IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 RSA.NO. 519 OF 2009() ------------------------------------ AS.32/2006 OF SUB COURT, QUILANDY OS.210/2004 OF MUNSIFF COURT, QUILANDY .................... APPELLANTS – APPELLANTS - DEFENDANTS: ------------------------------------------------------ 1. VANAJA.V., W/O.LATE KARUNAKARAN NAIR, PALYAKANDAY HOUSE, CHEMANCHERI AMSOM, KOYILANDY. 2. JOSNA, D/O.LATE KARUNAKARAN NAIR, VALIYAPARAMBATH, JANATHA ROAD, VATAKARA, PUTHUPPANAM DESOM, VATAKARA TALUK. 3. JISHA, D/O.LATE KARUNAKARAN NAIR, PALYAKANDAY HOUSE, CHEMANCHERI AMSOM, KOYILANDY, BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA RESPONDENT(S): RESPONDENT/PLAINTIFF: -------------------------------------------------------- K.P.SREENIVASAN, S/O.GOPALAN NAIR, EARATHKANDY HOUSE, CHELIYA P.O., MELUR AMSOM, CHELIYA DESOM, KOYILANDY TALUK. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.519 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 2nd day of November, 2009 J U D G M E N T ---------------------- The Second Appeal arises from the judgment and decree of learned Sub Judge, Quilandy in A.S. No.32 of 2006 confirming judgment and decree of learned Munsiff, Quilandy in O.S. No.210 of 2004. Respondent/plaintiff claimed that Karunakaran Nair, predecessor in interest of appellants borrowed Rs.50,000/- from him on 15.6.2003 and issued Ext.A1, cheque dated 15.5.2004 for the sum of Rs.60,000/- which took in the principal amount together with interest agreed to be paid thereon. Since Karunakaran Nair died before the date of maturity, respondent could not present the cheque for encashment. After the death of Karunakaran Nair, respondent issued notice to the appellants demanding payment of the amount. Appellants denied the transaction and execution of cheque and hence the suit. Respondent gave evidence as P.W.1 and examined P.Ws.2 and 3 in proof of the alleged transaction and execution of Ext.A1. Appellant No.3 was examined as D.W1 and gave contra evidence. Exhibits B1 to B5 and X1 to X3(b) are produced in support of the contention of appellants. Learned Munsiff found that Karunakaran Nair had borrowed money from the respondent and issued the cheque. R.S.A. NO.519 of 2009 -: 2 :- First appellate court confirmed the same. As the decree now stands, respondent is allowed to realise the amount from the assets of Karunakaran Nair in the hands of appellants. Appellants are aggrieved and have come up in Second Appeal urging the following by way of substantial questions of law. (i) Whether a suit can be maintained by a drawee of the cheque against the legal representatives of the drawer of the cheque without a plea that the legal representatives had inherited the estate of the drawer to bear the responsibility and obligation to discharge the original debt owed by the drawer of the cheque? (ii) Whether the courts below are justified in drawing a presumption under Section 118 of the Negotiable Instruments Act upon Ext.A1 (concededly a post dated cheque) which was presented for encashment long after the death of the drawer of the cheque even without proof regarding the signature of the drawer as contained in the cheque? (iii) Whether the courts below are justified in drawing a presumption in favour of R.S.A. NO.519 of 2009 -: 3 :- the drawee of the cheque in spite of the contrary evidence adduced by the appellants with regard to the very basis of the cheque in question? Is not the presumption contemplated under Section 118 of the Negotiable Instruments Act a rebuttable one? (iv) Whether a cheque issued by a person can be presented for encashment long after the death of the drawer of the cheque and file a suit for the said amount against the legal representatives? Is not such a claim bad and hit by Section 64 of the Negotiable Instruments Act? (v) Are not the conclusions in the judgments of the courts below vitiated by reason of their perverse appreciation of the evidence on record? It is contended by learned counsel that courts below have not adverted to the above questions while granting decree in favour of respondent. 2. Substantial questions of law urged in the Second Appeal concerned the question regarding validity of the negotiable instrument and its presentation after the death of the drawer of the instrument. I R.S.A. NO.519 of 2009 -: 4 :- have gone through the copy of the plaint which learned counsel for appellants produced before me for perusal and I find that the suit is based on the original cause of action, i.e. Karunakaran Nair borrowing Rs.50,000/- from the respondent on 15.6.2003. Though it is also stated that the date on which the amount payable (15.5.2004) also gave respondent a cause of action for suing for recovery of the amount basically and principally suit is based on the original cause of action. Therefore much of the substantial questions of law urged in the Second Appeal do not arise for decision. 3. It is not the case of respondent that he had presented the cheque for encashment at any point of time. Instead he pleaded that he did not present the cheque for encashment since Karunakaran Nair died before the due date i.e., 15.5.2004. He has given evidence as P.W1 regarding the transaction and execution of Ext.A1, cheque by Karunakaran Nair. P.Ws.1 and 2 also supported him. P.W.2 of course, is a relative of respondent. But he is also a neighbour of respondent and Karunakaran Nair. Exhibit B4 series are produced to show that cheque book containing Ext.A1 was not issued to Karunakaran Nair during 2003 when according to the respondent alleged transaction took place. But the mere fact that Ext.A1, cheque comes from the cheque book containing Ext.B4 series is of the previous year does not R.S.A. NO.519 of 2009 -: 5 :- by itself mean that there was no such transaction as pleaded by the respondent. Exhibits X1 to X3(b) are produced to show that Karunakaran Nair who was admittedly working at Goa during the relevant time had attended his office on 14.6.2003 and 16.6.3003 and therefore there was no possibility of his being at Quilandy on 15.6.2003 to borrow the amount from the respondent. It is seen from the judgment of the trial court that appellants had produced the time table of train timings from Calicut to Medgaon. Learned Munsiff observed that the running time was only 11 hours and hence there was no difficulty for Karunakaran Nair even if he had been attending office on 14.6.2003 and 16.6.2003 to come to Quilandy on 15.6.2003 and return to the place of his employment and attend duty on 16.3.2003. Trial court has referred to the oral and documentary evidence and found in favour of the transaction and execution of Ext.A1 by Karunakaran Nair. First appellate court has confirmed that finding. I do not find any perversity in the finding of the courts below and as such no question of law is involved. 4. It is lastly argued by learned counsel that appellants could not have been made personally liable for the debt of Karunakaran Nair. It is seen from the operative portion of the judgment of learned Munsiff that it is made clear that liability of appellants shall be limited to the R.S.A. NO.519 of 2009 -: 6 :- extent of property of Karunakaran Nair inherited by them. That would take care of the apprehension of appellants as against the personal liability apprehended by them. I do not find any question of law, much less any substantial question of law involved in the Second Appeal requiring its admission. Resultantly, Second Appeal is dismissed in limine. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. NO.519 of 2009 -: 7 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO.519 of 2009 =================== J U D G M E N T 2ND NOVEMBER, 2009