IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 19613 of 2010(B)
1. M/S.NELLAI SONS, REP. BY ITS PARTNER
... Petitioner
Vs
1. THE KERALA FINANCIAL CORPORATION,
... Respondent
For Petitioner :SRI.K.V.SADANANDA PRABHU
For Respondent :SRI.A.A.ABUL HASSAN, SC, KFC
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :05/08/2010
O R D E R
S. SIRI JAGAN, J.
----------------------
W.P.(C). No. 19613 of 2010
------------------------------------
Dated this the 5th day of August, 2010
JUDGMENT
The petitioner borrowed amounts from the Kerala Financial
Corporation. He defaulted repayment. A suit was filed, which was
decreed and execution was taken out by the respondent. The
amounts were paid by the petitioner. There was a dispute as to
whether the petitioner had paid the entire amount. Ultimately, the
lower court, namely, the additional District Court, Alappuzha,
considered the execution petition and passed Ext.P1 order, wherein
the District court found that petitioner had paid the entire decree
debt, which was recorded. But the District Court directed the
petitioner to pay an amount of Rs. 5,000/- as costs. Petitioner has
now produced Ext.P4 receipt for payment of that amount also.
Petitioner’s grievance now is that the security documents furnished
by the petitioner as security for repayment of the loan amount is
not being returned despite discharge of the debt. The petitioner,
therefore, seeks the following reliefs:
W.P.(C). No. 19613 / 2010 2
i) To issue a writ or other order in the nature of
mandamus directing the respondents to
return the title deeds if need be after
registering the release deed in accordance
with the law.
ii) To grant such other and further reliefs as are
just and essential in the circumstances of the
case with cost of this petitioner.
2. The respondent has filed a counter affidavit taking the
contention that the petitioner is still liable to pay an amount of
Rs.62330/-, which represents Rs. 36,000/- short paid and
interest thereof. Therefore, the stand of the respondent is that
unless the petitioner pays a further amount of Rs. 62,330/-, the
security documents cannot be returned to the petitioner.
3. I have considered the rival contentions in detail. In
Ext.P1 order, the District Court held thus:
“Heard both sides. I have perused the
statement filed by both sides. As per the
statement filed by the D.H. on 27.02.2008 the
balance payable is Rs. 814779.62. As per the
statement filed by the J.D as on 03.03.2008 the
balance payable was Rs.753125/-. On
17.03.2008 a sum of Rs.5,00,000/-(Five lakh
only) was paid which was received by the counsel
on behalf of the D.H as per Memo dated
17.03.2008. On 27.03.2008 again a sum of
Rs.253125/-(Rs.Two lakh fifty three thousand
one hundred and twenty five only) was paid by
the J.D which was received by the counsel onW.P.(C). No. 19613 / 2010 3
behalf of the D.H as per Memo dated
27.03.2008. By virtue of these two payments the
J.D had paid the entire decree amount according
to the learned counsel for the J.D. Both
statements have been filed taking interest at
11% simple. After verifying the statement filed
the D.H. I noticed that 5 payments aggregating
to Rs. 36,000/- were not given credit to. I have
verified the receipts for the above payments.
These payments were not incorporated in the
statement of the D.H due to an oversight. BY
giving credit to the above amount it can be seen
that the J.D. had paid the entire decree amount
less costs. It is made clear here that the J.D is
not bound to pay interest on delayed credit of
payments. If so it has to be found that the J.D
had paid the entire decree debt less costs. The
cost claimed is only Rs. 329/-. The D.H is also
not entitled to claim cost by including the same
in the statement of account. It is an amount to
be allowed by the court. Considering the whole
matter and after hearing both sides, I feel that
the cost of Rs. 5000/- can be allowed to the D.H.
This is the only amount that is now payable by
the J.D. This amount are J.D. will pay within one
week with this payment full satisfaction of the
decree has to be recorded. For payment of cost
of Rs.5000/- to 23.06.2008.”
4. That order has not been challenged by the respondent.
Therefore, as on today, the respondent is bound by Ext.P1 order
of the District court, which categorically holds that the petitioner
has paid the entire decree debt less costs. The petitioner has
produced receipt for payment of the costs of Rs.5,000/- also.
W.P.(C). No. 19613 / 2010 4
That being so, unless Ext.P1 is set aside, the respondent cannot
insist on the petitioner paying any further amount as per the
decree. Therefore, the respondent is liable to return the security
documents furnished by the petitioner as security for the
repayment of the loan amount. Accordingly, this writ petition is
allowed and the respondent is directed to return the title deeds of
the properties given as security for repayment of the loan amount
taken by the petitioner and release the charge in respect of
thereof as expeditiously. The title deeds shall be returned within a
period of two weeks from the date of receipt of a copy of this
judgement and the release deed shall be executed as
expeditiously as possible at any rate within a period of two
months from the date of receipt of a copy of this judgement.
S. SIRI JAGAN, JUDGE.
ln