IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 AS.No. 316 of 2001() -------------------- OS.265/1995 of SUB COURT, MUVATTUPUZHA .................... APPELLANT/DEFENDANT ------------------------------------- CYRIAC, S/O.OUSEPH ENIAKKATU HOUSE PINDIMANA, VETTILAPPARA BY ADV. SRI.T.P.VARGHESE SRI.PHILIP T.VARGHESE RESPONDENT/PLAINTIFF ------------------------------------ T J. JOSE, S/O.JOSEPH THEKKILAKKATU HOUSE ANGADI KARA, KOTHAMANGALAM ADV. SRI.P.R.VENKETESH FOR R1 SRI.P.R.RAJA FOR R1 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 02/11/2011, THE COURT ON 02/11/2011 DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- AS No.316 of 2001 ------------------------------------- Dated this the 2nd day of November 2011 Judgment The defendant in OS No.265/95 before the Sub Court, Muvattupuzha, who suffered a money decree, is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. According to the plaintiff, on 20.08.1993, the defendant had entered into an agreement for sale of his property in favour of the wife of the plaintiff, for a consideration of Rs.1,50,000/- and the defendant had received an advance payment of Rs.1,00,000/-. The time for completion of the transaction was till 01.02.1994. It is averred that subsequently, the wife and children of the defendant approached the plaintiff and his wife, praying to withdraw from the transaction and they were prepared to return the advance amount. The plaintiff agreed to the suggestion and on 16.11.1993, the advance amount was returned and a cancellation deed was executed. The case AS 316/01-D 2 of the plaintiff is that on the very same day itself, the defendant borrowed a sum of Rs.20,000/- from him and issued a post dated cheque for Rs.20,000/- which is produced as Ext.A1. On presentation of the cheque, it bounced for want of funds. Thereupon, the plaintiff issued a notice, to which a reply was sent by the defendant, containing false statements. Since the money was not paid, the suit was laid. 3. The defendant resisted the suit. According to him, the plaintiff is a money lender and when the defendant approached the plaintiff for a loan, he demanded that an agreement for sale be executed and also insisted that the defendant gives four signed blank cheques to him. Since the defendant was in dire need of money, he executed a deed for sale of his property with the wife of the plaintiff and also issued four signed blank cheques to the plaintiff. According to the defendant, he had borrowed only a total sum of Rs.61,000/-, which he claimed, was repaid including interest which came to a sum of Rs.1,16,416/-. Even AS 316/01-D 3 though the loan amount was discharged, the plaintiff did not return the blank cheques given by the defendant. Misusing one of the cheques so received by him, the present suit has been laid. The defendant denied that he had any liability to pay any amount to the plaintiff. On the above grounds, the defendant prayed for dismissal of the suit. 4. The trial court, on the above pleadings, raised necessary issues for consideration. Evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A9 from the side of the plaintiff. The defendants had DW1 examined and Exts.B1 and B2 marked. 5. On an evaluation of the evidence, the trial court found the plaintiff's case to be more probable and accordingly, granted a decree in favour of the plaintiff. The defendant assails the said judgment and decree in this appeal. 6. The only question that arises for consideration in this appeal is whether the finding of the court below that AS 316/01-D 4 the transaction as spoken to by the plaintiff is correct. 7. Admittedly, Ext.A1 cheque contains the signature of the defendant. The defendant has an explanation to offer as to how the cheque had come into the hands of the plaintiff. The plaintiff too has a story about the same. The court below chose to accept the case put forward by the plaintiff. 8. The learned counsel for the appellant pointed out that the court below has misconstrued Exts.B1 and B2 and has not understood its significance regarding the transaction involved in this case. It is also pointed out that simply because the signature is admitted, it does not follow that execution of the cheque is admitted. The plaintiff has to prove execution. Instead of casting the burden on the plaintiff, the court below has cast it on the defendant. It is also pointed out that after the evidence was over, the plaint was sought to be amended to bring about a change in the year of the transaction and no opportunity was given to the defendant to adduce further evidence after the amendment AS 316/01-D 5 was allowed to be carried out. On these grounds, the learned counsel for the appellant pointed out that the court below was not justified in coming to the conclusion that the defendant had borrowed a sum of Rs.20,000/- from the plaintiff, as averred in the plaint. 9. The learned counsel for the respondent, on the other hand, pointed out that the issuance of Ext.A1 cheque is admitted. Under those circumstances, the court below was perfectly justified in coming to the conclusion that prima facie, the cheque will be deemed to have been supported by a consideration and the burden was correctly cast on the defendant. The learned counsel also pointed out that Exts.B1 and B2, even assuming they are genuine documents, have nothing to do with the transaction involved in the case and has no bearing on the issue involved in the case. The learned counsel drew attention of this court to the fact that the reply notice was issued by the defendant which is marked as Ext.A5 dated 05.03.1994. The case of the defendant was that he had issued only one AS 316/01-D 6 blank signed cheque while in the written statement, he has stated that he has given four signed blank cheques to the plaintiff, which shows that the defendant has no consistent case and his contentions are unsupported by the evidence on record. The court below has rightly found against him and no grounds are made out warranting interference with the judgment and decree of the court below. 10. Both sides agree that there was an agreement for sale between the plaintiff's wife and the defendant. The sale consideration is Rs.1,50,000/-. The plaintiff has a case that an advance amount of Rs.1,00,000/- was paid. The defendant, on the other hand, says that he was in dire need of money and so he approached the plaintiff for a loan. The plaintiff agreed to pay the amount but insisted on giving four blank cheques to him as security. Left with no other choice, the defendant did so. The defendant also says that he had received only Rs.61,000/- in various instalments from the plaintiff and that he had repaid much more than what was received by AS 316/01-D 7 him. No amounts are due from him to the plaintiff. Though the debt was discharged, the cheques were not returned to him. 11. Going by the evidence on record, the case of the defendant is that the cancellation deed was executed on 16.11.1993. One should believe here that if as a matter of fact, the plaintiff was willing to execute cancellation deed, normally, he would have been prepared to give the cheques also on that day. The plaintiff would say that on the same day itself, a sum of Rs.20,000/- was borrowed by the defendant, agreeing to repay it on or before 19.02.1994. 12. The court below has considered the evidence in detail and has found that the story put forward by the defendant cannot be accepted. As rightly noticed by the court below, even assuming Exts.B1 and B2 are genuine transactions, they are of not much relevance in this regard. AS 316/01-D 8 13. True, simply because the signature is admitted, it does not follow that execution of the cheque is admitted. However, the court below has chosen to accept the version given by the plaintiff. In the light of the fact that an agreement for sale was executed and simultaneously, blank cheques were also given, it is highly improbable that after repayment of the loan amounts, the defendant would allow the plaintiff to retain the blank cheques especially when he has a case that the entire loan amount was repaid with interest. It is also significant to notice that after the cancellation of the agreement for sale, no steps were taken by the defendant to have the cheques returned. At least one would have expected the defendant to issue a stop memo to his bank, but he did nothing in this regard. Further, as rightly pointed out by the learned counsel for the respondent, in the reply notice, the defendant says that he gave only one signed blank cheque to the plaintiff. But, in the written statement, it is stated that he has given four signed blank cheques to the plaintiff. This shows that he AS 316/01-D 9 has no consistent case. It is also seen from the records that soon after the suit was instituted, the defendant filed a private complaint against the plaintiff for the offences under Ss.420, 468, 471 and 341 IPC. The complaint was taken on file by the Judicial First Class Magistrate concerned as CC No.729/96. The plaintiff challenged the order before this court and this court quashed the proceedings finding that in all probability, the criminal proceedings were the counter blast to the suit filed by the plaintiff. 14. It is still more interesting to note that even as on today, the defendant has not taken any action against the plaintiff. Though a notice was received by the defendant calling for him to return the loan amount to the plaintiff, he did nothing to have the cheques returned. The claim of the defendant that he had borrowed a total amount of Rs.61,000/- only and had discharged the entire liability, has not been proved. The defendant had not produced any documents to show that the above claim was true. It is very evident from the records that there were frequent AS 316/01-D 10 monetary transactions between the plaintiff and the defendant and the defendant used to borrow money from the plaintiff. As already noticed, it is difficult to believe that even after the transaction was closed, the plaintiff refused to return the blank cheques issued to him, whereas he had executed a cancellation deed in respect of the agreement for sale. The defendant too did not take any steps to have them returned. If the plaintiff deliberately kept back the cheques, the defendant could have taken steps to inform the bank or at least send a notice to the plaintiff. These facts and circumstances clearly show that the version given by the plaintiff is more probable and true. 15. The grievance that after the amendment of the plaint, no opportunity was given to the defendant to adduce further evidence is without any basis. The amendment sought was with regard to the year shown in the plaint. True, the amendment application was allowed after the evidence was over. But, there was nothing to show that the defendant was under any misapprehension AS 316/01-D 11 as regards the transaction and that the amendment had caused prejudice to the defendant. The defendant resisted it by raising certain contentions that at no point of time, he was under any misapprehension. Therefore, even assuming that there was any change of year in the plaint, it has not caused any prejudice to the defendant. 16. On going through the records, this court finds no reasons to interfere with the finding of the court below that the issuance of Ext.A1 cheque by the defendant was supported by a consideration. 17. The learned counsel for the defendant then pointed out that the interest granted by the lower court is highly excessive and there is no justification for the same. On going through the decree, the interest granted is 18% from the date of suit till the date of the decree. There seems to be some justification for the grievance raised by the defendant regarding interest. There is no justifiable reason for granting 18% interest. Considering the various aspects, it is felt that interest granted is highly excessive. AS 316/01-D 12 In the result, while dismissing the appeal and confirming the judgment and decree of the court below, the rate of interest granted by it is modified as 6% from the date of suit till realisation. No costs. P.Bhavadasan, Judge sta AS 316/01-D 13