Sunny Thomas and Joby Jacob v. Sabu Andrews

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 27[TH] DAY OF JULY 2023 / 5TH SRAVANA, 1945** **RFA NO. 85 OF 2012** **AGAINST THE DECREE AND JUDGMENT IN OS 411/2009 OF PRINCIPAL SUB COURT,** ## **KOTTAYAM** **-----** ## **APPELLANTS/PLAINTIFFS:** 1 SUNNY THOMAS, AGED 62 YEARS, S/O THOMAS, THETTIVILAYILAYA SHALOM HOUSE, ERIKADU KARA, PUTHUPPALLY PO., PUTHUPPALLY VILLAGE, KOTTAYAM TALUK – REP. BY POWER OF ATTORNEY HOLDER JOBY JACOB, AGED 30 YEARS. 2 JOBY JACOB, AGED 30 YEARS, S/O JACOB ELDHOS, THETTIVILAYILAYA SHALOM HOUSE, ERIKADU KARA, PUTHUPPALLY PO., PUTHUPPALLY VILLAGE, KOTTAYAM TALUM. BY ADVS. SRI.M.NARENDRA KUMAR SMT.LAYA SIMON SRI.P.B.PRADEEP ## **RESPONDENT/DEFENDANT:** SABU ANDREWS, AGED 49 YEARS, S/O ANDREWS, AMBATTU HOUSE, PUTHUPPALLY VILLAGE, PUTHUPPALLY KARA, KOTTAYAM TALUK, PIN-686594. BY ADVS. SRI.NANDAGOPAL S.KURUP SRI.G.SREEKUMAR CHELUR THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 27.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = RFA No.85 of 2012** **= = = = = = = = = = = = = = = = = = Dated this the 27[th] day of July, 2023** ## **J U D G M E N T** The suit for money based on a promissory note was dismissed by the trial court. The plaintiffs are in appeal. 2. The 2[nd] plaintiff is the power of attorney holder of the 1[st] plaintiff. It is the plaintiffs’ case that, on 04.08.2005 the defendant borrowed an amount of ` 21,55,200/- from the first plaintiff. Undertaking to repay the amount with interest, the defendant executed Ext.A2 promissory note of the same date, in favour of the first plaintiff. In partial discharge of the liability, the defendant paid an amount of ` 2 lakhs as per cheque dated 10.07.2007 and a further amount of ` 7 lakhs as per another cheque dated 01.07.2008. Alleging that in spite of demand the balance amount is not paid, the suit was filed. **RFA No.85 of 2012** -: 2 :- 3. Though the defendant admitted the issuance of Ext.A2 promissory note, he denied the transaction as pleaded by the plaintiff. It was contended that, on 25.08.2004 the defendant borrowed an amount of ` 10 lakhs and a further amount of ` 5 lakhs in March, 2005 from the first plaintiff. The debts were secured through sale deed executed in favour of the first plaintiff's wife. Subsequently, portion of the debt was repaid on two occasions as stated by the plaintiff. Since the plaintiff demanded additional security, Ext.A2 promissory note was issued to him. Thus, the defendant denied the plaint claim. 4. The trial court found that, though Ext.A2 promissory note was denied, its execution was not proved by the plaintiff. It was also held that the suit is barred by limitation. 5. Heard learned counsel on either side. 6. The following points arise for determination in the appeal. **RFA No.85 of 2012** -: 3 :- _(i)_ Is the finding of the first appellate court that the execution of Ext.A2 has not been proved, sustainable on the pleadings and evidence? _(ii)_ Is the finding of the trial court that the suit is barred by limitation, correct? 7. The trial court has proceeded as if the execution of Ext.A2 promissory note is denied by the defendant. However, at paragraph 5 of the written statement the defendant has categorically admitted the execution of Ext.A2 promissory note. Ext.A2 is dated 04.08.2005. His contention is that it was issued as an additional security for two loans of ` 10 lakhs and ` 5 lakhs which were availed in August, 2004 and March, 2005 respectively from the plaintiff. However, there is no evidence to show that there was any transaction between the parties prior to the date of Ext.A2 promissory note. When Ext.A2 promissory note, the execution of which is admitted by the defendant, is dated 04.08.2005, it was for the defendant to prove that it was issued in the **RFA No.85 of 2012** -: 4 :- circumstances as pleaded by him to secure a previous transaction different from that borne out by Ext.A2. There is absolutely no evidence with regard to the same. The defendant has not adduced any evidence. Incidentally, it is relevant to note that though in Ext.A5 notice issued by the plaintiff specific reference was made to the cheques, in Ext.A7 reply notice send by the defendant the defence as is set up in the written statement was not even hinted. Therefore, on the admission of the defendant of having executed Ext.A2 promissory note, and on his failure to prove the transaction at variance therefrom, Ext.A2 promissory note is only to be upheld. The finding of the trial court regarding the genuineness and execution of Ext.A2 promissory note is thus liable to be interfered with and I do so. 8. It is the contention of the defendant that the plaint claim is barred by limitation. To contend that the suit is not barred by limitation, the plaintiff **RFA No.85 of 2012** -: 5 :- relies on Section 19 of the Limitation Act. Section 19 of the Limitation Act reads thus:- _“_ _**19. Effect of payment on account of debt or of interest on legacy** .―Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made ;_ _Provided that, save in the case of payment of interest made before the 1[st] day of January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment.”_ It is the plaintiff's case that, towards partial discharge of the liability, the defendant paid an amount of ` 2 lakhs as per cheque dated 10.07.2007 and an amount of ` 7 lakhs as per cheque dated 01.07.2008. The defendant in the written statement has admitted both the payments. That payment under a cheque of a debtor constitutes acknowledgment in terms of Section 19 of the Limitation Act has been held by the Apex Court in **RFA No.85 of 2012** -: 6 :- ## _**Jiwanlal Achariya v. Rameshwarlal Agarwalla, (AIR 1967 SC 1118)**_ . The case sought to be set up by the defendant with regard to a transaction different from the one claimed by the plaintiff and evidenced by Ext.A1, has already been found against supra. Therefore, it could only be held that the payments under the two cheques were in partial discharge of the liability under Ext.A2 promissory note. The said payments constitute sufficient acknowledgment of the liability in terms of Section 19 of the Limitation Act. The cheques being dated 10.07.2007 and 01.07.2008, the suit filed on 11.08.2009 is well within the period of limitation. 9. The learned counsel for the respondent-defendant would strenuously argue that, it is the bounden duty of the plaintiff to specifically plead about the acknowledgment and limitation. The plaint lacks such a plea, it is contended. The learned counsel referred to Order VII Rule 6 of the Code of Civil Procedure in support of his argument. He also relied on the judgment **RFA No.85 of 2012** -: 7 :- of Apex Court in _**Sant lal Mahton v. Kamla Prasad AIR 1951 SC 477**_ and of this Court in _**Sajan Varghese v. Kerala State Electronic Development Corporation Ltd. 2010 (1) KHC 721**_ . The learned counsel appearing for the appellant-plaintiff would on the other hand refer to the proviso to Order VII Rule 6 of the Code of Civil Procedure and contend that, the court can permit the plaintiff to claim exemption from limitation on a ground even if it is not set out in the plaint if such ground is not inconsistent with the grounds already pleaded. On a reading of the plaint it is seen that specific reference is made to the acknowledgment of the liability under the cheques dated 10.07.2007 and 01.07.2008. The repayments under both the cheques, with the details of the cheques, have been specifically mentioned in paragraph 8 of the plaint while dealing with the accounts. So also, in paragraph 6 of the plaint, the dates of the cheques have been specifically mentioned as part of the cause of action. This constitutes sufficient compliance with the **RFA No.85 of 2012** -: 8 :- requirements of pleading regarding limitation. Hence the argument of the learned counsel for the respondent is liable to be repelled. 10. The learned counsel for the respondent would argue that the non-examination of the first plaintiff, who was the person who had entered into the transaction, and also the non-summoning of the originals of Exts.A3 and A4 cheques are to have a telling effect on the plaint claim, both with regard to proof of Ext.A2 promissory note and with regard to acknowledgment of liability. In the light of the specific case set up by the defendant in his written statement, the nonexamination of the first plaintiff and the non-summoning of the originals of the cheques become insignificant. 11. On the findings as above, the suit is liable to be decreed. Considering the prevailing rate of interest in banking transactions, grant of interest at the rate of 6% from the date of the suit is considered to be just and reasonable. **RFA No.85 of 2012** -: 9 :- In the result, this appeal is allowed. The decree and judgment of the trial court are set aside. The suit is decreed allowing the first plaintiff to recover an amount of ` 23,14,680/- with interest at the rate of 6% per annum from the date of suit till date of recovery, from the defendant and his assets. The plaintiff shall be entitled for costs throughout. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge