IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 30TH NOVEMBER 2010 / 9TH AGRAHAYANA 1932 AS.No. 212 of 1995(C) -------------------------------- OS.46/1990 of SUB COURT, OTTAPPALAM .................... PLAINTIFF/APPELLANT: ---------------------------------- KARTHIYAYINI ALIAS KUNHIMALU AMMA, D/O.OORANDATH KALATHIL DEVAKI AMMA, MARAYAMANGALAM AMSOM AND DESOM IN OTTAPPALAM TALUK. BY ADV. SRI.A.P.CHANDRASEKHARAN, SMT.PRABHA R.MENON,K.PUSHPARAJAN, SRI.M.KRISHNA KUMAR,P.RAMACHANDRAN. RESPONDENTS/(DEFENDANTS 1 TO 20, 22 TO 24 & LRS OF DECEASED D21: ---------------------------------------------------------------------------------------------------------------- 1. AMINA, AGED 50 YEARS, W/O.LATE USSAN ALIAS VAPPU, RESIDING AT EZHUVANTHALA AMSOM, PATTISSERRI DESOM IN OTTAPPALAM TALUK. *2. BEEVI, W/O.LATE USSAN ALIAS VAPPU, -DO- -DO-. *(DELETED) 3. RUKHIYA, AGED 33 YEARS, D/O.VAPPU, -DO- -DO-. 4. MOIDEENKUTTY, AGED 30 YEARS, S/O. VAPPU, -DO- -DO-. 5. KADEEJA, D/O. VAPPU, -DO- -DO-. 6. MUHAMMED ISMAIL, S/O. VAPPU, -DO- -DO-. 7. MUHAMMED RAHMAN, S/O. VAPPU, -DO- -DO-. 8. MUHAMMED ALI, S/O.VAPPU, -DO- -DO-. 9. MUHAMMED HANEEFA, S/O. VAPPU, -DO- -DO-. AS.No. 212 of 1995(C) 10. ASIYA, D/O.VAPPU, -DO- -DO- 11. HUSSAIN ABDUL NAZAR, S/O.VAPPU, -DO- -DO-. 12. SAFIYA, D/O. VAPPU (MINOR). 13. VAHIDA RAHIMBAI, D/O. VAPPU (MINOR), -DO- -DO- 14. NAZEEMA, D/O. VAPPU (MINOR), -DO- -DO- 15. ABDUL HAMEED, S/O.VAPPU (MINOR) -DO- -DO-. 16. SULEENA, D/O. VAPPU (MINOR), -DO- -DO-. 17. PATHUMMA (MINOR), D/O. VAPPU, -DO- -DO-. 18. PHASMINA (MINOR), D/O. VAPPU, -DO- -DO-. 19. ABDUL KADER (MINOR), S/O.VAPPU, -DO- -DO-. 20. ALIPPU, AGED 50 YEARS, S/O. KADEEJA, -DO- -DO-. 21. MUHAMMED KUTTY, AGED 30 YEARS, S/O.KADEEJA, -DO- -DO-. *22. PATHUMMA, AGED 50 YEARS, D/O.KADEEJA, -DO- -DO-. *(DELETED) 23. KUNUTHUMMA ALIAS MALUMMA, AGED 37 YEARS, W/O.MUHAMMEDUPPA, PALATTUPARAMBU, KUTTIKODE HOUSE, P.O.TRIKKADERI, OTTAPPALAM TALUK. 24. KUNHATHU, AGED 50 YEARS, W/O.MOIDEEN, EZHUVANTHALA AMSOM, PATTISSERI DESOM, OTTAPPALAM TALUK. 25. KADEEJA, AGED 38 YEARS, D/O. MOIDEEN, -DO- -DO-. 26. KUNHIMON, AGED 35 YEARS, S/O.MOIDEEN, -DO- -DO-. 27. BASHEER, AGED 30 YEARS, S/O.MOIDEEN, -DO- -DO-. 28. NAZAR, AGED 28 YEARS, S/O.MOIDEEN, -DO- -DO-. 29. MARIA, AGED 35 YEARS, W/O.MUSA, -DO- -DO-. 30. USMAN ALIAS HUSSAIN, AGED 25 YEARS, S/O.MUSA, -DO- -DO-. 31. MUTHU ALIAS MOIDEEN, AGED 22 YEARS, S/O.MUSA, -DO- -DO-. AS.No. 212 of 1995(C) 32. SHOUKATHALI, AGED 20 YEARS, S/O.MUSA, -DO- -DO-. 33. NAMBRATHA, AGED 18 YEARS, D/O.MUSA, -DO- -DO-. 34. SHOUJATH, AGED 10 YEARS, S/O.MUSA, -DO- -DO-. 35. THE SECRETARY, VALLAPUZHA SERVICE CO-OPERATIVE BANK LTD., NELLAYA. 36. THE SECRETARY, CHERPLASSERRY CO-OPERATIVE URBAN BANK, CHERPLASSERRY. 37. THE MANAGER, VIJAYA BANK, NELLAYA (MINOR RESPONDENTS 12 TO 19 BY GUARDIAN, THE 4TH RESPONDENT AND MINOR RESPONDENT NO.34 BY GUARDIAN THE 29TH RESPONDENT). * RESPONDENTS 2 AND 22 ARE DELETED FROM THE PARTY ARRAY AT THE RSIK OF THE APPELLANT, VIDE ORDER DATED 23/11/2010 IN I.A.2585/2009. R20 BY ADV. SRI.JOJI VARGHESE. R35 BY ADV. SRI.G.PRABHAKARAN. R37 BY ADV. SRI.D.KRISHNAPRASAD. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 30/11/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 212 OF 1995 = = = = = = = = = = = = = = = Dated this the 30th day of November , 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Ottapalam in O.S.46/90. The suit is one for realisation of the amount and aggrieved by the decision of non-allowance of the entire amount the plaintiff has come up in appeal. The brief facts necessary for the disposal of the appeal are stated as follows. The plaintiff had assigned properties in favour of first defendant for a total consideration of Rs.21,000/-. While so assigning the amount of Rs.20792.25 which was due to the three institutions were reserved with the first defendant with the undertaking that he will discharge the amount. The plaintiff had only received a consideration of Rs.207/75. A.S. 212 OF 1995 -2- But due to the default of the first defendant the loan amount got enhanced to Rs.28,000/- besides that he had suffered Rs.5,000/- as loss on account of the mental agony. The plaintiff on receipt of the reply notice has come to understand that the defendant has raised the contention that he has paid Rs.5000.50 and Rs.4762.40 to the Bank but those amounts were paid by the first defendant only on receipt of the amount from the plaintiff and therefore that amount is also due to the plaintiff. Thus ultimately the plaintiff has claimed relief to an extent of Rs.45,000/-. 2. The defendants on the other hand would contend that it is not correct to hold that the plaintiff is entitled to recover so much of amount as claimed by him. Out of the loan amount the defendant had paid Rs.5000/- and A.S. 212 OF 1995 -3- Rs.4762/- and further the plaintiff has received another Rs.5,000/- from him and therefore the plaintiff is not entitled to the amount as claimed for. On a consideration of the entire materials the trial court has granted a decree for Rs.18,534.75 with certain stipulations regarding the period of interest. 3. Heard the learned counsel for the appellant as well as the respondent. Now admittedly an amount of Rs.20792.25 was due to the Banks on the date of execution of Ext.A1. There is a specific recital in the document that the first defendant had to deposit the amount and in the event of any damage, the plaintiff is entitled to claim the same. 4. Now, so far as it relates to Vallapuzha Service Co-operative Bank is concerned the total outstanding amount was Rs.26417.15. By virtue of A.S. 212 OF 1995 -4- the agricultural debt relief scheme Rs.9999.75 has been discharged by the State Government and therefore the balance amount that was to be paid by the plaintiff to the Bank was Rs.16,417.40. By virtue of Exts.B1 and B2 which is produced by the first defendant it can be seen that an amount of Rs.9674.90 had been paid. The plaintiff would contend that he had advanced that amount to the first defendant for the purpose of repayment but the trial court on a perusal of the receipts and the production from the side of the defendants one cannot accept the case of the plaintiff and therefore it has to be held that the said amount has been paid by the defendants. When this amount is discharged, towards the actual amount due to the Vallapuzha Service Co-operative Bank the remaining amount come to Rs.6742.50. When it is adjusted with A.S. 212 OF 1995 -5- the amount due under the other two loans the Court found that it would come to Rs.17534.75 but the Court also held that other amount due should be paid with interest from the date of execution of Ext.A1 and therefore it granted interest for that amount from the date of Ext.A1 till realisation. Though the plaintiff claimed damages for the loss and injuries the trial court held that the plaintiff would depose that damages so claimed is the amount actually has been remitted towards travelling expenses for meeting the Bank Directors. Taking into consideration those aspects and also the pathetic plight of the first defendant who later committed suicide, I do not want to disturb the finding of restricting the damages to Rs.1,000/-. Thus the trial court found the total amount due will be Rs.18,534.75 with A.S. 212 OF 1995 -6- interest at the rate of 6% per annum for a sum of Rs.10,792.25 from 20-4-88 till the date of suit and thereafter interest at the same rate on the sum of Rs.18,534.75 till realisation. I am informed that the plaintiff has settled the loan liability with respect to the other institutions as well. If it is already done nothing remains to be done now. In case the matter is not settled then the plaintiff has to settle it from the amounts so realised from the defendants. Therefore I confirm the judgment and decree of the trial court and dismiss the appeal but without costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 212 OF 1995 -7- M.N. KRISHNAN, J. = = = = = = = = = A.S. No. 212 OF 1995 = = = = = = = = = = = J U D G M E N T 30th November, 2010.