IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 6TH JULY 2010 / 15TH ASHADHA 1932 AFA.No. 69 of 1993() -------------------- AGAINST AS.254/1986 OF THE HIGH COURT OF KERALA OS.101/1984 of PRINCIPAL SUB COURT,KOLLAM .................... APPELLANT/APPELLANT/DEFENDANT: ------------------------------------------------------- ABDUL RAHIMAN SHAMSUDIN, CHANDANAZHIKOM PURAYIDOM, BEACH SOUTH WARD, KOLLAM VILLAGE. BY ADV. SRI.B.KRISHNA MANI RESPONDENT/RESPONDENT/PLAINTIFF: --------------------------------------------------------- MYTHEENKUNJU SUBAIR, THANGALAZHIKOM PURAYIDOM, BEACH SOUCH WARD, KOLLAM. ADV. SRI.S.V.BALAKRISHNA IYER THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDERS ON C.M.P.4264/1993 IN A.F.A.69/1993 - DISMISSED. 13.7.2010. SD/-THOTTATHIL B.RADHAKRISHNAN, JUDGE. SD/-S.S.SATHEESACHANDRAN, JUDGE. - TRUE COPY - P.S.TO JUDGE. THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. --------------------------------------- A.F.A.No.69 of 1993 --------------------------------------- Dated this the 6th day of July, 2010 JUDGMENT THOTTATHIL B.RADHAKRISHNAN, J. The defendant has filed this intra-court appeal against the judgment of the learned single Judge affirming the decree passed by the trial court for realisation of money due on a promissory note. 2. The plaintiff sued on a note allegedly executed by the appellant on 30.6.1993. It was also pleaded by the plaintiff that by virtue of an agreement between him, the defendant and another, the rights of a business concern were released to the defendant and the promissory note was AFA69/93 -: 2 :- executed in consideration of the amount due to the plaintiff from the defendant in terms of that agreement. 3. The defendant contested. It was his plea that the plaintiff wanted him to pay an amount to the plaintiff in consideration of the plaintiff relinquishing his tenancy right over the building. The defendant pleaded that on negotiation it was agreed that the defendant need pay only Rs.30,000/-. He also pleaded discharge to the extent of Rs.20,000/- and that he is prepared to pay the balance amount of Rs.10,000/-. 4. The court of first instance heard the evidence of PW.1 and of the defendant as DW.1. There were three witnesses on the side of the defendant. Taking the pleadings into consideration and after hearing the evidence of the witnesses, the trial court disbelieved the plea of defendant regarding discharge and as a consequence, decreed the suit for Rs.5192/- with 12% interest from the date of decree with AFA69/93 -: 3 :- interest at 6% thereafter. 5. The entire evidence was reconsidered by the learned Single Judge. Assimilating the oral and documentary evidence, the learned single Judge has rightly concluded that the findings of the trial court did not warrant interference. The learned single Judge affirmed the findings of the trial court, also by relying on Section 118 of the Negotiable Instruments Act and finding that the presumption drawn in that regard, on the face of the admission regarding the execution of the note, was not rebutted. 6. Having perused the materials on record, including the pleadings, the oral and documentary evidence, we do not find any reason to disagree with the findings of the learned single Judge or in any manner, with the concurrent decisions in favour of the plaintiff. AFA69/93 -: 4 :- In the result, the appeal is dismissed with costs through out. (THOTTATHIL B.RADHAKRISHNAN) JUDGE (S.S.SATHEESACHANDRAN) JUDGE sk/ Thottathil B.Radhakrishnan, J . 1.Judgment was delivered in this AFA on 6th July, 2010. Today, it is listed to be spoken to, since the learned counsel for the appellant mentioned that the decision of this Court in Alex Mathew v. Philip, 1973 KLT 545 referred to by the learned Single Judge stands overruled by the Apex Court in Bharat Barrel & Drum Manufacturing Co. v. Amin Chand Payrelal, (1999) 3 SCC 35 and that AFA69/93 -: 5 :- this fact was not brought to the notice when the matter was heard. 2.The learned counsel for the appellant states that a Full Bench of the Andhra Pradesh High Court, in G.Vasu v. Syed Yaseen, AIR 1987 AP 139, had specifically dissented from this Court's view in Alex Mathew(supra) and that G.Vasu(supra) is quoted with approval by the Apex Court in Bharat Barrel(supra). It is also pointed out that the decision in Alex Mathew(supra) runs contrary even to the locus classicus, Kundan Lal v. Custodian, Evacuee Property, AIR 1961 SC 1316. 3.Per contra, the learned senior counsel appearing for the respondent states that the law laid by the Apex Court in Kundan Lal(supra) and also Bharat Barrel(supra) do not, in any way, stand offended by the findings of the court of first instance or those arrived at by the learned Single Judge, which we have affirmed. AFA69/93 -: 6 :- 4.In Alex Mathew(supra), the Division Bench of this Court stated that the presumption under Section 118(a) is not that the amount mentioned in the promissory note or the negotiable instrument was the quantum or the value of consideration that passed; but only a general one that the instrument is supported by consideration. The Bench did not agree with the view in some of the decisions that were referred to before it to the effect that the presumption was regarding the nature or quantum of the consideration. It was specifically laid down that the only presumption is that the negotiable instrument is supported by consideration. The Division Bench had also stated that the rejection of the case of the plaintiff as to the particular form of consideration pleaded in the plaint does not automatically rebut that presumption. It is that latter part of the judgment in Alex Mathew's case that was found to be not appealing to the Full Bench of the Andhra Pradesh High Court in G.Vasu's case. It was to that limited AFA69/93 -: 7 :- extent that the said judgment was dissented from, by the Andhra Pradesh High Court in Vasu's case (supra). Therefore, by quoting the judgment of the Full Bench of the Andhra Pradesh High Court in Vasu's case(supra) the Apex Court did not, in Bharat Barrel(supra), intend to overrule the judgment of the Division Bench of this Court in Alex Mathew(supra) in toto, but only to the extent as noted above. 5.In fact, even as early as in Kundan Lal(1961), the law was settled and there is no deviation in the understanding of the law in so far as the Apex Court was concerned. It had been consistently laid down that the presumption available in Section 118(a) of the Negotiable Instruments Act is only that the negotiable instrument is supported by consideration. That does not extend to drawing any presumption as to sufficiency or identity of the consideration; or adequacy of consideration or that the consideration is the self same, as stated in the AFA69/93 -: 8 :- instrument. The presumption under Section 118(a) is one that the court is obliged to draw in relation to a negotiable instrument, when its execution is admitted or proved. Presumption can be rebutted. The phrase “until the contrary is proved” in Section 118 provides for the rebuttal of the presumption under Section 118(a) of the Negotiable Instruments Act, by substantive evidence, presumptions including permissive presumptions under Section 114 of the Evidence Act and even legitimate inferences and conclusions which the court may arrive at in the process of assimilating the evidence in terms of the Evidence Act to ultimately decide as to whether the presumption stands rebutted. 6.Applying the law as aforesaid, on the facts of the case in hand, we notice that the execution of Ext.A1 promissory note stands admitted; that it is a note is not in dispute; the defendant does not have a case that the said document is not supported by consideration at all. The plea of AFA69/93 -: 9 :- the defendant is that even going by the plaintiff's own showing, the consideration for Ext.A1 note is not the amount stated to have been paid to the defendant on that day but the amount that would be payable by the defendant to the plaintiff in terms of Ext.A2 under which the plaintiff is shown to have gone out of a partnership business, also agreeing to surrender his leasehold right over a shop room and to do the necessary for transfer of leasehold right. We also notice that it is in evidence that one Kesavan Nair had also been a partner at an earlier point of time and had gone out of the firm earlier, though the municipal licence continued to stand in his name. We find that the plaintiff had proved that he is entitled to the plaint claim. The decree is not liable to be disturbed in appeal. 7.In so far as the rate of interest is concerned, the agreed rate is 12%. The trial court had exercised its discretion in terms of the last AFA69/93 -: 10 :- limb of Section 79 of the NI Act to confine the agreed rate of interest to be operated till the date of decree and it granted post decree interest at 6% per annum necessarily exercising power under Section 34 of the CPC. On that count also, we do not find that injustice is meted out to either of the parties. For the aforesaid reasons, we do not find any ground to vary the judgment we already delivered in this case on 6th July, 2010. Thottathil B.Radhakrishnan, Judge. S.S.Satheesachandran, 13th July, 2010. Judge. Sha/2207 AFA69/93 -: 11 :- Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = A.F.A..69 of 1993 = = = = = = = = = = = = = = Judgment 6th July, 2010.