THOMCOS BANK LTD Vs. MATHEW PEREIRA
HIGH COURT OF KERALA
THOMCOS BANK LTD., TRIVANDRUM (REPRESENTED BY RAMACHANDRA IYER)
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(1.) This appeal is by Thomcos Bank Ltd., and arises out of a suit filed by the Bank based upon a hypothecation bond executed by the defendants on 29.9.1122. Defendants 4 and 5 were wholesale merchants carrying on business at Vallakkadavu in Trivandrum under the name of Abdul Azeez and Co. They had a demand loan account with the plaintiff Bank. On 29.9.1122, a sum of Rs. 25,512-1-0 was due to the Bank as per its accounts and the Bank wanted to safeguard its position. So as demanded, defendants 4 and 5 and defendants, 1 to 3 jointly executed the hypothecation bond Ext. A for Rs. 15,000 charging the plaint schedule properties belonging to defendants 1 to 3. Claiming that the debt was not discharged, the Bank came forward with the suit.
(2.) Defendants 1, 4 and 5 contested. The 1st defendant contended that though the bond was executed, it was wanting in consideration as the Bank did not credit the amount shown therein towards the amount due under the loan account of defendants 4 and 5 then itself, that the conduct of the Bank showed that it had forfeited and abandoned its rights, if any, under the hypothecation bond and even otherwise the debt had been discharged by payments by defendants 4 and 5. Defendants 4 and 5 also raised a similar contention and pleaded that the hypothecation bond had not come into effect and that the amounts as claimed were not due to the Bank.
(3.) The lower court held that as the Bank did not credit the consideration shown in the hypothecation bond towards the loan account of defendants 4 and 5 when the deed was executed, but only on 7th July 1949, even according to Bank accounts the hypothecation bond was not enforceable as it was not supported by consideration. On that ground the suit was dismissed. Hence the plaintiff has come here on appeal.;
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