AI Structured Summary
Not yet generated for this judgment
Judgment
Thottathil B. Radhakrishnan, J.
1 The first appeal, A.S.286 of 2000, is against a decree passed in a suit, where the State Bank of India sued for money due under a commercial transaction secured by a mortgage. The suit was decreed with interest at 15.5% per annum. In this appeal, the only issue that persuades us to interfere to some extent is with regard to post decree interest. Otherwise, on facts, the transaction is admitted; the mortgage is found; the nature of the transaction is admitted. The plea of the defendants-appellants that their business venture sustained loss on account of non-support of the banker for increased capital did not find favour with the court below. In fact, the appellants had disputed the mortgage and filed a separate suit. That suit was also tried jointly and dismissed as per the common judgment. That decree has become final. Looking at the materials available, we do not find any ground to persuade ourselves to disagree with the findings of the learned Subordinate Judge. On the totality of the facts and circumstances of the case, while the learned Subordinate Judge was justified in relying on Section 21(A) of the Banking Regulation Act on the question of interest, we see that no advertence was made to Section 34 of CPC and the impugned judgment does not reflect application of mind with regard to exercise of discretion under that provision. We see that the loan was a medium term loan and cash credit for a small scale business venture. In fact, seeing the written statement, no plea was raised on any ground that would bring the case under the ratio of the decision in Central Bank of India v. Ravindra [2002 (1) KLT 743 (SC)]. Be that as it may, u/s 34, the Court below could have considered modifying the post decree interest and tapering it down. We are inclined to think that the post decree interest should have been 6%.
For the aforesaid reasons, A.S.286 of 2000 succeeds to the limited extent of tapering the post decree interest to 6%.
In so far as the F.A.O. is concerned, it is directed against the order by which the court below dismissed the application to set aside the sale. The learned counsel for the appellants in F.A.O. argued that having regard to the entire gamut of the case law touching that aspect, the court below was duty bound to consider whether the sale of entire 10 cents of land was necessary to satisfy the decree and whether all relevant factors have been appropriately fixed. The learned counsel further argued that the appellants should have been given an appropriate opportunity, on equitable considerations, to avoid the s ale.
Perusing the records, we find that the appellants had the benefit of different interlocutory orders in A.S.No.286 of 2000 and in this F.A.O., No. 185 of 2010, enabling the payment of amounts. But, no amount was paid at all.
The examination of the execution records and also the impugned order would show that the upset price as suggested by the appellants was shown in the proclamation. An amount of Rupees twenty lakhs was shown in the proclamation as the value of the property, following this Court''s order in writ jurisdiction. Therefore, the said contention of the judgment debtors do not stand, in view of the records which have been specifically looked into by the court below as reflected in the impugned order.
This leaves for consideration the argument that the entire extent of land need not have been sold. We have looked into the oral evidence tendered in support of the application to set aside the sale. There is no shred of material even in the affidavit stating as to how the 10 cents of land is to be sliced to find out that portion which would satisfy the decree debt by sale. While the appellants in the F.A.O. may be justified in saying that the Court cannot ignore that aspect, we see that the available records does not disclose that the 10 cents of land mortgaged could have been sliced to enable the sale of a portion out of that, to satisfy the impugned decree.
As rightly held by the court below, the application to set aside the sale did not stand on issues raised before it. The learned Subordinate Judge has rightly said that the contention of the judgment debtors that there was no notice published in the Collectorate, Panchayat office and Village office does not stand. Similarly, the 1st appellant had admitted in his oral examination before the court below that the amount suggested by him was also included in the proclamation. In view of the aforesaid, the F.A.O. is bound to fail. In the result:
(A) A.S.No.286 of 2000 is partly allowed and the decree in O.S.No.402 of 1995 is modified, directing that interest from the date of the impugned decree, that is, 30.07.1999, would run only at 6% per annum. For all other purposes, the impugned decree stands.
(B) F.A.O. No. 185 of 2010 is dismissed.
(C) No costs.