SOUTH INDIAN BANK LTD Vs. OUSEPH

JUDGEMENT

(1.) Plaintiff Bank, which filed a suit for recovery of amount due under an overdraft agreement, is the appellant. Various contentions raised by the defendants were overruled. The only contention accepted was based on the Cochin Usurious Loans Act, 1111 M. E. Applying the provisions of the said Act the amount of interest claimed by the plaintiff was reduced. That necessitated an appeal. Appeal was filed out of time. An application was filed along with the appeal under S.5 of the Limitation Act for condonation of the delay. That application was dismissed and the appeal was also dismissed as out of time. Hence the plaintiff-Bank has come up in Second Appeal.

(2.) The two substantial questions of law formulated in the memorandum of appeal and on which notice was issued are:

(3.) I am of the view that the first substantial question of law alone could be considered now. If that is found against the appellant and rejection of the delay petition is found proper, that is an end of the matter. On the other hand if it is found that the delay has to be condoned, then also the second question need not now be considered here because the District Judge has not considered the appeal on the merits. In case the delay has to be condoned the only course open is to direct the District Judge to take back the appeal to file and decide the same on the merits. Therefore, I am considering the second appeal only on the first point.