{"id":2722,"date":"2009-01-22T00:00:00","date_gmt":"2009-01-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gopinathan-vs-viswanathan-on-22-january-2009"},"modified":"2015-07-07T05:37:41","modified_gmt":"2015-07-07T00:07:41","slug":"gopinathan-vs-viswanathan-on-22-january-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gopinathan-vs-viswanathan-on-22-january-2009","title":{"rendered":"Gopinathan vs Viswanathan on 22 January, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Gopinathan vs Viswanathan on 22 January, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nAS.No. 467 of 1995()\n\n\n\n1. GOPINATHAN\n                      ...  Petitioner\n\n                        Vs\n\n1. VISWANATHAN\n                       ...       Respondent\n\n                For Petitioner  :SRI.P.R.VENKITESH\n\n                For Respondent  :SRI.N.P.SAMUEL\n\nThe Hon'ble MR. Justice P.N.RAVINDRAN\n\n Dated :22\/01\/2009\n\n O R D E R\n                              P.N.Ravindran, J.\n                             ===============\n                           A.S. No.467 of 1995\n                        =====================\n\n                Dated this the 22nd day of January, 2009.\n\n                                JUDGMENT\n<\/pre>\n
      The plaintiff in O.S.No.954 of 1990 on the file of the Court of the<\/p>\n
Subordinate Judge of Thrissur is the appellant in this appeal.        The<\/p>\n
respondent is the sole defendant therein. The suit instituted by the<\/p>\n
appellant for realisation of the sum of Rs.34,050\/- together with interest<\/p>\n
thereon and costs of the suit was dismissed by the trial court. Hence,<\/p>\n
this appeal.\n<\/p>\n
      2. The case set out by the plaintiff is that the defendant had<\/p>\n
requested him to advance a sum of Rs.25,000\/- as loan and had assured<\/p>\n
him that he would repay the loan amount with 12% interest on demand,<\/p>\n
that he thereupon issued a cheque dated 18.12.1987 for Rs.25,000\/-<\/p>\n
drawn in favour of the defendant on the Syndicate Bank, Thrissur branch,<\/p>\n
that the cheque was encashed by the defendant on 18.12.1987 itself,<\/p>\n
that in spite of repeated requests, the defendant did not repay the loan,<\/p>\n
that the defendant had sent Ext.A1 letter dated 14.8.1990 stating that<\/p>\n
he would repay the amount without delay, that when the defendant did<\/p>\n
not repay the loan as promised in Ext.A1, he caused Ext.A2 lawyer notice<\/p>\n
dated 31.10.1990 to be issued and that though the defendant received<\/p>\n
the said notice, he did not send a reply or repay the loan.<\/p>\n
      3. The defendant entered appearance and resisted the suit. He<\/p>\n
AS 467\/95                            -: 2 :-<\/span><\/p>\n
denied the averment in the plaint that he had availed a loan of<\/p>\n
Rs.25,000\/- from the plaintiff. He contended that the cheque referred to<\/p>\n
in the plaint was issued by the plaintiff towards repayment of money lent<\/p>\n
by him to the plaintiff on various occasions. He also denied having sent<\/p>\n
Ext.A1 letter agreeing to repay the loan availed by him from the plaintiff.<\/p>\n
He also contended that on receipt of Ext.A2 lawyer notice, he met the<\/p>\n
plaintiff in person, that the plaintiff thereupon stated that the notice was<\/p>\n
sent by mistake, that he would not proceed further in the matter and<\/p>\n
that believing the plaintiff, he did not send a reply to Ext.A2 notice.<\/p>\n
       4. In the trial court, the plaintiff examined himself as PW1 and a<\/p>\n
witness to the transaction as PW2. Exts.A1 to A3 were produced and<\/p>\n
marked on his side.      The defendant examined himself        as DW1 and<\/p>\n
produced Ext.B1, stated to be an account book maintained by him. The<\/p>\n
trial court on an analysis of the evidence oral and documentary available<\/p>\n
in the case held that the plaintiff has not proved that the cheque dated<\/p>\n
18.12.1987 was issued by him to the defendant as loan, as contended by<\/p>\n
him in the plaint. The trial court also held that no reliance can be placed<\/p>\n
on the testimony tendered by PW2 for the reason that the presence of a<\/p>\n
witness at the time of the alleged lending is not referred to either in the<\/p>\n
plaint or in Ext.A2 notice. The court below held that Ext.A1 cannot be<\/p>\n
relied on in view of the vast difference in the signature purporting to be<\/p>\n
that of the defendant appearing therein and the admitted signature of<\/p>\n
the defendant in the written statement and in Ext.A3 postal<\/p>\n
AS 467\/95                         -: 3 :-<\/span><\/p>\n
acknowledgment card. The suit was accordingly dismissed.<\/p>\n
      5. Sri.T.R.Rajan, the learned counsel appearing for the appellant<\/p>\n
contended that as the defendant has not denied the issuance of the<\/p>\n
cheque and he has not proved that the cheque was issued in repayment<\/p>\n
of the loan availed by the plaintiff from him, the finding of the court<\/p>\n
below cannot be sustained. The learned counsel further contended that<\/p>\n
there is no dissimilarity between the signatures in Exts.A1 and A3 and<\/p>\n
that the inference drawn by the court below that Ext.A1 does not bear<\/p>\n
the signature of the defendant cannot be sustained. The learned counsel<\/p>\n
also contended that failure of the appellant to refer to the presence of<\/p>\n
PW2 at the time of the lending in Ext.A2 lawyer notice and in the plaint,<\/p>\n
is not of much importance in the facts and circumstances of the case.<\/p>\n
The learned counsel appearing for the appellant also submitted that the<\/p>\n
plaintiff may be given an opportunity to prove that the signature in<\/p>\n
Ext.A1 is similar to the signature of the defendant in Ext.A3 and in the<\/p>\n
written statement filed by him and that the suit may be remitted to the<\/p>\n
lower court for fresh disposal after affording the appellant an<\/p>\n
opportunity to get the signature in Ext.A1 examined by an expert. Per<\/p>\n
contra, Sri.N.P.Samuel the learned counsel appearing for the respondent<\/p>\n
contended that the plaintiff has not proved that the amount covered by<\/p>\n
the cheque was given as loan to the defendant, that there is a<\/p>\n
presumption that a cheque is always issued in repayment of a loan and<\/p>\n
that in the absence of any cogent evidence to prove the alleged lending,<\/p>\n
AS 467\/95                          -: 4 :-<\/span><\/p>\n
the finding of the court below cannot be upset. The learned counsel<\/p>\n
appearing for the respondent also referred to the vast difference in the<\/p>\n
admitted signatures of the defendant in Ext.A3 and in the written<\/p>\n
statement with the disputed signature in Ext.A1 and contended that even<\/p>\n
without the assistance of an expert, it can be seen that the signatures in<\/p>\n
Exts.A1 and A3 are not similar. The learned counsel for the respondent<\/p>\n
also contended that apart from the testimony tendered by PW2 which<\/p>\n
was rightly rejected by the court below, the plaintiff has not adduced any<\/p>\n
evidence to show that he had lent and advanced the sum of Rs.25,000\/-<\/p>\n
to the defendant as claimed by him, on 18.12.1987.\n<\/p>\n
      6.   I have considered the submissions made at the Bar by the<\/p>\n
learned counsel appearing on either side. The short question that arises<\/p>\n
in this appeal is whether the appellant has proved that the amount<\/p>\n
covered by the cheque dated 18.12.1987 issued by him to the defendant<\/p>\n
was lent and advanced to him by the defendant as loan. The plaintiff<\/p>\n
relies on the testimony tendered by PW2 and the recitals in Ext.A1 letter<\/p>\n
alleged to have been sent by the defendant in support of his contention.<\/p>\n
A Division Bench of this Court has in Ramachandran v. Velayudhan<\/p>\n
-1986 KLT 647, held as follows:\n<\/p>\n
            “4. The burden of proving that the sum advanced to<\/p>\n
      the 1st defendant was towards loan is on the plaintiff.<\/p>\n
      Merely because 1st defendant admitted that he received the<\/p>\n
      cheques it would not follow that he obtained a loan of the<\/p>\n
      said amount. No legal presumption arises when a sum is<\/p>\n
AS 467\/95                         -: 5 :-<\/span><\/p>\n
     admitted to have been received, that it was meant to be<\/p>\n
     repaid because the same may have been paid for various<\/p>\n
     reasons. It is for the plaintiff to substantiate his case that<\/p>\n
     the amount covered by the cheques was really given to the<\/p>\n
     1st defendant as a loan.<\/p>\n
           5. All payments by cheques are prima facie indicative<\/p>\n
     of the fact that they are issued to extinguish an existing<\/p>\n
     debt and not to create a new one. A cheque issued to a<\/p>\n
     person by itself is not indicative of the fact that money was<\/p>\n
     lent to him. On the other hand, it is prima facie evidence<\/p>\n
     of the repayment of money owed by the drawer to the<\/p>\n
     payee.   Of course, it is always open to the plaintiff to<\/p>\n
     establish that the payment of the amount by cheque was in<\/p>\n
     fact a loan to the 1st defendant.       In this context, it is<\/p>\n
     apposite   to   refer  to   Sangappa Basappa Gogi v.<\/p>\n
     Chidananda Baswantraya Aski (I.L.R. (1980) 2 Karnataka<\/p>\n
     1133) wherein it is held as follows:\n<\/p><\/blockquote>\n
               “A cheque drawn, presented and paid is by itself<\/p>\n
         no evidence of any money lent or advanced by the<\/p>\n
         drawer to the payee. It may be a prima facie evidence<\/p>\n
         to extinguish an existing debt, however, not to create a<\/p>\n
         new one. However, it is open to the drawer to show by<\/p>\n
         other evidence that the cheque was in fact loaned to the<\/p>\n
         payee. A mere issue of a cheque in favour of the payee,<\/p>\n
         by itself will not be evidence of a loan even if the<\/p>\n
         cheque is encashed by the payee. That it was loaned to<\/p>\n
         the payee must be proved by the drawer by other<\/p>\n
         evidence. The burden is upon the person who sets up a<\/p>\n
         case of loan based on the issuance of a cheque to<\/p>\n
         establish by other evidence that it was a loan to the<\/p>\n
         payee.”<\/p><\/blockquote>\n
\n
AS 467\/95                          -: 6 :-<\/span><\/p>\n<\/blockquote>\n
            6. The burden of proving that the sum paid as per<\/p>\n
      the cheque was towards a loan is always on the plaintiff. In<\/p>\n
      Bihari Lal v. Lala Chandu Lal (A.I.R. 1939 Lahore 386) it<\/p>\n
      has been held as follows:\n<\/p><\/blockquote>\n
                 “When a sum is admitted to have been received,<\/p>\n
          there is no legal presumption that it was meant to be<\/p>\n
          repaid. The payment may have been made for various<\/p>\n
          reasons and it is for the person who comes to Court<\/p>\n
          and sues for recovery of the sum of money to prove<\/p>\n
          that it was meant to be repaid.”\n<\/p><\/blockquote>\n<\/blockquote>\n
      Merely because 1st defendant admitted receipt of the<\/p>\n
      cheques it would not follow that he received the amount as<\/p>\n
      a loan. As the burden is always on the plaintiff in a suit<\/p>\n
      where he claims amounts due to him from the defendant to<\/p>\n
      substantiate his case, in the absence of evidence to prove<\/p>\n
      the alleged loan given to the 1st defendant, mere issuance<\/p>\n
      of cheques will not raise any presumption in his favour.”<\/p><\/blockquote>\n
      7. In the instant case, the plaintiff contends that as the defendant<\/p>\n
admits having received the cheque, a presumption would arise that the<\/p>\n
amount covered by the cheque was given as loan. As held by the Division<\/p>\n
Bench of this Court in Ramachandran v. Velayudhan (supra), the mere<\/p>\n
admission by the defendant that he had received the cheque would not<\/p>\n
lead to the conclusion that he had received the amount covered by the<\/p>\n
cheque as loan and that the burden is always on the plaintiff to<\/p>\n
substantiate that the amount covered by the cheque was given as loan.<\/p>\n
The Division Bench also held that in the absence of evidence to prove<\/p>\n
that the amount covered by the cheque was given as loan to the payee,<\/p>\n
AS 467\/95                           -: 7 :-<\/span><\/p>\n
the issuance of the cheque will not raise any presumption in favour of the<\/p>\n
plaintiff.\n<\/p>\n
      8. The plaintiff relies on Ext.A1 to substantiate his contention that<\/p>\n
the defendant has admitted receipt of the amount of Rs.25,000\/- as loan<\/p>\n
and had also agreed to repay the same at the earliest. The defendant<\/p>\n
has even in the written statement denied having sent Ext.A1 letter.<\/p>\n
Apart from the fact that there is no specific reference in Ext.A1 letter to<\/p>\n
the sum of Rs.25,000\/-, as noticed by the court below the signature<\/p>\n
purporting to be that of the defendant in Ext.A1 bears no resemblance or<\/p>\n
similarity with his admitted signature in the written statement and in<\/p>\n
Ext.A3 postal acknowledgment card. The address of the sender is also<\/p>\n
not given in Ext.A1. Ext.A1 shows that one Sri. Viswanathan had sent a<\/p>\n
letter to Sri. T.B.Gopi, M\/s. Thalikulam Engravers, South Bazaar, Thrissur.<\/p>\n
The name of the plaintiff as shown in the plaint is Gopinathan and the<\/p>\n
address given in the plaint is different from the address shown in Ext.A1.<\/p>\n
Apart from the ipse dixit of the plaintiff examined as PW1 there is no<\/p>\n
evidence to show that Ext.A1 letter was sent by the defendant to the<\/p>\n
plaintiff. The defendant has denied having sent Ext.A1 letter even in the<\/p>\n
written statement filed by him. The plaintiff has not either in the plaint<\/p>\n
or when examined as PW1 stated that he is running a business under the<\/p>\n
name and style “Thalikulam Engravers, South Bazaar, Thrissur. PW1 has<\/p>\n
deposed that he is doing business in gold and is also a goldsmith.<\/p>\n
Further, the signature in Ext.A1 purporting to be that of the defendant<\/p>\n
AS 467\/95                          -: 8 :-<\/span><\/p>\n
bears no similarity or resemblance to his admitted signature in Ext.A3<\/p>\n
postal acknowledgment card and in the written statement. I therefore<\/p>\n
agree with the court below that no reliance can be placed on Ext.A1.<\/p>\n
      9. Apart from Ext.A1, the plaintiff also relies on the testimony<\/p>\n
tendered by PW2 in support of his contention that he had lent and<\/p>\n
advanced the sum of Rs.25,000\/- to the defendant on 18.12.1987. PW2<\/p>\n
is a broker by profession. His version is that the defendant had informed<\/p>\n
him that he is on the look out for a parcel of land, that for that purpose<\/p>\n
he went over to the shop of the plaintiff, that in his presence, the<\/p>\n
defendant asked the plaintiff for a loan of Rs.25,000\/- and that as the<\/p>\n
plaintiff did not have cash with him, he issued the cheque. The court<\/p>\n
below held that his testimony cannot be relied on for the reason that<\/p>\n
neither in Ext.A2 nor in the plaint there is any reference to the presence<\/p>\n
of any person especially PW2 at the time of the alleged lending. The<\/p>\n
court below held that in these circumstances, it would not be safe to rely<\/p>\n
on the testimony tendered by PW2. His version is that about 6 years<\/p>\n
back when he went over to the plaintiff’s shop, the defendant was<\/p>\n
present there, that the defendant asked for a loan of Rs.25,000\/- and<\/p>\n
that as the plaintiff did not have cash with him, he issued the cheque.<\/p>\n
PW2 was examined on 16.2.1994. Going by the version of Ext.PW2, the<\/p>\n
alleged lending would be some time in February\/March, 1988. Further,<\/p>\n
going by the version of PW2 he went over to the shop of the plaintiff<\/p>\n
because the defendant had asked him to find out a parcel of land for him<\/p>\n
AS 467\/95                         -: 9 :-<\/span><\/p>\n
to purchase. The statement of PW2 that he went over to the shop of the<\/p>\n
plaintiff in order to speak to the defendant about the land transaction<\/p>\n
and that when he went to the shop of the plaintiff for that purpose, he<\/p>\n
happened to witness the loan transaction does not inspire confidence.<\/p>\n
Apart from Ext.A1 which cannot be relied on, the plaintiff has not<\/p>\n
adduced any evidence to show that the amount covered by the cheque<\/p>\n
dated 18.12.1987 was given to the defendant as loan. As held by the<\/p>\n
Division Bench of this Court in Ramachandran v. Velayudhan (supra) in<\/p>\n
the absence of any evidence to hold that the amount covered by the<\/p>\n
cheque was given by the plaintiff to the defendant as loan, merely<\/p>\n
because the defendant has admitted having received the cheque, it<\/p>\n
cannot be held that amount covered by the cheque was given as loan by<\/p>\n
the plaintiff to the defendant.   As the plaintiff has not adduced any<\/p>\n
cogent evidence to prove the alleged lending, the court below was right<\/p>\n
in dismissing the suit.\n<\/p>\n
      For the reasons stated above, I hold that there is no merit in this<\/p>\n
appeal. The appeal fails and is accordingly dismissed. No costs.<\/p>\n
                                                P.N.Ravindran,
\n                                                Judge.\n<\/p>\n
ess 29\/1<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Gopinathan vs Viswanathan on 22 January, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM AS.No. 467 of 1995() 1. GOPINATHAN … Petitioner Vs 1. VISWANATHAN … Respondent For Petitioner :SRI.P.R.VENKITESH For Respondent :SRI.N.P.SAMUEL The Hon’ble MR. Justice P.N.RAVINDRAN Dated :22\/01\/2009 O R D E R P.N.Ravindran, J. =============== A.S. No.467 of […]<\/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-2722","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nGopinathan vs Viswanathan on 22 January, 2009 - 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\/gopinathan-vs-viswanathan-on-22-january-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gopinathan vs Viswanathan on 22 January, 2009 - 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