Kerala High Court
Benny Thomas vs State Bank Of Travancore on 3 March, 2025
RSA NO. 91 OF 2025
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2025:KER:17491
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
MONDAY, THE 3RD DAY OF MARCH 2025 / 12TH PHALGUNA, 1946
RSA NO. 91 OF 2025
AGAINST THE JUDGMENT DATED 21.08.2024 IN AS NO.177 OF 2018 OF
ADDITIONAL DISTRICT COURT - V, KOZHIKODE
ARISING OUT OF THE JUDGMENT DATED 24.02.2016 IN OS NO.512 OF 2014
OF ADDITIONAL MUNSIFF COURT -I, KOZHIKODE
APPELLANT/APPELLANT/DEFENDANT:
BENNY THOMAS
AGED 60 YEARS
S/O. K.C.THOMAS, KEERAMPANAL HOUSE, KOODARANJI P.O.,
THIRUVAMBADY, KOZHIKODE, PIN - 673603
BY ADV E.NARAYANAN
RESPONDENT/RESPONDENT/PLAINTIFF:
STATE BANK OF TRAVANCORE
HEAD OFFICE AT THIRUVANANTHAPURAM AND BRANCH OFFICE AT
THIRUVAMBADY, KOZHIKODE, REPRESENTED BY ITS BRANCH MANAGER.
THIRUVAMBADY P.O, PIN - 673603
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
03.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
1. The defendant in a suit for recovery of money is the appellant. The suit
is filed by the Bank for realization of the amount due under two loan
accounts. Admittedly, the defendant availed two loans from the plaintiff
Bank; first loan was for Rs.75,000/- and the second loan was for
Rs.4,00,000/-. Alleging default in repayments, the plaintiff/Bank filed the
suit for realization of Rs.9,36,067/- with subsequent interest at the rate of
13.25% per annum with half-yearly interest.
2. The defendant contested the suit by filing a written statement.
3. The Trial Court decreed the suit, allowing the plaintiff to realize
Rs.9,36,067/- with interest at the rate of 9% from the date of the suit till
the date of decree and at 6% interest per annum till realization.
4. The defendant filed Appeal before the First Appellate Court and the same
was dismissed, confirming the judgment and decree of the Trial Court.
5. I heard the learned counsel for the appellant Sri.Edamana Narayanan.
6. The learned counsel for the appellant contended that even as per the
plaint allegation, the rate of interest for the first loan was 7% per annum
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and the rate of interest for the second loan was 13% per annum. But
interest is claimed at 13.25% per annum for both loans on the allegation
that, as per the RBI directions, the rate of interest is 13.25% per annum.
No RBI direction or guideline was produced before the court. Hence, the
Trial Court ought not to have granted a decree for the plaint claim, which
includes the interest at the rate of 13.25% per annum. The learned
counsel further contended that the plaint is filed in violation of Order 29
Rule 1 of the CPC which mandates that the pleading shall be signed and
verified on behalf of the Corporation by the Secretary or by any Director
or other Principal Officer of the Corporation who is able to depose to the
facts of the case. Here, the plaint is signed by one officer and the
evidence is given by another officer. There is no explanation as to why
another officer has given evidence in support of the plaint allegations.
Exts.A10 and A11 Statement of Accounts are computer printouts and the
same is not certified in accordance with the provisions of Section 65B of
the Evidence Act. The decree should not have been granted on the basis
of the said Statement of Accounts. The Trial Court ought not to have
found equitable mortgage relying on the evidence of PW2, when the
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loans were admittedly granted from Thiruvambady branch, which is not
a notified area as per Section 58(f) of the Transfer of Property Act. Ext.A9
Acknowledgment of Debt is not proved by the plaintiff. I.A.No.1/2023,
filed to send Ext.A9 for expert opinion, was illegally dismissed by the First
Appellate Court. Learned counsel concluded that substantial questions
of law arise in the matter requiring admission of the Second Appeal.
7. I have considered the contentions.
8. The defendant has no dispute about the amounts of loan availed from
the plaintiff - Bank. The plaintiff has claimed the interest at the rate of
13.25% for both loans. On going through the written statement of the
defendant, it is seen that the defendant has not disputed the rate of
interest claimed by the plaintiff Bank apart from making an evasive
statement that the plaintiff is not entitled to charge more than 7% per
annum as per the loan agreement. It is true that the plaintiff did not
produce any RBI direction or guideline showing the applicable rate of
interest for both loans. But the said fact averred by the plaintiff in the
plaint is not disputed by the defendant. Admitted facts need not be
proved. The plaintiff is not under the obligation to adduce evidence in
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support of the averments which are not controverted by the defendant.
On behalf of the plaintiff, the Assistant Manager of the plaintiff Bank was
examined as PW1, and the Branch Manager of the Puthiyara branch was
examined as PW2. When PW1 was examined, the defendant did not
challenge his authority of this witness to give evidence while cross-
examining him. When his authority to give evidence is not challenged by
the defendant while cross examining him, such authority could not be
challenged when the Appeal is filed. Admittedly, the Thiruvambady
branch which gave the loan is not situated in an area notified under
Section 58(f) of the Transfer of Property Act. Accordingly, the deposit of
the title deed with the intention to create an equitable mortgage was done
at the Puthiyara branch. In order to prove the said fact, the Branch
Manager of the Puthiyara branch was examined as PW2. Ext.A5 Letter
of Confirmation of Mortgage would also show that the deposit was made
at the Puthiyara branch of the plaintiff Bank. Hence, it is well justified on
the part of the plaintiff to examine PW2 to prove Ext.A5 Letter of
Confirmation of Mortgage and to prove that the deposit of the title deed
was made at the Puthiyara branch. Further contention is that Exts.A10
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and A11 Statement of Accounts are computer printouts and the same is
not certified in accordance with the provisions of Section 65B of the
Evidence Act. The said documents were accepted in evidence without
raising any objection on the part of the defendant. If the defendant had
objected to the same, the plaintiff would have got an opportunity to
produce the Statement of Accounts duly certified under Section 65B of
the Indian Evidence Act. After accepting the said documents without
raising any objection from the part of the defendant, the defendant cannot
raise the admissibility of the said document for want of certification under
Section 65B of the Evidence Act at the appellate stage.
9. It is true that the plaintiff filed I.A.No.1/2023 before the First Appellate
Court to send Ext.A9 for expert opinion. The First Appellate Court
dismissed the said application by a separate order holding that the said
application was filed with an inordinate delay. If the defendant wanted to
send Ext.A9 Acknowledgment of Debt for expert evidence, the same
should have been filed before the Trial Court. Going by the pleadings, the
defendant has not disputed Ext.A9 of Acknowledge of Debt. The
defendant has not shown the reason for not filing such Application before
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the Trial Court. Hence, there is no illegality in the First Appellate Court
dismissing I.A.No.1/2023 praying for sending Ext.A9 for expert opinion.
That apart, the defendant did not mount to witness box to deny the
documents and to prove the defense version.
10. I do not find any ground or reason to interfere with the judgment and
decree passed by the Trial Court which is confirmed by the First Appellate
Court. No substantial question of law arises in the matter. Accordingly,
the Regular Second Appeal is dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
Shg/xx
