O.Babu Reddy v. B.Prabhakara Reddy

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 30.01.2012CORAMTHE HONOURABLE MR. JUSTICE M. VENUGOPALS.A.No.1834 of 1998 andC.M.P.No.18882 of 1998O.Babu Reddy... Defendant/Respondent/AppellantVs.B.Prabhakara Reddy ... Plaintiff/Appellant/Respondent The present Second Appeal is filed under section 100 of theC.P.C. against the Judgment and Decree dated 04.02.1997 in A.S.No.158of 1996 on the file of the Learned II Additional City Civil Judge,Chennai reversing the Judgment and decree made in O.S.No.8030 of 1992on the file of the Learned V Assistant City Civil Judge dated29.02.1996 praying that the same may be set aside. For Appellant : Mr.S.Ramesh KumarFor Respondent : Mrs.M.Rajamani for M/s.V.AmbikaJ U D G M E N TThe Appellant/Defendant has filed the present Second Appeal asagainst the Judgment and Decree of the 1st Appellate Court dated04.02.1997 in A.S.No.158 of 1996 passed by the Learned II AdditionalJudge, City Civil Court, Chennai in reversing the Judgment and Decreedated 29.02.1996 in O.S.No.8030 of 1992 passed by the Learned VAssistant Judge, City Civil Court, Chennai.2.The 1st Appellate Court viz., the Learned II Additional Judgewhile allowing the A.S.No.158 of 1996 on 04.02.1997 (filed by theRespondent/ Plaintiff as an Appellant) has, among other thingsobserved that the Appellant/ Defendant has received a sum ofRs.20,000/- through cheque dated 10.08.1989 and further, theAppellant/Defendant has not established that the sum of Rs.20,000/-received by him through cheque from the Plaintiff has been receivedonly for the purpose of loan availed by the Plaintiff andconsequently, directed the Appellant/Defendant to pay a sum ofRs.20,000/- together with interest at 18% per annum as prayed for inthe plaint and also, to pay the interest at 18% per annum till the https://hcservices.ecourts.gov.in/hcservices/ said amount is fully paid and passed a decree to the effect therebyallowing the Appeal by setting aside the Judgment and Decree of thetrial Court in O.S.No.8030 of 1992 dated 29.02.1996 in dismissing theSuit.3.In the main suit, the trial Court has framed 1 to 3 issues fordetermination. On behalf of the Respondent/Plaintiff, P.W.1(Plaintiff) has been examined as a witness and Exs.A.1 to A.4 havebeen marked. On the side of the Appellant/Defendant, no one has beenexamined as a witness and no document has been marked.4.The trial Court after scrutinising the entire oral anddocumentary evidence available on record has come to a definiteconclusion that the Respondent/Plaintiff has not established hisplaint averments clearly and further, held that theRespondent/Plaintiff is not entitled to get the amount claimed in theplaint from the Appellant/ Defendant and resultantly, dismissed thesuit without costs.5.At the time of Admission of the Second Appeal this Court hasformulated the following substantial questions of law:1.Whether the lower Appellate Court had erroneously castthe burden of proof on the Defendant contrary to theprovisions under Section 101 of the Evidence Act?2.Whether the lower Appellate Court committed a graveerror in coming to the conclusion that a mere entry inthe pass book would be sufficient proof to show paymentby the Plaintiff to Defendant without production of theoriginal instrument of the original cheque and proof ofthe person who received the payment, in view of thefact that the cheque in question is a bearer cheque?3.Whether the lower Appellate is correct in constructingthat the bearer cheque is a negotiable instrument inview of the fact that the original has not beenproduced before Court? 6.The Contentions, Discussions and Findings on substantialquestions of law 1 to 3: It is the contention of the LearnedCounsel for the Appellant/ Defendant that the Judgment of the 1stAppellate Court in A.S.No.158 of 1996 is contrary to law, weight ofevidence and probabilities of the case. The Learned Counsel for theAppellant/Defendant urges before this Court that there is no prooffor the purported demand of loan of Rs.20,000/- by the Respondent/Plaintiff to the Appellant/Defendant. https://hcservices.ecourts.gov.in/hcservices/

7.According to the Learned Counsel for the Appellant/Defendant,the 1st Appellate Court has failed to appreciate that the allegedpayment by means of cheque drawn on Indian Overseas Bank, CathedralBranch, Madras-2, infact has been paid to the Appellant/Defendant inrepayment of loan availed by the Respondent Plaintiff from him.8.The stand of the Appellant/Defendant is that the 1st AppellateCourt has failed to see that there is no admission for the receipt ofRs.20,000/- by the Appellant/Defendant as hand loan.9.Continuing further, the Learned Counsel for theAppellant/Defendant submits that the 1st Appellate Court has failed tonote that previous enmity between the parties existed and in thelight of the said circumstances, should have come to the conclusionthat the purported payment of loan of Rs.20,000/- cannot be true.10.The Learned Counsel for the Appellant/Defendant projects alegal plea that the 1st Appellate Court has erroneously shifted theburden of proof on the Appellant/Defendant contrary to the provisionsof Section 101 of the Indian Evidence Act.11.Expatiating his submissions, the Learned Counsel for theAppellant/ Defendant contends that the bearer of a cheque cannot beconstrued as a negotiable instrument in view of the fact that theoriginal cheque has not been produced before the Court. Lastly, it iscontention of the Learned Counsel for the Appellant/Defendant thatthe Judgment of the 1st Appellate Court in the Appeal has been basedon surmises and presumptions.12.Per contra, it is the submission of the Learned Counsel forthe Respondent/Plaintiff that the trial Court based on wrong reasonshas dismissed the suit, but the 1st Appellate Court has gone into thematter in a thread bare fashion and has analysed the oral anddocumentary evidence on record, based on the attendant facts andcircumstances of the case in a cumulative fashion and has come to aclear conclusion that the Appellant/Defendant has received a sum ofRs.20,000/- through cheque dated 10.08.1989 from the Respondent/Plaintiff and that he is liable to pay the said amount together withinterest at 18% etc and those findings need not be disturbed by thisCourt in the Second Appeal.13.At this juncture, it is not out of place for this Court tomake a relevant mention that the Respondent/Plaintiff, in the plainthas averred that he and the Appellant/Defendant are friends and knoweach other for the past ten years and more and that during the 1stweek of August 1989, the Appellant/Defendant approached him andrequested him to lend Rs.20,000/- representing that in connectionwith securing an agency from M/s.Pondicherry Minerals. Further, theRespondent/Plaintiff has informed that he is willing to lend, https://hcservices.ecourts.gov.in/hcservices/ provided, 18% interest is paid on the loan amount, for which theAppellant/Defendant has agreed to pay the same. As such theRespondent/ Plaintiff has lent a sum of Rs.20,000/- to theAppellant/Defendant by way of a bearer cheque for Rs.20,000/ dated10.08.1989 drawn on Indian Overseas Bank, Cathedral Branch, Madras-2.The Appellant/Defendant received the cheque and encashed the same onthe same day and received Rs.20,000/-.14.The Appellant/Defendant has been postponing the payment ofloan amount demanded by the Respondent/Plaintiff on some reason orthe other and finally, the Appellant/Defendant has undertaken torepay the said amount and settle the account before March 1992. But,the Appellant has not kept his word. Again during the last week ofMarch 1992, the Respondent/Plaintiff pressed for settlement of thedues. The Appellant/Defendant instead of returning back the loan,which he received, has made a false complaint against theRespondent/Plaintiff to Police i.e., to the Assistant Commissioner ofPolice, T.Nagar and Saidapet Range alleging that theRespondent/Plaintiff had received Rs.25,000/- to secure a job for hisfriends son and cheated him in that connection. The Police lodgedthe said complaint, since they found no truth in it.15.The Respondent/Plaintiff has issued Ex.A.1 Lawyer's Noticedated 19.05.1992 to the Appellant/Defendant demanding him to repaythe sum of Rs.20,000/- with interest at 18% per annum within fifteendays from the date of receipt of the notice through his Counseldenying the loan etc. Therefore, the Respondent/Plaintiff has laidthe suit for recovery of a sum of Rs.30,800/- (principal sum ofRs.20,000/- and interest sum of Rs.10,800/- at 18% per annum for theperiod from 10.08.1989 to 07.08.1992) and for the subsequent interestat 18% per annum till the date of payment.16.The Appellant/Defendant, in his written statement has takenthe pleas that it is not true that he has borrowed a sum ofRs.20,000/- from the Respondent/Plaintiff during the 1st week ofAugust 1989 and the fact remains that the Respondent/Plaintiff hasbeen borrowing sums on several occasions by way of hand loan since1980 and that the Appellant/Defendant has been residing as a tenantin the house of the brother of the Plaintiff at Nellore, AndhraPradesh in 1980. The Respondent/Plaintiff has been taking hand loanfrom the Appellant/Defendant. The Respondent/Plaintiff has beenworking in the Telecom Department and he was unable to make both endsmeet with his salary and further, he has been taking hand loan fromthe Appellant/ Defendant. Being a relative, the Appellant/Defendantdid not insist on any pro note or I.O.U. The Respondent/Plaintiffhanded over a cheque to the Appellant/Defendant for Rs.20,000/-during the 1st week of August 1989. https://hcservices.ecourts.gov.in/hcservices/

17.The specific case of the Appellant/Defendant is that he hasnot borrowed the sum of Rs.20,000/- from the Respondent/Plaintiff forsecuring an agency from M/s.Pondicherry Minerals and that theAppellant/Defendant's wife is a partner in M/s.Dynamic MarketingCompany. It is a dealer for M/s.Pondicherry Minerals. Even before1989, M/s.Dynamic Marketing Company is in existence and there is nonecessity to borrow Rs.20,000/- from the Respondent/Plaintiff forsecuring agency from M/s.Pondicherry Minerals.18.The Appellant/Defendant has further averred in the writtenstatement that one Jaganathan is a sub-dealer to M/s.DynamicMarketing Company and the said Jaganathan has got acquittance withthe Appellant/ Defendant. Jaganathan's son Saravanan has applied forthe post of Junior Telecom Officer in the P & T Department. InJanuary 1990, when the Respondent/Plaintiff met theAppellant/Defendant in the latter's house, Jaganathan and his sonhave been present and when the Respondent/Plaintiff has come to knowthat Saravanan has applied for the post of Junior Telecom Officer, heinformed the Appellant/Defendant and Jaganathan that he could get thejob for Saravanan with his influence and demanded a sum ofRs.50,000/- for the purpose of procuring the job. Jaganathan agreedto pay Rs.25,000/- as advance and promised to pay the balance aftergetting the appointment order. Jaganathan paid the said sum ofRs.25,000/- to the Respondent/Plaintiff in the month of February 1990through the Appellant/ Defendant. Saravanan has not got the job. TheAppellant/Defendant, Jaganathan and Saravanan demanded from theRespondent/Plaintiff refund of Rs.25,000/- in the month of July 1991and subsequently, on several occasions. The Respondent/Plaintiffrefused to refund the money and threatened the Appellant/Defendant,Jaganathan and Saravanan with dire consequences. Therefore, theAppellant/Defendant has been perforced to file a police complaintduring March 1992 against the Respondent/Plaintiff for cheating. As acounter blast to the police complaint given by theAppellant/Defendant, the Respondent/Plaintiff issued a legal noticeto the Appellant/Defendant dated 19.05.1992 concocting a story of thealleged loan of Rs.20,000/- availed by the Appellant/Defendant fromthe Respondent/Plaintiff. A reply notice through theAppellant/Defendant's Lawyer dated 30.05.1992 has been given to theRespondent/Plaintiff's Lawyer. For cheating, a private complaint hasbeen filed on 13.07.1992 by the Appellant/Defendant before the Courtof Chief Metropolitan Magistrate, Egmore. The case has been sent tothe Crime Branch for investigation and the case has been registeredby the Crime Branch and investigation is pending. 19.The evidence of P.W.1 is to the effect that theAppellant/Defendant, on 10.08.1989, has received a sum of Rs.20,000/-from him and the Appellant/ Defendant has agreed to pay the interestat 18% per annum for the said sum of Rs.20,000/-. Continuing further,it is the evidence of P.W.1 that he has paid a sum of Rs.20,000/- to https://hcservices.ecourts.gov.in/hcservices/ the Appellant/Defendant through cheque as per Ex.A.3 Cheque Slip andthat the cheque has been encashed by the Appellant/ Defendant bypresenting the same into the Bank and Ex.A.4 is the Bank Pass Bookentry dated 10.08.1989 and thereafter, the Appellant/Defendant hasnot paid any principal amount or interest for the sum received byhim. 20.That apart, it is the evidence of P.W.1 that it is correct tostate that on 10.08.1989, a sum of Rs.20,000/- has been taken and itis wrong to state that through the Appellant/Defendant, with a viewto get Jaganathan's son employment, the sum of Rs.20,000/- has beenpaid.21.In Ex.A.1 Respondent/Plaintiff's Lawyer's notice dated19.05.1992 addressed to the Appellant/Defendant, it is clearlymentioned that during the 1st week of August 1989, theAppellant/Defendant has approached the Respondent/Plaintiff andrequested him to grant a loan of Rs.20,000/- for securing an agencyfrom M/s.Pondicherry Minerals. Also, the Respondent/ Plaintiff hasbeen willing to advance the said loan subject to the payment ofinterest at 18% per annum. Further, the Respondent/Plaintiff hasgiven a bearer cheque No.766972 dated 10.08.1989 in favour of theAppellant/ Defendant drawn on Indian Overseas Bank, Cathedral Branch,Madras-2 and on the same day the said sum of Rs.20,000/- has beendrawn by the Appellant/ Defendant, etc. In short, in Ex.A.1, theRespondent/Plaintiff's Lawyer's notice addressed to theAppellant/Defendant, a demand has been made calling upon theAppellant/Defendant to pay the sum of Rs.20,000/- with interest at18% from 10.08.1989 till payment within fifteen days from the date ofreceipt of the notice.22.In Ex.A.2, the Appellant/Defendant's Lawyer's reply noticedated 30.05.1992 addressed to the Respondent/Plaintiff's Lawyer, itis mentioned that the Appellant/Defendant has nothing to do withM/s.Pondicherry Minerals and that the Appellant/Defendant's wife andanother are carrying on business and they were having agency fromM/s.Pondicherry Minerals long before the alleged transactionmentioned in the notice and that the Respondent/Plaintiff obtainedloans on different dates from the Appellant/Defendant and the chequefor Rs.20,000/- mentioned in Ex.A.1 notice has been only towardspartial settlement of various loans obtained by theRespondent/Plaintiff, etc. In Ex.A.2, the Appellant/Defendant's replyLawyer's notice dated 30.05.1992, the Appellant/Defendant has deniedthe allegations made by the Respondent/ Plaintiff in Ex.A.1 Lawyer'snotice. Ex.A.3 is the first page of the cheque book showing thedetails in respect of the cheque No.766972 dated 10.08.1989, wherethere is a reference to the payment of Rs.20,000/- to the Appellant/Defendant. A perusal of Ex.A.4 Savings Bank Account of theRespondent/ Plaintiff SBC A/c. No.17389 in L.F.No.54/150 of IndianOverseas Bank shows that on 10.08.1989, through cheque No.766972, a https://hcservices.ecourts.gov.in/hcservices/ sum of Rs.20,000/- has been encashed and entry has been found to thateffect. After deducting a sum of Rs.20,000/- on 10.08.1989, thebalance standing to the credit of SB account has beenRs.71,079.80paise.23.As far as the present case is concerned, though theAppellant/ Defendant has denied the Respondent/Plaintiff's avermentsthat he has borrowed a sum of Rs.20,000/- through cheque dated10.08.1989 and has also made certain allegations in Ex.A.2 replynotice sent to Ex.A.1 notice dated 19.05.1992, yet he has not chosento examine himself as a witness to prove his version of the case.24.The Plaintiff or Defendant, who later asserts the affirmativeof an issue, generally, the burden of proof is always stable. It mayshift according to the scale of evidence subsequently.25.The burden of proof in the sense of onus of introducingevidence to prove a particular fact may and constantly does shift inthe course of trial. A person by proving a fact will raisepresumption in his favour and in that event, the burden will shift tothe other side.26.It is true that the initial burden is on theRespondent/Plaintiff to prove the case projected in the plaint. Inthe instant case on hand, the Respondent/Plaintiff has proved throughExs.A.4 and A.3 that a sum of Rs.20,000/- has been paid to theAppellant/Defendant and the said sum has been encashed by theAppellant/Defendant as seen from the entry in Ex.A.4 SB account ofthe Respondent/Plaintiff. The fact that the Respondent/Plaintiff hasproved the initial burden of stating that the Appellant/Defendant hasreceived a sum of Rs.20,000/- through cheque from him, then theburden under Section 101 of the Indian Evidence Act shifts on theAppellant/ Defendant to prove his version of the case. It is truethat the original cheque for Rs.20,000/- in regard to the payment ofRs.20,000/- made on 10.08.1989 has not been produced or filed beforethe trial Court. The non-filing or non-marking of the said cheque isnot fatal. Also, it will not in any way affect the case of theRespondent/Plaintiff, in the considered opinion of this Court.27.This Court worth recalls Section 6 of the NegotiableInstruments Act, 1881, which deals about the definition of cheque andthe same reads as follows:“6.Cheque – A “cheque” is a bill of exchange drawn ona specified banker and not expressed to be payableotherwise than on demand and it includes the electronicimage of a truncated cheque and a cheque in the electronicform. https://hcservices.ecourts.gov.in/hcservices/ Explanation I – For the purposes of this section, theexpressions -(a) “a cheque in the electronic form” means a chequewhich contains the exact mirror image of a paper cheque,and is generated, written and signed in a secure systemensuring the minimum safety standards with the use ofdigital signature (with or without biometrics signature)and asymmetric crypto system;(b) “a truncated cheque” means a cheque which istruncated during the course of a clearing cycle, either bythe clearing house or by the bank whether paying orreceiving payment, immediately on generation of anelectronic image for transmission, substituting the furtherphysical movement of the cheque in writing.Explanation II – For the purposes of this section, theexpression “clearing house” means the clearing housemanaged by the Reserve Bank of India or a clearing houserecognised as such by the Reserve Bank of India.”28.A cheque is an order by the drawer on his own agent, thebank, for payment of a certain sum of money to the bearer or order ofthe person in whose favour the cheque is drawn. Undoubtedly, a chequeis different from a draft. In the instant case on hand, the sum ofRs.20,000/- paid by the Respondent/Plaintiff to theAppellant/Defendant on 10.08.1989 is undoubtedly a bill of exchangeand in this regard, Section 5 of the Indian Evidence Act under thecaption Bill of Exchange enjoins has follows:“5.”Bill of Exchange” - A “bill of exchange” is aninstrument in writing containing an unconditional order,signed by the maker, directing a certain person to pay acertain sum of money only to, or to the order of, a certainperson or to the bearer of the instrument.A promise or order to pay is not “conditional”,withinthe meaning of this section and section 4, by reason of thetime for payment of the amount or any instalment thereofbeing expressed to be on the lapse of a certain periodafter the occurrence of a specified event which, accordingto the ordinary expectation of mankind, is certain tohappen, although the time of its happening may be uncertain.The sum payable may be “certain”, within the meaningof this section and section 4, although it includes futureinterest or is payable at an indicated rate of exchange, oris according to the course of exchange, and although, theinstrument provides that, on default of payment of aninstalment, the balance unpaid shall become due. https://hcservices.ecourts.gov.in/hcservices/ The person to whom it is clear that the direction isgiven or that payment is to be made may be a “certainperson”, within the meaning of this section and section 4,although he is mis-named or designated by description only.”29.It cannot be gainsaid that a bill of exchange is one that itcontains an order to accept or to pay and that acceptor should acceptit; in the absence of such a direction to pay, the document will notbe a bill of exchange or a hundi as per decision Sinha V. BidhuBhasan A.I.R. 1955 Cal. 562.30.A cheque is a Bill of Exchange drawn on a specified bankerand not expressed to be payable otherwise than on demand and itincludes the electronic image of a truncated cheque in the electronicform as per Section 6 A of the Negotiable Instruments Act.31.A cheque being a Bill of Exchange must possess all theessentials of a bill and must satisfy the requirements of Section 6of the Negotiable Instruments Act. However, a cheque is a peculiarsort of instrument in many respects resembling a Bill of Exchange,but in some aspects entirely different. A cheque does not requireacceptance in the ordinary course, apart from prompt payment. It ispresented for payment only. A cheque is not intended for circulation,it is issued for immediate payment. Further, it is not entitled tograce days. It is like an appropriation of what is stated as readymoney in the hands of the banker. A cheque is always payable ondemand. But a Bill of Exchange can be made after a fixed period.32.In Kedar Nath V. Dinobandhu Saha in AIR 1916 Calcutta 580 itis held that “if a cheque is delivered by means of payment and isreceived as such, it operates as a payment.”33.A Bill is dishonoured by non acceptance, but this is not thecase in a cheque. A Bill at first is presented for acceptance unlessit is a Bill on demand.34.In regard to the money being paid under a cheque viz., billof exchange, the burden is on the Respondent/Plaintiff. However, itis open to the Appellant/Defendant to rebut the presumption eitherthrough the facts and circumstances of the case projected by him oreven by means of an adverse inference to be drawn as per the IndianEvidence Act, 1872. The burden of proof as per Section 101 of IndianEvidence Act is always not static. When a Respondent/Plaintiff hasdischarged his early burden to prove his case, then, the pendulumswings on the side of the Appellant/Defendant to project or prove hiscase to the subjective satisfaction of the Court. In the instantcase, it cannot be said that the 1st Appellate Court has erroneouslycast the burden of proof on the Appellant/Defendant, contrary to theprovisions of Section 101 of the Indian Evidence Act. Per contra, itis held by this Court that the 1st Appellate Court has not erroneously https://hcservices.ecourts.gov.in/hcservices/ cast the burden of proof on the Appellant/ Defendant and the 1stsubstantial question of law is answered against theAppellant/Defendant.35.There cannot be any particular forms of Books of Accounts. Ifthe Books of Accounts are regularly and ordinarily kept in the courseof day-to-day business transaction, then it can be safely relied upon.36.Coming to the aspect of the plea that the 1st Appellate Courthas committed a grave error in arriving at a conclusion that a mereentry in the Pass Book would be sufficient proof to show the paymentmade by the Respondent/Plaintiff to the Appellant/Defendant withoutproduction of the original cheque, etc., it is to be pointed out thatboth the parties before the trial Court have not made any endeavourto produce the cheque dated 10.08.1989 for Rs.20,000/- issued by theRespondent/Plaintiff to and in favour of the Appellant/Defendant.Nothing prevented the Appellant/Defendant to summon the cheque inissue dated 10.08.1989 for Rs.20,000/- before the trial Court.Instead, the Respondent/Plaintiff has produced his savings bank passbook account No.17389 in L.F.No.54/150 and Ex.A.4 is the entry fromthe concerned book, which shows that a sum of Rs.20,000/- has beenencashed by the Appellant/Defendant from and out of theRespondent/Plaintiff's bank account. Infact, the said sum ofRs.20,000/- has been entered as debit entry in Ex.A.4 pass book andthe balance as on 10.08.1989 is shown as Rs.71,079.80p. Even in theabsence of production of original cheque, in the present case,through Ex.A.4, savings bank pass book entry, theRespondent/Plaintiff has established to the satisfaction of thisCourt that the Appellant/Defendant has drawn a sum of Rs.20,000/- on10.08.1989 and by no stretch of imagination, it can be said that the1st Appellate Court has committed an error in arriving at a conclusionthat mere entry in the pass book would be sufficient to prove thepayment by the Respondent/Plaintiff to the Appellant/Defendantwithout production of original instrument, etc. Under the Bankers'Evidence Act, if running accounts are maintained by aparty/person/Firm/Company and if those accounts are of ordinary,regular course of routine business, it cannot be doubted. Theveracity of the same cannot be doubted by any means. Ex.A.4 savingsbank pass book entry for the Appellant/Defendant receiving a sum ofRs.20,000/- on 10.08.1989 is quite admissible under the Bankers Booksof Evidence Act and even in the absence of marking or production oforiginal cheque or bill of exchange, Ex.A.4 entry can be safelyrelied upon and there is no infirmity or illegality committed by the1st Appellate Court in placing reliance on Ex.A.4 entry andaccordingly, it is held by this Court that Ex.A.4 pass book entryshows that the Appellant/Defendant has received a sum of Rs.20,000/-from the Respondent/Plaintiff and the 2nd substantial question of lawis so answered against the Appellant/Defendant. https://hcservices.ecourts.gov.in/hcservices/

37.Dealing with the last substantial question of law that the 1stAppellate Court is not correct in view that the bearer cheque is anegotiable instrument in view of the fact that the original has notbeen produced before the trial Court, it is to be pointed out that asper Section 6 of the Negotiable Instruments Act, a cheque forRs.20,000/- dated 10.08.1989 issued by the Respondent/Plaintiff toand in favour of the Appellant/Defendant is a bill of exchange andfurther, the said cheque is also conforming to the tenor in writingcontaining an unconditional order signed by the maker directing acertain person to pay certain sum of money only to, or to the orderof, a certain person or to the bearer of the instrument and viewed inthat perspective, the cheque is a negotiable instrument viz., bill ofexchange as per Negotiable Instruments Act, 1881 and accordingly, the3rd substantial question of law is answered against theAppellant/Defendant.38.Though, it is the case of the Respondent/Plaintiff that theAppellant/Defendant has agreed to pay the sum of Rs.20,000/- receivedby him through cheque dated 10.08.1989 from him together withinterest at 18% per annum and notwithstanding the fact that theRespondent/Plaintiff has come out with a plea that theAppellant/Defendant has agreed to pay the said sum with interest at18% per annum from the evidence of P.W.1 and other availablematerials on record, this Court is not in a position to accept theversion projected by the Respondent/Plaintiff that theAppellant/Defendant has agreed to pay the interest at 18% per annum.Therefore, this Court holds that the Respondent/Plaintiff has notproved to the satisfaction of this Court that the Appellant/Defendanthas agreed to pay the sum of Rs.20,000/- with interest at 18% perannum. However, this Court holds that the Appellant/ Defendant isliable to pay the sum of Rs.20,000/- from 10.08.1989 at interest 12%per annum (being a reasonable rate) till the date of passing of thedecree and thereafter, to pay subsequent interest at 6% per annumfrom the date of decree till the date of payment with proportionatecosts. 39.In the result, the Second Appeal is dismissed leaving theparties to bear their own costs. The Judgment and decree of the 1stAppellate Court in A.S.No.158 of 1996 dated 04.02.1997 are confirmedby this Court for the reasons assigned in this Appeal. Consequently,the connected civil miscellaneous petition is closed. 40.The Appellant/Defendant is directed to pay the sum ofRs.20,000/- from 10.08.1989 at interest 12% per annum (being areasonable rate) till the date of passing of the decree andthereafter, to pay subsequent interest at 6% per annum from the dateof decree till the date of payment with proportionate costs. https://hcservices.ecourts.gov.in/hcservices/

41.The Learned Counsel for the Appellant/Defendant informs thisCourt that the entire decree amount has been deposited by theAppellant/ Defendant to the credit of O.S.No.8030 of 1998 on the fileof the Learned V Assistant City Civil Judge, Madras as per the orderof this Court in C.M.P.No.18882 of 1998 dated 16.09.1999 and further,in C.M.P.No.357 of 2000, the Respondent/Plaintiff has been permittedto withdraw one half of the decree amount deposited to the credit ofO.S.No.8030 of 1998 on the file of the Learned V Assistant City CivilJudge, Madras. It is open to the Respondent/ Plaintiff to withdrawthe amount lying in the credit of O.S.No.8030 of 1998 on the file ofthe Learned V Assistant City Civil Judge, Madras by means of filingnecessary payment out application as per Rules 161, 162 and 163 ofthe Civil Rules of Practice and seek appropriate remedy in the mannerknown to law.Sd/Asst. Registrar/true copy/Sub Asst.RegistrarvaTo1.The II Additional Judge, City Civil Court, Chennai2.The V Assistant City Civil Judge, City Civil Court, Chennai.3. The Registrar, City Civil Court, Chennai.+ 1 cc to Mr.S. Rameshkumar, Sr.5400+ 1 cc to Mrs. V. Ambika, Sr.5718S.A.No.1834 of 1998 andC.M.P.No.18882 of 1998DM(CO)Eu 22.3.12