Decided on August 29,2003

K. LAWRANCE Respondents


- (1.) Defendant is the appellant in A.S. No. 311 of 2002 which arises out of the judgment and decree in O.S. No. 375 of 1993 on the file of the Sub Court, Trivandrum. Suit was instituted for realisation of money based on two dishonoured cheques. Claim petitioners are the appellants in E.F.A.No. 51 of 2002 which arises out of the order in E.A. No. 32 of 1999 in O.S. No. 375 of 1993 of the same court.
(2.) Plaintiffs case is that defendant while conducting a stationary shop by name M.F. Stores approached him and requested for a loan of Rs. 2,25,000/-. Since defendant was personally known to the plaintiff, he paid the said amount to the defendant on 6.3.1992. Defendant in turn handed over two cheques one dated 10.12.1992 for Rs.1 lakh (Ext. A4) and another dated 2.3.1993 for Rs. 1,25,000/- (Ext. A3). The two postdated cheques were issued by the defendant on the undertaking that those cheques could be encashed on the dates shown therein. Defendant also agreed to pay interest at the rate of 18% per annum. Plaintiff presented the cheques for collection but the same were returned with the endorsement funds insufficient. Fact of dishonour of the cheques was intimated to the defendant. Defendant assured that she would pay the amount within a week. Subsequently plaintiff understood that defendant was trying to alienate her property. Consequently suit was instituted for realisation of Rs.2,65,000/- with interest at 18% from the defendant.
(3.) Defendant filed written statement resisting the suit. Case of the defendant is that the plaintiff has requested the plaintiff for financial help and the defendant helped. Plaintiff repaid the amount in March and August 1992. Defendant insisted for payment of interest at the rate of 24% per annum which the plaintiff refused to pay. Consequently they were on enmical terms. Further it was stated that the plaintiff owes money to the husband of the defendant. It is stated that the defendant came to know that two cheques were stolen from her custody and it was noticed that the plaintiff later made use of those stolen cheques. It was also stated that along with the cheques two signed blank stamp papers and the original document in respect of 5 cents of property comprised in survey No. 2707 C of Kadakampilly village were also stolen. Defendant suspected that the two stolen cheques must have been used for filing the suit. Plaintiff got himself examined as P.W.1. PWs 2 to 5 were also examined and Exts. A1 to A4(a) were marked. Defendant herself got examined as D.W.1 and Exts. B1 to B5 were marked. Exts. X1 to X3 were produced by the witnesses. The court below after considering the oral and documentary evidence came to the conclusion that the cheques were duly executed by the defendant and the plaintiff is entitled to realise the plaint claim. Consequently suit was decreed allowing the plaintiff to realise a sum of Rs.2,65,000/- with interest. Aggrieved by the same this appeal has been preferred.;

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