K. Ramakrishnan, J.

1. The plaintiff in O.S.No.41/1993 on the file of the Sub Court, Mavelikkara is the appellant in A.S.No.354/1999 and the plaintiff in O.S.No.40/1993 on the file of the same court is the appellant in A.S.No.457/1999. O.S.Nos.40/1993 and 41/1993 were filed by the plaintiff M/s.Federal Bank, Mankamkuzhy branch originally against defendants 1 and 2 for realization of amount due under a loan agreement. The first defendant along with one Purushothaman availed a loan of Rs.1,03,000/- each under two loan arrangement for purchasing two new Deluxe Diesel Ambassador Cars and applied for the same and the same was granted and they have jointly executed a medium term loan agreements on 30.1.1990 hypothecating the vehicles which will be purchased by the defendants using the amount in favour of the plaintiff bank. Purushothaman died on 5.8.1991 and his legal representative, his mother was the second defendant in the case. They had agreed to pay interest at the rate of 12.5% with additional interest of 2% over and above 12.5% in case of default in payment of installment and process fee of .05% per annum. They had also undertaken that they will pay the interest rate subject to the change from time to time, that will be increased as per the directions of the Reserve Bank of India. The loan amount had to be paid in 48 installments commencing from 28.2.1990. If they committed any default, the plaintiff bank was entitled to realize the same in lump. They also executed an article of agreement agreeing to hypothecate the vehicles. As collateral security, the first defendant and Purushothaman deposited title deeds of the plaint schedule property on 30.1.1990 intending to create an equitable mortgage on the plaint schedule property. Equitable mortgage was confirmed again on 1.2.1990 by the defendants by sending a confirmation letter. They committed default in payment of the amount and in spite of the demand made on 14.6.1991, they did not pay the amount, but they sent a reply stating that the vehicles were not delivered by the dealer and they filed a petition before the State Consumer Dispute Redressal Commission, Thiruvananthapuram and obtained an order against M/s. Hassan Kuthoos Maricar Pvt. Ltd directing them to deliver the vehicle and pay interest at the rate of 12.5% but the vehicles were not delivered. So they are not liable to pay the amount and the plaintiff is not entitled to recover the amount from them.

2. The contentions raised by them is not tenable. Defendants 1 and 2 are liable to pay the amount. So they filed the above suits for realization of Rs.1,99,104/- with interest and costs by sale of the mortgaged property in O.S.No.40/1993 and for realization of the amount of Rs.1,99,110/- with interest and costs by sale of mortgage of property in that suit.

3. Defendants 1 and 2 in both the cases filed written statements raising common contentions. They contended that the suit is not maintainable. The plaintiff bank is not properly represented. They have suppressed the materials facts. They admitted that they have availed loan for purchasing Ambassador cars on hire purchase basis and they have deposited margin money and along with the margin money, the plaintiff bank sent demand draft to the dealer M/s. M.O.Hassan Kuthoos Maricar, Ltd., Pondicherry on 30.1.1990 and the dealer issued receipt dated 6.2.1990 in favour of the plaintiff. The part played by the dealer of the vehicle is suppressed in the plaint. The suit is bad for non joinder of dealer of the vehicles. The dealer company to whom the amounts were paid did not deliver the vehicle and as such, they could not repay the loan. The co-obligant, Purushothaman died on 4.8.1991. The failure to pay the amount is not willful, but due to the non-delivery of the vehicles by the dealer. So they are not liable to pay penal interest. They admitted the execution of the document in favour of the plaintiff bank and liability to pay the amount in equal monthly installments. A