Suit for realisation of Rs.10,00,000/- against a dishonoured security cheque issued for a hand loan. The defendant admitted liability but pleaded discharge through a cash payment of Rs.11,00,000/-. The court found no evidence of such payment and no receipt was obtained, so the appeal was dismissed.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM MONDAY, THE 22ND DAY OF JULY 2024 / 31ST ASHADHA, 1946 RSA NO. 210 OF 2023
AGAINST THE JUDGMENT DATED 29.08.2022 IN AS NO.1 OF 2022 OF ADDITIONAL DISTRICT COURT - I, KALPETTA ARISING OUT OF THE JUDGMENT DATED 30.10.2021 IN OS NO.44 OF 2019 OF SUB COURT,
SULTHANBATHERY
APPELLANT/APPELLANT/DEFENDANT:
SHIJU GEORGE AGED 40 YEARS S/O. GEORGE, KOLLAMPARAMBIL HOUSE, MANIVAYAL, THOVARIMALA P.O., NENMENI AMSOM DESOM, SULTHAN BATHERY, WAYANAD, PIN - 673592
BY ADVS. T.G.RAJENDRAN T.R.TARIN
RESPONDENT/RESPONDENT/PLAINTIFF:
T.V. GEORGE AGED 75 YEARS S/O. VARGHESE, THENUNGAL VEEDU, THOVARIMALA P.O., NENMENI AMSOM DESOM, SULTHAN BATHERY, WAYANAD, PIN - 673592
BY ADVS. A.S.BENOY C.Y.VINOD KUMAR(K/652/2008) C.ANILKUMAR (KALLESSERIL)(A-455)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
RSA No.210 of 2023
JUDGMENT
The defendant in a suit for recovery of money is the
appellant. The parties are referred according to their status before the trial Court.
RSA No.210 of 2023 3
cheques and contending that Ext.A1 cheque was issued as a security; that the understanding between the plaintiff and the defendant was that, Rs.50,000/- per month as interest would be paid; that the defendant could not clear the liability within 30.04.2018 as agreed and hence requested for time; that later, on 26.06.2018 the defendant had withdrawn Rs.11,00,000/(Rupees Eleven Lakhs only) from the OD account of ‘Day Dream Resort’, a partnership of the defendant and DW2 and handed over the same to the plaintiff in front of the bank. The plaintiff was examined as PW1 and marked Ext.A1 to A5. The defendant was examined as DW1 and Sri.Arun Kumar.P.T who is the partner of the defendant was examined as DW2 and marked Ext.B1.
RSA No.210 of 2023 4
that an amount of Rs.11,00,000/- was withdrawn from the account of the partnership in which the defendant was a partner. It probabalize the case of the defendant that, he has paid Rs.11,00,000/- to the plaintiff on 26.06.2018. He submitted that, since the parties were in cordial terms the defendant could not obtain any receipt for the same and the plaintiff assured that the security cheque would be returned.
RSA No.210 of 2023 5
of a firm by name Day Dream Resort and he fully knows the need for obtaining receipt for payment of money. If he had paid the aforesaid amount of Rs.11,00,000/- to the plaintiff, he should have obtained proper Receipt for the same. There is no reasonable explanation for not obtaining the receipt for such payment. Since, the liability is admitted by the defendant and the defendant has not proved the discharge pleaded by the defendant I do not find any merit in this appeal.
Accordingly, the Regular Second Appeal is dismissed.
Sd/M.A.ABDUL HAKHIM JUDGE
Anu
2 issues framed by the court
Whether the defendant proved his plea of discharge by payment of Rs.11,00,000/- withdrawn from the partnership account to the plaintiff.
Whether the burden of proving discharge lies on the defendant who admitted liability.
Shiju George
T.V. George
M.A.Abdul Hakhim
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
