IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 392 of 1998()
1. UNION BANK OF INDIA,PALAYAM ROAD
... Petitioner
Vs
1. MALUKUTTY AMMA
... Respondent
For Petitioner :SRI.ASP.KURUP
For Respondent :SRI.P.SANJAY
The Hon'ble MR. Justice V.RAMKUMAR
Dated :12/03/2010
O R D E R
* * * *V.*RAMKUMAR,*J.* * * *
* * * * * * * *
A.S. NO. 392 of 1998
* * * *Dated:* * * * * * * * * * *
* * *
12-3-2010
JUDGMENT
The plaintiff in O.S. No. 104 of 1995 on the file of the
Sub Court, Kozhikode is the appellant in this Appeal.
2. The plaintiff is a nationalised bank. The aforesaid
suit was one for realisation of a sum of Rs. 29548.05 with
future interest at the rate of 14% per annum being an
agricultural loan availed of by the defendants from the plaintiff
bank on 25-4-1988 after executing Ext.A2 demand
promissory note and Ext.A3 hypothecation agreement with
regard to the standing crops. The defendants had also
created an equitable mortgage with the intention to do so by
depositing their title deeds as evidenced by Ext.A5
memorandum executed in favour of the plaintiff bank on 25-
4-1988. The defendants are liable to re-pay the loan amount
with interest subject to a minimum of 14%. The defendants
A.S. No. 392 of 1998 C -:2:-
were irregular in re-paying the loan. In spite of several
notices, balance amount due was not paid. Hence the plaintiff
issued Ext.A6 lawyer notice dated 22-12-1989 for which the
defendants caused Ext.A8 reply notice raising untenable
contentions. They had also filed a suit before the Munsiff’s
Court as O.S. No. 949 of 1992 and obtained a decree for
injunction against realisation of the amounts through
revenue recovery proceedings. The contention raised in the
reply notice that the present notice is barred by res judicata is
unsustainable. The plaintiff, may, therefore, be granted a
decree for the amount of Rs. 29548.05 with future interest
at the rate of 14% paer annum.
3. suit was resisted by defendants 1 to 4 who filed
a joint statement contending inter alia as follows:-
The suit is not maintainable. The suit is barred by res
judicate in view of the decision in O.S. 949 of 1992. It is true
that these defendants had availed of the loan as alleged.
The further allegation that the plaint schedule properties were
A.S. No. 392 of 1998 C -:3:-
mortgaged by deposit of title deeds is denied. There was no
intention to mortgage the property nor was any equitable
mortgage created by these defendants in favour of the
plaintiff bank. The memorandum of deposit of title deeds
produced is is a concocted document for the purpose of the
suit. The documents produced in connection with the alleged
deposit of title deeds are fabricated documents created
subsequent to the decree in O.S. 949 of 1992. In that suit,
these defendants had pleaded that the debt in question was
time barred and cannot be recovered by resort to revenue
recovery proceedings. The present plaintiff did not produce
any documents. O.S. No. 949/1992 was decreed by the court
finding that the debt is barred by limitation. The account
furnished by the plaintiff are incorrect. The claim of the
plaintiff is barred by limitation. The plaintiff is not entitled to
recover any amounts from the defendant, the suit may,
therefore, be dismissed.
4. The court below framed the following issues for
A.S. No. 392 of 1998 C -:4:-
trial:-
1
viewWhetherdecree in O.S. 949 of 1992 ?
the suit is barred by resjudicate in
of the2_ Whether there was an equitable mortgage
created as alleged ?
3 Whether the statement of accounts furnished
are correct ?
4) What, if any, is the amount due to the
plaintiff ?
5) Reliefs and costs ?
5. On the side of the plaintiff, the present Manager
was examined as P.W.1 and Exts.A1 to A15 were got marked.
The first defendant was examined as DW1 and Exts. B1 and
B2 certified copies of the judgment and decree in O.S. 949 of
1992 on the file of the Munsiff’s Court , Kozhikode were got
marked.
6. The learned Subordinate Judge, after trial, came to
the conclusion that the judgment and decree passed in O.S. 92
would operate as res judicata in the present suit since in that
suit the learned Munsiff relying on the decision reported in
A.S. No. 392 of 1998 C -:5:-
John v. District Collector – 1989 (2) KLT 831 had found that
the revenue recovery proceedings were barred by limitation.
Under issue No.2 the court below, however, found that an
equitable mortgage was created by the defendants in favour
of the plaintiff as alleged by the plaintiff. In the light of the
finding issue No. 1 to the effect that the present suit is
barred by res judicata in view of the decree in O.S. 949/1992
the court below dismissed the suit as per judgment and decree
dated 4-7-1997. Hence, this appeal by the plaintiff.
7. The only point which arises for consideration
in this appeal as to whether the judgment and decree
passed by the court below are sustainable or not ?
THE POINT:
8. I heard the learned counsel appearing for both
sides.
9. The learned counsel appearing for the respondents/defendants who sought to sustain the decree
appealed against by contending as follows:-
A.S. No. 392 of 1998 C -:6:-
O.S. 949/92 was a suit filed by the present defendants
1 to 3 against the State of Kerala and its officials including the
Tahsildar as well as the plaintiff/Bank for a declaration that
the defendants therein are not entitled to initiate revenue
recovery proceedings and attach the properties and for an
injunction restraining the defendants therein from attaching
the properties. The said suit, after a contest, was decreed
notwithstanding the finding that the revenue recovery
proceedings were not vitiated by fraud. The said decree will
clearly operate as res judicata to the present suit as per which
the plaintiff bank which was restrained from realising the
money by resort to revenue recovery proceedings is indirectly
attempting to recover the money through court on the
strength of an equitable mortgage said to have been executed
by the defendant. Hence, the finding recorded by the court
below does not call for any interference.
10. I am afraid that I cannot agree with the above
submissions. It is true that Ext.B1 decree was passed on the
A.S. No. 392 of 1998 C -:7:-
footing that recovery of amount due to a nationalised bank by
resort to revenue recovery proceedings could not be had
beyond the period of limitation prescribed under the
Limitation Act in view of the decision of the Kerala High Court
in A.K. Nanu and Others v. State of Kerala and Others – 1987
(2) KLT 921 and John v. District Collector – 1989 (2) KLT 831.
However, the said decisions were subsequently overruled by
a Full Bench of this Court in Kerala Fisheries Corporation v.
P.S. John – 1996 (1) KLT 814. Even otherwise, in Ext.B2
judgment, there is a clear finding that the plaintiffs therein
who are the defendants herein had failed to show that the
revenue recovery proceedings were vitiated by fraud. If so,
under Sec. 72 of the Kerala Revenue Recovery Act, 1968, O.S.
949 of 1992 was not maintainable even as per the findings
recorded therein . (See Spl. Tahsildar v. Vasu – 2006 (4) KLT
557). No fraud was also alleged by the plaintiffs therein.
Thus, apart from the fact that O.S. 949 of 1992 was not
maintainable even on the findings recorded by the court in
A.S. No. 392 of 1998 C -:8:-
Ext.B2 judgment the basis for that decision namely John v.
District Collector – 1989 (2) KLT 831 itself had been
removed when that decision was overruled by the Full Court.
It is relying on a decree passed by a Court which did not have
the jurisdiction to entertain the suit that the defendants are
pleading res judicata. It is well settled that a declaratory
decree as in the case of Ext.B1 is without jurisdiction if
rendered contrary to the existing law and cannot operate as
res judicata. See Shakuntala Devi v. Kamla and Others –
(2005) 5 SCC 390. Where the law is altered since the earlier
decision, it is well settled that the earlier decision cannot
operate as res judicata See Mathura Prasad Bajoo Jaiswal and
Others v. Dossibai N. B. Jeejeebhoy – (1970) 1 SCC 613. It
is equally well settled that the question relating to
jurisdiction of a court cannot be said to have been finally
determined by an erroneous decision of the court and such
decision cannot operate as res judicata in subsequent
proceedings and the question of jurisdiction can be raised
A.S. No. 392 of 1998 C -:9:-
even during execution. (Mohd Sahib v. Muhamed Ibrahim –
2007 (2) KLT 56. It is equally well settled that a person
cannot successfully put forward a plea of res judicata even
without producing the pleadings in the earlier suit. –
Balakrishnan v. Venugopalan – 2006 (2) KLT SN 5 . Except
producing the judgment and decree in the earlier suit, the
respondents/defendants did not produce any scrap of paper
including the pleadings in the earlier suit in support of their
contention. The findings recorded by the court below that the
the judgment and decree in O.S. 949 of 1992 operate as res
judicate in the present suit is , therefore, clearly erroneous and
the said finding is reversed.
The Court below has found that the defendants had
created the equitable mortgage in favour of the plaintiff bank.
If so, the suit filed within 12 years of the loan transaction
was not barred by limitation and was liable to be decreed.
Hence in reversal of the judgment passed by the trial court,
the suit is decreed. The plaintiff/bank will be entitled to a
A.S. No. 392 of 1998 C -:10:-
decree for a sum of Rs. 29,548.05 with 6 % interest thereon
from the date of suit till realisation and the decree will be
charged on the properties covered by the equitable mortgage.
Having regard to the facts and circumstances of the case, the
parties shall bear their respective costs in this appeal.
Sd/-V. RAMKUMAR,
(JUDGE)
/true copy/
P.S. to Judge
ani.
A.S. No. 392 of 1998 C -:11:-
* * * * * * * *V.* RAMKUMAR,*J.*
* * * * * * *
A.S. NO. 392 of 1998
* * * * * * *Dated:* * * * * * * *
* * *
12-3-2010
JUDGMENT