K.JAYAKUMAR v. M.NAGAMMA

BY ADVS. SRI.VADAKARA V.V.N.MENON – ADDL. R2 V.G.ARUN - ADDL. R3 INDULEKHA JOSEPH – ADDL. R3 NEERAJ NARAYAN – ADDL. R3 N.S.GOPAKUMAR – ADDL. R2 S.MOHANA KUMARAN NAIR – ADDL. R2 MUHAMED ABDUL KADER A.S. - ADDL. R2 THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON

10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SATHISH NINAN, J. = = = = = = = = = = = = = = = = = = R.F.A. No.351 of 2006 = = = = = = = = = = = = = = = = = = Dated this the 10th day of January, 2024 J U D G M E N T Challenging the dismissal of the suit for money, the plaintiff is in appeal.

According to the plaintiff, the defendant who is his relative, borrowed amounts from the plaintiff on various dates, totaling to ` 9 lakhs. The amount was agreed to be paid on or before 30.11.1997. Towards discharge of the liability, the defendant issued Ext.A5 cheque dated 03.12.1997 for ` 2 lakhs and Ext.A6 cheque dated 17.12.1997 for ` 7 lakhs. At the request of the defendant, the presentation of the cheques was postponed. Finally on 30.04.1998 when the cheques were presented, the same were dishonoured. It is accordingly that the suit has been filed.

The defendant denied the plaintiff's contention that they are related. The alleged borrowal and issuance RFA No.351 of 2006 -: 2 :- of the cheques were denied. The defendant also denied her signatures on the cheques. It was contended that the defendant is running a ration shop and that the cheques which were kept in the shop was stolen/lost from the shop which have been misutilized as Exts.A5 and A6 cheques. Accordingly the defendant prayed for dismissal of the suit.

The trial court held that the plaintiff has failed to prove the due execution of the cheques and also that they are supported by consideration.

Heard Sri.K.B.Pradeep, the learned counsel for the appellant, and Sri. Vadakara V.V.N. Menon and Sri.V.G.Arun, the learned counsel for the additional 2nd and 3rd respondents respectively.

The point that arises for determination is, “Is the finding of the trial court that the plaintiff has failed to prove, the due execution of Exts.A5 and A6 cheques and that it is supported by consideration, sustainable on the evidence on record ?”. RFA No.351 of 2006 -: 3 :-

It is the plaintiff's case that, the amounts were advanced by him to the defendant on various dates thus totalling to ` 9 lakhs. Admittedly no security was obtained by the plaintiff at the time of the grant of each advances. Though the plaintiff had contended that the defendant is his relative, it was flatly denied by the defendant. There is no evidence adduced to find that they are related. There is also neither a plea nor a proof that they had close acquaintance which prompted the plaintiff to advance amount to the defendant on various occasions without obtaining any form of security or even documents to evidence the transaction.

According to the defendant, on coming to know about the loss/theft of the cheques from her shop rooms she immediately issued Ext.A8 stop memo to the Bank. The defendant denied the signatures on the cheques. PW2 was examined to prove the alleged handing over of the cheques. The trial court noticed that he is not a RFA No.351 of 2006 -: 4 :- reliable witness. According to PW2, he saw the defendant at the plaintiff's residence when defendant had approached the plaintiff for loan and also for entrusting of the cheques. In cross-examination, he has stated that he had money transactions with the plaintiff on two or three occasions and it was then that he saw the transactions between the plaintiff and the defendant. He also deposed that when he approached the plaintiff to borrow money he was told by the plaintiff that the defendant failed to repay the loan. As noticed by the trial court the version is difficult to be accepted.

According to the plaintiff, the amount borrowed by the defendant is ` 9 lakhs. Ext.A5 cheque is for an amount of ` 2 lakhs and Ext.A6 cheque is for an amount of ` 7 lakhs, which would make the total amount only at ` 9 lakhs. There is no case that interest was paid by the defendant to the plaintiff for the borrowed amount. RFA No.351 of 2006 -: 5 :- At paragraph 2 of the plaint the contention is that the defendant agreed to pay the interest at the rate of 18%. However, it would appear that the plaintiff was satisfied with Exts.A5 and A6 cheques which was only for the principal amount. No circumstance is brought out as to why the plaintiff would have advanced an amount of ` 9 lakhs to a stranger without claiming any interest thereon. It is also to be noticed that, at paragraph 4 of the plaint it has been pleaded that the defendant agreed to pay the interest portion through another cheque. However, there is no case that any such cheque was issued or that the plaintiff demanded payment of the same. This tells upon the bonafides and genuineness of the claim.

Going by the plaint averments the advancement of ` 9 lakhs by the plaintiff to the defendant was on various occasions during the period from 30.06.1997 to

30.10.1997. At paragraph 1 of the plaint, it is stated RFA No.351 of 2006 -: 6 :- that the defendant approached the plaintiff for a short term loan of ` 9 lakhs for her business purposes and that since the plaintiff did not have the said amount in lump sum, the defendant agreed to receive the amount in instalments, and it was accordingly paid. If the defendant required the amount for her business purposes, then she would receive the amount immediately and would not have settled by receiving part payments and that too spread over a period of four months. The said case of the plaintiff is also improbable.

In the plaint it is pleaded that amounts were advanced on 30.06.1997, 10.07.1997, 21.08.1997,

23.08.1997, 30.08.1997, 05.09.1997, 18.09.1997,

29.09.1997, 29.10.1997 and 30.10.1997. The suit is filed on 29.07.1998. The plaintiff has no case that the grant of advances to the defendant on the aforementioned dates and the amounts paid on each date were noted down by him anywhere. It is surprising as to how the plaintiff could RFA No.351 of 2006 -: 7 :- mention each of the said dates with the amounts allegedly paid on the respective dates. If the plaintiff had noted down the same anywhere, the same could have been produced to prove the transaction. The above also tells upon the bonafides and genuineness of the claim.

Ext.A4 is the notice issued by the plaintiff to the defendant. Therein the plaintiff does not have a case that the amounts were advanced in instalments.

Pertinently the plaintiff has not specified the date on which the cheques were issued. There is no case for the plaintiff that the cheques were issued at different points of time. This has significance because the cheques bearing Nos.005279 and 005817 which are evidently not consecutive. PW2 would depose that on a day in November 1997, the date he does not recollect, the defendant handed over the two cheques to the plaintiff. This further tells upon the plaintiff's case. RFA No.351 of 2006 -: 8 :-

As PW1, the plaintiff would depose that he has been conducting a finance business. It is unbelievable that such a person would advance amounts without keeping any record/accounts.

The trial court while refusing to accept the plaintiff's case, has taken into consideration the above aspects. The finding of the trial court is based on the evidence on record and the conclusion is justified on the materials. There is no reason to interfere with the decree and judgment of the trial court. Resultantly, the appeal fails and is dismissed. No costs. kns/- Sd/- SATHISH NINAN JUDGE //True Copy// P.S. to Judge