ANNAL JEEVA Vs. STATE BANK OF TRAVANCORE

JUDGEMENT

(1.) THE respondent Bank filed Suit OS 14/1992 on the file of Sub-Court, Padmanabhapuram, for recovery of the amount due to it towards the principal and interest with future interest and for costs from the defendants appellants praying for decree jointly and severally and for declaring that the plaint schedule properties are charged and are liable to be sold for recovery of the said amount preliminary decree was passed by the Sub-Court, Padmanabhapuram on 10.7.1995 with costs. On the application made by the respondent Bank the Sub-Court, Padmanabhapuram, passed final decree on 27.11.1996 entitling the respondent Bank to realize the amount in terms of the preliminary decree. As per the final decree, the respondent Bank is entitled to realize the amount with future interest at 22.5.% and costs from the defendants personally and by sale of the plaint mentioned property. Thus, as per the final decree the total amount due to the respondent Bank by the appellant-defendants is Rs. 20,80,796.02 p. Since the claim of the respondent Bank is more than Rs. 10 lakhs, after the passing of the Recovery of Debts Due to Banks and Financial Inslilutions (RDDB&FI) Act, 1993 the subject matter of the decree and recovery falls within the jurisdiction of the DRT. the respondent Bank filed Original Application (OA) before the DRT, Chennai, for issue of a recovery certificate for recovery of the debt based on the decree and that an amount of Rs. 20,80,796.02 p. is due from the appellant-defendants to the respondent Bank and the appellant defendants are jointly and severally liable to pay that amount with future interest at the rate of 22.5% per annum on the principal amount and for costs and the properties mentioned in the plaint schedule are also liable to be sold for recovery of the said amount.

(2.) During the pendency of the OA before the Tribunal, the defendant appellant filed IA-261/2001 praying the Tribunal to raise an issue to the effect that the decree dated 27.11.1996 passed in OS-14/1992 by Sub-Court, Padmanabhapuram. is inexecutable as the decree is a nullity and consequently dismiss the OA-906/1998. The appellant has raised the point in IA-261/2001 that the decree is inexecutabfe and the decree is a nullity and so the OA has to be dismissed. In the affidavit in the petition, the appellant has alleged that the suit was filed on the basis of a mortgage of immovable property situated within the jurisdiction of Kuzhithurai Sub-Court but the decree was passed by the Sub-Court, Padmanabhapuram, and the decree was passed by the Court having on jurisdiction and so it is inexecutable.

(3.) COUNSEL for the appellant submits that the judgment and decree passed by the Sub-Court, Padmanabhapuram, in OS-14/1992 is a nullity and it is incapaole of execution since the Court which passed the decree has no jurisdiction to pass that decree and so the DRT, Chennai, should dismiss the OA filed by the Bank. COUNSEL for the respondent Bank submitted that the defendants in the suit never raised any objection with regard to the territorial jurisdiction of the Court and preliminary decree was passed and final decree was also passed and in spite of several opportunities given to the defendants they did not avail that opportunity and the defendants were set ex parte and ex parte decree was passed and now the defendants cannot raise the contention that the decree passed by the Sub-Court, Padmanabhapuram is a nullity since that Court has no territorial jurisdiction to pass the decree.