IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 869 of 1998()
1. M.THOMAS
... Petitioner
Vs
1. THE VYSYA BANK LTD.
... Respondent
For Petitioner :SRI.S.ANANTHASUBRAMANIAN
For Respondent :SRI.K.K.JOHN
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :25/08/2009
O R D E R
P.Q.BARKATH ALI, J.
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A.S.No.869 OF 1998
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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
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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
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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
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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
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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.
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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.
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