IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 519 of 2009()
1. VANAJA.V., W/O.LATE KARUNAKARAN NAIR,
... Petitioner
2. JOSNA, D/O.LATE KARUNAKARAN NAIR,
3. JISHA, D/O.LATE KARUNAKARAN NAIR,
Vs
1. K.P.SREENIVASAN, S/O.GOPALAN NAIR,
... Respondent
For Petitioner :SRI.V.V.ASOKAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :02/11/2009
O R D E R
THOMAS P.JOSEPH, J.
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R.S.A. NO.519 of 2009
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Dated this the 2nd day of November, 2009
J U D G M E N T
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The Second Appeal arises from the judgment and decree of
learned Sub Judge, Quilandy in A.S. No.32 of 2006 confirming
judgment and decree of learned Munsiff, Quilandy in O.S. No.210 of
2004. Respondent/plaintiff claimed that Karunakaran Nair,
predecessor in interest of appellants borrowed Rs.50,000/- from him
on 15.6.2003 and issued Ext.A1, cheque dated 15.5.2004 for the sum
of Rs.60,000/- which took in the principal amount together with
interest agreed to be paid thereon. Since Karunakaran Nair died
before the date of maturity, respondent could not present the cheque
for encashment. After the death of Karunakaran Nair, respondent
issued notice to the appellants demanding payment of the amount.
Appellants denied the transaction and execution of cheque and hence
the suit. Respondent gave evidence as P.W.1 and examined P.Ws.2
and 3 in proof of the alleged transaction and execution of Ext.A1.
Appellant No.3 was examined as D.W1 and gave contra evidence.
Exhibits B1 to B5 and X1 to X3(b) are produced in support of the
contention of appellants. Learned Munsiff found that Karunakaran Nair
had borrowed money from the respondent and issued the cheque.
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First appellate court confirmed the same. As the decree now stands,
respondent is allowed to realise the amount from the assets of
Karunakaran Nair in the hands of appellants. Appellants are aggrieved
and have come up in Second Appeal urging the following by way of
substantial questions of law.
(i) Whether a suit can be maintained
by a drawee of the cheque against the legal
representatives of the drawer of the cheque
without a plea that the legal representatives
had inherited the estate of the drawer to bear
the responsibility and obligation to discharge
the original debt owed by the drawer of the
cheque?
(ii) Whether the courts below are
justified in drawing a presumption under
Section 118 of the Negotiable Instruments Act
upon Ext.A1 (concededly a post dated cheque)
which was presented for encashment long
after the death of the drawer of the cheque
even without proof regarding the signature of
the drawer as contained in the cheque?
(iii) Whether the courts below are
justified in drawing a presumption in favour of
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the drawee of the cheque in spite of the
contrary evidence adduced by the appellants
with regard to the very basis of the cheque in
question? Is not the presumption contemplated
under Section 118 of the Negotiable
Instruments Act a rebuttable one?
(iv) Whether a cheque issued by a
person can be presented for encashment long
after the death of the drawer of the cheque and
file a suit for the said amount against the legal
representatives? Is not such a claim bad and
hit by Section 64 of the Negotiable Instruments
Act?
(v) Are not the conclusions in the
judgments of the courts below vitiated by
reason of their perverse appreciation of the
evidence on record?
It is contended by learned counsel that courts below have not
adverted to the above questions while granting decree in favour of
respondent.
2. Substantial questions of law urged in the Second Appeal
concerned the question regarding validity of the negotiable instrument
and its presentation after the death of the drawer of the instrument. I
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have gone through the copy of the plaint which learned counsel for
appellants produced before me for perusal and I find that the suit is
based on the original cause of action, i.e. Karunakaran Nair borrowing
Rs.50,000/- from the respondent on 15.6.2003. Though it is also
stated that the date on which the amount payable (15.5.2004) also
gave respondent a cause of action for suing for recovery of the amount
basically and principally suit is based on the original cause of action.
Therefore much of the substantial questions of law urged in the
Second Appeal do not arise for decision.
3. It is not the case of respondent that he had presented the
cheque for encashment at any point of time. Instead he pleaded that
he did not present the cheque for encashment since Karunakaran Nair
died before the due date i.e., 15.5.2004. He has given evidence as
P.W1 regarding the transaction and execution of Ext.A1, cheque by
Karunakaran Nair. P.Ws.1 and 2 also supported him. P.W.2 of course,
is a relative of respondent. But he is also a neighbour of respondent
and Karunakaran Nair. Exhibit B4 series are produced to show that
cheque book containing Ext.A1 was not issued to Karunakaran Nair
during 2003 when according to the respondent alleged transaction
took place. But the mere fact that Ext.A1, cheque comes from the
cheque book containing Ext.B4 series is of the previous year does not
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by itself mean that there was no such transaction as pleaded by the
respondent. Exhibits X1 to X3(b) are produced to show that
Karunakaran Nair who was admittedly working at Goa during the
relevant time had attended his office on 14.6.2003 and 16.6.3003 and
therefore there was no possibility of his being at Quilandy on
15.6.2003 to borrow the amount from the respondent. It is seen
from the judgment of the trial court that appellants had produced the
time table of train timings from Calicut to Medgaon. Learned Munsiff
observed that the running time was only 11 hours and hence there
was no difficulty for Karunakaran Nair even if he had been attending
office on 14.6.2003 and 16.6.2003 to come to Quilandy on 15.6.2003
and return to the place of his employment and attend duty on
16.3.2003. Trial court has referred to the oral and documentary
evidence and found in favour of the transaction and execution of
Ext.A1 by Karunakaran Nair. First appellate court has confirmed that
finding. I do not find any perversity in the finding of the courts below
and as such no question of law is involved.
4. It is lastly argued by learned counsel that appellants could
not have been made personally liable for the debt of Karunakaran Nair.
It is seen from the operative portion of the judgment of learned Munsiff
that it is made clear that liability of appellants shall be limited to the
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extent of property of Karunakaran Nair inherited by them. That would
take care of the apprehension of appellants as against the personal
liability apprehended by them. I do not find any question of law,
much less any substantial question of law involved in the Second
Appeal requiring its admission.
Resultantly, Second Appeal is dismissed in limine.
THOMAS P.JOSEPH, JUDGE.
vsv
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THOMAS P.JOSEPH, J.
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R.S.A. NO.519 of 2009
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J U D G M E N T
2ND NOVEMBER, 2009