IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 13TH JANUARY 2010 / 23TH POUSHA 1931 AS.No. 743 of 1997(E) & CROSS APPEAL --------------------- OS.36/1994 of ADDL.SUB COURT, IRINJALAKUDA .................... APPELLANTS/DEFENDANT: ------------------ AZHCHANKATTIL RAPHAEL PAUL, KARUVANNUIR POST, PORATHUSSERY VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.K.S.MENON RESPONDENT/PLAINTIFF: ------------------- N.R. LENIN, S/O.NEDUMBHAKARAN RAPHAEL, ANCHERI DESOM, VILLAGE, THRISSUR TALUK, REP. BY HIS POWER OF ATTORNEY N.A. RAPHAEL, NEDUBHAKARAN HOUSE, -DO- -DO- ADV. SRI.N.P.SAMUEL THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ALONG WITH CROSS APPEAL & SA NO. 196 OF 2002, THE COURT ON 13/01/2010 DELIVERED THE FOLLOWING: ORDER ON CMP.NO.5347/1997 IN A.S.NO.743/97 ------------------- Dismissed 13/1/2010 Sd/- Harun-Ul-Rashid, Judge. True Copy HARUN-UL-RASHID,J. -------------------------- A.S.NO.743 OF 1997, CROSS APPEAL & S.A.No.196 OF 2002 -------------------------- DATED THIS THE 13TH DAY OF JANUARY, 2010 JUDGMENT A.S.No.743/97 & Cross Appeal. The defendant in O.S.No.36/1994 on the file of the Additional Sub Court, Irinjalakuda is the appellant. The suit was filed for realisation of money due under two dishonoured cheques issued at Dubai. The trial court held that the plaintiff is entitled only to the principal sum and declined to grant interest. The suit was decreed with costs for Rs.43,040/- from the defendant and his assets. Aggrieved by the decree and judgment, the defendant has preferred this appeal. The parties hereinafter referred to as the plaintiff and defendant as arrayed in the suit. 2. The plaintiff's case is that the defendant borrowed 4,000/- Dirhams on two occasions and to discharge those debts Exts.A1 and A2 cheques were issued on 21/10/1990 and -2- A.S.No.743/97, Cross Appeal & SA.No.196/2002 12/1/1991 respectively. The cheques presented were dishonoured. It is pleaded in the plaint that the defendant subsequently left Dubai and started residing permanently within the jurisdiction of the Sub Court, Irinjalakuda. Since the amount was not paid as promised, the suit was filed for realislation of Rs.43,040/-, which is the exchange value of Exts.A1 and A2 cheques. The plaintiff also claimed interest at the rate of 24% per annum from the date of issuance of the cheques and future interest at the same rate. 3. In the written statement filed, it is inter alia contended that the suit is not maintainable in view of the prohibition contained under Sections 8 and 9 of the Foreign Exchange Regulation Act. According to defendant, 12,000/- Dirhams were actually due to him from the plaintiff and therefore the suit is liable to be dismissed. 4. The power of attorney holder of the plaintiff was examined as PW1 and the defendant was examined as DW1. -3- A.S.No.743/97, Cross Appeal & SA.No.196/2002 Exts. A1 to A7 were marked on the side of the plaintiff. No documentary evidence were produced by the defendant. The trial court examined the scope of Sections 8 and 9 of the Foreign Exchange Regulation Act and held rightly that this section does not prohibit an Indian citizen suing a defendant resident in India and therefore, the provisions in the Foreign Exchange Regulation Act do not oust the jurisdiction of the Sub Court, Irinjalakuda. The court below rightly observed that the suit between a debtor and creditor is maintainable, the transaction between two Indians and the defendant being resident permanently within the jurisdiction of the Sub Court, Irinjalakuda. 5. It has come out in evidence that the defendant had borrowed 8,000/- Dirhams from the plaintiff and it was towards the discharge of the said debt, he had issued Exts.A1 and A2 cheques. Ext.A7 is the reply notice sent by the defendant through his lawyer to the plaintiff from Dubai. In Ext.A7 the defendant had acknowledged the debt, but he seeks re-payment -4- A.S.No.743/97, Cross Appeal & SA.No.196/2002 by way of 8 instalments of 1,000/- Dirhams each. The contention of the defendant that 12,500/- Dirhams were due to him and after deducting 8,000/- Dirhams, he is entitled to realise the balance 4,500/- Dirhams is found to be without any basis. No evidence was adduced by the defendant to support his contention. Having acknowledged 8,000/- Dirhams covered by two cheques, it is up to the defendant to prove that he had actually paid back that amount in any other manner than by way of Exts.A1 and A2 cheques. The defendant has no case that he had repaid the amount. But the contention raised in the written statement was that the cheques were issued as a security. 6. In the facts and circumstances discussed above, I am of the view that the learned Subordinate Judge has taken into consideration all the attendant circumstances leading to the issuance of Exts. A1 and A2 cheques and concluded that the defendant is bound to repay the amount borrowed from the plaintiff. I do not find any reason to interfere with the findings -5- A.S.No.743/97, Cross Appeal & SA.No.196/2002 entered by the court below holding that the plaintiff is entitled for a decree for the principal amount outstanding as per Exts.A1 and A2 cheques. 7. The plaintiff has preferred a cross-appeal against that part of the judgment and decree denying interest on the principal amount. The court below referring to Section 134 of the Negotiable Instruments Act held that in the absence of contract to the contrary the liability of the maker of a cheque is regulated in all essential matters by the law of the place where the instrument is made payable. The court below also held that the interest claimed cannot be allowed at all because the law in Dubai makes it penal to receive interest on payments. Therefore, the court below held that the plaintiff is entitled only for the principal sum due as per the cheques. Taking into consideration the context, under which the interest was denied on the principal sum, I do not find any reason to vary the reasons stated by the court below. At the same time, the court below failed to go into the claim of -6- A.S.No.743/97, Cross Appeal & SA.No.196/2002 the plaintiff for the future interest, i.e. from the date of suit till realisation. The court below ought to have granted interest from the date of suit till realisation. It is made clear that the plaintiff is entitled to interest at the rate of 9% from the date of the suit till the date of decree and future interest at the rate of 6% per annum from the date of decree till realisation. 8. In the result, the appeal preferred by the defendant against judgment and decree of the trial court stands dismissed. No order as to costs. The cross-appeal filed by the plaintiff is partly allowed. The judgment and decree passed by the trial court is modified to the extent of allowing the plaintiff to realise interest at the rate of 9% per annum from the date of suit till the date of decree and future interest at the rate of 6% per annum from the date of decree till realisation. S.A.No.196/2002 9. The defendant in O.S.No.184/94 on the file of the Additional Sub Court, Irinjalakuda is the appellant. The appeal is -7- A.S.No.743/97, Cross Appeal & SA.No.196/2002 directed against the judgment and decree in A.S.No.330/97 on the file of the District Court, Thrissur. The suit was filed for realisation of the amount under a cheque marked as Ext.A1. The trial court passed a decree allowing the plaintiff to realise an amount of Rs.16,000/- with costs from the defendant and his assets. 10. The facts, pleadings and contentions raised by the parties are more or less same as in A.S.No.743/97. The issues framed and considered were also similar. The trial court considered the issues and held that the civil court has jurisdiction and that the defendant issued Ext.A1 cheque for the amount borrowed by him from the plaintiff. The court below held that the plaintiff is entitled to get 2,000/- Dirhams from the defendant equivalent to Rs.16,000/-. The interest claimed was denied for the same reasons as stated in O.S.No.36/94 against which A.S.No.743/97 was filed. 11. The defendant preferred A.S.No.330/97 challenging the -8- A.S.No.743/97, Cross Appeal & SA.No.196/2002 decree and judgment passed in O.S.No.184/94. The Appellate Court dismissed the appeal. In the second appeal preferred against the judgment and decree in A.S.No.330/97, the learned counsel for the appellant re-agitated the very same questions. I have examined the contentions of the learned counsel for the appellant in detail and I do not find any reason to take a different view in the given facts and circumstances. The question of jurisdiction of the civil court was examined in detail by the trial court and the Appellate Court on the basis of the principles of law. The court below concurrently held that the civil court has jurisdiction. The contention raised by the defendant was examined in detail and held that the contention does not merit consideration. The claim of the plaintiff for realisation of the amount was examined by the fact finding court on the basis of the evidence on record and the findings rendered are purely based on the facts and attendant circumstances. In my view, the view taken by the courts below is perfectly legal and I find that -9- A.S.No.743/97, Cross Appeal & SA.No.196/2002 no substantial questions of law arise for consideration in the second appeal. In the result, the second appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. kcv.