MANMADHAN Vs. KRISHNAPPAN UNNI

JUDGEMENT

(1.) THE defendant in O. S. No. 35 of 1978, Additional Sub Court, Alleppey, is the appellant. The plaintiff in the suit is the sole respondent. The suit was filed for recovery of money on a dishonoured cheque. On 18th June, 1976 the defendant requested the plaintiff to lend a sum of Rs. 15,000/ -. The plaintiff paid a sum of Rs. 13,179/-, which he had with him to the defendant. For the due repayment of the amount, the defendant issued a cheque on the same day for the said amount. Later, on the same day, the defendant informed the plaintiff that he would be getting a sum of Rs. 23,000/-on 10th September, 1976 and requested the plaintiff to present the cheque thereafter. On 12th September, 1976 the plaintiff presented the cheque before the bank. It was returned, since no funds were available to the credit of the defendant. After giving oral notice of dishonour to the defendant, the plaintiff filed a complaint before the criminal court. It was dismissed, stating that the remedy of the plaintiff is to approach the Civil Court for relief. The defendant ought to have paid the amount of Rs. 13,179/- with interest at 12 per cent per annum at least from 13th September, 1976 Alternatively, the plaintiff is entitled to get interest by way of damages at 12 per cent per annum. The defendant has not paid the amount so far. Hence the suit for realisation of Rs. 15,485. 32, principal and interst thereon from 13th September, 1976.

(2.) THE defendant contested the suit. It was contended that the suit is lacking in bona fides and is not maintainable. The alleged lending of Rs. 13,179/- on 18th June, 1976 was denied The cheque was not issued for the repayment of any amount. There was no borrowing by the defendant. No oral notice of dishonour was given to the defendant. The criminal complaint filed by the plaintiff was dismissed as frivolous. The defendant is not liable to pay any amount with interest from 13th September, 1976. No demand was made to the defendant. The plaintiff was and is one who is heavily indebted. He approached the defendant in February, 1976 and obtained a post-dated cheque for Rs. 11,180/- (Ext. Bl) assuring the defendant that the cheque would not be presented. It was intended only to stall his creditors by giving them an impression that he was to get the money under the cheque. The cheque was dated 30th March, 1976, The cheque was returned later. The defendant scored the entries therein. Similarly in May, 1976 the plaintiff approached the defendant with a similar demand for the issue of a cheque. Believing the plaintiff and on his previous conduct the defendant issued the instant cheque. Ext, Al. The plaintiff cunningly presented the cheque and got it dishonoured. The suit is not maintainable. The defendant prayed for the dismissal of the suit.

(3.) THE trial court framed seven issues. Issues Nos. 1 to 3 are the important ones. Under issue No. 1, the court below held that the suit is maintainable. Under issues 2 and 3, the court held that the defendant borrowed a sum of Rs. 13,179/- from the plaintiff and issued Ext. A1 cheque on 18th June, 1976 and that Ext. A1 was not issued under the circumstances stated in the written statement. The suit was decreed. The defendant has come up in appeal.