IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 AS.No. 555 of 2002() -------------------- OS.215/1996 of PRL.SUB COURT,IRINJALAKUDA .................... APPELLANT(S): DEFENDANT: --------------------------------------------- VIJAYAN, S/O.CHERULIYIL CHAURIYEDATH KUMARAN, PULLUT VILLAGE, CHAPPARA DESOM, KODUNGALLUR TALUK. BY ADVS. SRI.KKM.SHERIF, SRI.P.M.HARIS. RESPONDENT(S): PLAINTIFF: --------------------------------------------- BABU, S/O. THAIPARAMBATH SUBRAMANIAN, LOKAMALESWARAM VILLAGE, KODUNGALLUR TOWN, KODUNGALLUR TALUK. BY ADV. SRI.RANJIT THAMPAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 13/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. ........................................... A.S.NO.555 OF 2002 ............................................. Dated this the 13th day of August, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Irinjalakkuda in O.S.No.215/1996. The suit is one for realisation of amount and the learned Subordinate Judge has decreed the suit and it is against that decision, the defendant has come up in appeal. 2. Heard the learned counsel for the appellant as well as the respondent. The brief facts necessary for the disposal of the appeal are as follows: It is the case of the plaintiff that the defendant had borrowed a sum of Rs.50,000/= and had executed a promissory note. He had also issued a cheque which when presented for encashment, returned with the endorsement 'insufficiency of funds'. Even then the defendant has not paid the amount, hence the suit. 3. On the other hand, the defendant would contend that he has no transaction with the plaintiff at all and the defendant and the brother of the plaintiff namely Vasudevan : 2 : A.S.NO.555 OF 2002 were partners in an abkari business and he used to borrow money from Vasudevan. When he borrowed Rs.50,000/= at the instance of Vasudevan, he had executed a note in favour of the plaintiff and also had given a blank signed cheque. Thereafter as per the mediation, Vasudevan and the defendant had settled the matter and therefore, the plaintiff has no right to file the suit and hence it is liable to be dismissed. 4. It has to be remembered that the burden is on the plaintiff to prove the transaction. Execution of Ext.A1 is admitted but it is contended that it is executed at the instance of Vasudevan, the brother of the plaintiff from whom the amount is alleged to be borrowed. The plaintiff had denied the same. So the receipt of Rs.50,000/= at least from Vasudevan is admitted. It has to be stated that the defendant had examined two persons; one a practicing lawyer and another an advocate clerk as mediators for the transaction between the defendant and the said Vasudevan. According to them, the said mediation had taken place after the institution of the suit by the plaintiff against the defendant, but the mediation admittedly takes place without the junction : 3 : A.S.NO.555 OF 2002 of the plaintiff. So any kind of mediation entered into between Vasudevan and the defendant cannot bind the plaintiff. When lawyers intervened and settle the matter, it can be understood that they will be advising the parties to file a compromise petition before this Court. Nothing is done before this Court not only that, the case has been prosecuted which has ultimately ended in decree. So the attempted projection of the defendant that the transaction was between him and Vasudevan is not established. The mediators only say that there was a settlement between the two. By any stretch of imagination when a suit is pending before the court, any compromise entered into without the junction of the plaintiff cannot bind him. PW1 has categorically stated that he had borrowed an amount of Rs.50,000/= from his wife's sister and had given it to the defendant, the defendant had admitted the execution of Ext.A1 but his contention itself is at the instance of Vasudevan. Whatever it may be, when the execution of the promissory note is admitted and proved, Section 118 of the N.I.Act comes into play to the effect that it is supported by consideration. It is : 4 : A.S.NO.555 OF 2002 true that it is a rebuttable presumption. But nothing is produced before the court to rebut that presumption. So when Ext.A1 is proved, it means that the plaintiff has succeeded in proving the transaction. The evidence tendered by the defendant regarding transaction between him and Vasudevan does not take us anywhere in the absence of concrete evidence to that effect. It is true that the cheque case filed has been rejected by the competent Magistrate court. But it is only a supporting document to Ext.A1, the principal document. 5. Therefore I do not find any ground to interfere with the well considered decision of the learned Subordinate Judge and he has only granted interest at the rate of 12% till the date of decree and thereafter at the rate of 6% which is perfectly valid in law. Therefore the appeal lacks merit and the same is dismissed but without any order as to costs. M.N. KRISHNAN, JUDGE. cl : 5 : A.S.NO.555 OF 2002 M.N. KRISHNAN, J. ........................................... A.S.NO.555 OF 2002 ............................................. 13th day of August, 2010. J U D G M E N T