T. Padmakumar v. G. Vijayakumar alias Vijayakumaran Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN TUESDAY, THE 22[ND] DAY OF AUGUST 2023 / 31ST SRAVANA, 1945** ## **RFA NO. 473 OF 2012** **AGAINST THE JUDGMENT AND DECREE IN OS 296/2008 OF SUB** ## **COURT,NEYYATTINKARA** ## **APPELLANT/PLAINTIFF:** T.PADMAKUMAR, AGED 39 YEARS, S/O THANKAPPAN NAIR, PARAYAMKOTTU VEEDU, AYIRA DESOM,KARODE VILLAGE, NEYYATTINKKARA TALUK, THIRUVANANTHAPURAM BY ADVS.SRI.S.V.PREMAKUMARAN NAIR SRI.R.T.PRADEEP ## **RESPONDENT/DEFENDANT:** G.VIJAYAKUMAR ALIAS VIJAYAKUMARAN NAIR S/O GANGADHARAN THAMPI,AGED 52 YEARS, THACHOORTHENGU VEEDU,AYINKAMAM DESOM, PARASALLA VILLAGE,NEYYATINKARA TALUK THIRUVANANTHAPURAM 695121 BY ADVS.SMT.JEENA JOSEPH SRI.G.D.PANICKER **THIS REGULAR FIRST APPEAL HAVING COME UP FOR ORDERS ON** **22.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Sathish Ninan, J. ============================== R.F.A No.473 of 2012 ========================== Dated this the 22[nd] day of August, 2023** ## **JUDGMENT** The suit for money was dismissed by the trial court, against which the plaintiff is in appeal. 2. According to the plaintiff, on 03.03.2008, the defendant borrowed an amount of D 2 Lakhs from him agreeing to repay with interest. On 08.09.2008, the plaintiff demanded the amount. Thereafter, on 15.09.2008 the defendant paid an amount of D 19,000/- towards interest. He also issued Exts A2 to A4 cheques dated 25.09.2008, 05.10.2008 and 15.10.2008 for various amounts totaling to D 2 Lakhs. On the said date, the defendant also issued Ext A1 letter acknowledging the payment of interest and also the handing over of Exts A2 to A4 cheques. The cheques when presented for payment on 28.10.2008 were dishonoured for the reason “account closed”. It is thereupon that the suit has been filed. RFA No.473/2012 2 3. The defendant contended that the plaintiff is a stranger and that he never had any transactions with the plaintiff. In the year 2005, the defendant had financial transactions with one Kuttappan Nair. In the course of the same, signed blank cheques and papers were given to him. Though the liabilities were discharged, the documents were not returned. The plaintiff is only a name lender of the said Kuttappan Nair. The defendant also challenged the financial capacity of the plaintiff to raise the amount. 4. On appreciating the evidence, the trial court held that the transaction as claimed by the plaintiff has not been proved and accordingly dismissed the suit. 5. Heard the learned counsel Sri.R.T.Pradeep on behalf of the appellant and Smt. Jeena Joseph on behalf of the respondent. 6. The points that arise for determination are: - _“1. Is the plaintiff entitled for presumption under Section 118 of the Negotiable Instruments Act?_ RFA No.473/2012 3 _2. Is the evidence on record sufficient to find the transaction as_ _pleaded by the plaintiff?”_ 7. It is the case of the plaintiff that, D 2 Lakhs was borrowed by the defendant from him on 03.03.2008 agreeing to repay the amount with interest. However, admittedly no documents evidencing such transaction was obtained from the defendant. Plaintiff also did not require any security for such transaction. Therefore, as on 03.03.2008, there was no material to evidence the transaction between the parties. The defendant has challenged the financial capacity of the plaintiff to lend the amount. No material has been produced by the plaintiff to show that an amount of D 2 Lakhs was available with him on the said date and that the same was given to the defendant. 8. Though the plaintiff has a case that the defendant is known to him for years which led to the transaction, the same is disputed by the defendant. No RFA No.473/2012 4 evidence is adduced by the plaintiff to prove such close acquaintance with the defendant which prompted him to advance D 2 Lakhs without getting any security document or atleast an acknowledgement with regard to such payment. When an amount of D 2 Lakhs is claimed to have been advanced to the defendant without procuring any documents as security or to evidence the transaction, necessarily the parties must be having such intimate relationship. There is no evidence to such effect. All that PW1 says is that the defendant was running a shop and that the petitioner was residing 7 – 8 Kms away therefrom. Even assuming that there was such an acquaintance with the defendant, that by itself will not probabilise the case of a loan of D 2 Lakhs without any security or even execution of any documents evidencing such transaction. 9. It is the case of the plaintiff that on 08.09.2008 he demanded return of the amount whereupon on RFA No.473/2012 5 15.09.2008 the defendant paid an amount of D 19,000/towards interest. It is further claimed that Exts A2 to A4 cheques were issued for the principal amount and also Ext A1 letter was issued acknowledging payment of interest and the issuance of cheques. Ext.A1 mentions the rate of interest as 18%. Exts A1 to A4 are denied by the defendant. Ext A1 is the document which acknowledges the transaction between the parties. A perusal of Ext A1 receipt cannot inspire confidence for the reason of unnatural gap between the writings therein and the signature. In Exts A2 to A4 cheques, the name of the payee and the date are evidently filled up by the defendant. It is the defendant's case that he had money transaction with one Kuttappan Nair in the course of which signed papers and cheques were given and that the suit has been filed in collusion with the said Kuttappan Nair. RFA No.473/2012 6 10. Kuttappan Nair was examined as PW2. He admits that there were financial transactions between him and the defendant. Even the plaintiff as PW1 would admit that PW2 had financial transactions with the defendant. PW2 would say that he had not obtained any security documents with regard to the transactions. Such a claim is apparently improbable in the absence of any special reason suggested to grant loans without security. Though the defendant has challenged the financial capacity of the plaintiff to raise the amount, the plaintiff has not adduced any evidence to substantiate his capacity. 11. Learned counsel for the appellant would rely on Section 118 of the Negotiable Instruments Act and contend that, the execution of Exts A2 to A4 having been admitted the plaintiff is entitled to have the presumption drawn and it is for the defendant to rebut the same. The learned counsel would rely on the judgment RFA No.473/2012 7 of this Court in _**Lillykutty v. Lawrance [2003(3) KLT 721]**_ in support of his contention. 12. It is to be noticed that, but for the admission of the signature in the instruments, the defendant does not admit its execution as such. Mere admission of signature is not admission of execution _**(Veena Singh v.**_ _**Collector [(2022) 7 SCC 1], Khetramohan Ray v. Udayanarayan Panda and Ors. [AIR 1991 Ori 25], Raveendran v. Mohanan [2016 SCC OnLine Ker 33612], Purushothaman Nair P. vs. Sreekantan Nair [2013 (4) KLJ 256], M.J. Joseph v. Gladis Sasi [2010 SCC OnLine Ker 1921], G. Gopan v. Tonny Varghese [2007 SCC OnLine Ker 145].**_ The defendant has a specific explanation with regard to the issuance of Exts A2 to A4. The available evidence and circumstances does not give credence to the plaintiff’s case. 13. On appreciating the entire evidence on record the trial court has held that the plaintiff has failed RFA No.473/2012 8 to prove the transaction. The conclusion has been arrived at based on the evidence on record and on appreciating the circumstances. There is no material to interfere with the conclusion of trial court. Resultantly, the appeal fails and is dismissed. Sd/- **Sathish Ninan, Judge** ## **vdv**