IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 AS.No. 509 of 1997(E) --------------------- OS.359/1994 of PRINCIPAL SUB COURT,N. PARAVUR .................... APPELLANT/DEFENDANT:- ---------------------------- P.M. MOHAMMED, S/O. MAKKARUKUNJU, PADATHAN VEETIL, VEMBILLI KARA, KUNNATHUNAD VILLAGE. BY ADV. MR. T.H.ABDUL AZEEZ MR. K.J.MOHAMMED ANZAR MR. A.MOHAMMED RESPONDENT/PLAINTIFF:- ------------------------------ M/S. RAJEENA STORES, PERUMBAVOOR, REPRESENTED BY ITS MANAGING PARTNER, ALI, S/O. AMBADAN KUNJU MOHAMMED, - RESPONDENT/PLAINTIFF. VALLOM KARA, CHELAMATTAM VILLAGE. ADV. MR. K.S.BABU MS. N.SUDHA THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 18/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. ========================== A.S. No. 509 of 1997 ========================== Dated this the 18th day of June, 2009. JUDGMENT The defendant in O.S. No. 359 of 1994 on the file of the Subordinate Judge's Court, N. Paravur is the appellant in this appeal. The said suit was for a realisation of a sum of Rs.25,655.65 with interest thereon at the rate of 18% per annum. The case of the plaintiff can be summarised as follows:- 2. The plaintiff is a partnership firm conducting wholesale business in grocery articles at Perumbavoor. The defendant used to purchase on credit grocery items from the plaintiff's shop. On 28.11.1992, the defendant issued Ext.A1 cheque for Rs.24,655.65 in favour of the plaintiff. The said cheque was drawn on the Kizhakkambalam branch of the Federal Bank Ltd. On 23.11.1992, the plaintiff issued Ext.A4 lawyer notice to the effect that he would be presenting Ext.A1 cheque before the drawee bank on 28.11.1992 and calling upon the defendant to keep ready sufficient money in his account. But, when the cheque was presented on 28.11.1992 before the collecting bank, it was dishonoured for the reason that there was no sufficient funds in the account of the plaintiff. The drawee bank issued Ext.A3 dishonour memo dated 22.12.1992 and the collecting bank issued Ext.A2 memo dated 02.03.1993 intimating the plaintiff about the dishonour. Even though the plaintiff sent a notice on 31.01.1994 demanding payment of the cheque amount, the defendant has deliberately evaded the payment stating one reason or the other. The plaintiff has the right to claim interest at the rate of 18% per annum on the cheque amount of Rs.24,655.65. Hence the suit. 3. The suit was resisted by the defendant contending inter alia as follows:- The suit is not maintainable. This defendant is not bound to pay the amount mentioned in the plaint. This defendant does not owe the sum of Rs.24,655.65 as stated in paragraph 3 of the plaint. It is true that this defendant has been buying on credit articles from the plaintiff's shop. Ext.A1 was only a signed blank cheque given by this defendant by way of security for the amount due from him. The actual amount due from this defendant to the plaintiff was Rs.23,455.65. In December, 1992, this defendant had paid a sum of Rs.14,996.70 as cash to the plaintiff. As against the balance amount of Rs.8458.95, a sum of Rs.1500/- was paid on 08.02.1993 through this defendant's son Shihabudheen (DW2) and on receipt of the same, the plaintiff had sent Ext.B1 chit dated 08.02.1993 acknowledging receipt of Rs.1500/- towards Rs.8,458.95 and stating that the balance amount due was Rs.6,958.95. Thereafter on 16.03.1993, this defendant had sent Rs.1000/- through his son leaving a balance of Rs.5958.95. Subsequently, on 17.04.1993, this defendant had sent another sum of Rs.1000/- through one Valappil Mohammed Kaderkunju and the balance amount due from this defendant is Rs.4,958.95 which this defendant is willing to pay to the plaintiff on demand. Except for the said amount of Rs.4,958.95, this defendant is not liable to pay any other amounts to the plaintiff. The suit may, therefore, be dismissed. Since the plaintiff has no cause of action, the plaintiff is also not entitled to any amount by way of interest. 4. On the side of the plaintiff, Exts.A1 to A4 were marked. It is not known as to how these documents were marked without proof since neither the plaintiff nor anybody on his behalf mounted the witness box. On the side of the defendants, the defendant and his son Shihabudheen were examined as DWs 1 and 2 and Ext.B1 chit dated 08.02.1993 was marked. 5. The defendant examined as DW1 spoke in terms of the averments in the written statement. His son examined as DW2 gave evidence to the effect that on 08.02.1993, the defendant had entrusted a sum of Rs.1500/- with him to pay the plaintiff and he had paid the same to the plaintiff who had issued Ext.B1 chit acknowledging receipt of the said amount and indicating the balance amount of Rs.6,958.95. 6. The court below proceeded on the footing that since the defendant had pleaded a discharge, the entire burden was on the defendant and holding that the defendant failed to prove the discharge set up by him for the cheque amount of Rs.24,655.65, the court below passed a decree for Rs.30,576/- with interest at the rate of 18% per annum from the date of suit till realisation. It is the said decree which is assailed in this appeal by the defendant. 7. I heard the learned counsel appearing on either side. 8. The learned counsel appearing for the plaintiff made the following submissions before me in support of the decree:- The defendant has admittedly been purchasing grocery items from the plaintiff's shop on credit. He was setting up a plea of discharge. So, the entire burden was on the defendant to prove the discharge. The defendant had miserably failed to prove the discharge. The court below was right in holding that Ext.B1 chit has not been shown to have been issued in respect of the transaction in question. Hence, the decree passed by the court below does not call for any interference. 9. I am afraid that I cannot agree with the above submissions. The specific stand taken by the defendant in his written statement is that Ext.A1 cheque was issued by way of security for the grocery items purchased by him on credit from the plaintiff's shop on various occasions. This is not a case where the defendant has admitted the suit claim of Rs. 24,655.65 and has pleaded a discharge. The specific case of the defendant is that the amount which he owed towards the plaintiff was only Rs.23,455.65. He was pleading a partial discharge of the said amount and not the suit amount. The defendant examined as PW1 spoke in terms of the written statement and stated that Ext.B1 was a chit issued by the plaintiff to the defendant's son (DW2) on paying a sum of Rs.1500/- to the plaintiff. The defendant's son examined as DW2 also corroborated the said version of PW1. There was not even a suggestion put to DWs 1 and 2 that Ext.B1 chit was not issued by the plaintiff or that it was issued as against some other transaction. The most competent person who could have confirmed or denied Ext.B1 was the plaintiff himself. For reasons best known to the plaintiff, he did not mount the witness box. If so, the court below was not justified in holding that the defendant has failed to prove the case set up by him. Going by the defence case as substantiated by DWs 1 and 2, the balance amount that was due to the plaintiff was only the sum of Rs. 4958.95 after giving credit to the payment of Rs.1500/- on 08.02.1993, Rs.1000/- on 16.03.1993 and another sum of Rs.1000/- on 17.04.1993. In all fairness, the defendant had admitted that he was willing to pay the balance amount of Rs.4958.95. In the facts and circumstances of the case, the plaintiff would be entitled only to the said amount since the plaintiff has failed to substantiate the suit claim. Neither the plaintiff nor the court below was entitled to put the blame on the defendant for failure to prove the alleged discharge set up by the defendant with regard to the suit claim. Accordingly, the judgment and decree passed by the court below are set aside and the suit will stand decreed for a sum of Rs.4958.95 which amount shall carry interest at the rate of 18% per annum on the principal amount till the date of suit and at the rate of 6% per annum from the date of suit till realisation failing which the plaintiff will be entitled to realise the same from the defendant and his assets. This appeal is disposed of as above. Dated this the 18th day of June, 2009. V. RAMKUMAR, JUDGE. rv V. RAMKUMAR, J ------------------------------------ A.S. No. 509 of 1997 ---------------------------------------- 18th day of June, 2009. JUDGMENT