M I IBRAHIM KUTTY Vs. INDIAN OVERSEAS BANK

JUDGEMENT

(1.) THIS revision is preferred against the order of the subordinate Judge, kuzhithurai, dated 18-11-2004, made in e. P. No. 30/2004 in L. A. O. S. No. 10/2001, ordering that E. P. No. 50/2004 is to be proceeded further. The Defendant/judgment-Debtor is the Revision Petitioner.

(2.) THE Indian Overseas Bank, maruthanvode Branch, Edaicode Post, kanyakumari District, is the Plaintiff. The defendant borrowed a sum of Rs. 3,00,000/-from the plaintiff Bank on Demand Promissory Notes and Deed of Hypothecation. In security for the loan, the Defendant had also executed a simple Mortgage Deed in respect of the properties, by deposit of Title Deeds, on 7-5-1991, claiming Rs. 4,63,007, with subsequent interest and cost the Plaintiff bank has filed the suit O. S. No. 10/2001. The suit was referred to Lok Adalat, kuzhithurai. In the Lok Adalat both the plaintiff-Bank and the Defendant have agreed for a compromise and the award was passed on 9-10-2003, in the terms of the compromise. The terms of compromise reads : " (a) Suit shall be decreed for a sum of rs. 5,00,000/- (Rupees five lakhs only)with interest at the rate of 12% (for Rs. 3,00,000/-) from the date of award till realisation. (The amount may include the legal charges as well, wherever agreed ). (b) The Defendant is ready and willing to pay and the plaintiff agrees to receive a sum of Rs. 5,00,000/- with interest at the rate of 12% p. a. (for Rs. 3,00,000/-) p. a. till realisation towards full and final satisfaction of monies owed to the Plaintiff. (c) That the aforesaid amount along with interest thereon and other charges shall be; paid by instalments as per details given, hereunder : particulars of instalments rs. 2,00,000/- before 25-2-2003 and. balance Rs. 3,00,000/- 6 E. M. I. @ 12% (d) Parties further agree that in the event of Defendant fails to adhere to the terms of the award ,herein and/or fails to pay any one instalment the entire amount under the award shall become payable forthwith. " sd/- Sd/- Sd/-Plaintiff Sub Judge/chairman Defendant kuzhithurai Legal Services authority

(3.) THE Defendant had not paid the instalment of Rs. 2,00. 000/- before 25-2-2003. as agreed. Since the Defendant has not acted as per the terms of the award, the plaintiff Bank has filed Execution Petition. In the meanwhile O. S. No. 10/2001 came up for hearing before the subordinate Court, kuzhithurai. On that date, the Plaintiff/bank was not present; Plaintiffs Advocate has not appeared in Court due to Advocate's boycott. Hence the suit O. S. No. 10/2001 was dismissed for default on 23-4-2003. The judgment dismissing the suit for default is as under : "the suit is for realisation of Rs. 4,63,007/- with interest. Plaintiff called absent. Plaintiffs advocate on boycott not appeared in Court is illegal and prejudice misconduct. Defendant present. Defendant's advocate present. Suit dismissed for default on cost of Rs. 2,000/-to be paid by Plaintiffs advocate alone in court before filing any restoration petition in this case. Plaintiff also claims any damages in Consumer Forum or Consumer court from their advocate being on boycott not appeared vide AIR 2003 SC 739. " sd/-Sub Judge