IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 876 of 1997(E)
1. SURENDRAN
... Petitioner
Vs
1. A.E.KUNJU
... Respondent
For Petitioner :SRI.G.S.REGHUNATH
For Respondent :SRI.L.MOHANAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :17/05/2010
O R D E R
M.N. KRISHNAN, J.
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A.S.NO.876 OF 1997
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Dated this the 17th day of May, 2010.
J U D G M E N T
This is an appeal preferred against the judgment and
decree of the Subordinate Judge, Attingal in O.S.No.92/1995.
It is the case of the plaintiff that the defendant had
borrowed a sum of Rs.40,000/= and issued a cheque which
when presented for encashment got dishonoured. In spite
of repeated demands the amount is not paid back, hence the
suit. On the other hand, the defendant would contend
that there is no such transaction as stated in the plaint but
according to him, the plaintiff along with his son came and
met him with a request to send his son abroad and for that
purpose, handed over him Rs.80,000/= and on their demand,
he happened to issue two cheques as security. The son
was sent abroad, but the plaintiff did not return the
cheque and he has misused it for the purpose of filing the
suit.
2. In the trial Court, PW1 and DW1 to 3 were
examined, Exts.A1, A2 and B1 to B4 were marked. On
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analysis of the materials, the trial court granted a decree
for Rs.40,000/= with 12% interest. It is against that
decision, the defendant has come up in appeal.
3. The points that arise for determination in the appeal
are: (1) Whether the court below has erred in granting a
decree, (2) Whether the transaction alleged by the plaintiff
is true.
4. Points 1 and 2:
The suit is one for realisation of the amount on account
of dishonour of cheque granted in favour of the plaintiff
towards discharge of the liability. The factum of issuance of
the cheque and dishonour are proved. Contention of the
defendant is that the plaintiff and the son approached him
for the purpose of sending the son abroad and towards the
expenses for the same, handed over Rs.80,000/=, for which
the defendant had issued two cheques as security for
Rs.40,000/= each. According to the defendant, though the
son was sent abroad, the cheques were not returned and a
suit of this nature had been instituted.
5. PW1 is the plaintiff. He had deposed in terms of the
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plaint and would depose that the amount that had been
borrowed was attempted to be discharged by the issuance
of the cheque. He denied the transaction regarding the
entrustment of the defendant to send his son abroad. So
many questions had been put to him and nothing acceptable
is elicited to disprove the version spoken to by him. The
defendant had examined himself and two witnesses and a
perusal of the evidence of DWs 2 and 3 would reveal that
they have no real idea about the transaction and DW2
would say that on the date when the son was sent for
Singapore, he was in his residence and on the basis of that he
gives the evidence. There is no case for any party that the
amount was handed over only when the date the son was left
for Singapore. Just because some documents are produced
to show that money has been changed into dollar in the name
of the plaintiff’s son, it will not lead to the conclusion that
it is the part of the case transaction alleged by the
defendant. Similarly, the amount which is said to be spent
for ticket charges is also a document which is not signed
by anybody and that has not been proved. It is under these
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circumstances, the following materials loom large.
6. If really a case as spoken to by DW1 was there, I
am certain that DW1 would have taken some steps to see
that the cheque is returned. He has not even issued a
lawyer notice to that effect. Similarly, if he had entrusted
the two cheques and when a suit is instituted, there must be
some explanation with respect to the second cheque. It is
also not forthcoming. The case of the plaintiff that he had
advanced amount and towards the discharge of the liability,
a cheque has been issued had been spoken to by PW1.
Evidence of Dws 1 to 3 does not inspire confidence
regarding the correctness or acceptability of the same. At
the most, the defence set up is not properly explained or
proved.
7. Therefore, on an analysis of the entire materials,
preponderance of probability weigh with the case of the
plaintiff. So far as interest portion is concerned, I feel that
as the factum of commercial transaction is not established,
6% interest will be sufficient after the date of the decree.
A revised decree is passed as follows:
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8. The plaintiff is given a decree for realisation of
Rs.40,000/= with 12% interest on the said sum from the
date of suit till the date of decree i.e., 31.7.1996 and at
the rate of 6% from 1.8.1996 till realisation with cost from
the defendant and his assets and also from the property
attached as per I.A.No.534/1995. Parties are directed to
bear their respective costs in the appeal.
Disposed of accordingly.
M.N. KRISHNAN, JUDGE.
cl
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M.N. KRISHNAN, J.
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A.S.NO.876 OF 1997
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17th day of May, 2010.
J U D G M E N T