Kerala High Court
Suni Chacko vs Annamma Alex on 15 January, 2025
2025:KER:2984
R.F.A.NO.493 OF 2018 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 15TH DAY OF JANUARY 2025 / 25TH POUSHA, 1946
RFA NO. 493 OF 2018
AGAINST THE JUDGMENT DATED 18.08.2018 IN OS NO.4 OF 2017 OF
SUB COURT AT PUNALUR, KOLLAM.
APPELLANT/PLAINTIFF:
SUNI CHACKO, AGED 41 YEARS
W/O.SAJI CHACKO, RESIDING AT KADUVANKKAL HOUSE,
KOLLAKA.P.O., VADAKKUMTHALA VILLAGE, KARUNAGAPPALLY
TALUK, NOW RESIDING AT KAKKATTU THEKKETHIL VEEDU,
PATHANAPURAM.P.O., PATHANAPPURAM VILLAGE, PATHANAPPURAM
TALUK, KOLLAM.
BY ADV B.KRISHNA MANI
RESPONDENTS/DEFENDANT:
1 ANNAMMA ALEX, AGED 58 YEARS
W/O.K L ALEXANDER, K.V.LAND, MELILA VILLAGE,
VILLOOR MURI, KOTTARAKKARA, KOLLAM-691508.
BY ADVS.
SRI.SHABU SREEDHARAN
SRI.P.R.VIBHU
SRI.D.THILAKAN
SRI.M.YOHANNAN
SMT.SHEENAMOL VARGHESE
RESHMA T.
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
10.01.2025, THE COURT ON 15.01.2025 DELIVERED THE FOLLOWING:
2025:KER:2984
R.F.A.NO.493 OF 2018 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 15TH DAY OF JANUARY 2025 / 25TH POUSHA, 1946
I.A.NO.5 OF 2024
IN
I.A.NO.1 OF 2018
IN
RFA NO. 493 OF 2018
AGAINST THE JUDGMENT DATED 18.08.2018 IN OS NO.4 OF 2017 OF
SUB COURT AT PUNALUR, KOLLAM.
APPELLANT/CLAIM PETITIONER IN RFA
SREEJITH, S/O.RAMACHANDRAN PILLAI,
AGED 45 YEARS, AMBADI,
ARINGADA, THALAVOOR VILLAGE,
KOTTARAKKARA, KOLLAM-691514.
BY ADV B.KRISHNA MANI
RESPONDENTS/APPELLANT IN RFA & RESPONDENT IN RFA
1 SUNI CHACKO,
W/O.SAJI CHACKO, RESIDING AT KADUVANKKAL HOUSE,
KOLLAKA.P.O., VADAKKUMTHALA VILLAGE, KARUNAGAPPALLY
TALUK, NOW RESIDING AT KAKKATTU THEKKETHIL VEEDU,
PATHANAPURAM.P.O., PATHANAPPURAM, KOLLAM.
2 ANNAMMA ALEX, AGED 58 YEARS
W/O.K L ALEXANDER, K.V.LAND, MELILA VILLAGE,
VILLOOR MURI, KOTTARAKKARA, KOLLAM-691508.
BY ADVS.
SRI.SHABU SREEDHARAN
BIJITH S KHAN
SRI.P.R.VIBHU
SRI.D.THILAKAN
SRI.M.YOHANNAN
SMT.SHEENAMOL VARGHESE
RESHMA T.
THIS REGULAR FIRST APPEAL AND I.A.NO.5/2024 HAVING BEEN
FINALLY HEARD ON 10.01.2025, THE COURT ON 15.01.2025 DELIVERED THE
FOLLOWING:
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R.F.A.NO.493 OF 2018 3
"C.R"
A. BADHARUDEEN, J.
================================
JUDGMENT IN R.F.A.No.493 of 2018
AND
ORDER IN I.A.NO.5 OF 2024
================================
Dated this the 15th day of January, 2025
This regular first appeal has been filed under Section 96 read
with Order XLI Rule 1 and 2 of the Code of Civil Procedure, 1908,
challenging the decree and judgment dated 18.08.2018 in O.S.
No.4/2017 on the files of the Sub Court, Punalur. The appellant herein
is the plaintiff and the respondent herein is the defendant.
2. Heard the learned counsel for the appellant/plaintiff as well as
the learned counsel who filed claim petition on behalf of Sri.Sreejith,
claiming absolute title over the property attached by this Court by an
interim order. Perused the verdict under challenge and the records of
the trial court.
3. Parties in this appeal shall be referred as "plaintiff" and
"defendant" with reference to their status before the trial court.
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4. Short facts:- The plaintiff instituted this suit to realize Rs.25
Lakh alleged to be borrowed by the defendant from the plaintiff, during
the period between March, 2014 and June, 2016. According to the
plaintiff, in discharge of the said sum, the defendant issued cheque
dated 15.11.2016 drawn on Federal Bank, Kottarakkara Branch for
Rs.25 Lakh. When the cheque was presented for collection, the same
got dishonored for want of funds. Accordingly, the plaintiff filed the
suit to realize the said amount along with interest at the rate of 18%
interest per annum.
5. Defendant filed written statement denying the transaction as
well as entitlement of Rs.25 Lakh by the plaintiff on the strength of the
cheque dated 15.11.2016. Execution of the cheque also was denied.
The specific contention raised by the defendant before the trial court
was that, the plaintiff had no financial capacity to lend such a huge sum
of Rs.25 Lakh to the defendant. The specific case of the defendant
further was that, the husband of the defendant, Mr.Alexander borrowed
Rs.7,85,000/- from Mr.Bibu, who is the husband of the younger sister
of the plaintiff, for the purpose of admission of his daughter for BDS
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course, agreeing to repay the same with interest at the rate of 5% per
annum. At the time of this transaction, two signed blank cheques of the
defendant were given and one among the cheques was misused for the
purpose of this case. Accordingly, the entire plaint averments were
denied.
6. On the pleadings, the trial court raised necessary issues.
7. Thereafter, the trial court tried the matter. PWs 1 and 2
examined and Exts.A1 to A8 marked on the side of the plaintiff. DW1
examined and Exts.B1 to B3 marked on the side of the defendant.
8. On anxious consideration of the evidence tendered, the trial
court dismissed the suit finding that the plaintiff failed to prove the
disputed transaction and her entitlement of the amount as per Ext.A1
cheque.
9. While assailing the verdict of the trial court, it is argued by the
learned counsel for the appellant/plaintiff that, even though PWs 1 and
2 supported the case put up by the plaintiff as regards to borrowing of
Rs.25 Lakh by the defendant and execution of Ext.A1 cheque, by the
defendant in return of the said amount, the trial court miserably failed
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to evaluate the evidence in its proper perspective and accordingly the
trial court found that the case advanced by the plaintiff was not proved.
According to the learned counsel for the appellant/plaintiff, the trial
court ought to have decreed the suit relying on the evidence of PWs 1
and 2. Thus, the impugned verdict requires interference. In the
alterative, the learned counsel for the plaintiff sought for remand of the
matter with liberty to the plaintiff to adduce further evidence in support
of her contentions.
10. Adv.Bijith S. Khan represented by Adv.Reshma, who
is appearing for one Mr.Sreejith, the claim petitioner, submitted that, in
this matter, the property attached by this Court is one absolutely
belongs to the claim petitioner and the property was purchased by
Sri.Sreejith from the husband of the defendant and the defendant is not
at all the owner of the property at any point of time. Therefore, the
attachment is liable to be lifted.
11. In this matter, there is no appearance for the
defendant/respondent. The points arise for consideration are:
(i) whether the plaintiff succeeded in proving the execution of
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Ext.A1 cheque and receipt of Rs.25 lakh by the defendant?
(ii) Whether the verdict under challenge requires any
interference?
(iii) Relief and costs.
12. In the instant case, the plaintiff herself got examined as
PW1 and another witness to the transaction got examined as PW2. By
filing chief affidavit, PW1 supported the transaction in tune with the plaint
averments. During cross examination, the evidence of PW1 was attempted
to be shaken by putting questions regarding her source to advance Rs.25
lakh, as alleged, in between March, 2014 and June, 2016. PW1 gave
evidence that she availed a loan of Rs.10 lakh from a bank to be paid to the
defendant. Trial court disbelieved this evidence since nothing
substantiated by evidence to show availing of loan, as deposed by PW1.
The trial court did not give much emphasis to Ext.A8 pass book, where
there is evidence to show that the husband of the plaintiff availed loan of
Rs.10,50,000/- on 25.04.2011 and closed the same on 21.06.2011. The
court disbelieved the case of the plaintiff that she advanced Rs.25 lakh
without any document at the time of handing over of the amount, in a case,
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where the case of the plaintiff is that Ext.A1 cheque was issued
subsequently on 15.11.2016 for the sum advanced in between March, 2014
and June, 2016.
13. The case of the defendant is that the husband of the
defendant borrowed Rs.7,85,000/- from one Bibu, who is the brother in
law of the plaintiff, and for the said transaction, two blank signed cheques
were issued and one among the said cheques was misused for the purpose
of this case. It is true that the defendant not raised any contention as to
whether the liability with Mr.Bibu was discharged or not. Trial court
found that the evidences of PW2 and PW1 are contrary. It was found by
the trial court that PW2 gave evidence that Ext.A1 cheque was issued only
after making visit along with PW1 upon demand. The evidence of PW1 is
that the cheque was received with the compulsion of the defendant. The
trial court also found the evidence of PW2 as artificial in nature, as the
same is inconsistent. The finding of the trial court in this regard is
convincing.
14. In a suit based on a negotiable instrument, particularly a
cheque, twin presumptions are available with the holder of a cheque, viz.,
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presumptions under Sections 118 and 139 of Negotiable Instruments Act,
1881, and they are as under:
"S.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;
(b) as to date; that every negotiable instrument
bearing a date was made or drawn on such date;
(c) as to time of acceptance; that every accepted bill
of exchange was accepted within a reasonable time after its date and
before its maturity;
(d) as to time of transfer; that every transfer of a
negotiable instrument was made before its maturity;
(e) as to order of indorsements; that the
indorsements appearing upon a negotiable instrument were made in
the order in which they appear thereon;
(f) as to stamp; that a lost promissory note, bill of
exchange or cheque was duly stamped;
(g) that holder is a holder in due course; that the
holder of a negotiable instrument is a holder in due course: Provided
that, where the instrument has been obtained from its lawful owner,
or from any person in lawful custody thereof, by means of an SP
offence or fraud, or has been obtained from the maker or acceptor
thereof by means of an offence or fraud, or for unlawful
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consideration, the burthen of proving that the holder is a holder in
due course lies upon him."
"139: Presumption in favour of holder:--
It shall be presumed, unless the contrary is proved, that the
holder of a cheque received the cheque of the nature referred to in
section 138 for the discharge, in whole or in part, of any debt or other
liability."
15. Section 118 states that, "until the contrary is proved"
presumptions (a) to (g) shall be made. Similarly, Section 139 states that,
"unless the contrary is proved", it shall be presumed that the holder of a
cheque received the cheque of the nature referred to in Section 138 for the
discharge, in whole or in part, of any debt or other liability. When the
issuance of the cheque is admitted for the transaction alleged, these
presumptions would be available to the plaintiff. But the presumptions
are not available merely by production of the cheque before the court. In
order to get these presumptions attracted, an initial burden is cast upon the
plaintiff to prove the transaction which led to issuance of cheque and in
such cases, once such initial burden is discharged and "unless the contrary
is proved", both presumptions would help the drawer of the cheque in
getting a decree in his favour. At the same time, these presumptions are
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not absolute and are rebuttable presumptions. The defendant could very
well rebut the presumptions by adducing independent evidence or by
pointing out the evidence already tendered by the plaintiff also. When the
capacity of the plaintiff to pay the cheque amount is put under challenge
by the defendant and raises a contention in deviation from the contention
of the plaintiff, in the matter of issuance of the cheque, that is to say, a
probable defence, it is the primary duty of the plaintiff to prove that she
had enough source to advance the cheque amount to the defendant, for
which the cheque was issued in lieu of the amount so given. The burden to
prove the source to advance the money as alleged is mightiest, when the
cheque amount is gigantic.
16. In the instant case, the defendant raised a contention that
the cheque was issued in favour of one Bibu, who is none other than the
brother in law of the plaintiff, when the husband of the plaintiff borrowed
Rs.7,85,000/- from him in connection with the B.D.S admission of his
daughter. A person, who alleges advancement of Rs.25 lakh to the
defendant and issuance of the cheque for the said sum in return, should
prove the capacity to advance the said amount as alleged when the same is
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specifically disputed. In the instant case, the husband of the plaintiff has
been working abroad and the plaintiff has been doing the job of a
Beautician. It is relevant to note that the plaintiff's husband availed loan
of Rs.10,50,000/- when he was in need of money during 2011 and closed
the same on 21.06.2011. The transaction alleged by the plaintiff is in
between March, 2014 and June, 2016 and the case of the plaintiff is that in
order to discharge the liability of Rs.25 lakah for the said period, as on
15.11.2016, Ext.A1 cheque was issued. Regarding the source, PW1 given
evidence that she availed Rs.10 lakh as loan to advance the said sum, her
evidence in no way suggest that how she obtained Rs.25 lakh to advance
periodically. In addition to that, PW1 failed to depose the details of the
transactions stating specifically the fractions of the amount and dates of its
payment. Thus in the instant case the evidence adduced by PW1
supported by PW2 is, in fact, insufficient to prove the transaction and
execution of Ext.A1 cheque by the defendant, and the trial court also found
so on proper appreciation of evidence. If so, no decree is liable to be
passed and the plaintiff will not get the benefit of presumptions under
Sections 118 and 139 of the NI Act. Thus the trial court rightly dismissed
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the Suit and the said verdict is only to be confirmed.
17. Although the learned counsel for the plaintiff urged for a
remand, no reasons substantiated to justify a remand in this matter and a
remand should not be ordered to fill up the lacuna in evidence. Thus the
remand prayer also stands disallowed.
18. In the result, this appeal stands dismissed. Considering
the nature of the case, the parties are directed to suffer their respective
costs.
19. The attachment ordered by this Court in I.A.No.1/2018
stands lifted. Thereby, I.A.No.5/2024 filed by the claim petitioner stands
allowed. All other interlocutory applications stand dismissed.
Registry shall forward a copy of this judgment to the officers
concerned intimating lifting attachment forthwith, without fail, along
with schedule of attachment.
Sd/-
A.BADHARUDEEN, JUDGE
rtr/
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PETITIONER'S ANNEXURES
TRUE COPY OF THE PROCEEDING DATED 24.3.2017
IN I.A.NO.177 OF 2017 IN O.S.NO.4 OF 2017
ANNEXURE I
BEFORE THE SUB COURT, PUNALUR.
RESPONDENTS'ANNEXURES
Annexure A1 A TRUE COPY OF ENCUMBRANCE CERTIFICATE FROM
01.01.1996 TO 03.05.2013 SHOWING NIL DATED
10.05.2013.
Annexure A2 A TRUE COPY OF THE SALE DEED NO. 2258/2013 OF
KOTTARAKKARA ADDITIONAL SUB REGISTRY DATED
24.09.2013.
Annexure A3 A TRUE COPY OF THE LAND TAX COPY DATED
10.05.2023 IN THE NAME OF THIS PETITIONER.
Annexure A4 A TRUE COPY OF ENCUMBRANCE CERTIFICATE FROM
19.09.2013 TO 11.09.2015 SHOWING NIL DATED
15.09.2015.
Annexure A5 A TRUE COPY OF THE ENCUMBRANCE CERTIFICATE
FROM 01.01.1995 TO 06.02.2024 SHOWING THE
DETAILS OF ATTACHMENT DATED 09.02.2024.
