Dismissed

Abdul Rahman v. Krishnaprasad

Kerala HC22 Nov 2016RSA/1150/2016

Case brief

AI extract

What is this about?

In this regular second appeal regarding a cheque dishonour case, the High Court dismissed the appeal. The court held that the defendant failed to rebut the presumption under Section 118 of the NI Act due to vague pleadings under Order VI, CPC, and failure to send a reply notice to the cheque refusal demand.

What did the court decide?

This Regular Second Appeal stands dismissed. All pending interlocutory applications stand closed.

Abdul Rahman Vs Krishnaprasad — Cheque Dishonour | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL

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TUESDAY, THE 22ND DAY OF NOVEMBER 2016/1ST AGRAHAYANA, 1938

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RSA.No. 1150 of 2016 ()

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AGAINST THE JUDGMENT & DECREE DATED 22-06-2016 IN AS 89/2013 of I ADDL. DISTRICT COURT, PALAKKAD

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AGAINST THE JUDGMENT & DECREE DATED 22-08-2012 IN OS 404/2009 of SUB COURT, OTTAPPALAM

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APPELLANT(S)/APPELLANT/DEFENDANT:

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ABDUL RAHMAN AGED 49, S/O.MAMBULLINJALIL MUHAMMEDKUTTY HAJI, THRITHALA AMSOM AND DESOM, OTTAPALAM TALUK.

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BY ADVS.SRI.VIJU ABRAHAM SRI.JAISHANKAR V.NAIR SMT.ROSHNI MANUEL SRI.ALBERT V.JOHN

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RESPONDENT(S)/RESPONDENT/PLAINTIFF:

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KRISHNAPRASAD AGED 45, S/O.KALLIDUMBIL BHASKARAN, MUNDAMUKA AMSOM, PARUTHIPRA DESOM, OTTAPALAM TALUK, 679101.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22-112016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OKB

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K.HARILAL, J.

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R.S.A. No.1150 of 2016

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Dated this the 22^nd day of November, 2016

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JUDGMENT

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The appellant is the defendant in O.S.No.404/2009 on the files of the Sub Court, Ottappalam as well as the appellant in A.S. No.89/2013 on the files of the District Court, Palakkad. The aforesaid appeal suit was filed for recovery of money from the defendant due under Ext.A1 cheque issued by the defendant to the plaintiff. According to the plaintiff, he had lent a sum of Rs.1 lakh to the defendant and in discharge of the said liability, the defendant had drawn and issued Ext.A1 cheque dated 22.7.2009 from his account with Thrithala Service Cooperative Bank Limited, to the plaintiff. When he presented the cheque for encashment, the same was dishonoured due to insufficiency of funds in his account. Though he had caused to issue lawyer notice demanding the cheque amount, he did not respond to the said notice. Hence the suit was instituted with the aforesaid reliefs.

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The defendant, in the written statement, denied the

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RSA.1150/16 :2:

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alleged loan transaction, inter alia, contenting that he had occasions to fund and finance towards some loan transactions initiated by the plaintiff as a real estate broker, requesting the defendant to make financial investment in the said business. Believing the assurance made by the plaintiff he parted with money mostly by way of cheques and Ext.A1 is one among such blank signed cheques issued on several occasions. According to the defendant, Ext.A1 does not represent any debt or liability legally recoverable from him.

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On the aforesaid rival pleadings, both parties

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adduced evidence consisting of the oral testimonies of P.W.1 and D.W.1 and Exts.A1 to A4 and B1. After considering the evidence on record the trial court decreed the suit on a finding that the plaintiff has successfully established his case that the defendant had borrowed an amount of Rs.1 lakh from him and to discharge his liability, he executed and issued Ext.A1 cheque on his account and the same was dishonoured due to insufficiency of funds and thereby the plaintiff is entitled to get a decree for realisation of the plaint amount. In appeal, the lower appellate court also re-appreciated the evidence on record and dismissed the

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RSA.1150/16 :3:

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appeal confirming the findings of the trial court. Thus, the concurrent findings whereby the courts below decreed the suit and allowed the appeal are challenged in this Regular Second Appeal.

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Heard the learned counsel for the appellant.

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It is the case of the appellant in this appeal that

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the defendant has successfully rebutted the presumption under Section 118 of the Negotiable Instruments Act. But, the courts below miserably failed to appreciate the evidence adduced by the defendant in its correct perspective. It is also contended that the courts below went wrong by drawing a presumption against the defendant from the absence of the reply notice to the lawyer's notice issued by the plaintiff to the defendant. Therefore, the question to be considered is, whether the court below is justified in finding that the defendant has failed to rebut the presumption under Section 118(a) of the Negotiable Instruments Act.

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It is the specific case of the plaintiff that the defendant had borrowed Rs.1,00,000/- from him and in discharge of the liability he had drawn and issued Ext.A1 cheque and on presentation for encashment, the cheque was

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RSA.1150/16 :4:

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bounced due to insufficiency of funds. The factum of dishonour due to insufficiency of funds is not disputed by the defendant. It is his case that Ext.A1 cheque was one among several blank signed cheques issued by the plaintiff in connection with real estate business between the plaintiff and the defendant.

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Going by the pleadings in the written statement, it could be seen that the circumstances alleged therein are vague general statements only and there is no specific pleading as contemplated under Order VI Rules 2 and 4 of the Code of Civil Procedure. According to Rule 2 of Order VI, every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved. So also, according to Rule 4 of Order VI, in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the

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RSA.1150/16 :5:

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pleading.

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Obviously, in the instant case, the case pleaded in defence is a breach of trust. According to the defendant, Ext.A1 is a blank signed cheque issued to the plaintiff for some other purpose and the plaintiff misused it and thereby committed breach of trust. In view of the statutory mandate under Rule 4 of Order VI of the C.P.C., the defendant should have specifically pleaded the date on which this signed cheque was issued and the particulars of the specific transaction, under which such a blank signed cheque was happened to be issued to the plaintiff and this Court finds that the vague general statement pleaded in the written statement does not satisfy the requirement under Rule 4 Order VI of the C.P.C. and it shows the lack of bona fides of the pleadings in defence.

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Coming to the evidence, the plaintiff has successfully discharged his initial burden by examining himself as P.W.1 and producing Exts.A1 to A4. But, it could be seen that even in the oral testimony of D.W.1 he has no specific case as to the circumstance or particulars under which Ext.A1 cheque was caused to be issued to the plaintiff. In defence, the defendant has set up a plea that

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RSA.1150/16 :6:

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the plaintiff was not financially sound to lend money to the defendant. But, as rightly found by the courts below, this plea is self destructive and opposing to his further plea that he had funded and financed the plaintiff in several property transactions, believing him.

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The lack of specific pleading must be appreciated in view of the failure to send a reply notice, denying the claim put forward by the plaintiff in Ext.A4 lawyer's notice. If he had not borrowed any amount from the plaintiff and Ext.A1 cheque was a signed blank cheque, certainly, he should have sent a reply notice, denying the transaction. The failure on the part of the defendant to respond against Ext.A4 lawyer's notice is fatal to the case set up by him in defence. It is true that merely on the reason that the defendant failed to send a reply notice, the presumption cannot be drawn against him. But, in the absence of a specific case, in defence, in the pleadings in the written statement set up by the defendant, the courts below are justified in drawing an adverse inference against the defendant, from the absence of reply notice from the defendant. I do not find any kind of illegality in the findings or perversity in the appreciation of evidence.

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RSA.1150/16 :7:

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The defendant has produced Ext.B1 sale deed to show that both of them have involved in real estate business. But, this Court is of the opinion that merely on production of Ext.B1, it cannot be presumed that Ext.A1 cheque was a blank signed cheque issued to the plaintiff by the defendant in connection with real estate business. In the above analysis, this Court finds that the defendant miserably failed to rebut the presumption under Section 118(a) of the Negotiable Instruments Act, 1881. It follows that the trial court is justified in decreeing the suit, as prayed for and the lower appellate court is justified in dismissing the appeal. No question of law arises for consideration in this appeal.

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This Regular Second Appeal will stand dismissed.

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All pending interlocutory applications will stand closed.

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Sd/-

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K.HARILAL, Judge.

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okb

Abdul Rahman v. Krishnaprasad

Case brief

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Abdul Rahman v. Krishnaprasad

Case brief

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