IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 AS.No. 876 of 1997(E) ------------------------------- OS.92/1995 OF SUB COURT, ATTINGAL .................... APPELLANT/DEFENDANT: --------------------------------------- SURENDRAN, S/O.GOPALAN, VILAYIL VEEDU, VANCHIYOOR, MAVARKKAL DESOM, ALAMCODE VILLAGE. BY ADV. SRI.G.S.REGHUNATH, SRI.MOHAN JACOB GEORGE, SRI.G.S.REGHUNATH. RESPONDENT/PLAINTIFF: --------------------------------------- *1. A.E. KUNJU, S/O.ABDUL KHADAR, SAJOOJA MANZIL, MEVARKKAL DESOM, ALAMCODE VILLAGE. *(DIED) ** ADDL. RESPONDENTS 2 TO 8 IMPLEADED 2. B. FATHIMA BEEVI, W/O.A.E. KUNJU, AGED 58 YEARS, SAYOOJA MANZIL, MEVARKKAL DESOM, ALAMCODE VILLAGE, ATTINGAL (DIED) 3. NAJEEM, S/O.A.E. KUNJU, -DO- -DO- -DO-. 4. SABITHA, D/O. A.E. KUNJU, AGED 35, SHAINA MANZIL, PUTHIYATHADAM -DO- -DO-. 5. SAYOOJA, AGED 32, D/O.A.E. KUNJU, KUZHIKKARA VEEDU, THEKKEVILAKAM, ALUMOODU, PALLIPPURAM, TRIVANDRUM. 6. SHEEJA, AGED 30, D/O.A.E. KUNJU, SULAIKHA MANZIL, KORANI, ATTINGAL, TRIVANDRUM. AS.No. 876 of 1997(E) 7. SARJAB, AGED 28, SAYOOJA MANZIL, MEVARKKAL DESOM, ALAMCODE VILLAGE, ATTINGAL. 8. RAZIA, AGED 26, K.V. HOUSE, PUTHIYATHADAM, MEVARKKAL DESOM, ALAMCODE VILLAGE, ATTINGAL. ** LEGAL REPRESENTATIVES OF THE DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 2 TO 8 AS PER ORDER DATED 10/12/2009 IN C.M.P.NO.1619/2001. ** IT IS RECORDED THAT ADDL.R2 DIED. HER LEAGAL HEIRS ARE ADDL. RESPONDENTS 3 TO 8 (THEY ARE ALREADY IN THE PARTY ARRAY), VIDE ORDER DATED 08/03/2010 IN MEMO DATED 13/02/2008 BY ADV. SRI.L.MOHANAN, SRI.D.SAJEEV. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 17/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No. 876 of 1997(E) ORDER ON C.M.P. NO.6704/1997 IN A.S. NO.876/1997 DISMISSED 17/05/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N. KRISHNAN, J. ........................................... A.S.NO.876 OF 1997 ............................................. Dated this the 17th day of May, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge, Attingal in O.S.No.92/1995. It is the case of the plaintiff that the defendant had borrowed a sum of Rs.40,000/= and issued a cheque which when presented for encashment got dishonoured. In spite of repeated demands the amount is not paid back, hence the suit. On the other hand, the defendant would contend that there is no such transaction as stated in the plaint but according to him, the plaintiff along with his son came and met him with a request to send his son abroad and for that purpose, handed over him Rs.80,000/= and on their demand, he happened to issue two cheques as security. The son was sent abroad, but the plaintiff did not return the cheque and he has misused it for the purpose of filing the suit. 2. In the trial Court, PW1 and DW1 to 3 were examined, Exts.A1, A2 and B1 to B4 were marked. On : 2 : A.S.NO.876 OF 1997 analysis of the materials, the trial court granted a decree for Rs.40,000/= with 12% interest. It is against that decision, the defendant has come up in appeal. 3. The points that arise for determination in the appeal are: (1) Whether the court below has erred in granting a decree, (2) Whether the transaction alleged by the plaintiff is true. 4. Points 1 and 2: The suit is one for realisation of the amount on account of dishonour of cheque granted in favour of the plaintiff towards discharge of the liability. The factum of issuance of the cheque and dishonour are proved. Contention of the defendant is that the plaintiff and the son approached him for the purpose of sending the son abroad and towards the expenses for the same, handed over Rs.80,000/=, for which the defendant had issued two cheques as security for Rs.40,000/= each. According to the defendant, though the son was sent abroad, the cheques were not returned and a suit of this nature had been instituted. 5. PW1 is the plaintiff. He had deposed in terms of the : 3 : A.S.NO.876 OF 1997 plaint and would depose that the amount that had been borrowed was attempted to be discharged by the issuance of the cheque. He denied the transaction regarding the entrustment of the defendant to send his son abroad. So many questions had been put to him and nothing acceptable is elicited to disprove the version spoken to by him. The defendant had examined himself and two witnesses and a perusal of the evidence of DWs 2 and 3 would reveal that they have no real idea about the transaction and DW2 would say that on the date when the son was sent for Singapore, he was in his residence and on the basis of that he gives the evidence. There is no case for any party that the amount was handed over only when the date the son was left for Singapore. Just because some documents are produced to show that money has been changed into dollar in the name of the plaintiff's son, it will not lead to the conclusion that it is the part of the case transaction alleged by the defendant. Similarly, the amount which is said to be spent for ticket charges is also a document which is not signed by anybody and that has not been proved. It is under these : 4 : A.S.NO.876 OF 1997 circumstances, the following materials loom large. 6. If really a case as spoken to by DW1 was there, I am certain that DW1 would have taken some steps to see that the cheque is returned. He has not even issued a lawyer notice to that effect. Similarly, if he had entrusted the two cheques and when a suit is instituted, there must be some explanation with respect to the second cheque. It is also not forthcoming. The case of the plaintiff that he had advanced amount and towards the discharge of the liability, a cheque has been issued had been spoken to by PW1. Evidence of Dws 1 to 3 does not inspire confidence regarding the correctness or acceptability of the same. At the most, the defence set up is not properly explained or proved. 7. Therefore, on an analysis of the entire materials, preponderance of probability weigh with the case of the plaintiff. So far as interest portion is concerned, I feel that as the factum of commercial transaction is not established, 6% interest will be sufficient after the date of the decree. A revised decree is passed as follows: : 5 : A.S.NO.876 OF 1997 8. The plaintiff is given a decree for realisation of Rs.40,000/= with 12% interest on the said sum from the date of suit till the date of decree i.e., 31.7.1996 and at the rate of 6% from 1.8.1996 till realisation with cost from the defendant and his assets and also from the property attached as per I.A.No.534/1995. Parties are directed to bear their respective costs in the appeal. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 6 : A.S.NO.876 OF 1997 M.N. KRISHNAN, J. ........................................... A.S.NO.876 OF 1997 . ............................................ 17th day of May, 2010. J U D G M E N T