BY AD v. SRI.SADER E.REAZ

defendant had on various occasions borrowed amounts totaling to Rs.12,00,000/-, for the personal needs of the defendant and for her building construction/repair. Because of the close relationship between the parties, no security documents were obtained on each occasions. However, since the amount was not being repaid, finally, the defendant on 01.04.2006 issued Ext.A1 cheque dated

28.04.2006. The cheque, when presented for payment, was dishonoured for insufficiency of funds. It is accordingly that the suit is filed. RFA No.208 of 2009 -: 2 :-

3. The defendant denied of having had any financial transactions with the plaintiff. It was contended that, the defendant's nephew (brother's son- DW5) had a financial transaction with the plaintiff in the year 1998; he borrowed an amount of Rs.3,00,000/- from the plaintiff. As was required by the plaintiff, two signed blank cheques, one of the defendant and of the nephew-DW5, were entrusted with the plaintiff as security. Though DW5 repaid the borrowed amount in installments, neither receipts were issued nor the cheques returned. The suit has been filed misutilising the cheques, it was contended.

4. The trial court held that the cheque was duly supported by consideration and accordingly decreed the suit.

5. The appellant-defendant died pending the appeal. Based on a Will executed by the defendant, DW5 was impleaded as additional appellant. RFA No.208 of 2009 -: 3 :-

6. I have heard Shri.Prakash P. George, the learned counsel for the appellant and Shri.A.T. Anilkumar, the learned counsel for the respondent.

7. The point that arises for determination is, “Is the finding of the trial court that Ext.A1 cheque is supported by consideration, based on the evidence on record”.

8. The learned counsel for the appellant would contend that, the trial court has proceeded as if the suit is laid on a dishonoured cheque; however, the suit is instituted on the original cause of action. To buttress the contention, he would place reliance on paragraph 3 of the plaint, which mentions the cause of action. He would further contend that, since the suit is based on the original cause of action, the plaintiff is not entitled for the presumption under Section 118 of the Negotiable Instruments Act, 1881. The plaintiff is bound to prove the original transaction in order to get RFA No.208 of 2009 -: 4 :- a decree, it is contended. It is also argued that, though the plaintiff, as PW1, would depose that the amounts for payment were withdrawn from the bank account and one of the payments was effected out of the amounts paid by his brother-in-law, neither the bank accounts are produced nor the brother-in-law examined. This disproves the plaintiff's claim, it is argued. The learned counsel for the appellant would further contend that, though at paragraph 2 of the plaint it is pleaded that, at the time of issuance of Ext.A1 cheque on

01.04.2006 there was sufficient funds in the account, the cheque is post-dated-28.04.2006, and the same was presented only on 05.05.2006. If as claimed by the plaintiff he was appraised by the defendant that amounts were available in the account, then there is no reason why the cheque should have been post dated as

28.04.2006. All these cast doubt on the genuineness of the plaintiff's claim, as it is urged. RFA No.208 of 2009 -: 5 :-

9. Admittedly, the parties are closely related. The defendant is the sister-in-law of the plaintiff (brother's wife). The defendant as DW1 has admitted that she had very cordial relationship with the plaintiff. That there had been construction/repair works for the building of the defendant, is admitted. According to DW1, the cost of such construction is more than Rs.30,00,000/-. The defence plea is that the works were done by availing loan from the Bank. Ext.B1 is the loan sanction letter. However, the same is only for an amount of Rs.10,00,000/-. Though DW1 and her nephew, DW5, would contend that the balance amounts for construction/repair works were obtained by the constitution of partnership firms for the running of the business in the building, there is no such plea. It is only a case set up during the evidence stage. On the contrary, it is the specific plea in the written statement that the funds were raised from the Bank. RFA No.208 of 2009 -: 6 :-

10. That Ext.A1 cheque is from the defendant's account and that it bears the signature of the defendant, are admitted. According to the defendant, her nephew had in the year 1998, borrowed an amount of Rs.3,00,000/- from the plaintiff for business purposes. Ext.B12 agreement was executed in the said regard between the plaintiff and his wife on the one part, and the defendant's nephew-DW5 and his wife on the other part. Since there was delay in repaying the amount, in February, 2000, as was demanded by the plaintiff, a signed blank cheque of the defendant and a signed blank cheque of DW5 were handed over to the plaintiff. The borrowed amount was repaid by DW5 in installments. However, the plaintiff did not issue any receipts nor did he return the blank cheque leaves. The blank signed cheque leaf of the defendant has been misutilized and fabricated is the contention. Here, it is to be noticed that, though the alleged borrowal under Ext.B12 is RFA No.208 of 2009 -: 7 :- stated to be in the year 1998, even according to the defendant, blank signed cheques were given only in the year 2000. So also, the defendant is a total stranger to the transaction between the plaintiff and the defendant's nephew-DW5. There was no reason why the defendant should have issued the signed blank cheque as security for the said transaction. This is especially in the light of the averments in paragraph 6 of the plaint to the effect that, though the agreement was that in addition to Rs.3,00,000/- the plaintiff would advance working capital for the business, the plaintiff had backed out from the said understanding with the full knowledge that, unless the said amount is provided, DW5 would not be able to repay the loan. If such was the conduct of the plaintiff and it was known to the parties, then an ordinary prudent person would not issue signed blank cheque, especially when he/she is in no manner connected with the transactions. RFA No.208 of 2009 -: 8 :-

11. So also it is to be noticed that, though DW1 claims that the borrowed amounts were repaid by the DW5 by the year 2001, there is absolutely no material to evidence the same. Even though it is the defendant's case that the cheques were not returned after repayment of the liability, admittedly no steps were taken in the said regard by the defendant. When to the knowledge of the defendant, the plaintiff had refused to issue receipts to her nephew for repayment of the liability and when her signed blank cheque leaf was with the plaintiff, she would have, under normal circumstances, taken appropriate steps to get return of the cheque. It is to be noticed that, inspite of the above facts, the defendant did not even countermand payment of the cheque with the Bank. The cheque was dishonoured for insufficiency of funds.

12. At paragraph 10 of the written statement it is stated that mediators had intervened in the disputes RFA No.208 of 2009 -: 9 :- between the plaintiff and DW5 with regard to the financial transactions between them. However, the written statement is silent with regard to the names of such mediators. None of the alleged mediators were examined.

13. Though much was argued with regard to the non- production of the bank account statements of the plaintiff to evidence the advances, it is to be noticed that the financial capacity of the plaintiff is never challenged by the defendant. Even according to the defendant, the plaintiff had under Ext.B12 advanced amounts to DW5. The claim is that the advances were made in instalments on various occasions. Therefore, the non- production of the bank account statements and the non- examination of the plaintiff’s brother-in-law, are not sufficient enough to hold against the plaintiff's case.

14. The trial court noticed that, though the defendant's nephew-DW5 was present in the court during RFA No.208 of 2009 -: 10 :- the trial, he was got examined as DW5 on summons from the court. The trial court noticed that, admittedly the defendant had executed a Will bequeathing her assets in favour of DW5 and that, he is an interested witness.

15. It is on appreciating the entire circumstances as above that the trial court concluded in favour of the transaction as pleaded by the plaintiff. The findings of the trial court are based on the materials. The conclusion arrived at by the trial court is a probable one on the evidence. There are no sufficient materials to upturn the findings of the trial court and to interfere with the decree.

16. As regards the contention of the defendant that the suit is not based on the dishonoured cheque since the dishonour has not been mentioned as a cause of action in the plaint, I am unable to agree with the same. While it is true that at paragraph 3 of the plaint wherein the cause of action is stated, only the date of RFA No.208 of 2009 -: 11 :- issuance of cheque is mentioned, a reading of paragraph 2 of the plaint leaves no room of doubt that the suit has been filed on the dishonoured cheque. It is specifically pleaded that the cheque was issued in discharge of the liability and that, the cheque, when presented for payment, was dishonoured for insufficiency of funds, which led to the filing of the suit.

17. As regards the allegation levelled with regard to issuance of post-dated cheque and the delay in presentation of the cheque when the plaint narrated that the plaintiff was made to believe that sufficiency funds are available in the account, a reading of the relevant portion of the plaint would indicate that, all that is stated in the plaint is that the defendant assured that, when the cheque is being presented for payment on or after the date of the cheque, there will be sufficient amounts in her account to honour the cheque. There was only an assurance that there would be sufficient amounts RFA No.208 of 2009 -: 12 :- at the time of presentation of the cheque. Therefore, the argument as above also fails.

18. Finally the learned counsel for the appellant would argue that, the trial court went wrong in awarding costs when it was not prayed for in the suit. A reading of the reliefs claimed in the plaint shows that there is no specific prayer for costs. It is the general rule that cost shall follow the event. As relief B, the plaintiff has made an omnibus prayer for grant of other reliefs in the interest of justice. The trial court did not find any reason to decline costs to the plaintiff. No circumstances disentitling the plaintiff for costs was brought to the notice of this Court. Therefore, the court was right in having granted a decree for costs.

19. The original defendant being no more, the decree amount is liable to be realised only from the assets of the defendant that has vested with the additional appellant. But for the above clarification, RFA No.208 of 2009 -: 13 :- no interference is called for with the trial court decree and judgment. Resultantly, the appeal fails and the same is accordingly dismissed. Sd/- SATHISH NINAN, JUDGE APPENDIX PETITIONER'S ANNEXURES Annexure A1 MEDICAL CERTIFICATE ISSUED BY LISIE HOSPITAL, ERNAKULAM DATED 15.01.2009 Annexure I Annexure II TRUE COPY OF DEATH CERTIFICATE DATED 11.02.2011 OF DECEASED APPELLANT TRUE COPY OF REGISTERED WILL NO.184/IIII/2001 DATED 29.08.2001 OF SRO, ERNKAULM