on sponsoring by the District Industries Centre. It is submitted that the District Industries Centre, Malappuram has sanctioned a total amount of Rs.56,950/- and that was to be disbursed through the decree holder bank, but the bank which received the amount has disbursed only an amount of Rs.33,428/- to the petitioner. It is further submitted that the loans sanctioned by the bank on 20/10/1986, 30/11/1987 and 28/04/1989 are respectively for Rs.61,000/- Rs.80,000/-and Rs.1,00,000/- making a grand total of Rs.2,41,000/- whereas the total amount disbursed to the petitioner by the bank is only Rs.87,360/- which takes in Rs.42,260/- for the construction of Embassy Oil Mill building, Rs.31,300/- for the purchase of machinery by making payments direct to the suppliers and an amount of W.P(c) No. 27573/ 2008 4 Rs.8,800/- by way of working capital. No further amount has been paid and they have disabled the petitioner from commencing production by withholding the balance loan amount though machineries had been installed as per the scheme proposed to the District Industries office under the self employment scheme registering it as an S.S.I. Unit. 6. It is the further contention of the petitioner that the Oil Mill building, the machinery and accessories were all insured by the bank with New India Assurance Company availing of amounts from the loan sanctioned or from the subsidy granted by the District Industries Centre of which she was not given any details of the amounts paid to the Insurance Company but that however consequent on the mishap, by collapse of the building in heavy rain in 1995, the bank failed to claim the insurance amount from the Insurance Company, which if claimed would have discharged the entire debt as even the eligible amount had not been disbursed and only a small portion of the amount of the loan was disbursed to the petitioner. Counsel for the respondent/decree holder submits that the policy taken by the bank was only a fire policy and therefore, the insurance will not cover the destruction of the building and machinery in heavy rains or floods. It is not in dispute before me that the bank insures the building W.P(c) No. 27573/ 2008 5 and machinery for the purpose of securing their debt, even in the event of any destruction being caused to the mill and the machinery. If that be so, there was no purpose for the bank to appropriate the amount from the loan amount due to the petitioner and insuring the mill and its machineries only against the fire mishap at the whims and fancies of the Manager of the bank. Amounts due to the petitioner from the sanctioned loan amount was being dealt with and appropriated by the bank manager in a quicksotic manner, in utter disregard of the rights of the petitioner who has availed of a loan under the self employment scheme for starting a business registering it as an S.S.I. Unit with the Industries Centre. Thus, this is a case where the concerned Manager of the bank at the relevant time has acted to the detriment of the petitioner and has rendered it impossible for the petitioner to start industry as proposed, without disbursing the entire amount sanctioned and has damnified her by not claiming the insurance amount or not insuring the mill against all risks despite appropriation of amounts from the loan amount towards payment of insurance premium. It does not appear that all the matters were highlighted before the trial court by the petitioner, who is a hapless widow and the respondent bank was successful in obtaining the decree which if properly contested the Bank would not have been able to W.P(c) No. 27573/ 2008 6 obtain. However, the petitioner has not assailed the decree in appeal and consequently there is limit to which this court can interfere to redress her grievance. 7. If so advised the petitioner may prefer an appeal with a petition to condone the delay stating all these facts and highlighting her grievances before the appellate court to have the delay condoned. As far as the reliefs sought for in this writ petition are concerned, I direct the Superintendent of Police, Malappuram to cause investigation of Crime No.420 of 2007 of Vandoor Police Station being expedited and final report being filed at least within six months from today. I also order that in view of the decree obtained by the respondent bank through Civil Court they shall not be entitled to proceed to recover any amount by way of revenue recovery from the petitioner. The E.P having been filed in the court below with false statement of account or incorrect statement of accounts, the execution court shall not allow execution to be proceeded with on the basis of the statement of accounts furnished in the E.P and shall insist the decree holder to file fresh statement of amounts due and to produce the copy of judgment in O.S. No.14 of 1991 as it is pointed out by the petitioner that the decree is not consistent with the judgment. In case the decree is not consistent with W.P(c) No. 27573/ 2008 7 the judgment, no execution shall be allowed to be proceeded with, unless the decree holder files an execution petition with a corrected copy of decree consistent with the judgment in the suit. With the above directions, I dispose of this writ petition. K.P. BALACHANDRAN, JUDGE scm