Lillykutty v. Lawrance

K.S Radhakrishnan, J.:— 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. Plaintiff's 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 post-dated 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. P.Ws 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.

4. Counsel appearing for the appellant submitted that there is every reason to believe that the plaintiff had used the two stolen cheques for laying the suit. Counsel also explained the circumstances under which the cheques were found missing and also submitted that the evidence adduced on the side of the plaintiff cannot be accepted since it is artificial. Counsel also submitted that the defendant had kept blank cheques in the office and she used to keep the same in the business premise itself and the handwriting shown in the cheques were not that of the defendant. It is stated that the cheques were filled up and presented for encashment. Counsel appearing for the respondent-plaintiff on the other hand submitted that the cheques were handed over to the plaintiff by the defendant after filling up the same and those cheques were not blank cheques and the allegation that the plaintiff had utilised the stolen cheques was denied. Facts would indicate, according to the counsel, that the defendant owes money to the plaintiff and the story that the cheques were stolen is a cooked up one so as to wriggle out of the transaction.

5. Defendant had admitted the signature shown in Exts. A3 and A4 cheques. Ext. A3 cheque dated 2.3.1993 was drawn on State Bank of Travancore, Shangumugham branch and Ext. A4 cheque dated 20.12.1992 was drawn on State Bank of Travancore, K.S.R.T.C, Fort, Thiruvananthapuram branch. Cheques were from the Banks where the defendant has accounts. Admittedly signature shown in the cheques is that of the drawer but his case is that he had not filled up the cheque. It was alleged that payees name as well as the amounts shown in the cheques are not in the handwriting of the drawer and therefore those might have been filled up by the plaintiff to lay a claim on the cheques signed by the drawer. The question is whether in a case where the payee puts the date in a cheque signed by the drawer, such cheque could be encashed came up for consideration before a Division Bench of this Court to which one of us (Radhakrishnan, J.) was a party in Bhaskaran Chandrasekharan v. Radhakrishnan (1998 (1) KLT 881). The Division Bench held that when a cheque is issued for consideration and there is no dispute, regarding signature, amount and name, it cannot be said that by putting a date on the cheque by the payee who is the holder of the cheque in due course would amount to material alteration rendering the instrument void. When cheque is admittedly issued with blank date, and when the drawer has no objection with regard to the name, amount and signature, it can be presumed that there is an implied consent for putting the date as and when required by the payee and get it encashed unless the contrary is proved. The burden is entirely on the drawer of the cheque to establish that the payee had no authority to put the date and amount and then encash the cheque. There are instances where blank cheques are issued to the payee. If any amount is due to the payee from the drawer of the cheque and that amount is shown in the cheque which is admittedly signed by the drawer, the presumption could be drawn that the cheque has been validly issued. An implied consent can be presumed in such a situation. Once a cheque is drawn by a person on an account maintained by the Bank and is returned with the endorsement “funds insufficient”, it amounts to dishonour within the meaning of S. 138 of the Negotiable Instruments Act. S. 138 confirms the presumption provided under S. 118 (a) and 118(g) of the Act.

6. In the instant case, signature is admitted. According to the drawer of the cheque, amount and the name has been written not by the drawer but by somebody else or by the payee and tried to get it encashed. We are of the view, by putting the amount and the name there is no material alteration on the cheque under S. 87 of the Negotiable Instruments Act. In fact there is no alteration but only adding the amount and the date. There is no rule in banking business that payee's name as well as the amount should be written by drawer himself. In the instant case Bank has never found that the cheque was tampered with or forged or there is material alteration or that the handwriting by which the payee's name and the amount was written was differed. The Bank was willing to honour the cheques if sufficient funds were there in the account of the drawer even if the payee's name and the amount was written by somebody else other than the holder of the account or the drawer of the cheque. The mere fact that the payee's name and the amount shown are not in the handwriting of the drawer does not invalidate the cheque. No law provides in the case of cheques the entire body has to be written by the drawer only. What is material is the signature of the drawer and not the body of the instrument. Therefore when the drawer has issued the cheque whether the entire body was written by the drawer written beyond the instructions of the drawer, whether amount is due or not, those and such matters are defences which drawer has to raise and prove it. Therefore the mere fact that the payee's name and the amount shown in the cheque are in different handwriting is not a reason for not honouring the cheque by the Bank. Banks would normally see whether the instrument is that of the drawer and the cheque has been signed by the drawer himself. The burden is therefore entirely on the drawer of the cheque to establish that the date, amount and the payee's name are written by somebody else without the knowledge and consent of the drawer. In the instant case, the drawer of the cheque has not discharged that burden. Apart from the interested testimony of the drawer, no independent evidence was adduced to discharge the burden.

7. Defendant had set up a case that the two cheques were taken away from her establishment. Burden is on her to show that the two cheques were taken away from her business premises. Apart from the interested testimony of the defendant there is no other independent evidence adduced to establish the story that the cheques were stolen from her business premises. Defendant has not cared to examine any of the employees of the establishment. Counsel appearing for the defendant placed considerable reliance on the decision of this Court in Gangadhara Panicker v. Haridasan (1989 (2) KLT 730) and contended that the presumption under S.118 of the Act would arise only when there is a negotiable instrument which is admitted to have been executed. It is pointed out that when the fact of execution of the cheque itself is in dispute plaintiff has to prove also passing of consideration. In other words, only when due execution has been established presumption under S. 118(a) can be raised. Reference was also made to the decision of the Mysore High Court in Gurubasappa v. Rudriah (AIR 1969 Mys. 269). We are of the view, in a given case cheque is issued by the drawer in favour of the payee and the same is dishonoured by the drawer's Bank stating “funds insufficient”, holder of the cheque is entitled to get the amount as reflected in the cheque since the cheque is a negotiable instrument as per S.118 We are of the view under S.118 of the Act until the contrary is proved presumption can be made that every negotiable instrument was made for consideration. The expression “until the contrary is proved” is relevant under S. 118 of the Negotiable Instruments Act. When the drawer of the cheque did not find any infirmity in the cheque presented by the payee presumption raised under S. 118 would apply unless the contrary is proved by the drawer of the cheque. Therefore mere fact that the payee's name and the amount shown in the cheque is not in the handwriting of the drawer of the cheque that by itself is not a ground to contend that they are not validly issued or the cheques were not executed at all. The story put up by the drawer of the cheques that those cheques were stolen is not supported by any independent evidence, so found by the trial court. Plaintiff has executed a gift deed on 27.2.1993 in favour of her daughter and it was alleged that the title deed of property was also found necessary. Therefore, at least on 27.2.1993 the plaintiff would have known about the cheque and the title deed and if they were found missing would have filed a complaint then and there and would have given a stop memo to the Bank. No steps have been taken by the plaintiff. The contention that the title deed and the cheque were found missing and therefrom cannot be believed. In such circumstances, we find no reason to interfere with the reasoning of the trial court. Plaintiff is entitled to realise the plaint claim. However, we are of the view, interest awarded by the court below is excessive. In such circumstances, we are inclined to decree the suit allowing the plaintiff to realise the sum of Rs. 2,65,000/- with interest at 9% per annum on the principal amount of Rs. 2,25,000/- from the date of suit till date of decree and thereafter at the rate of 6% per annum till the decree is executed.

8. We are informed that when the decree was sought to be executed the appellants in E.F.A No. 51 of 2002 filed E.A No.32 of 1999 under O. XXI R.58 of the Code of Civil Procedure to drop the sale proceedings in execution of the decree. The property which was to be sold in execution was attached on 19.3.1993 On the basis of Ext. A1 settlement deed dated 27.2.1993 judgment debtor had settled the property in favour of the first claimant who is none other than her daughter. Ext. A2 is the settlement deed dated 13.11.1995 as per which half of the property was settled in favour of the second claimant who is the husband of the first claimant. PW 1 deposed that after 27.3.1993 nobody else has right over the scheduled property. Reference was made to Exts. A3, A4 and A5 tax receipts in respect of the property. Decree holder on the other hand contended that there was no consideration for Exts. A1 and A2 and that those documents were executed in order to defraud the decree holder and therefore it is not binding on him. The facts and circumstances of the case would indicate that there is no necessity for execution of Ext. A1 settlement deed. This is a case where first cheque for Rs. 1 lakh was issued on 20.12.1992 and the second cheque for Rs. 1,25,000/- on 2.3.1993 Ext. A1 in this case was executed after the date of the first cheque viz., on 27.2.1993 Evidently Exts. A1 and A2 documents were executed so as to defraud the creditors. It has been held in the decisions in Smt. Shallo Devi v. Mohinder Singh (AIR 1971 Punjab & Haryana 325), Ramaswami Chettiar v. Mallappa Reddiar (AIR 1920 Madras 748), Badri Dass v. Chunilal (AIR 1961 Punj. 398) and K.Najamma v. K. Rangappa (AIR 1954 Madras 173) that the transfer of immovable property made with intent to defeat or delay the creditors of the transferor is voidable at the option of any creditor so defeated or delayed and such creditor can avoid the transfer by attaching that transferred property in execution of the decree and thus exercise his option to avoid that transfer. In the instant case Exts. A1 and A2 documents were executed after the issuance of the first cheque with a view to defeat the claim of the creditor. In such circumstances we are of the view the court below has rightly rejected the petition. The appeal would therefore stand dismissed. In the facts and circumstances of the case, parties would bear their respective costs in these appeals.