Madras High Court
Balaraj vs State Bank Of Travancore on 22 June, 2021
1 S.A.(MD)NO.541 OF 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.06.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.541 of 2014 and
M.P.(MD)No.2 of 2014
1. Balaraj
2. L.Devaraj
3. Mani ... Appellants/Appellants/
Defendants 1 to 3
Vs.
State Bank of Travancore,
Marthandam Branch,
Rep. by its Manager,
Naloor Village,
Vilavancode Taluk,
Kanyakumari District. ... Respondent/Respondent/
Plaintiff
Prayer: Second appeal filed under Section 100 of
C.P.C., to set aside the judgment and decree passed in A.S.
No.82 of 2011 dated 30.01.2013 on the file of the Subordinate
Judge, Kuzhithurai, modifying the judgment and decree
passed in O.S.No.197 of 2008 dated 23.02.2011 on the file of
the Principal District Munsif, Kuzhithurai and allow the
second appeal.
For Appellants : Mr.G.Ramanathan,
for Mr.P.Subbiah.
For Respondent : Mr.N.Murugesan
***
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2 S.A.(MD)NO.541 OF 2014
JUDGMENT
The defendants in O.S.No.197 of 2008 on the file of
the Principal District Munsif, Kuzhithurai, are the appellants
in this second appeal.
2. The said suit was instituted by the respondent bank
for recovery of a sum of Rs.63,034/- with interest. The case of
the bank is that the first defendant availed loan of Rs.48,500/-
on 17.02.1999 and he also executed a hypothecation
agreement for the said sum. Defendants 2 and 3 stood as
guarantors for the loan. The bank specifically pleaded that the
defendants executed periodical revival letters dated
17.01.2002, 03.01.2005 and 31.05.2007 acknowledging their
liability to repay the loan amount. Since the defendants did
not repay the loan amount, the bank issued lawyer's notice
dated 28.02.2008. Since the demand set out in the notice was
not complied with, the aforesaid suit came to be filed.
3. The defendants filed the written statement denying
the suit claim. They in particular contended that they never
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3 S.A.(MD)NO.541 OF 2014
executed the revival letters and that the claim was barred by
limitation. The defendants have filed an application for
referring the signatures found in the revival letters for expert
opinion. But the said application was dismissed by the trial
Court. The trial Court undertook the task of comparison and
came to the conclusion that the signatures found in the rival
letters are very much that of the defendants. The bank had
examined one of its officials as P.W.1 and marked Ex.A.1 to
Ex.A.14. Defendants 1 and 2 examined themselves as D.W.1
and D.W.2. The trial Court by judgment and decree dated
23.02.2011 decreed the suit and directed the defendants to
pay the plaintiff bank a sum of Rs.63,034/- and Rs.16,088/-
towards interest which was calculated at the rate of 9% p.a.
from the date of the suit (21.04.2008) till the date of decree
(23.02.2011). In other words, the defendants were directed to
pay a sum of Rs.79,122/- to the plaintiff bank. The defendants
were also ordered to pay future interest at the rate of 9% p.a.
on Rs.63,034/- to the plaintiff from the date of decree
(23.02.2011) till the date of realisation.
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4 S.A.(MD)NO.541 OF 2014
4. Aggrieved by the same, the defendants filed
A.S.No.82 of 2011 before the Sub Court, Kuzhithurai. Even
while dismissing the appeal by judgment and decree dated
30.01.2013, the suit decreed by the trial Court was modified
by enhancing the rate of interest payable by the defendants.
Challenging the same, this second appeal came to be filed.
5. This second appeal was admitted on the following
substantial question of law:-
“Whether the lower appellate Court is
correct in increasing the rate of interest from 9%
to 16% without any appeal or cross objection?”
6. Heard the learned counsel on either side.
7. There is no dispute that the plaintiff bank did not
challenge the judgment and decree passed by the trial Court.
Therefore, the first appellate Court in the absence of appeal or
cross objection could not have enhanced the rate of interest
payable by the defendants. The substantial question of law is
answered in favour of the appellants and the judgment and
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5 S.A.(MD)NO.541 OF 2014
decree passed by the trial Court is restored in toto and the
impugned judgment and decree passed by the first appellate
Court is modified to the above extent.
8. This second appeal is partly allowed. No costs.
Consequently, connected miscellaneous petition is closed.
22.06.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1. The Subordinate Judge,
Kuzhithurai.
2. The Principal District Munsif,
Kuzhithurai.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
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6 S.A.(MD)NO.541 OF 2014
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.541 of 2014
22.06.2021
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