Lin Suresh v. Shaji Mon

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 RSA NO. 79 OF 2024 ``` ``` AGAINST DECREE AND JUDGMENT IN A.S.NO.08/2020 ON THE FILES OF SUB COURT, PUNALUR AGAINST DECREE AND JUDGMENT IN O.S.NO.363/2016 ON THE FILES OF MUNSIFF COURT, PUNALUR ``` ## **`APPELLANT/APPELLANT/DEFENDANT:`** ``` LIN SURESH AGED 45 YEARS S/O SURESH BABU, LIN DALE, NEDIYARA P.O., KONATH, NETTAYAM, YEROOR, PUNALUR, KOLLAM DISTRICT, PIN – 691306. ``` ``` BY ADVS. MANOJ RAMASWAMY JOLIMA GEORGE K.P.S.JALALUDDEEN MOHMMED APARNA G. C.B.SABEELA ``` ## **`RESPONDENT/RESPONDENT/PLAINTIFF:`** ``` SHAJI MON AGED 50 YEARS S/O NADARAJAN, SREELAKSHMI, NEDIYARA P.O., KONATH, NETTAYAM, YEROOR, PUNALUR, KOLLAM DISTRICT, PIN – 691306. ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON ``` ``` 09.02.2024, THE COURT ON 15.02.2024 DELIVERED THE FOLLOWING: ``` 2 RSA No.79/2024 ## _**A. BADHARUDEEN, J.**_ _**================================**_ _R.S.A No.79 of 2024_ _================================ Dated this the 15th day of February, 2024_ ## _**J U D G M E N T**_ Defendant in O.S.No.363/2016 on the files of Munsiff Court, Punalur, is the appellant herein. Plaintiff in the above Suit is the respondent herein. The appellant assails the decree and judgment in the above Suit, which were confirmed as per the verdict in A.S.No.08/2020 on the files of Sub Court, Punalur. 2. Heard the learned counsel for the appellant/defendant on admission. Perused the relevant records including the verdicts under challenge. 3. I shall refer the parties in this appeal as to their status before the trial court, as `plaintiff' and `defendant' hereafter for easy reference. 4. Plaintiff filed O.S.No.363/2016 claiming realisation of 3 RSA No.79/2024 Rs.2 lakh from the defendant. According to the plaintiff, the defendant availed loan of Rs.2 lakh from the plaintiff and for payment of the said sum, the defendant executed cheque for Rs.2 lakh on 03.04.2016 drawn on Federal Bank, Anchal Branch, with assurance of encashment. Though the plaintiff presented the cheque for collection, the same got dishonoured. Even after demand, the defendant failed to repay the amount. 5. The defendant filed written statement and raised contention, _inter alia_ , that the defendant never approached the plaintiff and availed loan of Rs.2 lakh, as contended. It was contended by the defendant that during 2012 the defendant borrowed Rs.50,000/- from the plaintiff for the need of one Mubash and during this period, he entrusted 2 blank signed cheques with the plaintiff. According to the defendant, the same were misused by the plaintiff for the purpose of this case. 6. The learned Munsiff addressed the rival contentions after raising necessary issues. PW1 and PW2 were examined and Exts.A1 to A7 were marked on the side of the plaintiff. DW1 and 4 RSA No.79/2024 DW2 were examined and Exts.B1 to B5 were marked on the side of the defendants. Ext.X1 was marked as court exhibit. Thereafter the learned Munsiff decreed the Suit directing the defendant to pay the amount of Rs.2 lakh with interest @ 6% per annum from the date of the suit till the date of realisation and ordered to realise the cost of the suit from the defendant and his assets. 7. In this case, the contention raised by the plaintiff is that the defendant borrowed Rs.2 lakh and issued Ext.A1 cheque in discharge of the said sum, on 03.04.2016. Whereas the contention raised by the defendant is that the defendant borrowed Rs.50,000/from the plaintiff for the purpose of one Mubash, one of his friends, when he went abroad. His further contention is that one of the cheques was misused by the plaintiff. In order to prove the transaction, the plaintiff got examined as PW1 and one Ratheesh.R got examined as PW2. The trial court observed that the evidence of PW1 and PW2 are trustworthy of credit since their evidence not shaken during cross examination, in the case where the defendant admitted issuance of 2 cheques for a different transaction. 5 RSA No.79/2024 The learned counsel for the defendant argued that the plaintiff has no financial capacity to advance Rs.2 lakh, as contended. This contention was raised before the trial court as well as the appellate court and both the courts rejected this contention relying on the evidence of PW1 during cross examination that he had been in Saudi Arabia during 2009-2014 and he derived income therefrom. In the instant case, the specific case of the defendant itself is that he borrowed Rs.50,000/- during 2012 from the defendant for the purpose of one Mubash. That would go to show that the plaintiff is having financial capacity, to give loans. DW1 examined is the defendant and DW2 is one Pravitha.M. DW1 admitted in cross examination that the plaintiff is his close friend. As pointed out by the trial court as well as the appellate court, when the defendant raised a contention that he borrowed Rs.50,000/- for the purpose of Mubash, the defendant ought to have examined the above said Mubash and brought convincing evidence to show the said transaction. It is noticed that no attempt even made to summon and examine Mubash, to prove 6 RSA No.79/2024 this contention. 8. When a Suit is based on Negotiable Instruments Act, particularly, a cheque, an initial burden is cast upon plaintiff to prove the transaction led to execution of Ext.A1 cheque and, in turn, the plaintiff has to discharge the initial burden cast upon him. Then the defendant is duty bound to rebut the presumptions. The trial court found that nothing available in evidence to rebut the presumptions under Sections 118 and 139 of the Negotiable Instruments Act. In the case at hand, PWs 1 and 2 supported the transaction and execution of Ext.A1 cheque and the defendant, who put up a case with a different transaction and failed to prove discharge of the admitted liability, in fact, miserably failed to rebut the presumptions. Therefore, the trial court as well as the appellate court concurrently found against the defendant and granted decree in favour of the plaintiff. 9. On perusal of the verdicts under challenge, it is held that decree and judgment dismissing O.S.No.363/2016 rendered by the trial court and its confirmation by the appellate court in 7 RSA No.79/2024 A.S.No.08/2020 are perfectly in order and as such there is no substantial question of law arises to admit and maintain this appeal. 10. In order to admit and maintain a Second Appeal, substantial question of law necessarily to be formulated by the High Court within the mandate of Order XLII Rule 2 Read with Section 100 of C.P.C. 11. In this case, the learned counsel for the appellant failed to raise any substantial question of law warranting admission of the Second Appeals. Order XLII Rule 2 provides thus: _**“2. Power of Court to direct that the appeal be heard on the question formulated by it.** -At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the defendant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”_ 12. Section 100 of the C.P.C provides that, (1) Save as 8 RSA No.79/2024 otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso says that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. 9 RSA No.79/2024 ## 13. In the decision in [2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168], _**Nazir Mohamed v. J. Kamala and Others**_ reported in the Apex Court held that: _The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law referring_ _**Kondiba Dagadu Kadam**_ ## _**v. Savitribai Sopan Gujar, [(1999) 3 SCC 722.**_ 14. In a latest decision of the Apex Court reported in [2023 ## (5) KHC 264 : 2023 (5) KLT 74 SC], _**Government of Kerala v. Joseph**_ , it was held as under: _For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court._ 15. The legal position is no more _res-integra_ on the point that in order to admit and maintain a second appeal under Section 10 RSA No.79/2024 100 of the C.P.C, the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal. 16. In view of the above fact, no substantial question of law 11 RSA No.79/2024 arises in this matter to be decided by admitting this appeal. In the result, this appeal is found to be meritless and the same is dismissed without being admitted. All pending Interlocutory Applications stand dismissed. _Sd/-_ _**(A.BADHARUDEEN, JUDGE)**_ _rtr/_