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.
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R.F.A. No. 223 of 2005
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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.
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
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.
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
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.
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
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 :
"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
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
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
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
