{"id":160738,"date":"2010-01-12T00:00:00","date_gmt":"2010-01-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chinnamma-vs-sabeer-t-m-on-12-january-2010-2"},"modified":"2018-10-29T21:35:15","modified_gmt":"2018-10-29T16:05:15","slug":"chinnamma-vs-sabeer-t-m-on-12-january-2010-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chinnamma-vs-sabeer-t-m-on-12-january-2010-2","title":{"rendered":"Chinnamma vs Sabeer.T.M on 12 January, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Chinnamma vs Sabeer.T.M on 12 January, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nRSA.No. 25 of 2010()\n\n\n1. CHINNAMMA, W\/O. SKARIA, VALAVATHIL HOUSE\n                      ...  Petitioner\n2. JOMON, S\/O. SKARIA, OF DO.  NOW IN DO.\n3. JIJO, S\/O. DO. OF DO. IN DO.  DO.\n4. JOYS, S\/O. DO OF DO.  IN DO.  DO.\n\n                        Vs\n\n\n\n1. SABEER.T.M, S\/O. MYTHEEN,\n                       ...       Respondent\n\n                For Petitioner  :SRI.K.JAYAKUMAR\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice THOMAS P.JOSEPH\n\n Dated :12\/01\/2010\n\n O R D E R\n                       THOMAS P JOSEPH, J.\n\n                  ----------------------------------------\n\n                        R.S.A.No.25 of 2010\n\n                  ---------------------------------------\n\n               Dated this 12th day of January, 2010\n\n\n                              JUDGMENT\n<\/pre>\n
     The second appeal arises from concurrent finding entered by the<\/p>\n
courts below as to the existence of a legally recoverable debt and a<\/p>\n
consequent decree passed in favour of the respondent. According to<\/p>\n
the respondent, Skaria predecessor-in-interest of the appellants<\/p>\n
borrowed Rs.95,000\/- from him on 20-08-2005 at his residence and<\/p>\n
issued a post dated cheque dated 20-08-2007 (Ext.A1) for the sum of<\/p>\n
Rs.95,000\/- with a promise that the borrower will make arrangements<\/p>\n
for honouring the cheque on its presentation in the drawee bank on<\/p>\n
the due date. On believing the assurance made by the said Skaria,<\/p>\n
respondent advanced Rs.95,000\/- by way of loan and accepted the<\/p>\n
cheque. On 13-02-2006 Skaria died. Following that, appellants who<\/p>\n
are his legal representatives requested the respondent to prolong<\/p>\n
presentation of the cheque till the due date.            Accepting that he<\/p>\n
presented the cheque on the due date but to be told that the cheque<\/p>\n
cannot be honoured as the account was closed. It is also the case of<\/p>\n
respondent that appellants who inherited 40.47 ares from the<\/p>\n
deceased Skaria fraudulently transferred that property to one Shameer<\/p>\n
as per assignment deed No.1141 of 2006 dated 24-08-2006 a copy of<\/p>\n
which is marked as Ext.A4 and making use of the sale proceeds they<\/p>\n
R.S.A.No.25 of 2010                 2<\/span><\/p>\n
purchased another item of land as per sale deed No.6713 of 2006<\/p>\n
dated 11-12-2006, a copy of which is marked as Ext.A5. Ext.A2 is the<\/p>\n
memo and Ext.A3 is the intimation received from the drawee and<\/p>\n
collecting banks showing that the cheque was dishonoured as account<\/p>\n
was closed.      Respondent sued the appellants for recovery of the<\/p>\n
amount with interest to be realised from the assets of the deceased<\/p>\n
Skaria in the hands of the appellants. Appellants claimed that they<\/p>\n
have no information about the alleged loan transaction between<\/p>\n
respondent and Skaria. Skaria had borrowed money from one Baby<\/p>\n
(DW2) and Saji. That liability was discharged by the appellants after<\/p>\n
the death of Skaria. One Babu claiming that he has signed the blank<\/p>\n
cheques of Skaria with him has been threatening the appellants after<\/p>\n
his death. It is contended that respondent may have misused the<\/p>\n
cheque for and on behalf of the said Babu.        They denied that the<\/p>\n
property belonging to Skaria was sold to defraud the respondent.<\/p>\n
According to them sale proceeds were used for discharging the<\/p>\n
liabilities of Skaria. The property referred to in Ext.A5 was purchased<\/p>\n
making use of the compensation received by a relative of appellant<\/p>\n
No.1 for the injury the relative suffered in a motor accident. Hence,<\/p>\n
that property is not liable for the debts of Skaria. In the trial court<\/p>\n
respondent gave evidence as PW1 and proved Exts.A1 to A3.           He<\/p>\n
asserted that Skaria had borrowed Rs.95,000\/- from him on 20-08-<\/p>\n
R.S.A.No.25 of 2010                 3<\/span><\/p>\n
2005 and issued Ext.A1, cheque. Appellant No.3\/defendant No.3 gave<\/p>\n
evidence as DW1. DW2 is said to be one of the creditors of deceased<\/p>\n
Skaria. He claimed that Skaria had borrowed Rs.50,000\/- from him and<\/p>\n
that liability was discharged by the appellants after the death of Skaria<\/p>\n
paying Rs.40,000\/-. Courts below found in favour of the transaction<\/p>\n
pleaded by the respondent. Courts below were of the view that there<\/p>\n
is no denial of the transaction pleaded by the respondent since the<\/p>\n
plea of appellants is only one of ignorance about the alleged<\/p>\n
transaction.     It was found that the property as per Ext.A5 was<\/p>\n
purchased making use of proceeds of sale as per Ext.A4 and hence the<\/p>\n
property covered by Ext.A5 is answerable for the debts of Skaria.<\/p>\n
Accordingly decree was granted. First appellate court has confirmed<\/p>\n
the finding and judgment and decree. That is under challenge in the<\/p>\n
second appeal. The substantial questions of law urged are that in so<\/p>\n
far as the cheque was presented after the death of Skaria on 13-02-<\/p>\n
2006 there was no valid presentation of the cheque and hence the<\/p>\n
dishonour of the cheque could not have presented a valid cause of<\/p>\n
action for the respondent. Hence the suit must fail on that account. It<\/p>\n
is further contended that the courts below are legally and factually<\/p>\n
wrong in concluding that there was a transaction between respondent<\/p>\n
and deceased Skaria as claimed by the former. The improbability in<\/p>\n
the case was not taken into account by the courts below. Yet another<\/p>\n
R.S.A.No.25 of 2010                   4<\/span><\/p>\n
question raised is that the courts below went wrong in fastening<\/p>\n
liability on the property acquired by the appellant as per Ext.A5.<\/p>\n
       2.     So far as proof of transaction pleaded by the respondent is<\/p>\n
concerned, in para 3 of the plaint (copy of which learned counsel has<\/p>\n
given me for perusal) it is specifically stated that on 20-08-2005 Skaria<\/p>\n
had borrowed Rs.95,000\/- from the respondent at the residence of the<\/p>\n
latter and issued a post dated cheque dated 20-08-2007 (Ext.A1). It is<\/p>\n
also stated in para 3 of the plaint that Skaria had made the respondent<\/p>\n
believe that the cheque when presented will be honoured and based<\/p>\n
on that assurance the money was lent. The reply for those averments<\/p>\n
comes in para 5 of the written statement.         There it is stated that<\/p>\n
appellants have no information about the averments in para 3 of the<\/p>\n
plaint. It is also stated that appellants have no information about the<\/p>\n
transaction referred to in para 3 of the plaint between the respondent<\/p>\n
and deceased Skaria. Denial in para 5 of the written statement is only<\/p>\n
regarding the case of respondent that at the time of the impugned<\/p>\n
transaction appellant No.1 also was present. True, appellants denied<\/p>\n
that statement. But that does not amount to denial of the transaction<\/p>\n
pleaded by the respondent in para 3 of the plaint. Learned counsel for<\/p>\n
the appellants would contend that in so far as appellants were not<\/p>\n
parties or witnesses to the alleged transaction they could only plead<\/p>\n
ignorance of the transaction. I am unable to accept that contention.<\/p>\n
R.S.A.No.25 of 2010                 5<\/span><\/p>\n
Order 8 Rule 5 of the Code of Civil Procedure (for short, “the Code”)<\/p>\n
does not differentiate between a defendant who had allegedly taken<\/p>\n
part or witnessed the transaction and a defendant who had only<\/p>\n
information about that. The statement in the written statement that<\/p>\n
appellants are not aware of the transaction pleaded in the plaint, in my<\/p>\n
view does not amount to a denial, not to say about the specific denial.<\/p>\n
In such a situation, averment in the plaint must deemed to have been<\/p>\n
admitted as held by the Supreme Court in Jahuri Sah and Ors. Vs.<\/p>\n
Dwarika Prasad Jhunjhunwala & Ors (AIR 1967 SC 109). There it<\/p>\n
has been held that to say the defendants have no knowledge of a fact<\/p>\n
pleaded by the plaintiff does not tantamount to a denial of existence of<\/p>\n
the fact, not even an implied denial. The courts below therefore are<\/p>\n
correct in observing that there was no specific denial of the transaction<\/p>\n
and hence that amount to its admission.\n<\/p>\n
      3.    The judgment and decree of courts below do not stand on<\/p>\n
that footing alone. There is the evidence of respondent as PW1 about<\/p>\n
the transaction.   In support of the evidence he has also produced<\/p>\n
Exts.A1 to A3. True, appellants have a contention that since Ext.A1<\/p>\n
was presented after the death of the drawer, there is no valid<\/p>\n
presentation and hence there is no valid dishonour also. Assuming so,<\/p>\n
Ext.A1 can be taken as a document supporting the cases of the<\/p>\n
respondent.     Leaving aside the question of availability presumption<\/p>\n
R.S.A.No.25 of 2010                6<\/span><\/p>\n
under section 118(a) of the Negotiable Instruments Act there is the<\/p>\n
evidence of respondent as PW1 which gets corroboration from Ext.A1.<\/p>\n
Along with this is the added circumstance that appellants have no<\/p>\n
specific denial of transaction.\n<\/p>\n
      4.    What learned counsel described as improbability is that<\/p>\n
though the alleged transaction was on 20-08-2005, Ext.A1 is dated 20-<\/p>\n
08-2007 ie. two years after the transaction. It is also contended by<\/p>\n
learned counsel that it is quite unlikely that such a long period would<\/p>\n
be provided for presentation of the cheque and at any rate the version<\/p>\n
of the respondent that after the death of Skaria on 13-02-2006<\/p>\n
appellants had requested the respondent to prolong presentation of<\/p>\n
the cheque till the due date cannot be believed. I am unable to accept<\/p>\n
the contention that giving a period of two years for presentation of the<\/p>\n
cheque (ie for repayment of the loan) is so improbable a thing that in<\/p>\n
the circumstances it must be taken as something equivalent to near<\/p>\n
impossibility. The period of two years given, I am not inclined to think<\/p>\n
affected the veracity of evidence given by PW1. Courts below on the<\/p>\n
evidence found in favour of the transaction. That being a finding of<\/p>\n
fact based     on evidence and circumstances involved no substantial<\/p>\n
question of law.\n<\/p>\n
      5.    Then the next question urged is whether in the particular<\/p>\n
facts of the case a suit could laid on the dishonoured cheque and<\/p>\n
R.S.A.No.25 of 2010                 7<\/span><\/p>\n
hence it should fail. There again the contention is that the cheque was<\/p>\n
presented after the death of the drawer and hence it cannot be treated<\/p>\n
as a valid cheque after the death of the drawer. Learned counsel has<\/p>\n
invited my attention to para 11 of the plaint where it is stated about<\/p>\n
the cause of action. It is stated that cause of action (for the suit) arise<\/p>\n
on 13-02-2006 when the appellants inherited the property of deceased<\/p>\n
Skaria consequent to his death on that day, on 20-08-2007 the date of<\/p>\n
the cheque, on 10-10-2007 when the cheque was dishonoured and<\/p>\n
thereafter when respondent demanded repayment of the amount and<\/p>\n
that was denied. It is true that in para 11 of the plaint one of the dates<\/p>\n
mentioned as giving cause of action to the respondent is the due date<\/p>\n
of Ext.A1 and its dishonour. But, the cause of action was not confined<\/p>\n
to those date alone. 13-02-2006 date of death of Skaria on which day<\/p>\n
appellants inherited his property and hence the property became liable<\/p>\n
for his debt along with the date from 20-10-2007 onwards when in<\/p>\n
spite of demand made by respondent, appellants failed to pay the<\/p>\n
amount also constituted cause of action as pleaded in para 11 of the<\/p>\n
plaint. On the question whether the suit is based on dishonour of<\/p>\n
cheque or is on the original cause of action its is apposite to refer to<\/p>\n
para 3 of the plaint where it is stated about the transaction of lending<\/p>\n
and borrowal on 20-08-2005, the issue of the cheque which as per<\/p>\n
averments in the plaint comes consequent to the borrowal and the<\/p>\n
R.S.A.No.25 of 2010                 8<\/span><\/p>\n
offer made by the deceased Skaria to pay the amount on the due date.<\/p>\n
Reading the plaint averment as a whole I am unable to accept the<\/p>\n
contention of learned counsel that the suit is based on the dishonour<\/p>\n
of the cheque, there is no valid presentation of the cheque due to the<\/p>\n
death of Skaria and hence the suit has to fail.\n<\/p>\n
      6.    What remained for consideration is whether the courts<\/p>\n
below are legally correct in fastening liability on the property covered<\/p>\n
by Ext.A5. DW2 is examined to show that after the death of Skaria<\/p>\n
appellants discharged the liability created by Skaria in his favour by<\/p>\n
paying Rs.40,000\/-. He claimed that it is as per a demand promissory<\/p>\n
note that Skaria had borrowed Rs.50000\/- from him and that appellants<\/p>\n
discharged that liability and the demand promissory note was returned<\/p>\n
to them. But that document is not produced. What is available is only<\/p>\n
his interested version on which the courts below did not place much<\/p>\n
reliance on. It is seen that property belonging to deceased Skaria was<\/p>\n
sold by the appellants on 28-06-2006 as per Ext.A4. The consideration<\/p>\n
received as per Ext.A4 was Rs.70,000\/- apart from the advance of<\/p>\n
Rs.50,000\/- already received by deceased Skaria. Even if it is accepted<\/p>\n
Rs.40,000\/- out of the sale consideration of the Rs.70,000\/- was paid to<\/p>\n
DW2 still there remained Rs.30,000\/- with the appellants being part of<\/p>\n
the sale consideration as per Ext.A4. But the version of appellants is<\/p>\n
that Ext.A5, property was purchased making use of compensation<\/p>\n
R.S.A.No.25 of 2010                 9<\/span><\/p>\n
awarded to and received by a relative of appellant No.1 from the Motor<\/p>\n
Accidents Claims Tribunal. Appellant No.1 who is a said to have taken<\/p>\n
that amount is not examined, not to say that the relative is also not<\/p>\n
examined.     Thus, there is no evidence to show that the source of<\/p>\n
consideration for purchase of Ext.A5 property came from elsewhere as<\/p>\n
claimed by the appellants. It is in the above circumstances that courts<\/p>\n
below found that Ext.A5 property is purchased by the appellants<\/p>\n
making use of the consideration obtained by sale of property they<\/p>\n
inherited from Skaria and hence debt of Skaria is liable to be satisfied<\/p>\n
from the said property.     On going through the judgments under<\/p>\n
challenge and hearing learned counsel for appellants I do not find any<\/p>\n
substantial question of law involved in this appeal deserving its<\/p>\n
admission. However, having regard to the facts and circumstances<\/p>\n
appellants are granted three months time from today to discharge the<\/p>\n
liability.\n<\/p>\n
       Resultantly the second appeal fails and it is accordingly<\/p>\n
dismissed in limine.\n<\/p>\n<\/p>\n
                                                   THOMAS P JOSEPH,<\/p>\n
                                                          JUDGE<\/p>\n
Sbna\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Chinnamma vs Sabeer.T.M on 12 January, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM RSA.No. 25 of 2010() 1. CHINNAMMA, W\/O. SKARIA, VALAVATHIL HOUSE … Petitioner 2. JOMON, S\/O. SKARIA, OF DO. NOW IN DO. 3. JIJO, S\/O. DO. OF DO. IN DO. DO. 4. JOYS, S\/O. DO OF DO. IN […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-160738","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nChinnamma vs Sabeer.T.M on 12 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/chinnamma-vs-sabeer-t-m-on-12-january-2010-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Chinnamma vs Sabeer.T.M on 12 January, 2010 - 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