IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 RSA.No. 425 of 2010() ------------------------------- AS.6/2004 of ADDL. DISTRICT COURT, THALASSERY OS.241/2000 of PRL. SUB COURT, THALASSERY .................... APPELLANT/APPELLANT/DEFENDANTS ---------------------------------------------------------- T. BALARAMAN, S/O.RAMAN, AGED 51 YEARS, NO OCCUPATION, RESIDING AT SARASWATHI SADANAM, NEDUVOTTUM KUNNU, P.O.MATTANNUR, THALASSERY TALUK, KANNUR DISTRICT. BY ADV. SRI.R.SURENDRAN RESPONDENT/RESPONDENT/PLAINTIFF: ------------------------------------------------------------- R.K. DIVAKARAN, S/O.GOVINDAN, AGED 56 YEARS, TEACHER, RESIDING AT "ANJALI", GANDHI ROAD, KOLARI AMSOM, KALLUR DESOM, KANNUR DISTRICT. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. P.BHAVADASAN, J. ------------------------------------- RSA No.425 of 2010-A ------------------------------------- Dated 1st June 2010 Judgment Undaunted by the concurrent findings against him, the defendant in OS No.241/00 before the Sub Court, Thalassery has come up in appeal before this Court. The facts and exhibits are hereinafter referred to as they are available before the Trial Court. 2. The allegation in the plaint was that the defendant who is the appellant, herein, had borrowed a sum of Rs.1,00,000/- (Rupees One Lakh only) from the plaintiff on 30.05.2000, agreeing to repay the same within two months. He failed to do so. On demand being made by the plaintiff, the defendant ultimately issued Ext.A1 cheque dated 04.08.2000, drawn on Cannanore District Co- operative Bank, Mattannur branch. When the cheque was presented for payment, it bounced for want of cash. A notice issued to the defendant invoked no reply. Since the RSA 425/10 2 amount remained unpaid, the suit was laid. 3. The defendant resisted the suit. He denied the transaction and also denied the issuance of a cheque to the plaintiff. According to the defendant, the cheque presented by the plaintiff was one stolen from the shop of his brother when a theft had occurred in the shop on 07.04.1997. Pointing out that the defendant did not owe any amount to the plaintiff, he prayed for dismissal of the suit. 4. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A7 from the side of the plaintiff. The defendant examined DW1 and had Ext.B1 marked. 5. On a consideration of the evidence in the case, the Trial Court found that the contentions put forward by the defendant are wholly untenable and accordingly, decreed the suit. RSA 425/10 3 6. The defendant carried the matter in appeal as AS No.6/02 before the District Court, Thalassery. The Appellate Court, on an independent evaluation of the evidence, concurred with the Trial Court, but found that the award of future interest @ 12% is legally unsustainable and reduced it to 6%. Rest of the findings of the Trial Court were confirmed. 7. In the Second Appeal, the learned counsel for the appellant pointed out that the Trial Court was not justified in comparing the signatures of the defendant and coming to the conclusion that the cheque had, in fact, been issued by him. It is also contended that even though the plaintiff has admitted that he is an income tax assessee and has a bank account, none of the records are produced to show that the claim made by the plaintiff is true. The lower Appellate Court has simply followed the reasoning of the Trial Court and has not independently evaluated the evidence. RSA 425/10 4 8. Even though the above arguments may look attractive at the first blush, on a close scrutiny, it can be seen that there is no substance in it whatsoever. 9. If the case of the defendant was that the signature found on Ext.A1 cheque was not put by him, it was for him to establish the said fact. Nothing prevented him from getting an expert's opinion in that regard. A reading of the Trial Court Judgment shows that the parties were very familiar to each other for a long time and the evidence adduced by the plaintiff was sufficient to show that the defendant had borrowed money from the plaintiff. It can be seen that the conclusion was arrived at, not solely based on comparison of signatures. That is only one of the factors taken note of by the Trial Court. The Trial Court had entered a definite finding that the evidence on record was sufficient to show that money had been borrowed by the defendant and that he has not repaid the same. If, as a matter of fact, what the defendant claims is true, he would have sent a reply to the notice issued to him by the plaintiff. RSA 425/10 5 He had remained silent on receiving the notice issued to him. On going through the judgment of the Trial Court, it is seen that it is well supported by evidence on record. 10. The lower Appellate Court has independently considered the issue and has come to the same conclusion as that of the Trial Court and has observed that even assuming that the comparison of signatures had not been undertaken, there is sufficient evidence adduced by the plaintiff to show that the transaction is true. The lower Appellate Court has also taken the aid of S.118 of the Negotiable Instruments Act to enter the findings. The lower Appellate Court has pointed out that the capacity of the plaintiff to raise funds is not disputed by the defendant. The courts below have come to a conclusion, purely based on appreciation of the evidence in the case. No substantial questions of law arise for consideration in this appeal. 11. The learned counsel for the appellant then pointed out that the pendente lite interest granted is at a higher rate and this court may interfere with the said RSA 425/10 6 aspect. Both the courts have considered the said aspect and has awarded 12% interest. No grounds are made out to interfere with the said aspect. Accordingly, there is no merit in this appeal and it is dismissed, confirming the Judgments of the courts below. P.BHAVADASAN, JUDGE sta RSA 425/10 7