IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 425 of 2010()
1. T.BALARAMAN, S/O.RAMAN,
... Petitioner
Vs
1. R.K.DIVAKARAN, S/O.GOVINDAN,
... Respondent
For Petitioner :SRI.R.SURENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice P.BHAVADASAN
Dated :01/06/2010
O R D E R
P.BHAVADASAN, J.
————————————-
RSA No.425 of 2010-A
————————————-
Dated 1st June 2010
Judgment
Undaunted by the concurrent findings against
him, the defendant in OS No.241/00 before the Sub Court,
Thalassery has come up in appeal before this Court. The
facts and exhibits are hereinafter referred to as they are
available before the Trial Court.
2. The allegation in the plaint was that the
defendant who is the appellant, herein, had borrowed a
sum of Rs.1,00,000/- (Rupees One Lakh only) from the
plaintiff on 30.05.2000, agreeing to repay the same within
two months. He failed to do so. On demand being made by
the plaintiff, the defendant ultimately issued Ext.A1 cheque
dated 04.08.2000, drawn on Cannanore District Co-
operative Bank, Mattannur branch. When the cheque was
presented for payment, it bounced for want of cash. A
notice issued to the defendant invoked no reply. Since the
RSA 425/10 2
amount remained unpaid, the suit was laid.
3. The defendant resisted the suit. He denied the
transaction and also denied the issuance of a cheque to
the plaintiff. According to the defendant, the cheque
presented by the plaintiff was one stolen from the shop of
his brother when a theft had occurred in the shop on
07.04.1997. Pointing out that the defendant did not owe
any amount to the plaintiff, he prayed for dismissal of the
suit.
4. The Trial Court raised necessary issues for
consideration. The evidence consists of the testimony of
PW1 and documents marked as Exts.A1 to A7 from the
side of the plaintiff. The defendant examined DW1 and
had Ext.B1 marked.
5. On a consideration of the evidence in the
case, the Trial Court found that the contentions put forward
by the defendant are wholly untenable and accordingly,
decreed the suit.
RSA 425/10 3
6. The defendant carried the matter in appeal as
AS No.6/02 before the District Court, Thalassery. The
Appellate Court, on an independent evaluation of the
evidence, concurred with the Trial Court, but found that the
award of future interest @ 12% is legally unsustainable and
reduced it to 6%. Rest of the findings of the Trial Court
were confirmed.
7. In the Second Appeal, the learned counsel for
the appellant pointed out that the Trial Court was not
justified in comparing the signatures of the defendant and
coming to the conclusion that the cheque had, in fact, been
issued by him. It is also contended that even though the
plaintiff has admitted that he is an income tax assessee
and has a bank account, none of the records are produced
to show that the claim made by the plaintiff is true. The
lower Appellate Court has simply followed the reasoning of
the Trial Court and has not independently evaluated the
evidence.
RSA 425/10 4
8. Even though the above arguments may look
attractive at the first blush, on a close scrutiny, it can be
seen that there is no substance in it whatsoever.
9. If the case of the defendant was that the
signature found on Ext.A1 cheque was not put by him, it
was for him to establish the said fact. Nothing prevented
him from getting an expert’s opinion in that regard. A
reading of the Trial Court Judgment shows that the parties
were very familiar to each other for a long time and the
evidence adduced by the plaintiff was sufficient to show
that the defendant had borrowed money from the plaintiff.
It can be seen that the conclusion was arrived at, not solely
based on comparison of signatures. That is only one of the
factors taken note of by the Trial Court. The Trial Court
had entered a definite finding that the evidence on record
was sufficient to show that money had been borrowed by
the defendant and that he has not repaid the same. If, as a
matter of fact, what the defendant claims is true, he would
have sent a reply to the notice issued to him by the plaintiff.
RSA 425/10 5
He had remained silent on receiving the notice issued to
him. On going through the judgment of the Trial Court, it is
seen that it is well supported by evidence on record.
10. The lower Appellate Court has independently
considered the issue and has come to the same conclusion
as that of the Trial Court and has observed that even
assuming that the comparison of signatures had not been
undertaken, there is sufficient evidence adduced by the
plaintiff to show that the transaction is true. The lower
Appellate Court has also taken the aid of S.118 of the
Negotiable Instruments Act to enter the findings. The lower
Appellate Court has pointed out that the capacity of the
plaintiff to raise funds is not disputed by the defendant.
The courts below have come to a conclusion, purely based
on appreciation of the evidence in the case. No substantial
questions of law arise for consideration in this appeal.
11. The learned counsel for the appellant then
pointed out that the pendente lite interest granted is at a
higher rate and this court may interfere with the said
RSA 425/10 6
aspect. Both the courts have considered the said aspect
and has awarded 12% interest. No grounds are made out
to interfere with the said aspect. Accordingly, there is no
merit in this appeal and it is dismissed, confirming the
Judgments of the courts below.
P.BHAVADASAN, JUDGE
sta
RSA 425/10 7