IN THE HIGH COURT OF KERALA AT ERNAKULAM FAO.No. 316 of 2008() 1. NAJUMA SALI, W/O.K.M.SALI, ... Petitioner 2. K.M.SALI, S/O.LATE K.A.MOHAMMED, Vs 1. VIJAYA BANK LIMITED REPRESENTED BY ITS ... Respondent For Petitioner :SRI.K.C.CHARLES For Respondent :SMT.SALLY THOMAS CHACKO The Hon'ble MR. Justice P.R.RAMAN The Hon'ble MR. Justice P.BHAVADASAN Dated :07/08/2009 O R D E R P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 316 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of August, 2009. JUDGMENT
This is an appeal against an order dismissing an
application for temporary prohibitory injunction seeking to restrain
the defendant from charging interest above 9% on the loan amount
under V-rent scheme till the final disposal of the suit.
2. The suit is one for declaration that the charging of
interest for the loan availed of by the plaintiff above 9% is illegal
and other consequential reliefs. Husband and wife are the
plaintiff. The first plaintiff is the owner in possession of 18.230
cents of land. He has constructed a multi-storied building having
8 stories in the said building by availing loan from Syndicate Bank.
Later the defendant Bank contacted the plaintiffs and offered to
give better loan facilities. Rs.90,00,000/- was applied for including
the take over of the loan availed from the Syndicate Bank. Loan
was sanctioned with 9% interest per annum to be repaid in
instalments. Thereafter documents were also created for securing
FAO. 316/2008. 2
the loan. The defendant again advanced mortgage loan to the plaintiffs
under V-rent scheme for construction of three more stories to the
existing construction. The agreed scheme also stipulate reduction of
interest to 9%. Rs.40,00,000/- is availed under this scheme with a
floating rate of 14.25% interest. It is not necessary to go into the
further details of the averments made in the suit or in the petition for
the limited purpose of disposing this case.
3. According to the Bank, they are entitled to charge
interest as claimed. The suit is still pending and therefore the only
question is based on the prima face case and also the balance of
convenience, whether the plaintiffs are entitled to an ad interim
injunction as prayed for. The court below found that the transaction is a
commercial one and parties are bound by the terms of the contract.
Therefore, injunction cannot be granted restraining the defendant from
charging interest in accordance with the terms of the contract.
Ultimately, whether the plaintiffs will be entitled to the relief prayed
for will be decided in the suit and merely because interest is charged,
that may not prejudicially affect the rights of the plaintiffs in the suit.
FAO. 316/2008. 3
That being the situation, the court below rightly rejected the temporary
injunction application. This court also did not grant any stay at the
time of admitting the appeal. More than one year has elapsed after
filing this appeal. We have heard the parties and we find that the court
below has considered all the aspects of the matter and has rightly come
to the conclusion that this is not a fit case where temporary injunction
can be granted. We agree with that finding.
We find no merit in this appeal. The observations made in
the order impugned are only for the limited purpose of disposal of the
interim injunction application. Whether or not the defendant Bank is
entitled to charge interest being a disputed question, that will be
decided in the suit after raising an issue based on the evidence.
The appeal is dismissed subject to the above.