FEDERAL BANK LTD Vs. RAMAKRISHNA PILLAI

JUDGEMENT

(1.) The plaintiff in O.S. No. 51 of 1983 on the file of the Sub Court, Kottarakkara is the appellant. The suit is for damages.

(2.) The brief facts of the case are as follows: The plaintiff filed O.S. No. 31 of 1972 in the Sub Court, Kottarakkara against one Indira Devi and her husband Bhanu Nair for realisation of Rs. 12,902.42 being the instalment of kuri defaulted by the defendant. The defendant in the suit was engaged by the plaintiff for conducting the case. The suit was decreed on 17-2-1973. A preliminary decree was passed for the sale of the mortgaged properties and a final decree was passed on 17-11-1973 for the sale of the decree schedule property. The plaintiff filed E.P. No. 52 on 1972 on 14-3-1975. In execution of the decree, the decree holder/plaintiff purchased the property in auction. The Judgment Debtors filed E.A.No. 167 of 1975 on 11-4-1975 seeking to set aside the same. The E. A was allowed on 16-2-1977. The plaintiff filed C.M.A. No. 129 of 1977 against the order in E.A. No. 167 of 1975. This court passed a conditional order in CM. A on 19-2-1979 directing the Judgment Debtors to deposit the sale amount with five percent commission and six per cent interest on or before 19-3-1979. It was further ordered that on compliance with the order the sale would stand set aside and on failure to comply with the order the sale would stand confirmed. Judgment Debtors did not deposit the amount within the specified period. The plaintiff requested the defendant to apply for delivery of the property. It is the plaintiff's case that the defendant did not take steps to take delivery, in spite of repeated reminders made by the plaintiff. He also did not respond to the communications addressed to him by the plaintiff-Bank. The plaintiff again requested the defendant to take necessary steps on 18-6-1979. The defendant on 27-7-1989 informed the plaintiff that he had applied for sale certificate and the same would be forwarded along with the application for delivery. The plaintiff did not send application for delivery for the signature of the plaintiff. In the circumstances, the plaintiff asked its Punalur Bank Manager to contact the defendant and ascertain the real position. The Bank Manager approached the defendant several times and the former was informed that application for sale certificate was pending. No application was pending and really no such application was filed as represented by the defendant. The plaintiff verified the court records and found that execution petition was dismissed on 2-4-1977. The plaintiff also understood that the defendant did not file any application for getting the sale certificate. In view of the negligence on the part of the defendant, the plaintiff was forced to give up the engagement given to the counsel on 27-6-1980. Later, plaintiff filed application for delivery of the property through another counsel. That application was dismissed on 28-3-1981. According to the plaintiff, it was because of the failure of the defendant for taking necessary steps the plaintiff sustained loss and application for delivery was dismissed. On these allegations, the plaintiff claimed damages.

(3.) The defendant denied the plaint allegations and contended that even if the allegations are true the suit is barred by limitation. He also contended that there was negligence on the part of the plaintiff and the application was dismissed because of the negligence of the plaintiff.