IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 605 of 2008()
1. VISALAKSHI, AGED 57 YEARS,
... Petitioner
2. SREEDHARAN, AGED 55 YEARS,
Vs
1. M/S CATHOLIC SYRIAN BANK LIMITED.,
... Respondent
For Petitioner :SMT.S.KARTHIKA
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :31/10/2008
O R D E R
V.RAMKUMAR, J.
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R.S.A. No. 605 of 2008
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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
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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
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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
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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
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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/
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