IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 5TH AUGUST 2010 / 14TH SRAVANA 1932 AS.No. 607 of 1995() ----------------------------- OS.24/1994 of SUB COURT, HOSDRUG .................... APPELLANT(S): DEFENDANT ------------------------------------------ M.T.RAMAN, S/O. THOTTEN CHINDAN, KUNHIMANGALAM PO., KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN RESPONDENT(S): PLAINTIFF ----------------------------------------- P.K.MURALIKRISHNAN, S/O. LATE C.NARAYANAN NAIR, KUNDAMKUZHI P.O., KASARAGOD DISTRICT. BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE. BY ADV. SMT.VIJAYA GOPAL THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 05/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.4530/1995 IN AS. NO.607/1995 DISMISSED 05/08/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... A.S.NO.607 OF 1995 ............................................. Dated this the 5th day of August, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Hosdurg in O.S.No.24/1994. The suit is one for realisation of the amount and the court below has granted a decree in favour of the plaintiff and aggrieved by the same the defendant has come up in appeal. 2. Head the learned counsel for the appellant as well as the respondent. The brief facts necessary for the disposal of the appeal are stated as follows: The plaintiff and the defendant had entered into an agreement on 14.3.1991 with respect to sale of a bus bearing Registration No.KRN 3828. The said bus was purchased by the defendant from one Padmanabhan for a consideration of Rs.4 lakh by executing an agreement. The defendant had agreed to sell the bus to the plaintiff for a consideration of Rs.3,45,000/=. An amount of Rs.2,70,000/= was reserved with the plaintiff for the payment of the loan availed from the Kerala State Financial Enterprise. The : 2 : A.S.NO.607 OF 1995 plaintiff paid an amount of Rs.40,000/= in cash and issued a post dated cheque for Rs.5,000/=. As revealed from the agreement, the bus had been seized by the financier and all the documents and custody of the bus were with the financier at the time of execution of Ext.A2. So there was liability for the plaintiff to wipe off the dues and similarly there was liability cast on the defendant to get the registration certificate transferred from the name of Padmanabhan and for that purpose, he has obtained necessary papers from the KSFE. So by virtue of Ext.A2, possession of the bus has not been given and a liability to discharge the amount due to the KSFE is imposed on the plaintiff besides that the defendant had received a consideration of Rs.40,000/=. It is seen from the judgment that the plaintiff and the defendant together moved a writ petition before this Court for giving directions to the the KSFE. This Court disposed of the case with a direction to the parties to deposit Rs.50,000/= and furnish security for the balance amount and thereafter a joint application to be filed by the plaintiff, defendant and Padmanabhan. In pursuance : 3 : A.S.NO.607 OF 1995 of the order, the plaintiff deposited Rs.50,000/= and also had produced some document as security. 3. It is the case of the plaintiff that the defendant had obtained signature from Padmanabhan and that he had put his signature and thereafter has handed over to the plaintiff who had put his signature and submitted the application for release of the vehicle to the KSFE. Unfortunately things did not go smoothly. Padmanabhan repudiated his signature in the document. Ultimately the defendant also said that he has not affixed his signature. So when there was no joint application as directed by this Court, the order was not complied with and the vehicle was not handed over to the possession of the plaintiff. When such a situation arose, the KSFE sold the bus in auction and appropriated the amount. Therefore the plaintiff could not get delivery of the bus. It is under those circumstances, the plaintiff moved the court for realisation of the amount paid by him with interest. 4. The case of the defendant is that the plaintiff is the defaulter and he had not complied with the terms of the agreement and so he is not entitled to relief. It is true that : 4 : A.S.NO.607 OF 1995 there is a liability cast on the plaintiff to discharge the dues of the KSFE. But possession of the vehicle is primarily a great concern. Even the bus did not have any route at the time of the alleged sale agreement. Therefore when a joint attempt was made by the plaintiff and defendant to get possession of the vehicle, this Court permitted it but to the utter dismay of the plaintiff, the defendant and Padmanabhan retracted from their stand and raised a contention that they did not sign the document at all. So naturally the KSFE was forced to sell the vehicle and the plaintiff was deprived of any right or possession over the vehicle. So by virtue of Ext.A2 agreement, what the plaintiff was gained is only a litigation and nothing else. The amount which has been received by him had been utilised by the defendant to his advantage and therefore under law as well as in equity, he is bound to reimburse the amount to the plaintiff. This is what is done by the trial court. 5. So, I do not find any mistake committed by the court in granting the decree, but at the same time from the date of decree also the court had granted interest at the rate of : 5 : A.S.NO.607 OF 1995 12%. Considering the miserable plight of the defendant, I feel that some leniency can be shown whereby the rate of interest can be reduced to 9% from 12% after the date of decree. 6. In the result, finding of the trial court with respect to liability of the plaintiff is confirmed and the decree is modified to the limited extent of revising the interest to 9% from the date of decree in stead of 12%. Parties are directed to bear their respective costs. The appeal is disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 6 : A.S.NO.607 OF 1995 M.N. KRISHNAN, J. ........................................... A.S.NO.607 OF 1995 ............................................. 4th day of August, 2010. J U D G M E N T