Kerala High Court
Suhara Beevi vs Thulasi on 19 April, 2024
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
FRIDAY, THE 19TH DAY OF APRIL 2024 / 30TH CHAITHRA, 1946
RFA NO. 223 OF 2005
AGAINST THE JUDGMENT AND DECREE DATED 14.11.2003 IN OS NO.31 OF
1997 OF THE COURT OF THE SUBORDINATE JUDGE, CHERTHALA
APPELLANTS/DEFENDANTS 1 TO 5:
1 SUHARA BEEVI, W/O.LATE ABDUL KAREEM,
KORMASSERIYIL HOUSE, CMC WARD NO.3, CHERTHALA
NORTH VILLAGE, CHERTHALA TALUK, ALLEPPEY DISTRICT.
2 SUNITHA, D/O. LATE ABDUL KAREEM, -DO- -DO-
PRESENTLY W/O. H.NAZIR, PALAPPARAMBIL HOUSE,,
NADUVANTH NAGAR P.O., ARUKKUTTY (VIA)
3 MUBINA, D/O.LATE ABDUL KAREEM,
KORMASSARIYIL HOUSE, CMC WARD NO.3, CHERTHALA
NORTH VILLAGE, CHERTHALA TALUK, ALLEPPEY DISTRICT.
4 SUMAYYA, D/O.LATE ABDUL KAREEM, -DO- -DO-
5 AJIMALSHA S/O.LATE ABDUL KAREEM, -DO- -DO-
AGED 13 YEARS, MINOR REP. BY HIS MOTHER AND 1ST
APPELLANT SUHARA BEEVI.
BY ADV SRI.B.PRAMOD
RESPONDENT/PLAINTIFF:
THULASI, W/O. SARANGADHARAN, AGED 40 YEARS,
PARANKIMAMOODU HOUSE, VADAKKEVILA VILLAGE, KOLLAM
TALUK AND DISTRICT.
BY ADVS. SMT.REHNA N S, GOVERNMENT PLEADER
SRI.JAYAPRADEEP. V.
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
01.06.2022, THE COURT ON 19.04.2024 DELIVERED THE FOLLOWING:
R.F.A. No. 223 of 2005
-:2:-
MARY JOSEPH, J.
-----------------------
R.F.A. No. 223 of 2005
-----------------------
Dated this the 19th day of April, 2024
JUDGMENT
The appeal on hand is filed challenging the judgment and decree passed on 14.11.2003 by Subordinate Judges' Court, Cherthala (for short, 'the trial court') in O.S. No.31/97. Appeal was sought to be filed by the appellant as an indigent person and after holding enquiry into the financial capacity of the appellant vide order passed on 09.02.2005 in CMC No.27/2004 this Court allowed the appellant to conduct the appeal as an indigent person.
2. O.S. No.31/1997 was a suit filed by the appellant before the trial court seeking realisation of money. Respondents are the legal heirs of one Mr.Abdul Karim. The parties to this appeal will hereinafter be referred to as the plaintiff and defendants 1 to 5 in accordance with the status of each of them in the Original Suit. Defendants 2 to 5 being minors at the relevant time of filing of the Original Suit were represented by the 1 st defendant, who was their mother, as next friend.
R.F.A. No. 223 of 2005-:3:-
3. As revealed from the facts of the case, a cheque was executed by Abdul Karim on 11.12.1995 for a sum of `2,00,000/- borrowed by him from the plaintiff. The cheque was drawn by Abddul Karim, from his account maintained at the Cherthala Branch of the Federal bank Ltd. The cheque was presented for collection through the account of the plaintiff at Kolloorvila Service Co-operative Bank. It was returned as bounced due to insufficiency of funds in the account of the drawer of the cheque, on 03.01.1996. Notice was sent on 13.01.1996 to Abdul Karim and a criminal complaint was filed against him before the Judicial First Class Magistrate Court, Kollam. During the pendency of the Criminal Case, Abdul Karim died on 22.02.1997. The plaintiff requested the defendants to repay the amount borrowed by Abdul Karim. The amount was not repaid and therefore, the Original Suit was filed.
4. Defendants 1, 4 and 5 filed written statement denying the averments of the plaintiff in the plaint that `2,00,000/- was borrowed by Abdul Karim on 11.12.1995 and that a cheque was executed by him to repay the amount. The averment that a cheque was issued by him to discharge the debt and it was R.F.A. No. 223 of 2005 -:4:- bounced on presentation for collection were also denied. It was contended that the plaintiff did not approach the defendants demanding repayment of the money covered by the cheque allegedly issued, that the property belonging to Abdul Karim was not inherited by them, that the property belonging to Abdul Karim was gifted to the 1st defendant prior to the execution of the cheque in favour of the plaintiff.
5. It was contended further that plaintiff's husband one Mr.Sarngadharan was the sub agent of Abdul Karim who was engaged in the job of getting employments for job seekers in foreign countries and as part of his job, Mr.Abdul Karim happened to give a cheque to Mr.Sarngadharan at the residence of the defendants at Cherthala. It was urged that that above factum came to the knowledge of the defendants from the reply notice sent by Mr.Abdul Karim in response to the notice issued to him preceding the filing of the criminal complaint. Accordingly, suit was canvassed to be dismissed.
6. Defendants 2 and 3 also filed a written statement contending that the cheque was not executed by him in favour of the plaintiff.
R.F.A. No. 223 of 2005-:5:-
7. According to them, the husband of the plaintiff, Mr.Sarngadharan was a sub agent of Abdul Karim and in that connection a cheque happened to be issued by Abdul Karim to him on 19.06.1992 and that factum was informed by the reply notice sent by Abdul Karim to the complainant. The averments of the plaintiff in the Original Suit were denied and it was sought to be dismissed.
8. 4th defendant filed written statement supporting all the contentions raised in the written statement filed by other defendants. During trial in the Original Suit, plaintiff was examined as PW1 and Exts.A1 and A2 were marked. Defendant deposed as DW1 and Exts.B1 and B1(a) were marked. Exts.X1 and X2 were also summoned and marked.
9. Issues were raised by the trial court as follows :
"1. Is not the suit maintainable ?
2. Whether Abdul Karim issued a cheque for an amount of `2 lakhs to the plaintiff ?
3. Is not the cheque supported by consideration ?
4. Whether the plaintiff is entitled to realise the plaint claim ?
5. Reliefs and costs."
10. The trial court appreciated the evidence on record and answered all issues in favour of the plaintiff. Accordingly the R.F.A. No. 223 of 2005 -:6:- Original Suit was decreed. Defendants were directed to pay `2,52,100/- (Rupees two lakh fifty two thousand and one hundred only) to the plaintiff with interest at the rate of 6% per annum from the date of the Original Suit till realisation, from out of the assets of late Abdul Karim came into their hands by way of inheritance. It was specifically observed that the defendants do not have any personal liability towards the plaint claim. Costs was declined. Aggrieved thereby, the defendants preferred the appeal on hand. The first and foremost argument of the learned counsel on behalf of the appellants/defendants was that notice was not issued to the defendants prior to the filing of the suit.
11. Going by the pleadings in the plaint filed in the Original Suit itself, the admitted case of the plaintiff was that notice was not issued to the defendants prior to the filing of the Suit. According to the plaintiff Mr.Abdul Karim who was the husband of the 1st defendant and children of other defendants had borrowed `2,00,000/- from her and the cheque marked in evidence as Ext.A1 was given to discharge the borrowed sum. According to the plaintiff Ext.A1 was drawn by Mr.Abdul Karim from the account maintained by him with Federal Bank Ltd, Cherthala. R.F.A. No. 223 of 2005 -:7:- The plaintiff presented the cheque for collection through Kolloorvila branch and it was returned, bounced for insufficiency of funds. According to her, notice was issued to Abdul Karim, and since payment of the money was not made, complaint was filed before Judicial First Class Magistrate Court, Kollam. According to her, during the pendency of the above complaint, Abdul Karim died.
12. The Original Suit was filed after the death of Abdul Karim. It is clear from the version of plaintiff that notice demanding the money was not caused to be served on the defendants prior to filing the Original Suit seeking realisation of money. Admitted case of the plaintiff was also that notice was served to Abdul Karim prior to the filing of the complaint before Judicial First Class Magistrate Court, Kollam. Therefore, service of a notice to the defendants did not precede the filing of the Original Suit as contended by the defendants, who are only legal heirs of Abdul Karim, the person alleged as the borrower of money and executant of Ext.A1.
13. The plaintiff has raised a specific pleading in the plaint filed that `2 lakh was borrowed by Abdul Karim from her. The R.F.A. No. 223 of 2005 -:8:- date of demand of the sum and date on which it was given were not stated in the plaint. According to her, Ext.A1 cheque was drawn from the account maintained by Abdul Karim with Federal Bank Ltd., Cherthala Branch on 11.12.1995 and given to discharge the debt. The cheque on presentation was bounced for insufficiency of funds in the account of Abdul Karim and returned to her. When examined before the Court in the Original Suit as PW1, plaintiff had categorically deposed all aspects of the transaction in tune with her pleadings in the plaint.
14. During cross examination, she shifted from her story of borrowal of money by Abdul Karim and stated a case of parting of `40,000/- each by five of her relatives for obtaining jobs abroad and giving that to Abdul Karim. According to her, jobs were not procured for them as assured by Abdul Karim and Ext.A1 was issued when repayment of the money was demanded. Admittedly, Mr.Sarngadharan, the husband of plaintiff was the sub-agent of Abdul Karim in his business of providing employment abroad.
15. Section 118(a) of the Negotiable Instruments Act is apposite to be extracted hereunder :
R.F.A. No. 223 of 2005-:9:-
"118. Presumptions as to negotiable instruments.--Until the contrary is proved, the following presumptions shall be made:--
(a) of consideration:--that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; "
16. As revealed from the provision supra, when a signed cheque was issued by a person to another, the presumption attracted was that it was issued for consideration. PW1 does not have a consistent case about the transaction that caused the issuance of Ext.A1 in her favour. She was not static about the consideration behind the issuance of Ext.A1 cheque. The case of the plaintiff itself is rebutted on account of the inconsistent stand taken by her on consideration passed while issuing Ext.A1.
17. The defendants in their written statement had taken a specific contention that the signature in Ext.A1 was not authored by Abdul Karim. The plaintiff in the above context has summoned the specimen signatures of Abdul Karim from the bank where he maintains an account. The trial court noticed similarity in the signature in Ext.A1 and the specimen signatures found in Exts.X1 and X2. Thus the trial court has drawn a R.F.A. No. 223 of 2005 -:10:- conclusion that the signature in Ext.A1 was authored by Abdul Karim. It was the admitted case of the defendants that they came to know from the reply notice sent by Abdul Karim that Ext.A1 was handed over by him to Mr.Sarngadharan, the husband of plaintiff at their residence in connection with his work as a job provider. Admittedly Mr.Sarngadharan was a sub-agent of Abdul Karim in the latter's job.
18. The plaintiff does not have a specific say on the date on which the amount was demanded by Abdul Karim and the date on which it was advanced to him. Ultimately plaintiff is found to have taken a stand in the proof affidavit filed in lieu of examination in chief that `2,00,000/- was borrowed by Abdul Karim from her. The kind of acquaintance she had with Mr.Abdul Karim and her financial source to advance the money are also not stated by her. Admittedly of her, Mr.Sarngadharan is her husband and he was working under Abdul Karim.
Mr.Sarngadharan was not involved in the transaction. Mr.Sarngadharan was also not examined by her to establish the transaction. Apart from all the above, the plaintiff had shifted from the case spoken in the Chief Examination and stated a R.F.A. No. 223 of 2005 -:11:- different transaction having no nexus with the one pleaded in the plaint and spoken by her in chief examination. The new story was that five of her relatives have given `40,000/- each to her for obtaining jobs abroad through Abdul Karim and that was given to him by her. When she herself says that her husband Mr.Sarngadharan was a sub-agent under Abdul Karim engaged also in the job of providing jobs abroad to job seekers, why the money was entrusted to Abdul Karim not through her husband or without informing him is suspicious. It is the specific stand of PW1 that five of the relatives gave the money to her and in their presence, it was given to Abdul Karim. Despite the assertion made that the relatives of her had witnessed the handing over of money to Abdul Karim she failed to examine any of them to establish the same.
19. According to the defendants they were informed from the reply notice issued by Abdul Karim that Ext.A1 was given by Abdul Karim to Mr.Sarngadharan while working together and it was misused by him through his wife and filed the Suit for realisation of the money from the defendants. It is found that the same stand is taken by the defendants all throughout the R.F.A. No. 223 of 2005 -:12:- Suit. Therefore, that appears more probable than that of the case of the plaintiff which is evident from the discussion made hereinabove as inconsistent in material aspects. The Suit is liable to fail in the above circumstances. The trial court has committed a grave error while allowing the Original Suit and granting a decree in favour of the plaintiff. The judgment and decree are only to be reversed.
Appeal succeeds for the reasons and is allowed. The judgment and decree under challenge are reversed. The appellants are entitled to get costs.
Sd/-
MARY JOSEPH, JUDGE.
JJ