Leela Mathew v. P.V. Krishnamoorthy and K.V. Mathew

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 1ST DECEMBER 2011 / 10TH AGRAHAYANA 1933 CRP.No. 2191 of 2002(B) ----------------------AS.233/1995 of II ADDL. DISTRICT COURT, PALAKKAD OS.642/1993 of ADDL.MUNSIFF COURT, PALAKKAD .................... REVN. PETITIONER(S): 1ST RESPONDENT/PLAINTIFF --------------------------------------------- LEELA MATHEW, W/O. K.V.MATHEW, RESIDING AT GRACE COTTAGE, OLAVAKKODE, PALAKKAD. BY ADV. SRI.T.C.SURESH MENON SMT.M.R.VALSA SMT.RANJINI.M.PONNACHAN RESPONDENT(S): APPELLANT/2ND RESPONDENT/DEFENDANTS -------------------------------------------------- 1. P.V.KRISHNAMOORTHY, S/O. VISWANATHAN, PROPRIETOR, NALANDA HOTEL, ROBINSON ROAD, PALAKKAD. 2. K.V.MATHEW, S/O. VARGHESE, RESIDING AT GRACE COTTAGE, OLAVAKKODE, PALAKKAD. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/11/2011, THE COURT ON 1.12.2011 PASSED THE FOLLOWING: ## **M.L.JOSEPH FRANCIS, J. ----------------------------------------------C.R.P. No.2191 OF 2002 ----------------------------------------------Dated 1[st] December, 2011.** ## **O R D E R** This Civil Revision Petition is filed by the plaintiff in O.S.642/1993 on the file of the Additional Munsiff's Court, Palakkad. The respondents herein were the defendants in that suit, which was filed by the plaintiff for realization of amount due under a dishonoured cheque. 2. The case of the plaintiff is briefly as follows : The first defendant borrowed Rs.10,000/- from the plaintiff and her husband, the second defendant jointly, after issuing a cheque in the name of the plaintiff. Her husband is now employed in Gulf countries and he is now impleaded as second defendant. The first defendant had not repaid the amount despite several demands. The plaintiff presented the cheque for collection through her bank. The cheque was returned with an endorsement 'refer to the drawer'. The plaintiff issued lawyer notice dated 26.10.1990. The 1[st] defendant met the plaintiff personally on 21.11.1993 and requested time for repayment of the amount. But the first defendant has not repaid the amount. Hence the plaintiff filed the suit for realization of money. CRP 2191/02 2 3. The second defendant remained ex parte. The first defendant filed written statement contending as follows : There is no transaction between the plaintiff and first defendant. He had not borrowed any amount from the plaintiff. The first defendant denied all the averments in the plaint. There was some business transaction between the first defendant and the second defendant and first defendant entrusted some signed cheque leaves to the second defendant. According to the first defendant, the plaintiff, by mis-using the cheque leaf without the knowledge of the second defendant filed this suit. This defendant is not liable to pay any amount to the plaintiff and there is no cause of action against this defendant. Hence he prayed for the dismissal of the suit with costs. 4. In the Munsiff Court, PW1 and DW1 were examined and Exts.A1 to A3 were marked. The learned Munsiff, on considering the evidence decreed the suit, allowing the plaintiff to realize a sum of Rs.13,600/- with 12% interest per annum on Rs.10,000/- from the date of the suit till date of CRP 2191/02 3 realization, and costs from the first defendant. Against that judgment and decree, the first defendant filed appeal as A.S.233/1995 before the II Additional District Court, Palakkad, which was allowed and the judgment and decree of the Munsiff Court were set aside and the suit was dismissed. Against that judgment and decree, the plaintiff filed this Civil Revision Petition. 5. Heard the learned counsel for the revision petitioner. At the time of hearing, the learned counsel for the revision petitioner raised the following contentions : The lower appellate court erred in reversing the well founded decree and judgment of the trial court. The lower appellate court should have found that the suit was filed based on Ext.A1 cheque only. 6. When the plaintiff was examined as PW1, she deposed that the first defendant borrowed Rs.10,000/- from her on 21.11.1990 on executing Ext.A1 cheque and when that cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the first defendant. PW1 deposed that when Ext.A1 cheque was dishonoured, she CRP 2191/02 4 sent lawyer notice to the first defendant intimating dishonour of the cheque and demanding back the amount, but the first defendant did not repay any amount and he has not sent any reply. When PW1 was cross-examined, she deposed that the first defendant had borrowed Rs.30,000/- prior to 29.11.1990 and repaid Rs.20,000/- and for the balance of Rs.10,000/- the first defendant executed Ext.A1 cheque. When the first defendant was examined as DW1, he admitted his signature in Ext.A1 and deposed that he had no money transaction with the plaintiff and that he had partnership business with the second defendant, who is the husband of the plaintiff and that he used to give blank cheques to the second defendant for the business. But the first defendant has not explained properly as to how the plaintiff obtained Ext.A1 cheque. By the examination of PW1, the execution of Ext.A1 cheque is proved. 7. Learned counsel for the petitioner invited my attention to the decision reported in **Manyam Janakalakshmi v. Manyam Madhava Rao and others** [AIR 1973 A.P. 103] in which it was held as follows : CRP 2191/02 5 “The law does not require that a negotiable instrument should recite the consideration for which it is made or drawn. The law does not also require the person suing on the instrument to allege the consideration for which it was made or drawn. Irrespective of any recital in the instrument or any allegation, in the plaint regarding consideration, the law presumes that the instrument was made or drawn for consideration. The presumption is that there was consideration and not that there was any particular consideration, that which might be recited in the instrument or that which might be alleged in the plaint. The presumption arises as soon as the execution of the instrument is proved and the presumption continues until 'the contrary is proved', that is, until it is proved that there was no consideration. It must be proved that there was no consideration at all for the instrument. Mere proof that the particular consideration recited or alleged did not exist may not suffice, though such proof must naturally be a circumstance to be considered in deciding whether there was no consideration at all. Therefore, a plaintiff who, quite unnecessarily, adduces evidence to prove a certain consideration but is unable to prove that consideration need not necessarily lose his action for that reason. The burden of proving that there was no consideration is on the defendant and the burden has to be discharged CRP 2191/02 6 irrespective of the failure of the plaintiff to prove a particular consideration which he sets out to prove.” 8. In the present case, PW1 admitted in crossexamination that one month prior to the execution of Ext.A1 cheque, the first defendant had borrowed Rs.30,000/- from her and first defendant had repaid Rs.20,000/- and that Ext.A1 cheque was executed by first defendant for the discharge of balance amount of Rs.10,000/-. That does not mean that Ext.A1 cheque was not supported by consideration. The failure of the plaintiff to prove payment of Rs.10,000/- on the date of execution of Ext.A1 cheque is not a ground to non-suit the plaintiff. The learned Munsiff decreed the suit by properly appreciating the evidence on record, but the lower appellate court erroneously dismissed that suit on the ground that the first defendant did not borrow Rs.10,000/- on 29.11.1990, the date of execution of Ext.A1 cheque. Therefore, the judgment and decree in A.S.233/1995 on the file of II Additional District Court, Palakkad have to be set aside and the judgment and decree in O.S.642/1993 on the file of the Additional Munsiff CRP 2191/02 7 Court, Palakkad have to be restored. Accordingly, this Civil Revision Petition is allowed and the judgment and decree in A.S.233/1995 on the file of II Additional District Court, Palakkad are set aside and that appeal is dismissed, and the judgment and decree in O.S.642/1993 on the file of the Additional Munsiff Court, Palakkad are restored. The parties are directed to suffer their respective costs in this C.R.P. Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (True copy) P.S. to Judge.