## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MRS. JUSTICE SHIRCY V.**
**WEDNESDAY,THE 06TH DAY OF FEBRUARY 2019 / 17TH MAGHA, 1940**
**RFA.No. 641 of 2015**
**AGAINST THE JUDGMENT IN OS 275/2009 of SUB COURT,NEYYATTINKARA DATED 07-01-2015**
## **APPELLANT/DEFENDANT:**
**RAMACHANDRAN NAIR, AGED 51 YEARS S/O THANKAPPAN NAIR, SOORIYODHAYAM, KARAVARA DESOM, OTTASEKHARAMANGALAM VILLAGE, NEYYATTINKARA TALUK (PROPRIETOR AKSHAY FINANCE, MANDAPATHINKADAVU, OTTASEKHARAMANGALAM P.O).**
**BY ADV. SRI.K.RAVI (PARIYARATH)**
## **RESPONDENT/PLAINTIFF:**
**BELSI, AGED 74 YEARS, D/O LOICE, THEKKECHARUVILAKATHU VEEDU, KAVIKONAM, KALLIKADU, MUKUNTHARA DESOM, KALLIKADU VILALGE, NEYYATTINKARA TALUK-695001.**
**BY ADVS. SMT.M.S.LETHA SRI.K.R.VINOD**
**THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
RFA.No. 641 of 2015
2
## **JUDGMENT**
The defendant in O.S.No.275/2009 on the file of the Subordinate Court, Neyyattinkara is the appellant herein.
2. The parties are referred to as the 'plaintiff' and the 'defendant' as in the suit for realization of money.
3. The facts in brief are as under:
The defendant is a proprietor of a finance company by name Akshay finance. He had canvassed deposits from the public and accepting the offer thus made by the defendant, the plaintiff deposited an amount of Rs.2 lakhs on 22.12.2001, in account No.047 furnished by the defendant. The defendant had issued a passbook endorsing payment of interest as well receipt of the deposit. The defendant had paid interest every month up to 23.12.2002 by making endorsements in the passbook. But, the defendant failed to return the principal amount and hence the plaintiff demanded the amount by issuing a lawyer notice on 25.8.2009. In spite of the same, the defendant did not return the amount. Hence, she was constrained to file the suit for realization of money.
RFA.No. 641 of 2015
3
4. The defendant resisted the claim by contending that he did not receive any amount as deposit from the plaintiff and he did not pay interest for the amount. No document evidencing payment of interest was issued by him. He had also contended that the passbook and the receipt produced by the plaintiff were forged documents and the claim was a bogus one. At the same time, it was also contended that the claim was barred by limitation.
5. Before the court below the plaintiff was examined as PW1. PW2 was also examined and Exts.A1 to A6 were also marked on the side of the plaintiff. Exts.B1 and B2 were marked on the side of the defendant. But no oral evidence was adduced by him. The court below after evaluating the entire evidence had decreed the suit as prayed for. Aggrieved by the judgment and decree passed against the defendant, he has come up with this appeal.
6. Heard Adv.Sri.K.Ravi the learned counsel for the appellant/defendant and Adv.K.R.Vinod the learned counsel for the respondent/plaintiff.
7. At the outset, it is to be noted that the plaintiff had filed
RFA.No. 641 of 2015
4
the suit for realization of money mainly on the basis of Ext.A1 passbook and Ext.A2 receipt dated 22.12.2001 issued by the defendant. Her case is that the defendant who was running a financial institution by name 'Akshay Finance' at Ottasekharamangalam had canvassed deposits from the public and believing the offer made by the Finance Company,the plaintiff deposited a sum of Rs.2 lakhs on 22.12.2001 in fixed deposit and received the interest paid by the defendant for the deposit at the rate of 13% for a period of one year. Though, the interest paid was endorsed, the defendant did not return the amount as agreed by him and hence she was constrained to approach the court with the suit. Of-course except Exts.A1 and A2, no document had been produced by the plaintiff to show that an amount of Rs.2 lakhs was deposited by her accepting the offer/promise of the defendant. It is pertinent to note that the defendant had challenged both the documents relied on by the plaintiff to prove the transaction. His definite contention in the written statement is that those two documents had been forged by the plaintiff so as to extract money from him. But it is interesting to note that no evidence had been adduced by him to
RFA.No. 641 of 2015
5
substantiate his contention that these two documents were forged by the plaintiff so as to extract money from him. Of course in the reply notice which was marked as Ext.A6 dated 10.9.2009 he had raised such a contention. But he failed to adduce ample evidence to prove that forged documents were created and produced by the plaintiff, to substantiate his contention of non -liability to pay the amount demanded. So the contention raised by the defendant that the documents were manipulated or forged was without merits. On the other hand the plaintiff's case was fully supported by the evidence of PW2. Both had deposed before the court that Ext.A2 receipt was prepared and issued in the handwriting of the defendant and it was signed him. It is also to be noted the defendant had no case that he did not conduct a financial institution by name Akshay Finance at Ottasekharamangalam. No circumstance had been pointed out by the defendant to cast suspicion on the documents. Both documents stand proved by the evidence adduced by the plaintiff. The nature of contention raised by the defendant also substantiate the claim raised by the plaintiff. So what could be gathered from the records is that both those documents are
RFA.No. 641 of 2015
6
genuine documents evidencing money transaction between the parties.
8. The learned counsel for the defendant vehemently argued that the plaint claim is obviously barred by limitation as the deposit was on 22.12.2001 and the receipt of the interest was only up to 23.12.2002, but the demand was after a long period. So according to him the period of limitation would start from 23.12.2002 but as the suit was filed only on 7.10.2009 the plaint claim is hopelessly barred by limitation. He relies on the decision in **Kashinath Sankarappa Wani v. New Akot Cotton Ginning and Pressing Co. Ltd. [AIR 1958 SC 437]** to contend that the plaint claim has been barred by limitation. In the said decision it was held that when an amount was deposited for a period of one year and if there was sufficient evidence to show that the deposit was for one year, the amount on the foot of the deposit receipt became due and payable on the due date mentioned therein and that there was no question of the amount being payable at any time thereafter on demand being made in this behalf by the creditor and hence it will be barred by limitation **.** But here the facts of the case are different from the
RFA.No. 641 of 2015
7
facts of the case in the decision relied on by the learned counsel for the defendant. Here, of course there is no document to show that there was any other written agreement between the parties. The demand actually was made only by issuing Ext.A3 notice dated 25.8.2009.
9. On the other hand the learned Counsel for the plaintiff would point out the decision of a Division Bench of this Court in **Elampallor Trust v. Kamalakshy Amma [1989 KHC 309]** and argued that the relevant Article is Article 22 of the Limitation Act. In this decision it was held that when an amount was kept as a deposit payable on demand, the relevant article of Limitation Act is Article 22.
Article 22 of the Limitation Act reads as follows:
“22. For money deposited under
an agreement that it shall Three years When the demand is made” be payable on demand
10. It could be gathered from the evidence that the amount was received as a deposit and the time when the demand has to be made was in fact left with the plaintiff. It entirely depends upon the intention of the plaintiff and the demand was made by her on 25.8.2009 by issuance of Ext.A3 notice. So the limitation
RFA.No. 641 of 2015
8
period will start only from that date. The suit was also filed on 16.10.2009 on refusal to pay the amount in deposit . The facts of case tallies with the proposition of law laid down in Elampallor Trust case (supra). So the court below is perfectly right in concluding that the plaint claim is not barred by limitation. The suit was presented by her within the period of three years from 25.8.2009, the date of demand. The demand creates an obligation on the defendant to repay the amount received as deposit. As referred above, the defendant had failed to adduce reliable evidence to substantiate his contention that Exts.A1 and A2 are forged documents created by the plaintiff to put forth a false claim against him. The circumstances involved, the character of transaction etc would establish the case of the plaintiff as true. Therefore, there is absolutely no valid or justifiable ground to interfere with the finding of the court below. The Judgment and decree are hereby confirmed.
Appeal dismissed. No costs.
**Sd/-**
**SHIRCY V.**
**JUDGE**
smm
