Omana v. Christudas

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 11[TH] DAY OF OCTOBER 2022 / 19TH ASWINA, 1944** **RSA NO. 58 OF 2022** **(AGAINST THE JUDGMENT AND DECREE DATED 09.3.2021 IN A.S No.9/2016 ON THE FILE OF ADDITIONAL DISTRICT COURT-VI, THIRUVANANTHAPURAM. AGAINST THE JUDGMENT AND DECREE DATED 23.9.2015 IN O.S NO.170/2010 ON THE FILE OF SUB COURT,NEYYATTINKARA)** ## **APPELLANT/APPELLANT/DEFENDANT:** OMANA, AGED 72 YEARS D/O KUNJI, CHRISTU BHAVAN, SANTHAMMOOLA, MALAYINKEEZHU P.O. MALAYINKEEZHU VILLAGE, THIRUVANANTHAPURAM DISTRICT BY ADVS. M.SANTHI (K/868/2011) G.RANJU MOHAN ## **RESPONDENT/RESPONDENT/PLAINTIFF:** CHRISTUDAS, AGED 62 YEARS S/O MUTHUNAYAKAM, C.S.BHAVAN, POOZHANAD P.O. KUNNANADU DESOM, OTTASEKHARAMANGALAM, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT-695 125. BY ADVS. G.P.SHINOD GOVIND PADMANAABHAN AJIT G ANJARLEKAR ATUL MATHEWS **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON** **11.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RSA No.58 of 2022 2 ## **JUDGMENT** Dated this the 11[th] day of October, 2022 This appeal has been directed against the judgment and decree in A.S. No.9/2016 on the file of Additional District Court-VI, Thiruvananthapuram, which in turn arise out of the judgment and decree in O.S. No.170/2010 on the file of Sub Court, Neyyattinkara. 2. Appellant is the defendant (parties would hereafter be referred as per their status before the trial court) who alleged to have borrowed an amount of Rs.1,75,000/- from the plaintiff on 15.10.2009 on executing a cheque drawn on State Bank of Travancore, Shasthamangalam Branch. On presentation of the cheque, it was dishonored due to the reason 'funds insufficient'. Then the plaintiff demanded the amount with interest, but no result. Though, lawyer notice was issued, demanding the amount, no payment was made. Hence, the suit for realization of Rs.1,83,750/- with future interest. 3. Defendant filed written statement denying the transaction between herself and the plaintiff and issue of RSA No.58 of 2022 3 cheque is also denied. It is contended that, for the marriage purpose of her daughter she borrowed an amount of Rs.65,000/- from her brother Mr.Sudan, for which she issued a signed blank cheque to her brother as security. She repaid that amount to the brother after availing loan of Rs.1,00,000/- from HDFC bank and an amount of Rs.81,500/- was paid to her brother including the interest. But the cheque was not returned in spite of the assurance to return on the succeeding day. Then the present suit has been filed by the brother in collusion with the plaintiff out of enmity towards her. 4. PW1 and PW2 examined and Ext.A1 to A6 were marked from the side of the plaintiff. DW1 to DW3 examined and Ext.B1 to B6 marked from the side of the defendant. 5. Notice was issued to the respondent/plaintiff. Respondent appeared through the counsel. Both sides were heard. 6. According to the learned counsel for the appellant/defendant, the transaction was actually between the defendant and her brother DW2. DW3 the daughter of the defendant was examined but without any reason her evidence was not accepted by the courts below. RSA No.58 of 2022 4 7. The plaintiff has not proved the consideration of the cheque. The financial capacity of the plaintiff was not considered by the courts below. It is also contended that granting of interest at 12% p.a. is highly excessive. 8. The learned counsel for the plaintiff on the other hand would support the judgment and decree passed by the courts below and according to him there is no reason whatsoever to interfere with the concurrent findings of fact entered into by the courts below. From the above following substantial question of law has been formulated: _1. Whether the award of future interest_ _@12% is legal and proper?_ 9. Plaintiff and defendant are relatives. PW1 deposed about the availment of amount of Rs.1,75,000/- and issue of Ext.A1 cheque by the defendant on 15.10.2009. Ext.A6 dishonor memo would show that the cheque on presentment was dishonored for the reason 'funds insufficient'. Ext.A2 is the cheque return memo issued by Indian Overseas Bank. The office copy of the notice demanding amount, postal receipt and postal acknowledgment card were marked as Exts.A3 to A5. PW2 had filled up the cheque and the defendant signed the RSA No.58 of 2022 5 same in front of the plaintiff. PW2 gave evidence in support of PW1, the plaintiff. He is a licenced document writer. It has come out from his evidence that he had prepared documents for the defendant as well as to her brother Sudan. Defendant was examined as DW1 and the defendant says that she borrowed an amount of Rs.65,000/- from her brother on 15.1.2007 in connection with the marriage of her daughter and gave signed blank cheque, with the brother as security. 10. Ext.B5, marriage invitation letter of the daughter has been produced to prove that marriage of the daughter was on 15.01.2007. Brother of defendant was examined as DW2. According to him, he had some previous money transaction with the plaintiff and some chitti transaction with the wife of the plaintiff. It is also admitted that those transactions was in connection with the marriage of the defendant’s daughter. But, he categorically denied that the defendant borrowed an amount of Rs.65,000/- from him. His version is that he arranged a loan of Rs.50,000/- to the defendant from one Krishnankutty to the daughter's marriage of the defendant. It is also denied that Ext.A1 cheque was given by the defendant to him in connection with the transaction of Rs.65,000/- and also denied that the RSA No.58 of 2022 6 borrowed amount was repaid by her. 11. It has come out from his evidence he was a defendant in O.S. No.785/2010 on the file of Munsiff’s Court Neyyattinkara. Ext.B6 is the certified copy of his deposition in that case. But he denied the suggestion that he admitted in that case of arrangement of Rs.75,000/- from the plaintiff to the defendant and he also admit the distant relationship between himself and the plaintiff. The daughter of the defendant was examined as DW3 and supported the case of the defendant. On an analysis of the evidence of defendant and the witnesses, it could be seen that evidence of DW1 is not in corroboration with DW2, her brother. So, also the defendant claims that she repaid the amount to DW2 by availing loan from HDFC bank, on 05.10.2007. The present suit has been filed only in the year 2010. But no steps has been taken by her for getting back the cheque alleged to have been entrusted with DW2 as security. So that conduct of the defendant is against the normal human conduct and hence is not believable. 12. So, the evidence of PW1 and PW2 proved the execution of the cheque and advance of amount to the defendant. Once the execution of the cheque is proved RSA No.58 of 2022 7 Presumption under Section 118 of the Negotiable Instruments Act, 1881, would started to run in favour of the plaintiff. It is for the defendant to adduce any evidence or bring out any materials to rebut the presumption. (See **Omana v. Sini 2022** **(1) KLT 654), Veluchandran v. Vilasini Amma 2019 (4) KLT online 3211, Lillykutty v. Lawrance (2003 (3) KLT 721 and Mohammedkutty v. Abdulla 2002 (1) KLT 669)** 13. Here, even though the defendant and her brother were examined, the evidence of DW2 is in contradiction to that of DW1 as discussed earlier. So, also it has come out that the relationship between DW1 and DW2 were strained and in spite of that she did not take any steps to get the blank signed cheque alleged to have entrusted with him. Hence, the courts below concurrently found that the defence version of borrowal of amount by the defendant from DW2 and DW2 in turn entrusted the cheque with the plaintiff and plaintiff misusing the same filed the suit is not believable. On the other hand evidence of PW1 and PW2 would prove the execution of the cheque and passing of consideration. 14. Ext.A6 dishonour memo and Ext.A2 cheque return memo would prove that the cheque was bounced for the reason RSA No.58 of 2022 8 of insufficiency of funds in the account of the defendant. Ext.A3 to Ext.A5 would prove that thereafter lawyer notice was issued demanding the amount. But the defendant did not pay the amount and raised untenable contentions of the alleged transactions between herself and DW2, her brother, which she could not establish in spite of the examination of her brother as well as the daughter. 15. So, the concurrent findings by the courts below that the plaintiff is entitled to realize an amount of Rs.1,83,750/- is only legal and proper. But the trial court decreed the suit allowing the plaintiff to realize Rs.1,83,750/- with interest @ 12% p.a. from the date of suit till realization along with cost. The 1[st] Appellate Court did not considered the rate of interest awarded by the trial court and simply confirmed the judgment and decree passed by the trial court. 16. According to the learned counsel for the defendant, the future interest awarded @ 12% p.a. is highly excessive. Admittedly, there is nothing to show that there had any agreement between the parties to pay the interest at 12% for the amount paid by the plaintiff to the defendant. **Lillykutty v. Lawrance** arouse out of a suit instituted for realization of RSA No.58 of 2022 9 money based on dishonored cheque. While disposing that matter the Division Bench of this Court on confirming the judgment and decree and allowing the plaintiff to realize the plaint claim found that the interest awarded by the courts below is excessive and the plaintiff was allowed to realize the sum with interest @ 9% p.a. on the principle amount from the date of suit till decree and thereafter @ 6% p.a. till decree is executed. 17. Hence, the judgment and decree passed by the courts below is modified only in the aspect of award of future interest @ 12% by reducing it to @ 6% p.a. from the date of suit till realisation. In the result, appeal partly allowed reducing the rate of interest from the date of suit @ 6% p.a. till realization from the defendant and her asset. Sd/- **M.R.ANITHA** **JUDGE** SMF //TRUE COPY// PA TO JUDGE