Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI THURSDAY, THE 1ST DAY OF JUNE 2023 / 11TH JYAISHTA, 1945 AGAINST THE JUDGMENT IN AS 73/2015 OF ADDITIONAL DISTRICT COURT, TIRUR OS 359/2009 OF SUB COURT, TIRUR APPELLANT/APPELLANT/DEFENDANT: DEVADAS.K.P., AGED 57 YEARS S/O KOTTAPPADATH VELAYUDHAN, THRIKKANAPURAM AMSOM, VALLANCHERRY DESOM, PONNANI TALUK, MALAPPURAM DISTRICT - 679573. BY ADVS. C.RAJENDRAN B.K.GOPALAKRISHNAN RESPONDENTS/RESPONDENTS/PLAINTIFFS: 1 KAMALAM, AGED 65 YEARS W/O LATE E T RAMANACHANDRAN, ILANECHITHODIHOUSE, ANANTHAVOOR AMSAM, KURUMBATHUR DESOM, CHANDANAKKAVU P O, TIRUR TALUK, MALAPPURAM-676552.(DELETED)
(RESPONDENT NO.1 IS DELETED FROM PARTY ARRAY AS PER ORDER
DATED 01.06.2023 IN IA 1/2023). 2 PRASAD, AGED 45 YEARS, S/O LATE E T RAMANACHANDRAN, 3 PRASEEDA, AGED 41 YEARS, D/O LATE E T RAMANACHANDRAN, CHANDANAKKAVU P O, TIRUR TALUK, MALAPPURAM-676552. 4 PREETHA, AGED 40 YEARS, D/O LATE E T RAMANACHANDRAN, THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
T.R. RAVI, J.
-------------------------------------- R.S.A No.685 of 2022 ---------------------------------------------------- Dated this the 01st day of June, 2023
JUDGMENT
The defendant in a suit for money has preferred this appeal.
According to the plaintiffs, a sum of Rs.2,00,000/- was given by the original plaintiff to the defendant and the defendant had given a post dated cheque to secure the repayment. According to the plaintiffs, the agreement was that the amount would be repaid in three months time. The plaintiff presented the cheque for payment, and it was returned for the reason ‘funds insufficient’. It is thereafter that the suit is filed for realisation of the amount of Rs.2,00,000/- which has been given to the defendant. The defendant/appellant herein denied the entire transaction and contended that his brother, one Sahadevan, had taken money from another person called Chinnan and cheque issued in favour of the said Chinnan had been misused by the plaintiffs. The trial court rejected the contention and found that
the transaction which is relied on by the appellant, between the brother of the appellant and one Chinnan, was the subject matter of another suit which had been instituted by Chinnan against the said Sahadevan. As far as the present transaction is concerned, there is no contention that these amounts were either repaid or the liability discharged. The mere fact that the original plaintiff died and was not available for giving direct evidence regarding the transaction cannot be in any way favourable to the appellant, particularly since the son of the original plaintiff, who is the second respondent and a witness to the transaction, has deposed regarding the transaction.
The trial court decreed the suit and the first appellate court
did not interfere with the judgment of the trial court. The first appellate court found that the version of the appellant, who was examined as DW1 and his brother who was examined as DW2 are inconsistent regarding the transaction. The appellate court also found that the appellant had borrowed the amount of Rs.2,00,000/- from the plaintiff and the said liability has not been
discharged. Only other legal ground raised is that the plaintiff should have been non suited since there was a failure to issue notice of dishonoring the cheque. I do not think that the said contention is available since it is not a suit purely based on the cheque but is based on a transaction which took place earlier, regarding which sufficient evidence has been let in. No substantial questions of law arise and the appeal is dismissed.
Sd/- T.R.RAVI JUDGE mpm