Partly allowed

P.Vijayakumar @ Manikuttan v. Prathap G.

Kerala HC17 Feb 2022RFA/141/2007

Case brief

AI extract

What is this about?

This regular first appeal against a money recovery decree was allowed partly. The High Court modified the decree to exclude the interest portion (Rs. 1,25,000/-) as the appellant failed to satisfactorily explain the rate and period of interest applied to the principal sum.

What did the court decide?

Decree and judgment of the trial court modified to decree recovery of Rs. 3,25,000/- with interest at 6% per annum from the date of suit till date of recovery.

P.Vijayakumar @ Manikuttan Vs Prathap G. — Contract and Commercial Disputes | Kerala HC (2022)

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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 P.SOMARAJAN
THURSDAY, THE 17TH DAY OF FEBRUARY 2022 / 28TH MAGHA, 1943
RFA NO. 141 OF 2007

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AGAINST THE JUDGMENT AND DECREE DATED 30.11.2006 IN OS 53/2005 OF
SUB COURT, THIRUVALLA

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APPELLANT/DEFENDANT:

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P.VIJAYAKUMAR @ MANIKUTTAN
AGED 49 YEARS, S/O.K.PARAMESWARAN PILLAI,,
SHYAMALALAYAM, MUTHOOR MURI, MUTHOOR POST, KUTTAPPUZHA
VILLAGE, THIRUVALLA TALUK.

¶7

BY ADVS.
SRI.C.S.MANU
SRI.ANOOP JOSEPH
SRI.ANOOP.V.NAIR
SRI.ABHILASH AKBAR
SRI.S.K.PREMRAJ

¶8

RESPONDENT/PLAINTIFF:

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PRATHAP G., AGED ABOUT 39 YEARS,
S/O.P.R.GOPALAN NAIR, PUNNAPPALLIL,
MANNANKARACHIRA MURI,
KAVUMBHAGOM VILLAGE,THIRUVALLA TALUK.

¶10

BY ADVS.
SRI.K.ABDUL JAWAD
SRI.S.SANIL

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
17.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RFA NO. 141 OF 2007

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JUDGMENT

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The defendant came up in appeal as against
the decree for recovery of an amount of
Rs.4,50,000/- with interest, based on a
negotiable instrument alleged to have been
issued by the defendant in connection with a
loan transaction. According to the plaintiff,
the defendant used to borrow amounts on various
occasions. As such, he had availed of a total
amount of Rs.3,25,000/-, for which, on a later
occasion issued a cheque for Rs.4,50,000/-,
i.e., inclusive of interest thereon, which on
presentation was dishonoured and returned with
an endorsement “account closed”. The trial court
after consideration of the oral and documentary
evidence decreed the suit for an amount of
Rs. 4,50,000/- with interest, against which the
defendant came up.

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2. Regarding the execution of the cheque in

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RFA NO. 141 OF 2007

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question, the specific case advanced by the
defendant is that no such money transaction was
made at any point of time between the plaintiff
and the defendant though they are related
closely to each other. It is contended by the
defendant that it is really a case of theft and
the cheque kept by the defendant had been taken
away by the plaintiff without his consent and
knowledge. But it is not explained whether he
had kept a signed cheque in his house so as to
facilitate the alleged theft. It is not
explained under what circumstances he had signed
the cheque. The cheque was admittedly
dishonoured on the ground “account closed”. The
signature found affixed as that of the defendant
in the cheque is not specifically denied. The
cheque leaf also belonged to his account and was
drawn from his account. The alleged case of
theft is highly improbable and it cannot be
accepted simply on the reason that the cheque
leaf contains the signature of the defendant,

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RFA NO. 141 OF 2007

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the drawer of the cheque. Hence, the oral
evidence tendered by PW1 with respect to the due
execution of the cheque cannot be rejected. On
the other hand, the plaintiff has succeeded in
establishing the due execution of the cheque.
There is failure on the part of the defendant to
explain under what circumstances the signed
cheque came to the hands of the plaintiff.

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3. It is a case wherein, the plaintiff in
their plaint admitted that the loan amount comes
to only Rs.3,25,000/-. But, the cheque was
issued for an amount of Rs.4,50,000/- inclusive
of the interest. It is not made mentioned
anywhere in the plaint about the rate of
interest applied and the period for which such
an interest was included, though it comes to
Rs.1,25,000/- in addition to the principal
amount alleged to have been borrowed. In fact,
there is no satisfactory explanation or
acceptable explanation regarding the quantum of

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RFA NO. 141 OF 2007

¶25

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interest applied and period in which the
interest was applied. Hence, the presumption
that can be drawn under Section 118 of the
Negotiable Instruments Act would stand rebutted
partly in respect of the interest portion
applied, which comes to Rs.1,25,000/-.

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4. Hence, the decree and the judgment of

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the trial court will stand modified to the
extent of Rs.3,25,000/- and interest thereon,
i.e. 6% per annum from the date of the suit,
till the date of recovery.

¶29

In the result, the appeal is allowed in
part. The decree and judgment of the trial court
will stand modified by passing a decree of
recovery of an amount of Rs.3,25,000/- with
interest @ 6% per annum from the date of suit
till the date of recovery/realization.

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Sd/-

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P.SOMARAJAN JUDGE

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SPV

P.Vijayakumar @ Manikuttan v. Prathap G.

Case brief

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What did the court decide?

P.Vijayakumar @ Manikuttan v. Prathap G.

Case brief

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