Partly allowed

Thadathil Raveendran v. Chenakkal Aboobacker

Kerala HC10 Apr 2017AS/458/2001

Case brief

AI extract

What is this about?

The High Court allowed a money decree in part. While upholding the finding of consideration for cheques issued upon partnership dissolution, the court reduced the awarded interest rate from 18% to 9% per annum until the decree date and 6% thereafter.

What did the court decide?

Modified interest rate from 18% to 9% per annum until decree date and 6% thereafter; judgment and decree of court below confirmed otherwise.

Thadathil Raveendran Vs Chenakkal Aboobacker — Contract and Commercial Disputes | Kerala HC (2017)

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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 V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN

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MONDAY, THE 10TH DAY OF APRIL 2017/20TH CHAITHRA, 1939

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AS.No. 458 of 2001 ( )

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AGAINST THE JUDGMENT AND DECREE IN OS.174/1996 of SUB COURT, SULTHAN BATHERY DATED 28-11-2000

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APPELLANT/DEFNDANT:

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THADATHIL RAVEENDRAN, S/O RAMAN, AGRICULTURIST, KUPPADI AMSOM, DESOM, BATHERY TALUK.

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BY ADV. SRI.T.KRISHNAN UNNI (SR.)

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RESPONDENT/PLAINTIFF:

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-------------- -----

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CHENAKKAL ABOOBACKER, BUSINESS, BATHERY AMSOM, DESOM, BATHERY TALUK

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BY ADV. SRI.A.A.ABUL HASSAN

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THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 06-04-2017, THE COURT ON 10.04.2017 DELIVERED THE FOLLOWING:

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V.Chitambaresh & Sathish Ninan, JJ. ============================== A.S No.458 of 2001

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========================== Dated this the .... day of April, 2017

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JUDGMENT

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Sathish Ninan, J

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The decree in a suit for money is under challenge by the defendant in the suit.

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The plaintiff and the defendant were conducting a partnership business in forest produces during the period August 1991 till December 1993. According to the plaintiff, at the time of winding up of the business, the accounts were verified and settled whereupon it was found that Rs.2 Lakhs was due to the plaintiff from the defendant. In discharge of the said amount, cheques for 1,50,000/- and 50,000/marked as Exts.A1 and A2 respectively, were issued. The cheques were dishonoured for insufficiency of funds and thereupon the suit is filed for realisation of the amount with interest. The defendant admitted the conduct of the partnership business and its winding up. According to him, the business was in

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A.S No.458/2001

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loss and was wound up and the accounts were settled whereunder the loss was shared equally between the plaintiff and the defendant. As regards the cheques Exts.A1 and A2, it is the contention of the defendant that in the course of the business the defendant used to keep signed blank cheques in the drawer of the table in the business premises for use while the defendant was out of station. When the plaintiff asked about the blank signed cheques, the defendant was made to belief that the same are lost. The cheques, according to the defendant, is unsupported by consideration.

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The oral evidence in the case consists of the

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evidence of the plaintiff as PW1 and of the defendant as DW1. On the side of the plaintiff Exts.A1 to A7 were marked. The documents produced are the cheques, dishonour memos, lawyer's notice, reply notice, postal receipt and acknowledgment. The court below after appreciating the evidence and circumstances granted a

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A.S No.458/2001

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decree in favour of the plaintiff.

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Heard the learned counsel on either sides.

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It is not in dispute that the plaintiff and the

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defendant were conducting a partnership business. It is admitted by the defendant that the investment of the partnership business was made by the plaintiff. Bank account of the business was in the name of the defendant. The defendant was managing the affairs of the business. According to the plaintiff, on winding up of the business, the accounts were settled and in discharge of the amounts due to the plaintiff Exts.A1 and A2 cheques were issued, whereas according to the defendant, on settlement of the accounts since the business was in heavy loss the partners shared the loss equally. His case is that the signed cheques that were kept in the drawer of the table in the business premises were misused by the plaintiff. It is his case that the plaintiff made him believe that the signed blank cheques were lost. It is pertinent to note that

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A.S No.458/2001

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even though the case of the plaintiff is that the signed blank cheques were lost, he had not intimated the same to the bank nor did he take any steps as regards the same. In the normal course of conduct, when signed blank cheques are lost, immediately steps would be taken to intimate the bank and take such other appropriate measures. The defendant was the working partner of the business. The accounts are not produced before the court in order to prove that the business was in loss at the time when the partnership was dissolved and they shared the loss equally. In view of the above, we do not find any reason to differ from the finding of the court below that Exts.A1 and A2 cheques are supported by consideration.

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The court below has granted interest at the rate of 18% per annum from the date of suit till the date of decree, which we find is excessive. Grant of interest at the rate of 9% per annum from the date of suit till the date of decree and thereafter at the rate of 6%

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A.S No.458/2001

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per annum till realisation is just and proper. Accordingly, the appeal is allowed in part. The rate of interest will stand modified to 9% per annum from the date of suit till the date of decree and thereafter at the rate of 6% per annum till realisation. The judgment and decree of the court below will stand confirmed in other respects. Parties will bear their respective costs in the appeal.

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Sd/- V.Chitambaresh, Judge

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Sd/- Sathish Ninan, Judge

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vdv

Thadathil Raveendran v. Chenakkal Aboobacker

Case brief

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Thadathil Raveendran v. Chenakkal Aboobacker

Case brief

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