Kerala High Court
M.Babychan vs George Kurian on 19 August, 2009
Author: Harun-Ul-Rashid
Bench: Harun-Ul-Rashid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 293 of 2009()
1. M.BABYCHAN, S/O.MATHEW,
... Petitioner
Vs
1. GEORGE KURIAN, S/O.KURIAN,
... Respondent
2. THE ALLEPPEY DISTRICT CO-OP.BANK LTD.
3. THE ALLEPPEY DISTRICT CO-OPERATIVE
For Petitioner :SRI.BOBBY JOHN
For Respondent :SRI.GEORGE CHERIAN (THIRUVALLA)
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :19/08/2009
O R D E R
HARUN-UL-RASHID, J.
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R.S.A.No. 293 of 2009
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Dated this the 19th day of August, 2009
JUDGMENT
The Second Appeal is directed against the judgment and decree in A.S. No.34/2006 on the file of the Sub court, Alappuzha which arises from the judgment and decree in O.S.No.166/2003 on the file of the Munsiff Court, Alappuzha. The suit filed for realisation of Rs. 47,950 plus interest was decreed allowing the plaintiff to realise the plaint claim with interest from the date of presentation of cheque (8.3.2000) till realisation The lower appellate court slightly modified the said decree by varying interest portion and allowed the plaintiff to realise interest only from the date of suit (5.3.2003) till realisation. Hence the Second Appeal by the 1st defendant. The parties hereinafter referred to as plaintiff and defendants as arrayed in the suit. The 1st defendant in the suit is the appellant herein.
2. It is the plaintiff's case that that the 1st defendant issued a cheque dated 26.2.2000 drawn on the State Bank of Travancore Ramankari for Rs. 47,950/- in discharge of the amount due from him to the plaintiff, that when the plaintiff presented the cheque for encashment through the 3rd defendant, the 3rd defendant did not credit the cheque amount in the account of the plaintiff nor the cheque was returned to himself. It is further averred by the plaintiff after some time the 2nd and 3nd defendants informed him that the cheque was lost in transit and as a R.S.A.No. 293 of 2009 -2- consequence he is unable to get the cheque amount so far and the 3rd defendant bank is negligent in handling the cheque and giving information regarding the fate of the cheque. According to him it is the duty of the defendants 2 and 3 to timely return the cheque to him or to intimate him that the cheque presented for encashment was dishonoured by the 3rd defendant-Bank. In the above circumstances he filed the suit for realising the cheque amount of Rs. 47,950/- and Rs.300/- debited as collection charges with 18% interest from 8.3.2000 fromdefendants 1 to 3 .
3. The 1st defendant is one Sri.George kurian, 2nd Defendant is the Alleppey District Co-operative Bank Ltd. represented by its General Manager, and the 3rd defendant is the Alleppey District Co-operative Bank Ltd., Edathua Branch, represented by its Branch Manager.
4. The 1st defendant/appellant in his written statement denied the issuance of the cheque to the plaintiff and also denied the financial transaction with the plaintiff .He also admitted that he has transactions with a money lender by name George Joseph who is conducting the concern "Chennattussery Financiers" and is a close relative of the plaintiff. According to the 1st defendant the plaintiff is also a partner of the said Financiers. He also claimed that he had issued blank cheques on different occasions to the said Financiers. According to the appellant/1st defendant the cheque relied on by the plaintiff might be one fabricated on the blank cheque leaf so entrusted by the 1st defendant with the said money lender. R.S.A.No. 293 of 2009 -3- The 1st defendant also contended that the suit is filed in collusion between the plaintiff and the said George Joseph(Money lender)
5. Defendants 2 and 3 admitted that that the plaintiff presented the cheque for collection and they had sent the cheque for collection and the same was returned as unpaid due to insufficiency of funds in the account of the drawer, that they had despatched the cheque in the address given by the plaintiff and that there is no negligence or deficiency in service on their part . They also contended the since the same issue was agitated before the Consumer Disputes Redressal Forum in O.P(A) No. 59/2002, the suit is barred by the principle of res judicata.
6. The evidence in this case consists of oral testimonies of PW1, DW1 and Exts A1 to A14, B1 to B2.
7. The specific case of the 1st defendant is that the cheque relied on by the plaintiff is only a manipulated one. According to the 1st defendant in the year 1999, he pledged some gold ornaments with the said Financiers and obtained Rs. 25,000/-. He had to issue a blank cheque as additional security. Subsequently the loan transaction was settled and the 1st defendant got back the gold ornaments. But at that time the 1st defendant did not get back the blank cheque issued by himself and he was told that the cheque was misplaced somewhere. According to him the plaintiff herein who is a partner of the above said Financiers has filed the suit relying on that signed blank cheque in collusion with the proprietor of the Chennattussery Financiers.
R.S.A.No. 293 of 2009 -4-
8. The trial court examined the question as to whether the cheque relied on by the plaintiff is a fabricated one or not. The plaintiff disputed the claim of the 1st defendant/appellant. According to the plaintiff apart from the cheque the 1st defendant had also issued Ext.A1 letter in his handwriting admitting the issuance of the lost cheque relied on by the plaintiff. The trial court noted that during the cross-examination the 1st defendant virtually admitted his signature in Ext.A1 but he disputed his writings in Ext.A1, at the same time his attempt is to show that Ext.A1 is created in a signed blank paper issued by him to the Chennattussery Financiers but he has not made such a contention in his written statement. Before the trial court the 1st defendant also failed to establish that the lost cheque was issued in a different transaction to the said Financiers. This is also another reason for decreeing the suit in favour of the plaintiff. The trial court also relied on Ext.A14 order of the Consumer Dispute Redressal Forum which is in favour of the plaintiff The trial court on evidence further held that the 1st defendant failed to prove that the lost cheque was issued in a different transaction to the Chennattussery Financiers and concluded that the cheque relied on by the plaintiff was issued by the 1st defendant to the plaintiff as claimed by him. The trial court further held that the dishonour of the cheque stands proved through Ext.A13 and the dishonour of the cheque is also not disputed by the 1st defendant and therefore the plaintiff shall be entitled to recover the amount covered by the cheque together with interest from the 1st defendant. R.S.A.No. 293 of 2009 -5-
9. The very same contentions were raised before the lower appellate court by the 1st defendant/appellant The lower appellate court also examined the contentions in detail and agreed with the findings recorded by the trial court I have examined the contentions raised by the appellant. I find that the concurrent findings arrived at by the courts below are on the basis oral and documentary evidence. No questions of law much less any substantial question of arises for consideration in this appeal There is no scope for invoking this Court's jurisdiction under Section 100 of the C.P.C. This appeal fails and dismissed in limine.
(HARUN-UL-RASHID, JUDGE) es.
HARUN-UL-RASHID, J.
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R.S.A.No. 293 of 2009
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JUDGMENT 19th August, 2009