Kunjippa v. K.P. Valsalakumari

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **THURSDAY, THE 19TH DAY OF JUNE 2014/29TH JYAISHTA, 1936** ## **RSA.No. 640 of 2012** **------------------------------** ## **A.S.NO. 307/2010 OF ADDITIONAL DISTRICT COURT, OTTAPALAM** **O.S.NO. 203/2006 OF SUB COURT, OTTAPALAM** **-------------------** ## **APPELLANT / APPELLANT / PLAINTIFF :** **----------------------------------------------------------** **KUNJIPPA, AGED 73 YEARS, S/O.ABOOBACKER, ESHARATH VALAPPIL VEEDU, TRITHALA AMSOM, NHAGATTIRI DESOM, OTTAPALAM TALUK.** **BY ADVS.SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI** ## **RESPONDENT / RESPONDENT / DEFENDANT :** **-------------------------------------------------------------------** **K.P. VALSALAKUMARI, AGED 59 YEARS, W/O.VASUDEVAN MASTER, KOLLAYIL HOUSE, THIRUVEGAPPURA AMSOM, CHEMBRA DESOM, OTTAPALAM TALUK, PIN : 679 304.** **BY ADV. SRI.K.R.VINOD** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **P.BHAVADASAN, J. ----------------------------------------------Regular Second Appeal No.640 OF 2012 ----------------------------------------------Dated this the 19[th] day of June, 2014.** ## **J U D G M E N T** Faced with the concurrent findings against him by which the suit was dismissed and confirmed in appeal, the plaintiff in O.S.No.203/2006 of Sub Court, Ottapalam has come up in appeal. 2. The short case put forward by the plaintiff is that having received a sum of Rs.1 lakh from him, Ext.A1 cheque was issued by the defendant in discharge of her liability. When the cheque was presented for encashment, it was returned for want of funds. Notice sent to the defendant calling upon her to effect payment invoked no response. Hence the suit. 3. The defendant resisted the suit. She denied the borrowal as alleged in the plaint. She contended that her husband had occasion to borrow a sum of Rs.50,000/- and at the time of borrowal, the plaintiff had insisted for blank cheques of the defendant, her husband and the brother of the husband of **R.S.A No.640/2012** **2** the defendant. It is contended that after the notice was received by the defendant, she had met the plaintiff and repaid the amount. But the cheque was not returned. She believes that her cheques have been misused by the plaintiff to get more interest for the amount given as loan to her husband. On the basis of this contention, she prayed for dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and the documents marked as Exts.A1 to A3 series from the side of the plaintiff. The defendant examined her husband as DW1. 5. The trial court as well as the lower appellate court found it unusual that a typewritten cheque would be handed over to the plaintiff especially when the defendant was a school teacher by profession and that indicates that the contention taken that the cheque was filled up later by the plaintiff is more probable. Further case of the defendant was that the plaintiff was not so financially sound so as to give a sum of Rs.1 lakh to the defendant was also found in her favour. On the basis of these findings, suit was dismissed which was confirmed in appeal. **R.S.A No.640/2012** **3** 6. The following substantial questions of law have been formulated at the time of admission of this appeal: - (1) Whether the courts below are justified in holding that the plaintiff has not proved the transaction overlooking the contention of the defendant in the written statement and the evidence of DW1? - (2) Whether the courts below are justified in holding that the plaintiff has not proved the financial capacity even after the defendant admitting the transaction? - (3) Whether the courts below are justified in not decreeing the suit even after the defendant in the written statement as well as in the evidence of DW1 had acknowledged that there exist a liability due to the plaintiff? 7. Learned counsel appearing for the appellant contended that both the courts below have grievously erred in law and on facts in overlooking the specific admission made by DW1 that a sum of Rs.60,000/- was outstanding to be paid to the plaintiff towards interest for the amount which he had borrowed. It is further pointed out, relying on the evidence of DW1, that he says **R.S.A No.640/2012** **4** that he paid Rs.50,000/- towards the amount borrowed by him in 2005 whereas in the written statement filed by the defendant, it is stated that after Ext.A3 notice was received, they had approached the plaintiff and repaid the amount. It is significant to notice, according to the learned counsel, that the notice was issued in 2006 so that even if any payment had been made in 2005, it could not have been made for the liability for which the suit was laid. It is pointed out that there is no dispute that the signature found in Ext.A1 cheque belongs to that of the defendant. It is also significant to notice, according to the learned counsel, that the defendant did not mount the box and she had her husband examined on her behalf. This is also to be found against the defendant. These vital aspects have been omitted to be noticed and that has resulted in miscarriage of justice. 8. Learned counsel appearing for the respondent, on the other hand, pointed out that on a reading of the evidence of DW1, it may appear that a sum of Rs.60,000/- was outstanding to be paid to the plaintiff. The evidence of PW1 when read as a **R.S.A No.640/2012** **5** whole and when the facts and circumstances of the case are taken note of, it can be seen that the case set up by the plaintiff is absolutely false. The contention taken by the defendant that three cheques were received by the plaintiff is almost admitted. It is also admitted that he had filed three proceedings with reference to three cheques issued to him. It is significant to notice that all the three cheques were typewritten. 9. Further, drawing attention to the evidence of PW1, it is pointed out by the learned counsel for the respondent that he himself says that he had no funds with him and that he had received money from his close relatives. The courts below had come to the right conclusion that the transaction as spoken to by PW1 is not correct. Learned counsel went on to point out that the question as to whether the transaction as alleged is proved is essentially one of fact and the courts below, on appreciation of evidence, had come to an identical conclusion that the plaintiff had miserably failed to establish the transaction. Exercising the jurisdiction under Section 100 of the Code of Civil Procedure, there will not be any substantial question of law arises for **R.S.A No.640/2012** **6** consideration in the appeal and the appeal is only to be dismissed. 10. Before this Court, the main contention taken by the appellant was with reference to the so called admission seems to have been made by DW1 at the time of evidence. DW1 is none other than the husband of the defendant. He admitted that he had borrowed money from the plaintiff and according to his evidence, he had repaid Rs.50,000/- towards the debt incurred by him and he would also say that he had not paid the interest on the money received by him and a sum of Rs.60,000/- was outstanding to be paid to the plaintiff as interest. 11. Learned counsel appearing for the appellant placed reliance on the decision in _**Yadarao Dajiba Shrawane (dead) by Lrs.** vs._ _**Nanilal Harakchand Shah (dead) and others [(2002) 6 Supreme Court Cases 404)**_ wherein it is held as follows: “31. From the discussions in the judgment it is clear that the High Court has based its findings on the documentary evidence placed on record and statements made by some witnesses which can be construed as admissions or conclusions. The position **R.S.A No.640/2012** **7** is well settled that when the judgment of the final court of fact is based on misinterpretation of documentary evidence or on consideration of inadmissible evidence or ignoring material evidence the High Court in second appeal is entitled to interfere with the judgment. The position is also well settled that admission of parties or their witnesses are relevant pieces of evidence and should be given due weightage by courts. A finding of fact ignoring such admissions or concessions is vitiated in law and can be interfered with by the High Court in second appeal. Since the parties have been in litigating terms for several decades, the records are voluminous. The High Court as it appears from the judgment, has discussed the documentary evidence threadbare in the light of law relating to their admissibility and relevance”. 12. There can be no doubt that admission is the best form of evidence one can think of and a decree can follow on the basis of the admission so made. But the admission made by a person should be viewed in the context in which such an admission is made and a sentence picked out of context in the evidence cannot be given undue importance or significance. It is almost admitted by the plaintiff that he had received cheques from the defendant and the brother of the husband of the defendant and **R.S.A No.640/2012** **8** DW1. 13. It may be useful at this point of time to refer to the evidence of PW1. In cross examination, he would say that he gets free treatment for his ailments as he has no money. He has no money with him nor has he any deposit in any Bank or elsewhere. He then goes on to say that he had given Rs.3 lakhs to DW1, Rs.2 lakhs to the brother of DW1 and Rs.1 lakh to the defendant. If one is to go by what is stated by PW1, he should have had Rs.6 lakhs with him to be given to DW1, the brother of DW1 and the defendant. His earlier version that he had no money cannot be overlooked. This is precisely the case put forward by the defendant also. 14. The defendant has categorically averred in the written statement that an amount of Rs.50,000/- was borrowed by the husband of the defendant and that had been repaid. Her definite case is that the plaintiff was not so financially sound to raise Rs.1 lakh. This part of the case pleaded in the written statement is confirmed in the cross examination of PW1. It is also admitted by PW1 that he has initiated proceedings with respect to all the **R.S.A No.640/2012** **9** three cheques. He says that he got the money from his in laws. There is absolutely no evidence to show that he had received any money from anybody else at that point of time. The courts below, on appreciation of evidence, had come to the conclusion that the claim made by the plaintiff that he had close acquaintance with the defendant cannot be true. 15. It is in the above circumstances the so called admission made by DW1 will have to be considered. It is true that the defendant did not mount the box but the definite stand taken by the defendant is that amount was borrowed by DW1. That DW1 borrowed amount from PW1 is admitted by him though PW1 would say that the sum is Rs.3 lakhs. It has also come out in evidence that PW1 has initiated proceedings on the basis of the three cheques and obtained decrees. Probably, what DW1 meant was that for the amount borrowed by him, interest is due. It should be remembered that a decree had already been obtained. When viewed in this circumstance, the case put forward by the defendant is highly probabilised and it seems that the claim put forward by the plaintiff is open to serious doubt. **R.S.A No.640/2012** **10** 16. Much was said about the absence of reply to the notice issued by the plaintiff. It is by now well settled that the mere fact that no reply has been sent by itself is not a ground to uphold the claim put forward by the plaintiff. There may be several reasons for not issuing a reply notice. Of course, the defendant had stated that she had met the plaintiff after the receipt of notice and repaid the amount. True, there is want of evidence in this regard except the statement made by DW1 that he had paid Rs.50,000/-. 17. In the case on hand, the claim put forward by the plaintiff is that he had lent Rs.1 lakh to the defendant for which she had issued Ext.A1 cheque. Apart from the fact that the cheque was typewritten, it is also significant to notice that the contention taken by the defendant that three cheques were obtained by the plaintiff stands proved by the admission made by PW1. 18. It was the above facts which have persuaded the courts below to come to the conclusion that the transaction as alleged in the plaint has not been proved. In the light of the discussion **R.S.A No.640/2012** **11** made above, it is difficult to accept the plea put forward by the appellant that a decree for at least Rs.60,000/- which is admitted to be due should have been granted. That has to be appreciated in the light of the fact that he has initiated proceedings as against the husband of the defendant and brother of the husband of the defendant on the cheques issued to him as contended by the defendant. 19. It could not be said that the courts below have erred in law or on facts in coming to the conclusion that the plaintiff has miserably failed to establish his case. The findings are based on appreciation of evidence and are essential question of fact and no substantial question of law arises for consideration in this appeal. The appeal is without any merits and it is accordingly dismissed. There will be no order as to costs. Sd/- ## **P.BHAVADASAN JUDGE** smp // True Copy // P.A. to Judge.