IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 25TH JULY 2008 / 3RD SRAVANA 1930 RSA.No.1223 of 2006 (D) ------------------------------ AS.28/2001 of ADDL.SUB COURT, IRINJALAKUDA OS.1139/1998 of MUNSIFF COURT, KODUNGALLUR .................... APPELLANT/APPELLANT/DEFENDANT -------------------------------------------- MUHAMMADUNNI, S/O.ABDUL KHADER, KOCHIKKARAN VADAKKEVEETIL HOUSE, AZHIKODE, TRICHUR. BY ADV. SRI.RENJITH THAMPAN RESPONDENT/RESPONDENT/PLAINTIFF ----------------------------------------------- RASHEED ALI, S/O.KUNJU MUHAMMED, AYARIL HOUSE, AZHEEKODE, KODUNGALLUR, TRICHUR. BY ADV. SRI.T.N.MANOJ THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.1223 of 2006 ------------------------------------------------ Dated this the 25th day of July, 2008 JUDGMENT This is appeal filed by the defendant in O.S.1139/98 on the file of the Munsiff's Court, Kodungallur assailing the concurrent verdict of the courts below decreeing the suit against him. 2. The respondent as plaintiff filed O.S.1139/98 aforesaid for recovery of money from the appellant/defendant inter alia on the allegation that the defendant received by way of deposit, offering to pay interest at 12% per annum an amount of Rs.30,000/- on 05/12/95 as per cheque No.816262 dt.05/12/95 drawn on the Kodungallur branch of the Thrissur District Co-operative Bank Ltd. from the account of the plaintiff; that thereafter he deposited a further amount of Rs.30,000/- in cash on 19/05/98 and for this amount paid in R. S. A. No.1223 of 2006 -2- cash on 19/05/98, the defendant executed a promissory note on that day namely on 19/05/98; that however, he had not obtained any document from the defendant for the deposit made on 05/12/95 as that transaction was through bank and in view of the trust plaintiff had in the defendant; that as agreed, the defendant has paid interest for Rs.60,000/- at the rate of 12% per annum till June, 1998 and defaulted payment of interest thereafter that though the plaintiff made demand on 05/08/98 for return of Rs.60,000/- with interest at 12% per annum from July, 1998, the defendant did not repay the amount; that thereafter, notice was issued through lawyer demanding the amount with interest on 18/08/98 to which the defendant sent a reply on 02/09/98 setting up untenable contentions and hence, this suit. R. S. A. No.1223 of 2006 -3- 3. The appellant/defendant resisted the suit filing written statement contending that he has not entered into any transaction with the plaintiff accepting deposits from plaintiff as alleged that he is a butcher by profession and not a money lender that he has not received Rs.30,000/- from the plaintiff on 05/12/95 as per cheque nor did he receive Rs.30,000/- in cash on 19/05/98 as alleged; that the plaintiff and one Gopinathan were doing money lending business jointly; that on 04/12/95 the defendant entered into an agreement with the said Gopinathan for sale of 15.5 cents of property belonging to him and comprised in Sy. No.347/2 of Azhikode village for Rs.30,000/- and obtained an amount of Rs.30,000/- by way of loan under the said transaction for which a cheque dt.05/12/95 was issued by the plaintiff to the defendant; that the defendant has however, not seen the said R. S. A. No.1223 of 2006 -4- Gopinathan nor has he got any acquaintance with him and for that amount, however, the defendant was paying interest to the plaintiff and while so the plaintiff asked him to give a document for the said Rs.30,000/- as plaintiff and Gopinathan stopped their joint business; that accordingly, in the presence of mediators he executed a promissory note in favour of the plaintiff on 19/05/98 without however receiving any amount on that day and he paid interest to the plaintiff for the said amount of Rs.30,000/- till June, 1998 at the rate of 5% per month and that only Rs.30,000/- is due from him to the plaintiff and that the suit is falsely filed as he committed default in payment of interest for Rs.30,000/- from July, 1998 onwards. 4. On the above pleadings, the trial court raised necessary issues for trial and considering the evidence that was adduced at R. S. A. No.1223 of 2006 -5- trial which consisted of oral evidence of PWs.1 and 2 and DWs.1 to 4 and documentary evidence Exts.A1 to A3 and Ext.B1 decreed the suit for realisation of an amount of Rs.63,100/- with interest at 6% per annum on the principal sum of Rs.60,000/- from the date of suit till realisation. The decree was assailed by the appellant filing A.S.28/01 before the first appellate court and the first appellate court dismissed the said appeal concurring with the findings entered into by the trial court and hence, this R.S.A. 5. It is contended before me by the learned counsel for the appellant that an agreement for sale had been executed on 04/12/95 and that Ext.B1 produced in the case dt.19/11/97 is only a subsequent agreement and that the original agreement being on 04/12/95 it can well be found that the amount of Rs.30,000/- received by cheque on 05/12/95 was R. S. A. No.1223 of 2006 -6- consideration for amount paid under that agreement which was subsequently renewed vide Ext.B1. The receipt of Rs.30,000/- under cheque issued on 05/12/95 is not denied. Though the contention of the appellant is that the amount of Rs.30,000/- paid under cheque dt.05/12/95 was amount received executing an agreement to sell on 04/12/95, the said agreement is not forthcoming. The contention is that Ext.B1 is renewal of agreement dt.04/12/95. Ext.B1 is dt.19/05/97 and a photostat copy of the said agreement was placed before me for perusal by the learned counsel for the appellant. The said agreement is signed only by the defendant and not by Gopinathan. Unless it is signed by Gopinathan as well it cannot be an agreement executed for sale of property as contended by the defendant. Further while executing an agreement for sale of property Ext.B1 R. S. A. No.1223 of 2006 -7- agreement is naturally to be in the possession of Gopinathan and not the defendant. Though Gopinathan is examined as DW4 the original if any of Ext.B1 had not been caused to be produced by the said Gopinathan. If at all Ext.B1 was being retained by the defendant as evidence in proof of having executed such an agreement it should have been got signed by Gopinathan even if it is not signed by the defendant. On the other hand, Ext.B1 is only a self serving document with his own signature only. The courts below have disbelieved the testimony of DW4/Gopinathan and has disbelieved the contention of the defendant that an agreement was executed on 04/12/95 for sale of property and cheque dt.05/12/95 was being issued for the amount covered by Ext.B1 or the document which is alleged to have been renewed by Ext.B1. All the same, the fact remains that receipt of Rs.30,000/- by cheque R. S. A. No.1223 of 2006 -8- on 05/12/95 stands admitted by the defendant. It is the case of the defendant that though Ext.A1 promissory note was executed on 19/05/98 in favour of the plaintiff no amount at all was received by him under the said pro- note from the plaintiff. The contention that the burden is on the plaintiff/respondent to show that the pro-note and Ext.B1 does not relate to the same transaction of receipt of Rs.30,000/- is on the respondent/plaintiff cannot be countenanced in the circumstances of this case where as already stated, Ext.B1 is dt.19/11/97 and the pro-note is dt.19/05/98 and execution of the pro-note also is admitted by the appellant/defendant. As observed by the court below Ext.B1 agreement produced by the appellant will itself show that there was no agreement for sale entered into on 04/12/95 between Gopinathan and the appellant. PW1 and his wife/PW2 have deposed regarding the R. S. A. No.1223 of 2006 -9- payment of Rs.30,000/- vide cheque and another Rs.30,000/- in cash under Ext.A1 pro-note. Though the contention of the defendant is that Ext.A1 pro-note was executed for an amount received under cheque more than two years back namely on 05/12/95 cannot be believed when execution of Ext.A1 is admitted by him and the recital therein shows that the consideration thereunder was received by him on the date of execution of Ext.A1. In view of such recital in Ext.A1, the burden is very heavy on the defendant to establish that he has not received any amount under Ext.A1 pro-note. The non-production of the alleged agreement executed on 04/12/95 and the recitals in Ext.B1 to the effect that the amount of Rs.30,000/- is received on the date of execution of Ext.B1 namely on 19/05/97 belies the case of the defendant as has been held by both the courts below. In view of the R. S. A. No.1223 of 2006 -10- presumption available under Section 118 of the N.I. Act the contention advanced by the appellant/defendant that Ext.A1 pro-note was being executed for no consideration at all cannot be believed for a moment and however, the evidence adduced by the appellant/ defendant nor the evidence brought in by cross examination of witnesses examined on the side of the plaintiff is sufficient to establish the contentions set up by the appellant/ defendant. In the circumstances, it was rightly being found by the courts below that Ext.A1 pro-note was being executed by the appellant/defendant receiving Rs.30,000/- as consideration made mention of therein. The receipt of Rs.30,000/- under cheque dt. 05/12/95 is also admitted by the appellant. Thus, the amount received from the respondent by the appellant is Rs.60,000/- as claimed by the respondent/plaintiff. In the circumstances, R. S. A. No.1223 of 2006 -11- decree passed for recovery of the amount of Rs.60,000/- with interest concurrently by the courts below deserves only to be upheld and I do so. The result, is that this appeal is devoid of any merit and deserves only to be dismissed in limine refusing admission as there is no question of law and much less any substantial question of law that arises for consideration by this Court in this appeal. 6. In the result, I dismiss this R.S.A in limine refusing admission. K.P.BALACHANDRAN, JUDGE kns/-