Kerala High Court
Selvaraj vs The Federal Bank Ltd on 28 October, 2010
Bench: Thottathil B.Radhakrishnan, P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA.No. 632 of 2010()
1. SELVARAJ, "VAZHAKKALIL" HOUSE,
... Petitioner
2. SREELAKSHMI, S/O.SELVARAJ, OF -DO-
Vs
1. THE FEDERAL BANK LTD., MUTTAM BRANCH,
... Respondent
2. SHRI.M.RAJASEKHARAN, AGED 45 YEARS,
3. SHRI.N.P.JAYA MENON,
For Petitioner :SRI.JOBY CYRIAC
For Respondent : No Appearance
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :28/10/2010
O R D E R
THOTTATHIL B. RADHAKRISHNAN & C.R.
P. BHAVADASAN, JJ.
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R.F.A. No. 632 of 2010 & C.M.Appl. 1705 of 2010
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Dated this the 26 day of October, 2010.
JUDGMENT
Thottathil B. Radhakrishnan, J, This appeal comes up with an application seeking condonation of delay of 2058 days in filing it. We looked into the merits of the appeal also to decide on the issuance of notice on the application to condone the delay. We wanted to examine whether the appellants could appeal against a decree, which is one passed on consent of parties.
2. We heard Adv.Joby Cyriac on behalf of the appellants. We also took the assistance of Sri. S.Nikhil Sankar to find out the legal provisions in the Code of Civil Procedure, which applies to the situation. R.F.A.632/2010. 2
3. Learned counsel for the appellants pointed out that even going by the plaint averments the lending by the Bank was only for a housing purpose and is one which, therefore, would not amount to a commercial transaction in terms of Explanation II under Section 34 (1) CPC. He, accordingly, pointed out that post decree interest ought to have been levied only at 6% and grant of a decree beyond that was impermissible.
4. However we find from the impugned judgment that defendants 3 and 4, who are the appellants before us filed a written statement admitting the plaint claim. We therefore looked into the written statement filed by them. We do not find any contention therein in opposition to the plaint claim. The written statement concludes by stating that the defendants are ready and willing to settle the matter admitting the claim and the suit may be disposed of considering the written statement also. Defendants 3 and 4 took the R.F.A.632/2010. 3 stand that they were unaware of the mortgage created by the other defendants.
5. In the aforesaid context, Sri. S.Nikhil Sankar is justified in pointing out that the appeal stands barred in terms of Section 96(3) of CPC, which provides that no appeal shall lie from a decree, which was passed by the court below with the consent of parties. He also pointed out that Order XII Rule 6 CPC provides that where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the court may, at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. Sub-rule (2) of Rule 6 provides that whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in accordance with the R.F.A.632/2010. 4 judgment and the decree shall bear the date on which the judgment was pronounced.
6. In view of the aforesaid categoric statutory provisions enabling the court to pass a judgment on admissions, and creating a bar to an appeal against a decree passed on admissions, the appellants before us are not entitled to appeal against the decree as it stands.
7. Therefore, this appeal, presented with an application to condone delay, has necessarily to fail as one barred by law. We therefore do not find any ground to entertain the application to condone the delay. Hence, the application seeking condonation of delay is rejected. As a consequence, the appeal memorandum is also rejected. Resultantly, the entire court fee paid on the memorandum of appeal will be refunded to the appellants.
R.F.A.632/2010. 5
At this juncture, learned counsel for the appellants submitted that this judgment may not stand in the way of his clients seeking review of the impugned judgment and decree by seeking appropriate remedy from the court below. We clarify that we have not expressed anything on the merits of the contentions raised by the appellants and in view of the rejection of the appeal memorandum, the appellants will be entitled to pursue any other relief as may be available in accordance with law.
We record appreciation for the prompt assistance rendered by Sri. S.Nikhil Sankar.
Thottathil B. Radhakrishnan, Judge P. Bhavadasan, Judge sb.