IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 AS.No. 701 of 1998(A) --------------------- OS.627/1994 of II ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT(S)DEFENDANTS: --------------------------------- 1. THARABHAI, W/O G. VELUKUTTY, AGED 39, NOOLIYOTTA VARUVILAKATHU PUTHEN VEEDU, VILAPPILSALA P.O. THIRUVANANTHAPURAM. 2. G. VELUKUTTY, AGED 45, NOOLIYOTTA VARUVILAKATHU PUTHEN VEEDU, VILAPPILSALA P.O. THIRUVANANTHAPURAM. BY ADV. SRI.P.GOPALAKRISHNAN NAIR(VAIKOM) SRI.P.A.AHAMMED RESPONDENT(S)PLAINTIFF: -------------------------------- INDIAN OVERSEAS BANK, THIRUVANANTHAPURAM BRANCH, REPRESENTED BY THE CHIEF MANAGER OF THE THIRUVANANTHAPURAM MAIN BRANCH. ADV. SRI.B.KRISHNA MANI SRI.G.SURARSHAN FOR THIS APPEAL SUITS HAVING COME UP FOR ADMISSION ON 29/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 701 OF 1998 = = = = = = = = = = = = = = = Dated this the 29th day of January, 2009. J U D G M E N T This is an appeal preferred against the judgment and decree in O.S.627/94 of the Subordinate Judge, Thiruvananthpauram. The suit is one for realisation of an amount due under a loan transaction accorded under the SADU scheme. The plaintiff granted a loan of Rs.31,300/- to the defendants and the defendants had availed Rs.20,510/- after creating an equitable mortgage. The loan of Rs.10,000/- given under the A.R.D.R. scheme was also adjusted and for the balance amount the suit is filed. 2. Defendants would contend that promissory note is not fully supported by consideration, they have not executed any acknowledge of liability and the suit is hopelessly barred by limitation and the entire amount claimed is not due and the amount given had not been credited to and Rs.10,000/- which is sanctioned under the scheme has not been properly accounted and therefore the suit is liable to be dismissed. A.S. NO. 701 OF 1998 -2- 3. In the trial court Exts.A1 to A14 and B1 and B2 were marked. On an analysis of the materials the trial court granted a decree in favour of the plaintiff for a sum of Rs.63,110.50 with 15.5% interest from the date of suit till realisation with costs from the defendant and their assets. It is against that decision the defendants have come up in appeal. 4. Heard the counsel for the appellants as well as the counsel for the Bank. The suit is one for realisation of the amount due under a loan transaction. It can be seen that under three different heads the loan had been obtained for a sum of Rs.20,510/-. So far as the limitation question is concerned the Court below found that there was an equitable mortgage and the execution of the letter with respect to the equitable mortgage was admitted by the defendants and as the suit is filed within 12 years from the date of mortgage it held that the suit is not barred by limitation. There is no error on the said finding and therefore that contention is rejected. A.S. NO. 701 OF 1998 -3- 4. Now the next question is regarding the amount due to the plaintiff under the transaction. The two principle points argued before me by the learned counsel for the appellants are (1) that the defendants were entitled to a sum of Rs.10,000/- under a scheme and further there is no deduction of Rs.9,960/- which is said to be paid by the defendants even as per the averments in the plaint. So far as this Rs.10,000/- is concerned the said scheme was introduced in the year 1990 and the Bank has given credit to a sum of Rs.10,000/- on 25th February, 1991. The contention that it must be adjusted towards the principal when the amount was advanced and interest cannot be calculated is without any basis and no materials are placed to show how it can be done. What is seen from Ext.B1 is only that an entitlement of Rs.10,000/- has been given and that has been adjusted to by the Bank correctly in time and therefore the said contention that it is to be adjusted towards the principal and interest cannot be calculated is not available. There is a mistake committed in the plaint with respect to the payment of Rs.9,960/- on the A.S. NO. 701 OF 1998 -4- basis of an averment. But it is only a mistake which is convincingly established by the documents produced as Exts.A12 to A14. They are all true extracts of the account produced by the Bank and it has got evidentiary value under the Bankers Book Act and therefore the said documentary evidence would convincingly establish what has been the correct amount due. So the trial court also found Ext.A13 account would show the same and the amount that is claimed in the suit is only on the basis of this true extracts of Exts.A12, A13 and A14 which cannot be said to be incorrect. Therefore the said argument also cannot be accepted. 5. The Bank has claimed interest at the rate of 15.5% per annum from the date of suit till realisation. It has to be stated that the amount is really not advanced for a commercial purpose but it is advanced as a help to the persons to develop their agriculture and other need and it can be classified as an agricultural loan and for improvement of conditions of those persons. It does not amount to real commercial transaction and when it is not a commercial transaction the power under A.S. NO. 701 OF 1998 -5- Section 34 of the CPC can be exercised to reduce the rate of interest to 6%. Therefore I am inclined to reduce the interest rate to 6% from the date of decree and retain the interest of 15.5% from the date of suit till the date of decree. 6. In the result the appeal is disposed of as follows: The judgment and decree of the trial court with respect to the amount decreed is confirmed with the modification that the plaintiff will be entitled to realisation of interest at the rate of 15.5% per annum on the said amount from the date of suit till the date of decree, i.e. 30th November, 1996 and at the rate of 6% from 1.12.96 till realisation. Parties shall bear their respective costs in the appeal. The appeal is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/- A.S. NO. 701 OF 1998 -6- M.N. KRISHNAN, J. = = = = = = = = = = A.S. NO. 701 OF 1998 = = = = = = = = = = = J U D G M E N T 29th January, 2009.