IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 WP(C).No. 35939 of 2009(O) --------------------------------------- [ORDER IN IA.NO.4219/2009 IN OS.613/2009 OF PRL.SUB COURT,IRINJALAKUDA .................... PETITIONER: ------------------- NOBLE, S/O.THALIYATH FRANCIES, IRINJALAKUDA VILLAGE AND DESOM, THRISSUR DISTRICT. BY ADV. MR.T.N.MANOJ. RESPONDENTS: ------------------------ 1. SONIA, W/O.LATE PAZHAYEDATH PARAMBIL GRACIOUS @ PIUS, PORATHUSSERY VILLAGE, KARUVANNOOR DESOM, THRISSUR DISTRICT. 2. MINOR JOHN, S/O.PAZHAYEDATH PARAMBIL GRACIOUS @ PIUS, PORATHUSSERY VILLAGE, KARUVANNOOR DESOM, THRISSUR DISTRICT. 3. MINOR ANTONY,S/O.PAZHAYEDATH PARAMBIL GRACIOUS @ PIUS, PORATHUSSERY VILLAGE, KARUVANNOOR DESOM, THRISSUR DISTRICT. (MINOR RESPONDENTS 2&3 REPRESENTED BY THEIR MOTHER AND GUARDIAN SMT.SONIA THE 1ST RESPONDENT. R1 TO R3 BY ADV. MR. SHEEJO CHACKO. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/02/2010, THE COURT ON 22/02/2010,DELIVERED THE FOLLOWING: W.P.(C). NO.35939/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE LAWYER NOTICE DTD. 03/10/2009. EXT.P.2: COPY OF THE PLAINT IN O.S. 613/2009. EXT.P.3: COPY OF THE ENCUMBRANCE CERTIFICATE FROM THE NELLAI S.R.O. EXT.P.4: COPY OF THE I.A. 4219/2009 IN O.S. 613/2009. EXT.P.5: COPY OF THE OBJECTION TO I.A. 4219/2009. EXT.P.6: COPY OF THE ORDER DT. 07/11/2009 IN I.A. 4219/2009. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 35939 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of February, 2010. JUDGMENT In this petition filed under Article 227 of the Constitution of India, petitioner calls in question Ext.P6 order by which his application for attachment before judgment was dismissed by the Sub Court, Irinjalakuda. 2. According to the petitioner, the predecessor-in-interest of the respondents herein borrowed a sum of Rs.2.50 Lakhs and in discharge of the debt, he issued a cheque dated 10.9.2009. The cheque on presentation was bounced for insufficiency of funds. It is stated in the plaint itself that even before the matter could be brought to the notice of the borrower, he died, hence the notice demanding the amount was issued to the legal heirs, who are the respondents herein. Since the amount remained unpaid and no immediate reply was received, the suit was laid. According to the plaintiff, the deceased as well as the first respondent WPC. 35939/2009. 2 have several debts, which they were unable to repay. Therefore, apprehending that the properties in the possession of the respondents may be alienated, along with the suit for recovery of money, the petitioner filed I.A. 4219 of 2009 seeking attachment of the property before judgment. 3. The respondents entered appearance and contested the matter. 4. The court below observing that since cheque is dated after the death of the person who issued the same, it cannot be considered at all. The court below was of the view that the cheque can be presumed to be drawn on the date seen on the cheque. The court below also held that there was no plea based on original consideration and the suit was based on the cheque alone. On the basis of these findings, the application was dismissed. 5. Learned counsel appearing for the petitioner pointed out that the court below was unjustified in WPC. 35939/2009. 3 dismissing the petition. None of the grounds relied on by the court below are sustainable in law. 6. It was pointed out that there is a specific averment in the plaint that a sum of Rs.2.50 Lakhs was borrowed by the predecessor in interest of the defendants and that in order to repay the amount, a cheque with the date 10.9.2009 was handed over. Learned counsel pointed out that it is very clear from a reading of the plaint that the cheque issued was a post dated cheque. There is no law which prohibits the issuance of a post dated cheque. Infact issuance of a post dated cheque is well recognised in law. Learned counsel also drew the attention of this court to the fact that in fact the claim is based on original transaction also. Accordingly, it is contended that there was no justification in dismissing the petition. 7. Learned counsel appearing for the respondents on the other hand pointed out that the court below has relied on the presumption available under Section 118 of the Negotiable Instruments Act and has rightly dismissed the WPC. 35939/2009. 4 petition. It is also contended that the suit is based on the cheque alone and therefore no grounds are made out to interfere with the order of the court below. 8. First of all, it should be said that the court below has gone far more than what is required while considering an interlocutory application. In fact, a reading of the order would show that there is no purpose in further prosecuting the suit at all. 9. The court below was not justified in coming to the conclusion that since the cheque bears the date 10.9.2009, it must deemed to have been drawn on that date. Even assuming that Section 118 applies, the plaintiff can rebut the presumption only at the time of trial. It has been alleged in the plaint that the cheque dated 10.9.2009 was given and not that the cheque was given on 10.9.2009. As rightly pointed out by the learned counsel for the petitioner, there is no law, which prohibits a post dated cheque being issued. The only thing is that it becomes a cheque only on the date seen on the cheque. Therefore, the WPC. 35939/2009. 5 court below was not correct in saying that since the date in the cheque is shown as 10.9.2009, it should have been deemed to have been issued on that day. 10. On going through the plaint it can be seen that the court below was not fully justified in holding that there is no plea on the basis of the original transaction and that the suit was based only on the cheque. True in paragraph 6 of the plaint, which deals with the cause of action, what is stated is in relation to the cheque. But a reading of the plaint as a whole shows that the suit is based on the original transaction also. At any rate, these things are to be gone into at the time of trial and not at this stage when the court is dealing with an application for interim attachment. There is no case for the respondents herein that they have not inherited any assets from late Sri.Gracious. Even assuming that an attachment is effected, it could only extent to the property inherited from the original debtor by the respondents. WPC. 35939/2009. 6 11. The court below has also observed that the petition is defective. No details are seen mentioned in the order. 12. From the above discussion, it appears that the order of the court below cannot be sustained and it requires a reconsideration at the hands of the court below. The writ petition is allowed, the impugned order is set aside and the matter is remanded to the trial court for a fresh consideration in accordance with law and in the light of what has been stated above. The petition shall be disposed of within one month from the date of receipt of a copy of this judgment. P. BHAVADASAN, JUDGE sb.