G.Manoharan vs Jose Mathew
2021 Latest Caselaw 13433 Ker

RSA No.416/2021                                1/4

                        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                        PRESENT
                         THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
                  MONDAY, THE 28TH DAY OF JUNE 2021 / 7TH ASHADHA, 1943

                          IA.NO.1/2021 IN RSA NO. 416 OF 2021


O.S NO. 22/2017 OF THE SUB COURT,ALAPPUZHA

A.S.NO. 38/2019 OF THE II ADDITIONAL DISTRICT COURT ,ALAPPUZHA.

PETITIONER/APPELLANT/APPELLANT/DEFENDANT:

          G.MANOHARAN ,AGED 60 YEARS,     S/O GOPALAN.R,
          MEENOOS, OPP.RATION SHOP, THONDANKULANGARA,
          AVALOOKUNNU P.O, ALAPPUZHA-688006.

RESPONDENT/RESPONDENT/RESPONDENT/PLAINTIFF:

          JOSE MATHEW, AGED 50 YEARS,
          S/O T.V.MATHEW, THYPARAMBIL HOUSE, POONTHOPPU WARD,
          AVALOOKKUNNU P.O ALAPPUZHA-688006.


         Application praying that in the circumstances stated in the
         affidavit filed therewith the High Court be pleased to stay the
         execution of the decree in O.S.No.22/2017 on the files of the
         subordinate judge's court, Alappuzha till the disposal of the
         above Regular Second Appeal.


         This     Application    coming   on   for   orders   upon   perusing   the
         application and the affidavit filed in support thereof, and upon
         hearing the arguments of Sri.B.JAYASANKER, Advocate for the
         petitioner, the court passed the following:
 RSA No.416/2021                                 2/4




                               N. ANIL KUMAR, J.
                   -----------------------------------------
                              RSA No. 416 of 2021
                   -----------------------------------------
                     Dated this the 28th day of June, 2021



                                          ORDER

Heard the learned counsel for the appellant.

2. This RSA is admitted on the following

substantial questions of law;

(1) When Ext.A3 cheque was issued by the

defendant in favour of the plaintiff in

connection with a partnership business,

wherein both the plaintiff and the

defendant are partners, are the two courts

below justified in decreeing the suit

against the defendant finding that the

cheque was issued in discharge of a legally

enforceable debt between the parties? and

(2) When the admissions made by the

plaintiff during cross examination are

contrary to the pleaded case that Ext.A3 RSA No.416/2021 3/4

RSA No. 416 of 2021

..2..

cheque was issued to him towards the

capital investment of the firm and that the

firm did not come into existence or started

functioning, have not the courts below

erroneously applied the presumptions under

Section 118 of the Negotiable Instruments

Act to rely on the evidence and materials

submitted by the plaintiff in order to

raise a probable case?

Issue notice to the respondents.

IA No. 1 of 2021

Heard the learned counsel for the

petitioner/appellant.

2. The execution of the decree in OS No. 22 of

2017 on the file of the Sub Court, Alappuzha

stand stayed for the period of three months.

3. Along with the suit, the respondent had moved

an application as IA No. 319 of 2017 seeking

attachment before judgment and he obtained an

order of attachment of the property of the RSA No.416/2021 4/4

RSA No. 416 of 2021

..3..

petitioner/appellant having an extent of 9

cents with building and the same is still in

force. The attachment order passed by the

trial court will continue to be in force

during the pendency of the appeal. Hence,

further security is not required.

Sd/-

N. ANIL KUMAR JUDGE

bka/28.06.2021

28-06-2021 /True Copy/ Assistant Registrar