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2005(1) Bankmann 329
KERALA HIGH COURT
S. Sankarasubban & A.K. Basheer. JJ.
Thomas — Appellant
versus
Thomas — Respondent
A.S. No. 375 of 2002
Decided on 9.10.2004
For the Appellant:S.V.S. Iyer, Sr. Advocate & V. Giri, Advocate.
For the Respondent:S.V. Balakrishna Iyer and K. Jayakumar, Advocates.
IMPORTANT POINT
Though the cheque was legally issued and legally enforceable but it is valid only for consideration of 2 slips admitted by respondent.
Headnote:Negotiable Instruments Act, 1881—Sections 6 and 118—Contract Act, 1872—Section 25(3)—Cheque issued for Rs. 4,50,000/- alleging consist of two slips 1,35,953 + 37,088/- = 1,73,011/- and oral loan—Cheque dishonoured—Suit for recovery—Slips admitted—No oral loan proved—Part payment of Rs. 15,000/- alleged—For what amount decree be passed? Rs. 1,58,011/- with interest?—Appeal disposed of accordingly.
Result: Appeal disposed off accordingly.
Held: Thus, the consideration is proved only for an amount of Rs. 1,73,0 11/- (1,35,953 + 37,058). The date of Ext. A3 is 26.4.1999. Out of this amount, it is admitted that Rs. 15,000/- has been paid to the defendant. So the actual amount is only Rs. 1,58,011/-. In the result, the judgment and decree of the Court below are modified and a decree is given to the plaintiff for an amount of Rs. 1,58,011/- with interest thereon at 12% per annum from 26.4.1999 till date of recovery. Appeal is disposed of as above. (Paras 9, 10 and 11)
S. Sankarasubban, J.—This appeal is preferred by the defendant in O.S. No.63 of 1999 of the Sub Court, Thodupuzha. Respondent is the plaintiff. The suit was filed for recovery of an amount of Rs. 4,50,000/- with interest thereon. The case of the plaintiff is as follows:
2. The plaintiff is an Agriculturist. He is having rubber plantation. He sells the rubber to the defendant, who stores it and sells it at Kochi. The dealing has been going for a long time. The practice is that whenever the quantity of rubber is entrusted to the defendant, a slip will be given by the defendant showing the quantity as well as the price and later on, on producing the slip, the amount will be given. According to the plaintiff, the amount under two slips is due to the plaintiff. Those slips are produced as Exts. Al and A2 and the value of those slips together comes to Rs. l lakh and odd and the rubber was sold in 1994. There is another case for the plaintiff that the defendant has borrowed an amount of Rs. 68,000/- personally in 1994. Even though many times the plaintiff demanded the amount from the defendant, he did not pay the same. Ultimately, at the instance of the mediators, a cheque for Rs. 4,50,000/- was issued by the defendant to the plaintiff taking into account the entire amount due to the plaintiff as well as the interest thereon. When the cheque was presented, it was dishonoured. Thus, the suit was filed for recovery of Rs. 4,50,000/- with interest thereon.
3. The defendant filed a written statement. In the written statement, the transaction with the plaintiff is denied. He also denied that he took a loan of Rs. 68,000/-. It is further stated that there was a practice on the part of the defendant of keeping signed cheques. The building in which the defendant’s shop is housed was trespassed by one Thomas and took away the valuables from it. This Included cheque leaves and those cheques would have been made use of by the plaintiff. At the time when the cheque was alleged to be executed, the claim had become barred by limitation and hence, even if the cheque is issued, it cannot be legally enforced.
4. On the basis of the above pleadings, necessary issues were raised by the Court below. Ext. A 1 to A 10 were marked on the side of the plaintiff and Exts. B1 to B6 were marked on the side of the defendant. On the side of the plaintiff, PWs. 1 and 2 were examined. PW1 is the plaintiff and DWs 1 and 2 were examined on the side of the defendant to show that the defendant owes money to the plaintiff. DW 1 is the defendant himself and DW 2 is one T.K. Lal, who was the Accountant of the defendant. The Court below found that the plea set up by the plaintiff is correct. Thus, a decree was passed for Rs. 4,50,000/- with interest thereon at 6% per annum.
5. We heard learned senior counsel Sri S.V.S. Iyer for the appellant and learned counsel Sri K. Jayakumar for the respondent.
6. Learned counsel for the appellant submitted that there is no evidence to show that the plaintiff had transaction with the defendant. The slips cannot be lawfully accepted as evidence for any transaction. Learned counsel submitted that amounts are due in 1994 and hence, the claim is barred by limitation. On the other hand, learned counsel for the respondent submitted that Section 25(3) of the Contract Act enables the plaintiff to show that if there is promise in writing, that is a good claim and the bar of limitation cannot be applied for the same.
7. We went through the records in the case. So far as the question of transaction is concerned, we find that Exts. A 1 and A2 slips were issued. The execution of Ext. A 1 is admitted by the defendant. So for as Ext. A2 is concerned, it is signed by DW 2. We agree with the lower Court in finding that Exts. A 1 and A2 are issued by the defendant. So far as the issue of cheque is concerned, the case set up by the defendant is that he signed cheque leaves. There was a trespass in his building by the owner and took away the
