Partly allowed

Benny v. Beneesh

Kerala HC10 Feb 2022RFA/521/2011

Case brief

AI extract

What is this about?

In an appeal against a recovery decree based on a cheque, the High Court held the evidence unconvincing due to the appellant's absence abroad, the source of funds not being traced, and the non-examination of lenders. The appeal was partly allowed, quashing the decree and remanding the case for fresh consideration and settlement exploration.

What did the court decide?

Decree and judgment of the trial court set aside. Matter remanded to the trial court for fresh consideration and exploration of settlement possibility.

Benny Vs Beneesh — 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

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THURSDAY, THE 10TH DAY OF FEBRUARY 2022 / 21ST MAGHA, 1943

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RFA NO. 521 OF 2011

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AGAINST THE JUDGMENT AND DECREE DATED 28/01/2011 IN OS 116/2009 OF ADDITIONAL SUB COURT,NORTH PARAVUR

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APPELLANT/DEFENDANT:

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BENNY, AGED 36 YEARS, S/O RAPPAYI,
THATTILKADA HOUSE, CHENNAIPPARA,, MANNAMANGALAM, THRISSUR
DISTRICT, REPRESENTED BY THE POWER OF ATTORNEY HOLDER
SHAJI AGED 44 YEARS, S/O.OUSEPH, PAYYAPPILLY HOUSE,
CHENNAIPPARA, P.O.MANNAMANGALAM,
THRISSUR DISTRICT - 680683
BY ADVS.
SRI.P.G.SURESH
SRI.C.V.MANUVILSAN
SRI.RAJAN VISHNURAJ
SMT.K.VIDYA

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RESPONDENT/PLAINTIFF:

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BENEESH, S/O RADHAKRISHNAN,
KALATHIPARAMBIL HOUSE, 'JANAKINILAYAM', KEDAMANGALAM
DESAM, P.O.KEDAMANGALAM,, NORTH PARAVUR,
ERANAKULAM DISTRICT 683 513.

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BY ADV SRI.C.P.PEETHAMBARAN

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
10.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RFA NO. 521 OF 2011

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JUDGMENT

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It is against the decree and judgment for recovery

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of the amount covered by a cheque, the defendant came
up in appeal.

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2. The due execution of the cheque and

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consideration thereof were disputed and denied.

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3. In the trial court, the plaintiff gave oral
evidence as PW1. The power holder of the defendant was
examined as DW1. The doctor, who issued the medical
certificate was examined as DW2.

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4. According to the plaintiff, the amount advanced
to the defendant comes to Rs.7,85,000/- and it was
given to the defendant through his wife. At that time,
he was abroad.

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5. At the time of evidence, the plaintiff, PW1,
advanced a case of borrowal of Rs.3,00,000/- from one
Ramzan, Sea Food, Cochin and another amount of
Rs.3,00,000/- from one Nisar and balance amount from

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RFA NO. 521 OF 2011

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3

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the bank account of his father for the purpose of
advancing a loan amount of Rs.7,85,000/- to the
defendant. It is not mentioned for what purpose such
a borrowal was made by him and for what purpose such a
huge amount was advanced by him. The purpose
and urgency of the said amount was not properly
explained, which would prima facie show improbability
writ large on its face. None of them were examined in
order to show the respective borrowal of the amounts.
Further, it contains an admission that the plaintiff
was not having any amount with him at the time when the
alleged transaction took place. The source of amount
as spoken by him was not made mentioned in the plaint
and no satisfactory evidence was adduced except his
interested testimony. None of the persons who had
advanced the amount to the plaintiff were examined in
order to show the source of amount or to make out a
probable case. The defendant on the other hand
produced Ext.B1 medical certificate to show that his

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wife was fully bedridden at that time of alleged

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RFA NO. 521 OF 2011

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4

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borrowal and issuance of the cheque. The defendant at
that time was away at Kuwait and this would
improbabilise the case advanced by the plaintiff to a
considerable extent. Hence, the non-examination of the
persons from whom he had collected the amount is so
fatal to his case especially when there is an admission
by himself that he had collected the amount from three
persons for the purpose of advancing a loan of
Rs.7,85,000/- to the defendant. There is no acceptable
evidence to prove the due execution and issuance of the
cheque and the consideration thereof. At this juncture,
the learned counsel for the respondent pressed for a
remand of the matter so as to enable the plaintiff to
examine independent witnesses to the alleged
transaction and the source of amount. Since it is
pertaining to issuance of a cheque for a huge amount of
Rs.7,85,000/-, I am of the view that it is just and
proper to order remand of the matter. Hence, the
decree and judgment of the trial court are set aside.
The matter is remanded back to the trial court for

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RFA NO. 521 OF 2011

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fresh consideration. The parties shall appear before
the trial court on 24/02/2022. The trial court shall
also explore the possibility of a settlement in the
matter.

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The appeal is allowed in part. No costs.

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Sd/-

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P.SOMARAJAN JUDGE

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msp

Benny v. Beneesh

Case brief

What is this about?

What did the court decide?

Benny v. Beneesh

Case brief

What is this about?

What did the court decide?

What the court decided

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