MANGALORE CATHOLIC CO-OPERATIVE Vs. M SUNDARA SHETTY

JUDGEMENT

(1.) THE respondent, Sundara Shetty, had filed O.S. No. 104 of 1968 before the court of the Civil Judge, Mangalore, against one Ronald Lobo and B.l. Ignato for the amounts due to him on a hire purchase agreement and obtained an attachment before judgment of the immovable properties of B.L. Ignato. The suit came to be decreed on December 16, 1968, and on the execution petition filed by the plaintiff in Execution Case No. 44 of 1970 before the same court, the attached property wa sold in court auction and the plaintiff -respondent himself purchased the same in court sale and the sale was confirmed on april 17, 1971. He was even delivered possession of the property. The defendant present appellant -bank had encumbrance over the property by way of mortgage in its favour dated March 28, 1967, and the sale in favour of the plaintiff was subject to this mortgage. The plaintiff was not aware of any other encumbrance over this property.

(2.) AFTER he took possession of the property sold to him, the plaintiff in order to discharge the encumbrances of the defendant addressed to it a letter in the month of August, 1971, to inform him the total amounts due under the mortgage over the mortgage of the schedule property and the bank intimated to him that the mortgager, B.L.Ignato, was also a surety to his wife for a sum of Rs. 2,957.77 and, therefore, the said mortgegor was due to pay that surety loan also to the bank. When the plaintiff intimated to the banks denying his liability to pay the surety loan, and bank claimed that he was liable to pay that loan amount a well. Even the amount tendered by the plaintiff due under the mortgage dated March 28, 1967, was refused by the bank. The plaintiff intended to sell away the property and, therefore, he wa constrained to make payment of all the amounts due to the bank, namely, the mortgage debt of B.L.Ignato of Rs. 3, 129.20 and the surety loan of R. 3, 580.77. this payment wa made on August 29, 1972.

(3.) THE defendant -bank which is now the appellant in this appeal, interalia, contended that it was claiming a charge on the latter transaction also as over at the time of the first transaction as security for the second transaction as well. secondly, there is a banker's lien on the appellant over the title deeds deposited with bank as security for the amounts due and this extended to the second transaction as well. Therefore, the title deeds were being withheld by the bank both lawfully and legally. It had never intended to coerce the plaintiff into making payment by with holding the title deeds. The plaintiff acted under independent legal advice and, therefore, coercion alleged by him is out of question. The bank even pleaded ignorance of attachment before judgment of the suit property in O.S. 104 of 1968. It further pleaded that the position was altered when the parties agreed that the plaintiff was to pay all the due of B.L.Lgnato to the defendant and, therefore, there was a enervation and the plaintiff being party thereto is bound by the altered agreement.