VYSYA BANK LTD Vs. KALAPURAKAL INDUSTRIES

JUDGEMENT

(1.) The appellant, the Vysya Bank Ltd., the original plaintiff, has preferred this appeal against the judgment and decree of the trial Court in so far as the trial Court has granted relief of payment of decree amount in instalments. The question raised is whether the trial Court has jurisdiction to grant a decree for payment of the decree amount in instalments invoking. O.20R.11, C.P.C. in the case of a mortgage decree.

(2.) The plaintiff-bank has instituted the suit for realisation of an amount of Rs. 43,62,919/-together with interest from the defendants jotntly and severally and also by sale of plaint schedule properties, which included immovable properties. When the suit came up for final hearing before the trial Court on 18-6-1994, the defendants filed a statement withdrawing their contentions and agreed to decree the suit. But they requested the trial Court for payment of the decree debt in instalments. It was stated by the defendants that since the first defendant is a small scale industrial unit having 30 employees, and the liability is huge, unless the payment is allowed to be effected in instalments, it will cause serious prejudice to them. The prayer for payment of the amount in instalments was, however, opposed by the plaintiff-bank. The trial Court, however, decreed the suit for Rs. 43,62,919/- against the defendants with costs. The plaintiff was allowed to realise future interest at 24% for the amount from the date of suit till realisation. The trial Court, however, directed the defendants to pay the amount in instalments at Rs. 50,000/- per month commencing from August, 1994. It was further ordered that in default of payment of two consecutive instalments, the plaintiff is at liberty to realise the entire balance by applying for sale of plaint schedule properties, bring them to sale, and appropriate the sale proceeds and to realise the balance, if any, from the defendants personally and against their other assets. Aggrieved by the aforesaid directions of paying the amount by way of instalments, the plaintiff has come up in appeal.

(3.) The main contention urged by senior counsel for the plaintiff-bank, Sri K.C. John, is that the suit being one for realisation of amount due on enforcement of a mortgage, the trial Court should not have granted the prayers for payment of the amount decreed in instalments. It was further contended that the provisions of O.20R.11 have no application in the case of a suit for recovery of money by sale of mortgaged properties. It is the case of the bank that the present being a decree by sale of the property mortgaged and pledged, the question of paying the decree amount in instalments does not arise. The plaintiff was entitled to sale of the property under O.34, C.P.C. on the failure of the defendants to pay the decretal amount by the period fixed by the Court. In support of his contentions, learned senior counsel relied on three Division Bench decisions, reported in C.B.I., Kutch v. P.R.G. Industries Pvt. Ltd., AIR 1986 Guj 113; United Bank of India v. New Glencoe Tea Co. Ltd., AIR 1987 Cal 143; and G. Marappa v. State Bank of Mysore, (1982) 1 Kant U 320; and also the decision of the Gauhati High Court in Sher Alam v. United Bank of India, AIR 1993 Gauhati 25, and an unreported decision of this Court in A. S. No. 256 of 1987.