IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 509 of 1997(E)
1. P.M.MOHAMMED
... Petitioner
Vs
1. M/S.RAGEENA STORES, PERUMBAVOOR
... Respondent
For Petitioner :SRI.T.H.ABDUL AZEEZ
For Respondent :SRI.K.S.BABU
The Hon'ble MR. Justice V.RAMKUMAR
Dated :18/06/2009
O R D E R
V. RAMKUMAR , J.
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A.S. No. 509 of 1997
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Dated this the 18th day of June, 2009.
JUDGMENT
The defendant in O.S. No. 359 of 1994 on the file of the
Subordinate Judge’s Court, N. Paravur is the appellant in this
appeal. The said suit was for a realisation of a sum of
Rs.25,655.65 with interest thereon at the rate of 18% per
annum.
The case of the plaintiff can be summarised as follows:-
2. The plaintiff is a partnership firm conducting wholesale
business in grocery articles at Perumbavoor. The defendant used
to purchase on credit grocery items from the plaintiff’s shop. On
28.11.1992, the defendant issued Ext.A1 cheque for
Rs.24,655.65 in favour of the plaintiff. The said cheque was
drawn on the Kizhakkambalam branch of the Federal Bank Ltd.
On 23.11.1992, the plaintiff issued Ext.A4 lawyer notice to the
effect that he would be presenting Ext.A1 cheque before the
drawee bank on 28.11.1992 and calling upon the defendant to
keep ready sufficient money in his account. But, when the
cheque was presented on 28.11.1992 before the collecting bank,
it was dishonoured for the reason that there was no sufficient
funds in the account of the plaintiff. The drawee bank issued
Ext.A3 dishonour memo dated 22.12.1992 and the collecting
bank issued Ext.A2 memo dated 02.03.1993 intimating the
plaintiff about the dishonour. Even though the plaintiff sent a
notice on 31.01.1994 demanding payment of the cheque amount,
the defendant has deliberately evaded the payment stating one
reason or the other. The plaintiff has the right to claim interest
at the rate of 18% per annum on the cheque amount of
Rs.24,655.65. Hence the suit.
3. The suit was resisted by the defendant contending inter
alia as follows:-
The suit is not maintainable. This defendant is not bound to
pay the amount mentioned in the plaint. This defendant does not
owe the sum of Rs.24,655.65 as stated in paragraph 3 of the
plaint. It is true that this defendant has been buying on credit
articles from the plaintiff’s shop. Ext.A1 was only a signed blank
cheque given by this defendant by way of security for the amount
due from him. The actual amount due from this defendant to the
plaintiff was Rs.23,455.65. In December, 1992, this defendant
had paid a sum of Rs.14,996.70 as cash to the plaintiff. As
against the balance amount of Rs.8458.95, a sum of Rs.1500/-
was paid on 08.02.1993 through this defendant’s son
Shihabudheen (DW2) and on receipt of the same, the plaintiff
had sent Ext.B1 chit dated 08.02.1993 acknowledging receipt of
Rs.1500/- towards Rs.8,458.95 and stating that the balance
amount due was Rs.6,958.95. Thereafter on 16.03.1993, this
defendant had sent Rs.1000/- through his son leaving a balance
of Rs.5958.95. Subsequently, on 17.04.1993, this defendant had
sent another sum of Rs.1000/- through one Valappil Mohammed
Kaderkunju and the balance amount due from this defendant is
Rs.4,958.95 which this defendant is willing to pay to the plaintiff
on demand. Except for the said amount of Rs.4,958.95, this
defendant is not liable to pay any other amounts to the plaintiff.
The suit may, therefore, be dismissed. Since the plaintiff has no
cause of action, the plaintiff is also not entitled to any amount by
way of interest.
4. On the side of the plaintiff, Exts.A1 to A4 were marked.
It is not known as to how these documents were marked without
proof since neither the plaintiff nor anybody on his behalf
mounted the witness box. On the side of the defendants, the
defendant and his son Shihabudheen were examined as DWs 1
and 2 and Ext.B1 chit dated 08.02.1993 was marked.
5. The defendant examined as DW1 spoke in terms of the
averments in the written statement. His son examined as DW2
gave evidence to the effect that on 08.02.1993, the defendant
had entrusted a sum of Rs.1500/- with him to pay the plaintiff
and he had paid the same to the plaintiff who had issued Ext.B1
chit acknowledging receipt of the said amount and indicating the
balance amount of Rs.6,958.95.
6. The court below proceeded on the footing that since the
defendant had pleaded a discharge, the entire burden was on the
defendant and holding that the defendant failed to prove the
discharge set up by him for the cheque amount of Rs.24,655.65,
the court below passed a decree for Rs.30,576/- with interest at
the rate of 18% per annum from the date of suit till realisation.
It is the said decree which is assailed in this appeal by the
defendant.
7. I heard the learned counsel appearing on either side.
8. The learned counsel appearing for the plaintiff made the
following submissions before me in support of the decree:-
The defendant has admittedly been purchasing grocery
items from the plaintiff’s shop on credit. He was setting up a
plea of discharge. So, the entire burden was on the defendant to
prove the discharge. The defendant had miserably failed to
prove the discharge. The court below was right in holding that
Ext.B1 chit has not been shown to have been issued in respect of
the transaction in question. Hence, the decree passed by the
court below does not call for any interference.
9. I am afraid that I cannot agree with the above
submissions. The specific stand taken by the defendant in his
written statement is that Ext.A1 cheque was issued by way of
security for the grocery items purchased by him on credit from
the plaintiff’s shop on various occasions. This is not a case where
the defendant has admitted the suit claim of Rs. 24,655.65 and
has pleaded a discharge. The specific case of the defendant is
that the amount which he owed towards the plaintiff was only
Rs.23,455.65. He was pleading a partial discharge of the said
amount and not the suit amount. The defendant examined as
PW1 spoke in terms of the written statement and stated that
Ext.B1 was a chit issued by the plaintiff to the defendant’s son
(DW2) on paying a sum of Rs.1500/- to the plaintiff. The
defendant’s son examined as DW2 also corroborated the said
version of PW1. There was not even a suggestion put to DWs 1
and 2 that Ext.B1 chit was not issued by the plaintiff or that it
was issued as against some other transaction. The most
competent person who could have confirmed or denied Ext.B1
was the plaintiff himself. For reasons best known to the plaintiff,
he did not mount the witness box. If so, the court below was not
justified in holding that the defendant has failed to prove the case
set up by him. Going by the defence case as substantiated by
DWs 1 and 2, the balance amount that was due to the plaintiff
was only the sum of Rs. 4958.95 after giving credit to the
payment of Rs.1500/- on 08.02.1993, Rs.1000/- on 16.03.1993
and another sum of Rs.1000/- on 17.04.1993. In all fairness, the
defendant had admitted that he was willing to pay the balance
amount of Rs.4958.95. In the facts and circumstances of the
case, the plaintiff would be entitled only to the said amount since
the plaintiff has failed to substantiate the suit claim. Neither the
plaintiff nor the court below was entitled to put the blame on the
defendant for failure to prove the alleged discharge set up by the
defendant with regard to the suit claim. Accordingly, the
judgment and decree passed by the court below are set aside and
the suit will stand decreed for a sum of Rs.4958.95 which amount
shall carry interest at the rate of 18% per annum on the principal
amount till the date of suit and at the rate of 6% per annum from
the date of suit till realisation failing which the plaintiff will be
entitled to realise the same from the defendant and his assets.
This appeal is disposed of as above.
Dated this the 18th day of June, 2009.
V. RAMKUMAR, JUDGE.
rv
V. RAMKUMAR, J
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A.S. No. 509 of 1997
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18th day of June, 2009.
JUDGMENT