Allowed

Kunhumon @ Chacko v. Madhavikutty

Kerala HC8 Aug 2019RFA/126/2018

Case brief

AI extract

What is this about?

This regular first appeal by the unsuccessful plaintiff in a money recovery suit was allowed. The High Court held that the trial court's finding of discharge could not be sustained and remanded the suit for fresh disposal. The court directed parties to prove or disprove whether the payment was for a loan availed by one defendant for an apartment purchase.

What did the court decide?

The decree and judgment of the trial court are set aside. The suit is remanded back to the trial court for fresh disposal.

Kunhumon @ Chacko Vs Madhavikutty — Money Laundering | Kerala HC (2019)

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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 SATHISH NINAN

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THURSDAY, THE 8TH DAY OF AUGUST 2019 / 17TH SRAVANA, 1941

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RFA.No.126 OF 2018

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AGAINST THE JUDGMENT AND DECREE IN OS 420/2012 DATED 21-03-2017 OF SUB COURT, OTTAPPALAM

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APPELLANT/PLAINTIFF:

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KUNHUMON @ CHACKO, AGED 57 YEARS, S/O. K.C JOSEPH, RESIDING AT KARUKAMALIYIL HOUSE,SREEKRISHNAPURAM AMSOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN 679 513.

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BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD

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RESPONDENTS/DEFENDANTS:

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1 MADHAVIKUTTY, AGED 68 YEARS, W/O LATE RAMANKUTTY, RESIDING AT PANNIYAMKATTIL, PERUMANGODE DESOM, SREEKRISHNAPURAM AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT PIN 679513.

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RFA.No.126 OF 2018

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-: 2 :-

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2 SREERAJ, AGED 42 YEARS S/O. LATE RAMANKUTTY, RESIDING AT PANNIYAMKATTIL, PERUMANGODE DESOM,SREEKRISHNAPURAM AMSOM, OTTAPPALAM TALUK,PALAKKAD DISTRICT, PIN 679 513.

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3 RAJASREE, AGED 39 YEARS, D/O. LATE RAMANKUTTY, RESIDING AT PANNIYAMKATTIL, PERUMANGODE DESOM,SREEKRISHNAPURAM AMSOM, OTTAPPALAM TALUK,PALAKKAD DISTRICT, PIN 679 513.

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4 R.SIVADASAN AGED 50 YEARS S/O. VIJAYASREE VEETTIL KANDATHIL K. RAJAN, RESIDING AT VANIKARA DESOM,CHEMBRAKULAM AMSOM, KOTTAYI VILLAGE,ALATHUR TALUK, PALAKKAD DISTRICT, PIN 678 572.

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BY ADV. SRI.M.KRISHNAKUMAR - R1, R3, R4

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SATHISH NINAN, J.

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= = = = = = = = = = = = = = = = = = RFA No.126 of 2018

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= = = = = = = = = = = = = = = = = = Dated this the 8^th day of August, 2019

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J U D G M E N T

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The unsuccessful plaintiff in a suit for recovery of money is the appellant.

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According to the plaintiff, one Ramankutty who is the predecessor-in-interest of the defendants borrowed

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an amount of `6 lakhs from the plaintiff and executed Ext.A1 promissory note dated 15.12.09 agreeing to repay the amount with interest. The said Ramankutty passed away hardly a week thereafter. The suit is filed for realisation of the said amount.

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The defendants denied Ext.A1. It was contended that Ext.A1 is fraudulently created. It was further contended that after the death of Ramankutty, the plaintiff told the defendants that

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Ramankutty owes `7 lakhs with interest to him and Ramankutty had entrusted signed blank cheque, stamp paper etc. to him. The plaintiff insisted for

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RFA No.126 of 2018

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:- 2 :-

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payment of the said amount. Thereupon, during the period from 13.01.2010 to 09.02.10, the defendants

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paid an amount of `7,88,000/- to the plaintiff in instalments. Thus, they claimed that there is discharge of liability, if any.

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The trial court upheld the plea of discharge and dismissed the suit.

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Heard learned counsel Sri.P.S.Appu on behalf of the appellant-plaintiff and Sri.M.Krishna Kumar on behalf of the respondents-defendants.

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DW1 has admitted the signature on Ext.A1 promissory note as that of late Ramankutty. The fact that an amount of `7,88,000/- was paid by the defendants to the plaintiff is not disputed. But according to the plaintiff the said payment is not in relation to the plaint transaction. Even going by the evidence of DW1 the defendants have not seen the alleged signed blank cheques, blank stamp papers etc. It is difficult to believe that even without seeing them the defendants paid

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`7,88,000/-. According to DW1, on payment of the

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RFA No.126 of 2018

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:- 3 :-

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amounts no receipt regarding settlement of liability was obtained from the plaintiff. According to DW1, he is not aware of the interest payable. It is the further case of DW1 that on payment of 3,50,000/- though the signed documents of Ramankutty were sought back, the plaintiff told them that they were destroyed. In spite of the same, on payment of 7,88,000/- the defendants did not insist for any document regarding settlement of the liability. Suffice to notice that the decree and judgment of the trial court cannot be sustained on the evidence on record.

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Here it is to be noticed that, according to PW1 the payment of `7,88,000/- was towards repayment of loan availed by DW1, the 4^th defendant from the plaintiff, for purchase of an apartment at Noorani. DW1 admits that an apartment was purchased by him at Noorani. However, he claims that the purchase was made on availing loan from HDFC Bank. Documents regarding the loan would be the best evidence to prove the same. If it is proved that

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RFA No.126 of 2018 :- 4 :-

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the purchase was with the said funds, then the very case set up by the plaintiff would fail. On the other hand, if the defendants are unable to prove availing of the said loan, that would substantiate the plaintiff's claim. Therefore, production of the said documents would clinch the issue involved. I deem it appropriate that parties be given an opportunity to adduce evidence with regard to the loan, but confining to it.

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In the result, this appeal is allowed. The decree and judgment of the trial court are set aside. The suit is remanded back to the trial court for fresh disposal, in the light of the observations made above.

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Parties to appear before the trial court on 04.09.2019. The court fee paid on the memorandum of appeal shall be refunded to the appellant.

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Sd/SATHISH NINAN JUDGE

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kns/-

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//True Copy// P.S. to Judge

Kunhumon @ Chacko v. Madhavikutty

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Kunhumon @ Chacko v. Madhavikutty

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