IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 RSA.No. 605 of 2008() --------------------- AS.218/2007 of ADDL.DISTRICT COURT, THRISSUR OS.2504/2006 of PRL.MUNSIFF COURT,THRISSUR .................... APPELLANTS/DEFENDANTS:- ------------------------------------------- 1. VISALAKSHI, AGED 57 YEARS, D/O MARATHAKKARA PERUMANNAN VELAYUHAN, MARATHAKKARA VILLAGE, DESOM, TRICHUR TALUK AND DISTRICT. 2. SREEDHARAN, AGED 55 YEARS, D/O MARATHAKKARA PERUMANNAN VELAYUDHAN, MARATHAKKARA VILLAGE, DESOM, TRICHUR TALUK AND DISTRICT. BY ADV. SMT.S.KARTHIKA SRI.M.S.UNNIKRISHNAN SRI.M.R.ANISON SMT.K.P.GEETHA MANI RESPONDENT(S): --------------- M/S CATHOLIC SYRIAN BANK LIMITED., MARATHAKKARA BRANCH, THRISSUR TALUK, THRISSUR DISTRICT, REPRESENTED BY THE PRESENT BRANCH MANAGER, ANNIE DAVIS, AKKARAPPATTY, AGED 51 YEARS, W/O JOSEPH, MEKKATTUKULAM HOUSE, MISSION QUARTERS,TRICHUR. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 31/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ................................................... R.S.A. No. 605 of 2008 ................................................... DATED: 31-10-2008 JUDGMENT Defendants 4 and 5 in O.S. No. 2504 of 2006 on the file of the Principal Munsiff's Court, Trichur are the appellants in this Second Appeal. The said suit was one for a mandatory injunction directing the defendants to vacate from the plaint schedule property admeasuring 12.5 cents with a residential building thereon situated at Thrissur. 2. The facts which have been concurrently found by the courts below are the following:- The first defendant in the suit namely one Suresh Kumar had availed of a loan for a sum of Rs. 47,650.- and an overdraft facility of Rs. 25,000/- from the Marathakara Branch of the Catholic Syrian Bank, Thrissur under a scheme called Prime Minister's Roscar Yojana Scheme (PMRY Scheme). The appellants had stood as sureties for R.S.A. No. 605 of 2008 -:2:- the first defendant offering the plaint schedule property as collateral security. Consequent on the first defendant/ principal debtor committing default in the re-payment of loan the bank filed a suit as O.S. No. 2018 of 1998 before the Principal Munsiff's Court, Thrissur for realisation of the loan. The said suit was decreed after the appellants withdrew their contest and plaint schedule property which was charged for the decree amount was sold in court auction on 29-11-2003. The decree holder bank purchased the property for a sum of Rs. 1,44,892/-. The sale was confirmed on 1-3-2004. The decree holder bank filed E.A. No. 521 of 2005 for sale certificate and for delivery. The delivery was ordered with police aid and the decree holder bank took delivery on 26-7-2005. Being a non-banking asset the decree holder decided to sell the property. when the Bank officials took the prospective buyer to the property, defendants 4 and 5 were found in possession of the property. Hence, the present suit was filed. 3. The main defence raised by the appellants was R.S.A. No. 605 of 2008 -:3:- that notwithstanding the decree passed in O.S. 2018 of 1998 the appellants were never dispossessed from the residential building in the plaint schedule property, that there was not actual delivery, that the bank was playing a fraud by obtaining a collateral security in respect of a loan for a sum of less than Rs. 1,00,000/- for which no collateral security could be taken by the bank under the PMRY scheme, that they had repaid a sum of Rs. 23,000/- in between 2002 and 2003 and that the plaint schedule property was sold in unconscionably low price of Rs. 1,44,892/-. 4. The courts below repelled the above contentions holding that the decree holder/bank had obtained actual delivery of the property in execution of the decree passed in O.S. 2018 of 1998 and that the contentions raised by the appellants could not be countenanced since they had no such contenion in O.S. 2018 of 1998. The courts below, accordingly, concurrently granted a decree for perpetual injunction restraining the appellants from trespassing into R.S.A. No. 605 of 2008 -:4:- the plaint schedule property of which the decree holder bank is presently the title holder. 5. Eventhough the learned counsel appearing for the appellants assailed the decrees on various grounds, having regard to the fact that the appellants did not raised any of the aforesaid defences in O.S. 2018 of 1998, the decree in which case has become final, they are precluded from raising such contentions in the present suit . No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. 6. Before parting with this case I wish to observe that both the appellants are members of the scheduled caste and if the loan availed of by the first defendant in the case was under the PMRY Scheme and going by the quantum of loan borrowed by the first defendant if no collateral security could be taken by the bank under the R.S.A. No. 605 of 2008 -:5:- above scheme, the bank was committing an illegality which has unfortunately resulted in the being appellants deprived of their homestead. A copy of this judgment shall be forwarded to the Head Office of the Catholic Syrian Bank at Trichur for information and necessary action if any in the matter so that if there is any infraction of the provisions of the terms and conditions of the scheme, the bank should although belatedly proceed against the erring officials and make good the loss sustained by the appellants who belong to the underprivileged strata of the society. Dated this the 31st day of October 2008. Sd/-V.RAMKUMAR, Judge. ani/ /true copy/ R.S.A. No. 605 of 2008 -:6:-