Dismissed

Jagadamma v. M/S.Kattupurayidom Bankers

Kerala HC23 Aug 2022RSA/55/2012

Case brief

AI extract

What is this about?

In this second appeal challenging a judgment reversing a trial court decree for deposit recovery, the High Court upheld the appellate court's decision. Due to the appellant's failure to substantiate the claim of a deposit with evidence, the cheque was held to discharge an admitted loan, leading to the dismissal of the appeal.

What did the court decide?

The appeal was dismissed with no order as to costs.

Jagadamma Vs M/S.Kattupurayidom Bankers — Cheque Dishonour | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE VIJU ABRAHAM

¶4

TUESDAY, THE 23^RD DAY OF AUGUST 2022 / 1ST BHADRA, 1944

¶5

RSA NO. 55 OF 2012

¶6

AGAINST JUDGMENT AND DECREE DATED 21.07.2011 IN AS 165/2006 OF DISTRICT COURT,PATHANAMTHITTA

¶7

AGAINST JUDGMENT AND DECREE DATED 31.08.2006 IN OS 324/2003 OF MUNSIFF'S

¶8

COURT, RANNI

¶9

APPELLANT/PLAINTIFF:

¶10

JAGADAMMA,AGED 45 YEARS D/O. PONNAMMA, VALAMPARAMBIL HOUSE, KAITHAKODI (P.O.), KOTTATHOOR MURI, AIYROOR VILLAGE, RANNI TALUK.

¶11

BY ADVS.

¶12

SMT.NIKHITHA SUSAN PAULSON SRI.ASWIN GOPAKUMAR SRI.ANWIN GOPAKUMAR SMT.KALA G.NAMBIAR SRI.PRAVEEN.H.

¶13

RESPONDENTS:

¶14

1 M/S.KATTUPURAYIDOM BANKERS,PAZHAVANANGADI (P.O.), RANNI, A PARTNERSHIP FIRM REPRESENTED BY ITS MANAGING PARTNER CHANDRACHOODAN NAIR.689 672.

¶15

2 CHANDRACHOODAN NAIR,MANAGING PARTNER, KATTUPURAYIDOM BANKERS, PAZHAVANANGADI (P.O.), PAZHAVANANGADI VILLAGE, RANNI TALUK. 689 672.

¶16

BY ADVS. SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX

¶17

THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

RSA No.55 of 2012

VIJU ABRAHAM, J.

................................................................. R.S.A. No.55 of 2012

¶22

................................................................. Dated this the 23^rd day of August , 2022

¶23

JUDGMENT

¶24

The above appeal is filed aggrieved by the judgment and decree passed in A.S.No.165 of 2006 dated 21.07.2011 of the District Court, Pathanamthitta whereby the judgment and decree of the Munsiff's Court, Ranni in O.S.No.324 of 2003 dated 31.08.2006 was set aside. The appellant before this Court is the plaintiff in O.S.No.324 of 2003 on the file of the Munsiff's Court, Ranni who is the respondent in A.S.No.165 of 2006 on the file of the District Court, Pathanamthitta.

¶25

Brief facts necessary for consideration of the present appeal are as follows:

¶26

The appellant had filed O.S.No.324 of 2003 praying for a decree permitting the appellant to recover an amount of Rs.71,000/- as per the statement of account shown in the plaint together with future interest at the rate of 18% p.a. on Rs.50,000/- from the respondents jointly and severally and from their assets with costs. The case of the appellant is that in furtherance of an agreement and assurance by the respondents engaged

¶27

in the business of money lending or accepting and paying interest on deposits, conducting chitty, etc., to pay interest at the rate of 18% p.a.on

¶28

RSA No.55 of 2012

¶29

¶30

deposits, the appellant had by way of issuing a cheque drawn on her banker, deposited an amount of Rs.50,000/- with the respondents. The respondents accepted the deposit and appropriated it on the same day, had initially paid interest totalling Rs.6,000/- in the year 2001, but thereafter despite repeated requests and demands, the respondents failed to pay the agreed interest and return the deposit. In the said circumstances, the appellant caused issuance of a demand notice through her lawyer on 20.09.2003 to which the respondents did not send a reply or pay the amounts demanded which led to the institution of the suit.

¶31

The plaint averments and claims were resisted by the respondents by filing a written statement. Though the receipt of Rs.50,000/was admitted by the respondents, they denied the fact of deposit and contended that the said amount was tendered by the appellant towards repayment of a loan availed by the appellant from the respondents on 10.04.1997. Further, it was contended that 2^nd respondent had replied to the notice sent by the appellant's lawyer and the appellant had instituted the suit when the respondents demanded interest.

¶32

Evidence was adduced on both sides and the appellant adduced oral evidence of herself as PW1 and the manager of her banker as PW2 and documentary evidence marked as Exts.A1 to A5. Respondents adduced oral evidence of 2^nd respondent as DW1 and documentary

¶33

RSA No.55 of 2012

¶34

¶35

evidence marked as Exts.B1 to B10(a).

¶36

After considering the rival contentions and the evidence, the

¶37

trial court decreed the suit as per judgment dated 31.08.2006. The respondents however preferred an appeal as A.S.No.165 of 2006 against the judgment of the trial court before the District Court, Pathanamthitta and the appellate court after considering the contentions of the parties, allowed the appeal as per the judgment dated 21.07.2011 by setting aside the judgment and decree of the trial court. It is aggrieved by the judgment and decree of the first appellate court that the present memorandum of Regular

¶38

Second Appeal is preferred under Section 100 read with Order XLII Rule 1 of CPC.

¶39

The appeal was admitted and notice to respondents was issued

¶40

on the following substantial questions of law:

¶41

“(i) As the trial court accepted the plaintiff's contention regarding the deposit of Rs.50,000/- (Rupees fifty thousand only) evidenced by Ext.A5 cheque and when that finding was entered based on the oral evidence, unless there is any other weighty reason, will the lower appellate court be justified in reversing the finding of the trial court?

¶42

(ii) Whether the plaintiff is entitled to presumption under Sec.118(a) of Negotiable Instruments Act?”

¶43

The specific case of the appellant is that the lower appellate

¶44

court went wrong in reversing the well-considered judgment and decree of the trial court. The case of the appellant, who is the plaintiff is that the 1^st respondent herein is a partnership firm engaged in money lending business

¶45

RSA No.55 of 2012

¶46

¶47

and also accepting money deposits and that the appellant had deposited an amount of Rs.50,000/- on 06.10.2000 by way of cheque and the respondents had at the time of such deposit agreed to pay interest at the rate of 18% p.a. It is the further case of the appellant that on two occasions in the year 2001 the respondents have paid amounts of Rs.4,000/- and Rs.2,000/- as interest and also got vouchers signed by the appellant in this regard and such vouchers are in the custody of the respondents. Thereafter the respondents did not pay any amount towards the principal amount or interest. Thereafter the appellant on several occasions requested the respondents to pay back the deposited amount with interest but the respondents sought for time. It is admitted that the respondents did not give any record in respect of the deposit and therefore the appellant is unable to produce any such document. In the said circumstance Ext.A2 lawyer notice was sent demanding the amount due from the respondents. The respondents though received the notice on 22.09.2003 failed to pay the amount or did not issue any reply to the same. The appellant was examined as PW1 wherein she reiterated the contentions raised in the plaint. She has also examined the bank manager of Ayroor branch of State Bank of Travancore as PW2 to prove the fact that S.B.Account No.7323 is an account maintained in the said branch in the name of the appellant, that a cheque bearing No.033381 was issued by the appellant in favour of

¶48

RSA No.55 of 2012

¶49

¶50

R.Chandrachoodan Nair who is admittedly the 2^nd respondent. In support of her contentions, the learned counsel for the appellant relied on relevant provisions of the Kerala Money Lenders Act, 1958 and also on the judgment of the Apex Court in Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay [MANU/SC/0422/1961:AIR 1961 SC 1316] and also the decisions of this Court in Regi Isac v. Philomina Pious [MANU/KE/1840/2010] and PRS Hospital and Ors. v. P.Anil Kumar [MANU/KE/3644/2020] .

¶51

Per contra, it is the submission of the learned counsel appearing for the respondents that the contention of appellant that she had made a deposit of Rs.50,000/- with them on 06.10.2000 and that the respondents had agreed to pay interest at the rate of 18% p.a. is absolutely false. It is specifically contended by the respondents that in fact the appellant had borrowed a sum of Rs.50,000/- from the respondents on 10.04.1997 and the said amount was repaid by the appellant on 06.10.2000 by issuing the cheque mentioned in the plaint and that the said payment was made by the appellant after making repeated demands by the respondents by ordinary letter dated 14.03.2000 (Ext.B2) and by registered letter dated 16.06.2000 (Ext.B3). On the basis of the same, it was contended that the appellant had issued cheque in discharge of her debt and not as a deposit as averred in the plaint. It is the further case of the

¶52

RSA No.55 of 2012

¶53

¶54

respondents that the present suit was filed only when they demanded interest from the appellant. It is also contended that it is true that Ext.A2 lawyer notice was received by them, but the further contention in the plaint that no reply notice was sent by them is incorrect. In fact, they have promptly sent Ext.B5 reply notice dated 29.09.2003 intimating all the true and relevant facts. It is contended by the respondents that admittedly no document or any deposit receipt was produced by the appellant to prove that any deposit was made by the appellant. It is also contended that by mere proving that Ext.A5 cheque was issued it cannot be concluded or presumed that the amount paid by way of Ext.A5 cheque was issued by way of a deposit. To prove their contention, the respondents relied on the various provisions of the Kerala Money Lenders Act, Reserve Bank of India Act, 1934 and also the judgment of the Apex Court in Bhavesh D. Parish and others v. Union of India and another [(2000) 5 SCC 471] and also the judgment of this Court in Ramachandran v. Velayudhan [1986 KHC 164], Bhanumathi v. K.R.Sarvothaman and others [2010 (4) KHC 920]

¶55

and also the judgment in Bhima Jewellery and Diamonds (P) Ltd. v.

¶56

Sandeep Kumar [2020 (5) KLT 40 ].

¶57

The decision of the trial court and of the first appellate court is divergent in as much as the trial court decreed the suit whereas the appellate court reversed the same. The specific case of the appellant is that

¶58

RSA No.55 of 2012

¶59

¶60

the 1^st respondent herein is engaged in money transaction and that the plaintiff made a deposit of Rs. 50000/- on 06.10.2000 and the 1st respondent has agreed to pay interest at the rate of 18 % per annum. Further case of the appellant is that on two occasions in the year 2001, the respondents has paid Rs. 4000/- and 2000/- as interest and vouchers were also got signed by the appellant and that those vouchers are in the custody of the respondents. The case of the appellant is that the principal amount or interest was paid and an amount of Rs.71000/- is due. Even though Ext. A2 notice was issued and the same was duly received as is evident from A4 acknowledgment card, the amount was not repaid and therefore the present suit was filed. The specific case put forth by the respondents is that appellant never deposited any amount as contended and the appellant had borrowed an amount of Rs. 50000/- from the respondents on 10.04.1997 and it is the said amount that was repaid as per Ext. A5 cheque. To substantiate the same, the respondents have produced Annexure B1 promissory note and B2, B3, and B5 demand notices issued. The respondents also produced Ext. B8 to B9(a) cash books for the period from 1997-98 to 2000-01 and also Exhibit B10(a) ledger extract for the year 2000-01 to substantiate the claim that it was a case of borrowal of amount from the respondents and the said amount was repaid through Ext. A5 cheque and it is not a deposit as contended by the appellant.

¶61

RSA No.55 of 2012

¶62

¶63

Even though the specific contention of the appellant who is the plaintiff in the suit is that the Rs.50000/- paid as per Ext. A5 cheque is towards a deposit, no document has been produced by the appellant before the trial court to substantiate her contention. Further case of the appellant is that in 2001 on two occasions the respondents paid an amount of Rs. 4000/- and 2000/- as interest towards deposit and got vouchers signed by the appellant and the said vouchers are in the custody of respondents. Except for this plaint averment, no attempt was made by the appellant to direct the respondents to produce the copy of the vouchers alleged to be in the possession of the respondents. Other than the averments made in the suit, the appellant has not produced any document to substantiate her contention that the amount paid was by way of a deposit, which she is entitled to get back with due interest. Further case of the appellant is that even though she has issued Ext. A2 lawyer notice demanding the said amount, the respondents have not even cared to reply or to repay the said amount. But a perusal of Ext B5 clearly shows that a detailed reply was given to the said notice. In the written statement filed, the specific case of the respondents herein who are the defendants in the suit is that the cheque was issued in discharge of liability and further that a specific reply has been given to Ext. A2 lawyer notice through Ext. B5 reply notice. In the cross examination of the plaintiff, she has admitted the fact that she had borrowed

¶64

RSA No.55 of 2012

¶65

¶66

an amount of Rs.50,000/- on 10.04.1997 from the respondents and she admitted that it was based on a promissory note and Ext B1 promissory note was put to her and marked through her and her only objection to the promissory note is that the amount is not written in her handwriting. Ext. B2 is a copy of the notice issued to the plaintiff demanding the return of the amount taken as loan. Ext. B3 is another notice issued in this regard and Ext B4 is the postal receipt. Ext B5 is the reply to Ext. A2 lawyer notice in which also it is specifically contended that the amount of Rs. 50000/- was never a deposit but was issued in discharge of a debt. Though it is stated in

¶67

the plaint that no reply has been filed, Ext B6 postal receipt and Ext B7 acknowledgment card would substantiate without any doubt that Ext B5 reply notice was in fact served on the appellant. Respondents rely on Exts. B8 and B10 cash book and ledgers to substantiate this contention that the amount was given as loan and the same was also repaid. The trial court rejected the documents produced by the respondents herein mainly for the reason that Ext B1 promissory note was not produced along with the written statement and it was shown to the appellant only at the time of cross examination and further did not accept Ext B2 and B3 notices stating that they are only carbon copies of the notices sent. Exts. B8 to B10 cash book and ledgers were also not accepted by the trial court for the reason that the same were not produced along with the written statement. Specific case of

¶68

RSA No.55 of 2012

¶69

¶70

the respondents is that Exts.B8 to B10 documents were produced and marked after filing an application to reopen the evidence and re-examine DW1. The original of the cash book and ledgers were produced and true attested copies were marked. Further contention raised by the appellant is that the presumption under Section 118 of the Negotiable Instruments Act mandates that until the contrary is proved, every negotiable instrument was made or drawn for consideration, which of course is a rebuttable presumption.

¶71

The appellant relies on the judgment in Kundan lal 's case (supra) to contend for the position that the presumption under Section 118 of the Negotiable Instruments Act is a rebuttable one and it can be rebutted not only by direct or circumstantial evidence but also by presumption of law or fact. Relying on Regi Isac 's case (supra) it was contended that when once execution is admitted, the presumption under Section 118 follows. Relying on the judgment in PRS Hospital 's case (supra), it is the contention of the appellant that Ext. B2 promissory note, which is only a copy, is totally non admissible in evidence.

¶72

Per contra, the learned counsel for the respondents would contend that though Kerala Money Lenders Act, 1958 provides that deposit could be accepted, even going by Section 4 of the said Act, such deposit can only be accepted as per the provisions of Reserve Bank of India Act,

¶73

RSA No.55 of 2012

¶74

¶75

Learned counsel for the respondents relying on the judgment in Bhavesh D Parish 's case (supra) contended that restrictions are imposed by the Reserve Bank of India for receiving deposits by individuals or firms. The Apex Court upheld such restrictions and therefore going by Section 45S of the Reserve Bank of India Act 1934, there is restriction in money lenders like the respondents in accepting deposits and therefore, the contention of the appellant that the amount given as per Ext. A5 cheque can never be a deposit. Relying on Ramachandran 's case supra, it is the specific contention of the respondents that it is the duty of the plaintiff to substantiate her case that the amount given by way of cheque was in fact a deposit and that it is for the person who comes to court and sues for recovery of the amount to prove the same. Respondents further rely on the judgment in Bhanumathi case supra to contend for the position that the court has ample power to receive evidence even at the time of hearing. Respondents also rely on the judgment in Bhima Jewellery case supra to contend for the position that a party has every right to contradict a witness for the opposite side with a document not produced earlier or included in the list filed along with plaint or the written statement.

¶76

The specific case of the respondents is that Exts.B8 to B10 series of documents were produced after filing a petition to remove the case from the list and to recall the witness and further that the originals of Exts.B8

¶77

RSA No.55 of 2012

¶78

¶79

to B10 series of documents were produced and true photocopies of the same were marked and therefore the same is admissible in evidence. The appellant who is the plaintiff, is the master of the suit and she is bound to substantiate her contentions that the amount was in fact given as a deposit and that she is entitled to receive the same back. If the appellant has given the amount by way of deposit, the appellant was duty bound to produce documents like the deposit receipt to substantiate the said contention which is admittedly not done in the present case. Further case of the appellant is that she has received interest for her deposit and vouchers have been duly signed by her evidencing receipt of interest and the said vouchers are in the custody of the respondents. No steps were taken to call for the said documents which is claimed to be in the possession of the respondents. Per contra, the respondents have put Ext B2 to the appellant while examined as PW1 and she has admitted that she has executed a promissory note and also that she has borrowed an amount of Rs.50,000/- from the respondents herein. To substantiate the contention that the amount paid by Ext A5 cheque is towards repayment of the earlier debt, respondents have produced Ext B1 promissory note and copies of the letters sent to the appellant in this regard.

¶80

I have perused Exts. B2, B3 and B5 notices which are all office copies of the notices sent to the appellant and I find that the trial court went

¶81

RSA No.55 of 2012

¶82

¶83

wrong in rejecting those documents as inadmissible. Further Ext.B1 promissory note was marked through the appellant itself. As regard Exts.B8 to B10 cash book and ledgers as is seen from deposition of PW1, the originals have been produced before the trial court and certified copies of the same were marked and these documents are produced to substantiate the claim of the respondents that issuance of Ext A5 cheque was in fact for discharge of a liability/debt and not as a deposit as claimed by the appellant. This court in Muhammedkutty v. Abdulla, 2002 (1) KLT 669 , has held that going by Section 118 of the Negotiable Instruments Act, 1881, all payments by cheque are prima facie indicative of the fact that they are issued to extinguish an existing debt and not to create a new one. The appellant/plaintiff failed to prove the averments in the plaint by producing cogent evidence to substantiate the claim. These aspects of the matter was gone into in detail by the lower appellate court and I find no infirmity in the same. Therefore, I find no reason to interfere with the judgment and decree passed by the District Court, Pathanamthitta in A.S. No.165/2006 and the appeal is accordingly dismissed. There will be no order as to cost.

¶84

cks

Jagadamma v. M/S.Kattupurayidom Bankers

Case brief

What is this about?

What did the court decide?

Jagadamma v. M/S.Kattupurayidom Bankers

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Nasar Vs State of Kerala

Sabu M Jacob Vs State of Kerala, Rep by Public Prosecutor, High Court of Kerala

Sabu M Jacob Vs State of Kerala, Rep. by Public Prosecutor High Court of Kerala, Ernakulam

Namshad M Vs State of Kerala

Yufa Khan Vs State of Kerala

Madusoodhanan.K Vs State of Kerala