M.AYAMUTTY v. KUNHIMOITHEEN

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 24TH DAY OF JANUARY 2017/4TH MAGHA, 1938** **RSA.No. 7 of 2017 (A)** **--------------------AGAINST THE JUDGMENT AND DECREE DATED 23-09-2015 IN AS 37/2014 of III ADDITIONAL DISTRICT COURT, PALAKKAD.** **AGAINST THE JUDGMENT AND DECREE DATED 21-12-2013 IN OS 112/2010 of SUB COURT, OTTAPPALAM.** **APPELLANT/APPELLANT/DEFENDANT:** **------------------------------** **M.AYAMUTTY, AGED 64 YEARS, S/O. KUNJHU AHAMMEDKUTTY, MARATHUMPALLI VEEDU, OORAKAM, MELAMURI P.O, KARANTHODE, MALAPPURAM DISTRICT.** **BY ADV. SRI.K.RAKESH** **RESPONDENT/RESPONDENT/PLAINTIFF: -------------------------------** **KUNHIMOITHEEN, AGED 55 YEARS, S/O. KALATHIL VEETTIL MUHAMMED, VALLAPPUZHA P.O, OTTAPALAM TALUK, PALAKKAD DISTRICT.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** K. HARILAL, J. -----------------------------------------------------R.S.A. No.7 of 2017-A -----------------------------------------------------Dated this the 24[th] day of January, 2017 ## JUDGMENT The appellant is the defendant in O.S. No.112/2010 on the files of the Subordinate Court, Ottappalam. The said suit was filed by the respondent herein for ralisation of money. According to the respondent/plaintiff, the defendant borrowed an amount of `1,25,000/- from the plaintiff, agreeing to repay the same within three months. When he demanded the amount, the defendant issued Ext.A1 cheque dated 24/9/2007 to the plaintiff. Though the plaintiff presented Ext.A1 cheque, for collection, it was returned dishonoured due to insufficient funds in the account of the defendant. In spite of Ext.A4 lawyer's notice, the defendant failed to pay the amount. R.S.A. No.7 of 2017 -: 2 :- Hence the suit was filed. 2. In the written statement, the defendant denied the money transaction alleged by the plaintiff in the suit. According to him, he never borrowed any amount from the plaintiff; but while he was working in Gulf countries, he had some financial transaction with one Latheef and he had delivered some signed blank cheque leaves, during the year 1998-99, to the said Latheef, as security, for the amount borrowed from him. Though the defendant repaid the amount to Latheef, the blank cheque leaves were not returned. Now, it is learnt that the plaintiff has instituted the suit by misusing one of the blank cheque leaves, after obtaining the same from the said Latheef. Thus, the defendant prayed for dismissal of the suit. 3. The evidence consists of the oral testimonies of P.W.1 and D.W.1 and the documents marked as Exts.A1 to A4 and B1 to B3. After considering the evidence, on record, the trial court decreed the suit, as prayed for. R.S.A. No.7 of 2017 -: 3 :- 4. The defendant preferred A.S. No.37/2014 before the III Additional District Court, Palakkad. After re-appreciating the evidence, on record, the appellate court also confirmed the findings of the trial court and dismissed the suit. Thus, the concurrent findings, whereby the courts below granted the decree, as prayed for, are assailed in this Regular Second Appeal. 5. Heard the learned counsel for the appellant. 6. Though notice was duly served to the plaintiff, he has not chosen to appear before this Court. The sum and substance of the arguments advanced by the learned counsel for the appellant is that the findings of the courts below are vitiated by perversity and the courts below went wrong by mis-interpreting the legal presumptions under Secs.139 and 118(a) of the Negotiable Instruments Act. 7. It is the case of the defendant that he had never borrowed any amount from the plaintiff and he had borrowed some amount from one Latheef, while R.S.A. No.7 of 2017 -: 4 :- he was working in Gulf countries. Even though he had repaid the said amount to Latheef, he has not returned the signed blank cheque leaves handed over to the said Latheef, as security. Going by he impugned judgments, under challenge, it could be seen that the plaintiff has discharged the initial burden by giving oral evidence and producing Exts.A1 to A4 documents. It is pertinent to note that the signature in the cheque and the cause of dishonour of the cheque are not disputed. P.W.1 has given evidence to the effect that Ext.A1 cheque was handed over to him, after putting signature and when he presented the cheque for encashment, the same was dishonoured for want of sufficient funds. The courts below, after analysing the evidence, adduced by the plaintiff, arrived at a finding that the plaintiff has succeeded in discharging the initial burden. I do not find any reason to interfere with the said finding. 8. So, the next question to be considered is, whether the defendant has succeeded in rebutting the R.S.A. No.7 of 2017 -: 5 :- presumptions under Secs.118(a) and 139 of the N.I. Act? Even though the defendant has contended that Ext.A1 cheque was issued to Latheef, no evidence has been adduced to substantiate the said contention, except his oral assertion in the box. As rightly observed by the courts below, it is very difficult to believe that after the complete closure of transaction with the said Latheef, the documents given to him, as security, were not returned. It is also unbelievable that the defendant did not make any enquiry about the same till the case was filed. As observed by the courts below, the said Latheef has been the best witness to prove the defendant's case; but he was not examined and the non-examination of Latheef is fatal to the defendant. In such circumstance, the presumptions under Secs.118(a) and 139 of the N.I. Act to be drawn against the defendant. 9. In Maruthi Udyog Ltd., v. Narendra [(1999) 1 SCC 113], the Apex Court held that in view of the express provision under Sec.139 of the N.I. Act, a R.S.A. No.7 of 2017 -: 6 :- presumption must be drawn that the holder of the cheque received the cheque of the nature referred to in Sec.138 for the discharge of any debt or other liability, unless the contrary is proved. Further, in Hiten P. Dalal v. Bratindranath Banerjee [2001 Crl. Law Journal 4647], the Apex Court held that it is obligatory on the court to raise this presumption in every case where the factual basis for raising of the presumption had been established. In the light of the above decisions, the courts below are justified in drawing the presumptions under Sec.139 and 118(a) of the N.I. Act against the defendant. I do not find any kind of illegality in any of the findings or perversity in the appreciation of evidence from which those findings have arrived at. No question of law arises for consideration in this appeal. 10. The learned counsel for the appellant further submits that the interest granted to the plaintiff is exorbitant and unreasonable. Admittedly, there is no contractual rate as regards interest between the R.S.A. No.7 of 2017 -: 7 :- plaintiff and the defendant. According to Sec.34 of the Code of Civil Procedure, interest at the rate more than 6% is permissible in the case of commercial transaction. There is no material to show that the transaction between the plaintiff and the defendant was a commercial transaction. Moreover, the court can order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged. But, in the instant case, no reason is shown to grant 12% interest. Consequently, this Court finds that granting interest at the rate of 12% is unreasonable and the interest will stand reduced to 6% only. Thus, it is made clear that the plaintiff is entitled to get 6% interest only. This Regular Second Appeal is allowed in part. All pending interlocutory applications will also stand dismissed. Sd/- ## (K. HARILAL, JUDGE) Nan/ //true copy// P.S. to Judge