IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 AS.No. 869 of 1998() -------------------- OS.519/1995 of II ADDL.SUB COURT,ERNAKULAM .................... APPELLANT(S): DEFENDANT -------------- M.THOMAS, AGED 57 YEARS S/O MATHAI, KARACHALIL HOUSE PEZHAKKAPPILLI P.O. MUVATTUPUZHA BY ADV. SRI.S.ANANTHASUBRAMANIAN SRI.S.SHYAM RESPONDENT(S): PLAINTIFF --------------- THE VYSYA BANK LTD, M.G. ROAD ERNAKULAM, REP. BY THE BRANCH MANAGER ADV. SRI.K.K.JOHN SRI.K.V.SOHAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 25/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - A.S.No.869 OF 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of August, 2009 JUDGMENT The defendant is the appellant. The suit was for recovery of the amount due to the plaintiff bank from the defendant. The lower court decreed the suit. The defendant challenges the said decree and judgment in this appeal. 2. The case of the plaintiff bank as detailed in the plaint and as testified by its branch Manager as PW1 before th lower court in brief is this : The defendant is a Post Master. He joined in the Investors Club run by the plaintiff bank which deals with shares. On his request the plaintiff bank purchased 100 shares of different companies on May 4, 1992 at a total price of Rs. 1,34,345.15. The defendant should have paid the amount on or before June 2, 1992 which he did not do. Thereafter, the defendant paid Rs. 50,000/- and Rs. 20,000/- . The amounts fetched by sale of shares were also credited to his account. Thereafter the matter was settled between the plaintiff and defendant A.S.No.869/98 2 and defendant had agreed to pay Rs. 35,000/ in lump on or before December 31, 1993. Rs. 8172.76 being the interest charged was reversed and credited to the account of the defendant and only thereafter the balance amount payable was settled at Rs.35,000/-. But defendant thereafter paid only Rs. 13,979.60. Balance amount including interest at the rate of 24% per Annum is claimed in the suit. 3. The appellant/defendant in his written statement before the lower court contended and also testified as DW1 thus : It was the defendant's son who placed the order for purchasing the shares. Initially the bank informed him that the shares are not available. Thereafter they purchased the shares and tried to harass the defendant. Thereafter, it was agreed that on receipt of purchase value of shares, the bank will relinquish their claim for interest. The amount already paid by the defendant and the amount obtained by sale of shares were agreed to be adjusted. If those amounts are adjusted, Rs. 6148/- is due to the defendant from the plaintiff bank. 4. Bank filed a replication denying the allegations in the written statement. On the side of the plaintiff bank, the Branch A.S.No.869/98 3 Manager was examined as PW1 and he produced Exts.A1 to A8 before the lower court. Defendant was examined as PW1 and he produced Exts.D1 and D2. The lower court on an appreciation of evidence upheld the claim of the bank and decreed the suit as prayed for with costs. The defendant has now come up in appeal. 5. The only question which arises for consideration is whether the decree and judgment of the lower court can be sustained ? 6. The learned counsel for the appellant/defendant argued that plaintiff bank purchased the shares against his orders, that he has not agreed to settle the matter for Rs. 35,000/- and that the agreement was to sell the shares and adjust that amount towards the amount due from him. 7. The specific case of the defendant was that it was his son who placed the orders for purchasing the shares, that bank informed him that no shares are available and thereafter the bank purchased the shares. But except the interested version of DW1 there is complete absence of evidence on the side of the defendant to prove the above aspect. The son of the defendant was not examined as a witness on his A.S.No.869/98 4 side to show that it was him who placed the orders for purchasing the shares. There is nothing on record to show that it was not in accordance with his directions that the bank purchased the shares. There is also no evidence to show that bank informed him that shares were not available. That being so, the lower court is justified in rejecting the above contentions of the appellant. 9. It is the admitted case that the parties entered into a compromise before the filing of the suit. According to the plaintiff, the defendant agreed to pay Rs. 35,000/- in full discharge of the amount due to the bank and to pay the amount on or before December 31, 1993. The defendant as DW1 would say that the agreement was that on payment of purchase value of shares, the plaintiff bank would relinquish its claim for interest and if that amount is adjusted, Rs. 6148/- is due to him from the bank. There is no evidence adduced other than the interested version of DW1 to show that the settlement was as stated by DW1. On the other hand, the statement of accounts Exts.A2 produced by the plaintiff bank shows that as on 31/03/1993, total amount due from the defendant was Rs. 43,172.76. After A.S.No.869/98 5 deducting the interest reversed amounting to Rs. 8172.76, the balance amount due from the defendant comes to Rs. 35,000/- which probablise the case of the plaintiff bank that the defendant agreed to pay Rs. 35,000/- in full discharge of the amount due from him to the bank. Therefore, the lower court is right in accepting the case of the plaintiff on this aspect. I have gone through the evidence adduced by both parties before lower court. I am of the view that lower court is perfectly justified in believing the evidence of PW1 and rejecting the evidence of DW1 and decreeing the suit. 10. There is another aspect. The plaintiff bank has claimed 24% interest from April 1, 1993 onwards which appears to be excessive. That apart, there is also some latches on the part of the plaintiff bank in purchasing the shares. The plaintiff bank did not adhere to the conditions laid down in the guidelines issued by them i.e. depositing 50% of the purchase value of the shares by the subscriber. Therefore, I feel that interest at the rate of 18% per Annum from April 1, 1993 till the date of suit and interest at the rate of 6% thereafter would be just and proper. A.S.No.869/98 6 In the result, the appeal is allowed in part. The decree of the lower court is modified to the effect that the plaintiff is granted a decree for recovery of Rs. 21,020/- being the principal amount with interest at the rate of 18% per annum from April 1, 1993 till the date of suit i.e. 31st May 1998 and thereafter interest at the rate of 6% per annum from the date of suit till the date of decree and future interest at the same rate from the date of decree till realisation. In the circumstances, both parties shall bear their own costs. P.Q.BARKATH ALI JUDGE sv. A.S.No.869/98 7