IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 21ST NOVEMBER 2011 / 30TH KARTHIKA 1933 AS.No. 606 of 1997(E) --------------------- OS.332/1994 of SUB COURT, PALA .................... APPELLANT(S): DEFENDANT: -------------------------------------------- E.N.RAGHAVAN NAIR,AGED 67, SON OF NARAYANAN NAIR, RESIDING AT SANTHI BHAVAN, MONIPALLY KARA, MONIPPALLY VILLAGE. BY ADV. SRI.K.JAGADEESCHANDRAN NAIR RESPONDENT(S): PLAINTIFFS: ---------------------------------------------- 1. PANKAJAKSHI AMMA, W/O. GOPALAN NAIR, AGED 55, RESIDING AT KULIRANAL HOUSE, MONIPPALLY KARA, MONIPPALLY VILLAGE, MEENACHIL TALUK. 2. PREMA RAVI, W/O.RAVI, AGED 35, RESIDING AT CHENNAMPALLIL HOUSE, THEKKETHU KAVALA, PO.CHIRAKADAVU, KANJIRAPPALLY TALUK. 3. PRADEEP K.G., S/O.GOPALAN NAIR, AGED 29, RESIDING AT KULIRANAL HOUSE, MONIPPALLY KARA, MONIPPALLY VILLAGE, MEENACHIL TALUK. 4. K.G.PRINCE, S/O.GOPALAN NAIR, AGED 25,...DO...DO.... BY ADV. SRI. PHILIP T.VARGHESE SRI.T.P.VARGHESE SRI.THOMAS T.VARGHESE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 21/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - A.S.No. 606 of 1997 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of November, 2011 J U D G M E N T The defendant in O.S.No.332 of 1994 before the Sub Court, Pala who suffered a decree is the appellant. 2. The parties and facts are hereinafter referred to as they are available before the trial court. 3. The short case put forward by the plaintiffs was that the defendant had borrowed a sum of Rs.44,000/- from their predecessor in interest, namely Gopalan Nair for which he had issued Ext.A1 cheque dated 15.09.1993. Gopalan Nair died on 17.09.1993 and the amount borrowed was not repaid. The cheque was presented for en-cashment but it bounced for want of funds. The notice issued by the defendant invoked a false reply. Since the amount was not repaid and the suit was laid. 4. The suit was resisted by the defendant by pointing out that he had borrowed a sum of Rs.44,000/- from Gopalan Nair, the amount has been repaid and no amount was due to Gopalan Nair. Further contention was that :2: A.S.No. 606 of 1997 Ext.A1 cheque was issued as a security and when the debt was discharged the cheque was sought back. At that point of time, Gopalan Nair informed the defendant that the cheque has been misplaced and that it would either returned or destroyed when he got the same. After the death of Gopalan Nair, his legal heirs have put a date in the cheque and have come forward with a false case. The defendant would contend that no amount is due from him to Gopalan Nair or his legal heirs. On the basis of these contentions he prayed for a dismissal of the suit. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and the documents marked as Exts. A1 to A4 from the side of the plaintiffs. The defendant had DWs 1 to 3 examined and Exts.B1 to B2 series marked. 6. On an evaluation of the evidence in the case, the trial court found it difficult to accept the plea of discharge and came to the conclusion that the amount covered by :3: A.S.No. 606 of 1997 Ext.A1 cheque was due to Gopalan Nair and therefore his legal heirs were perfectly justified in demanding the amount. Accordingly a decree was granted. It is the said judgment and decree that is assailed in this second appeal. 7. The only question that arises for consideration is whether the findings of the court below that the plea of discharge has not been proved is justified. 8. Borrowal of Rs.44,000/- is admitted. While the plaintiff would say that at the time of borrowing Rs.44,000/- Ext.A1 cheque dated 15.09.1993 was issued to Gopalan Nair, the defendant would say that the cheque was handed over as security and it was undated at the time of handing over to Gopalan Nair. Even before 15.09.1993 the entire debt due to Gopalan Nair had been discharged but the cheque was not returned. It is the above story of the defendant that did not find favour with the trial court. 9. The learned counsel appearing for the appellant pointed out that the court below was not justified in :4: A.S.No. 606 of 1997 discarding Exts.B1 and B2 which would clearly show that the amount due to Gopalan Nair had in fact been paid. At the time of handing over of Ext.A1 cheque there is no evidence to show that it was dated and it is clear from the perusal of Ext.A1 cheque, according to the learned counsel, date has been subsequently inserted by the plaintiffs. The court below has omitted to note the relevant facts and had taken note of irrelevant and insignificant aspects in decreeing the suit against the defendants. According to the learned counsel the judgment and decree of the trial court are unsustainable both on fact and in law. 10. It is true that Ext.B1 and B2, the ledger and cash book has been produced by the defendant which shows entries to the effect that amount has been paid to Gopalan Nair. In fact the evidence adduced by the defendant is to the effect that the amount has been repaid by 30.08.1993. 11. The court below has considered the entries in Exts.B1 and B2 and found them suspicious. At the time of :5: A.S.No. 606 of 1997 evidence, the defendant came forward with a story that the borrowal was for the business purpse of his son and that his son had repaid the amount. The court below found that this is a new case set up at the time of evidence and there was no foundation either in the written statement or in the reply notice send by the defendant. It is also found that both the defendant and his son were running concerns which had huge turnovers. Another aspect which impressed the court below was that the defendant had admitted that he had several transactions with Gopalan Nair, but except the one involved in the present suit, none other than found a place in any of the document maintained by either him or his son ie.Exts.B1 and B2. That as rightly noticed by the lower court is very strange and curious. 12. Reliance was based on the evidence of DW3 to show that the amounts have been paid by the defendant to Gopalan Nair. At once it may be noticed, he is none other than an employee and driver of DW1 and he has been with :6: A.S.No. 606 of 1997 them for last six years. According to DW1 the amount paid to Gopalan Nair on two occasions and on each of the occasion DW3 was present. However DW3 has no such case. He confined his presence to one of the payments. It is also interesting to note that according to DW1 the amount were paid in the drawing room of Gopalan Nair and going by the evidence of DW3 he was sitting outside, in the jeep. One fails to understand how he could have noticed the payment. 13. As rightly noticed by lower court that the defendant has no consistent case. While in the reply notice and in the written statement his case is that he had borrowed the amount and come forward with a new case at the time of evidence that the amount was borrowed for the business purpose of his son. It looks rather strange that even after the amounts were repaid and the cheque was not returned, the defendant did not not feel it necessary at least to inform the bank that if the cheque is presented, it :7: A.S.No. 606 of 1997 shall not be en-cashed or in another words no stop memo was issued to the Bank. That was done only after the notice was received and he was informed that the cheque had been presented for encashment. 14. The lower court which had an opportunity to watch the demeanour of the of witnesses and also scruitinize the entire evidence on record felt it unwise to rely on the evidence adduced by the defendant in support of his plea of discharge. The trial court felt that amount was due to the plaintiff and the defendants had set up a false claim of discharge. 15. It is not shown that the findings entered into by the lower court is either perverse or unwarranted by the evidence on record. It is a possible view. 16. However there is one aspect, the future interest has been granted at 12% , for which there is no justification. It is not shown that the transaction was a commercial transaction. :8: A.S.No. 606 of 1997 In the result:- This appeal is partly allowed and the decree of the lower court stands modified to the extent that the future interest granted at 12% will stand modified as 6%. There will be no order as to costs. P.BHAVADASAN, JUDGE kkj