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2017 DIGILAW 2940 (MAD)

Mumtaj Begam v. Janab Jafer Mohamed Kasim Peer, S/o. Peer Mohamed

2017-08-30

PUSHPA SATHYANARAYANA

body2017
JUDGMENT : The defendants in the suit for recovery of money are the appellants in this second appeal. 2. The plaintiff and one Shahul Hameed, who is the husband of the first defendant and father of the defendants 2 to 5, had entered into a sale agreement on 16.06.2003 regarding the schedule properties with the legal heirs of one Esakki Chettiyar. There was an internal arrangement between the plaintiff and the said Shahul Hameed and they entered into an agreement on 17.09.2003 with an intention to divide the properties into house plots and sell the same. For the said purpose, it was decided by the plaintiff and the said Shahul Hameed to invest Rs.5 lakhs each. Accordingly, the plaintiff claimed to have paid a sum of Rs.2 lakhs to the said Shahul Hameed on 19.09.2003. Thereafter, there has been payments made by the plaintiff on various dates, i.e., on 21.09.2003 - Rs.65,000/-; on 25.09.2003 - Rs.50,000/- ; on 28.09.2003 - Rs.50,000/- and on 03.10.2003 - Rs.35,000/-. Thus, it is claimed that a sum of Rs.4 lakhs was paid by the plaintiff to the said Shahul Hameed. However, the said Shahul Hameed did not act as per the agreement dated 17.09.2003. Therefore, the plaintiff demanded repayment of the amounts paid by him. The said Shahul Hameed had also issued a cheque, dated 29.04.2005, drawn on Indian Bank, Tirunelveli Town, for a sum of Rs.4 lakhs. When the plaintiff deposited the said cheque for collection, the same was returned for insufficient funds. In the meanwhile, the said Shahul Hameed died in a road accident. Therefore, the plaintiff demanded repayment of the said sum from the legal heirs of the deceased Shahul Hameed, who are the defendants in the suit. As there was no response from them, the plaintiff had filed the suit. 3. The suit was resisted by the defendants, who are the appellants herein, denying the receipt of Rs.4 lakhs by Shahul Hameed. The payment of Rs.4 lakhs through cheque by Shahul Hameed is also denied by them. The defendants had contended that taking advantage of the death of Shahul Hameed, the plaintiff was pressurizing them for the payment of the amount. 4. The payment of Rs.4 lakhs through cheque by Shahul Hameed is also denied by them. The defendants had contended that taking advantage of the death of Shahul Hameed, the plaintiff was pressurizing them for the payment of the amount. 4. Before the trial Court, on the side of the plaintiff, the power agent of the plaintiff was examined as PW1 and another witness was examined as PW2 and Exs.A1 to A7 were marked and on the side of the defendants, the third defendant himself was examined as DW1. However, no documentary evidence was marked. Based on the above pleadings, the trial Court had dismissed the suit holding that the cheque was not proved. On appeal by the plaintiff, the suit was decreed. Aggrieved by the same, the above appeal has been filed by the defendants. 5. At the time of admission, the following substantial questions of law were framed for consideration : “(a) Whether the suit can be maintained by a drawee of the cheque against the legal representatives of the drawer of the cheque without a plea that the legal representatives had inherited the estate of the drawer to bear the responsibility and obligation to discharge the original debt owed by the drawer of the cheque? (b) Whether the first appellate Court is justified in drawing a presumption under Section 118 of the Negotiable Instruments Act, upon Ex.A1 (concededly a postdated cheque) which was presented for encashment after the death of the drawer of the cheque even without proof regarding the presentation and dishonour of the cheque? (c) Whether a cheque issued by a person can be presented for encashment after the death of the drawer of the cheque and file a suit for the said amount against the legal representatives? Is not such a claim bad and hit by Section 64 of the Negotiable Instruments Act?” 6. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent. 7. It is the case of the appellants/defendants that there was no evidence on the side of the plaintiff to prove that the defendants had knowledge about the alleged agreements, dated 16.06.2003 and 17.09.2003 between the plaintiff and the deceased Shahul Hameed. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent. 7. It is the case of the appellants/defendants that there was no evidence on the side of the plaintiff to prove that the defendants had knowledge about the alleged agreements, dated 16.06.2003 and 17.09.2003 between the plaintiff and the deceased Shahul Hameed. The next contention is that the alleged cheque was not proved and the first appellate Court was not justified in drawing a presumption under Section 118 of the Negotiable Instruments Act, as the cheque was presented after the death of the drawer of the cheque. 8. This Court has perused Exs.A2, A5 and A6. Ex.A2 is the agreement dated 17.09.2003 entered between the plaintiff and the deceased Shahul Hameed. Ex.A5 is the cheque dated 29.04.2005, which was issued by the deceased Shahul Hameed in favour of the plaintiff, drawn on Indian Bank, Tirunelveli Town, for a sum of Rs.4 lakhs. It is not the case of the defendants that the cheque was not issued by the said Shahul Hameed. In fact, the signature of the deceased Shahul Hameed in the cheque and in Ex.A2 appears to be the same. The plaintiff seems to have presented the cheque for collection on 10.05.2005, though the cheque was issued on 29.04.2005 and on the backside of the cheque - Ex.A5, an endorsement, seal of Melapalayam Primary Agricultural Cooperative Bank and signature of the Secretary of the Bank are found. Admittedly, the cheque was dishonoured and returned with the Bank memo which was marked as Ex.A6. The said memo also bears the seal and signature of the very same Secretary, who had endorsed as “insufficient funds”. Unfortunately, the drawer of the cheque viz., Shahul Hameed had died in an accident on 10.05.2005. However, considering the fact that the cheque has been issued by the deceased, the liability has been proved by the plaintiff. Thus, the plaintiff has established that a sum of Rs.4 lakhs was given by the deceased Shahul Hameed under Ex.A5 - cheque in favour of the plaintiff and the same was dishonoured for want of sufficient funds. Hence, it can be easily held that the cheque is true and valid, and the same was issued by the deceased Shahul Hameed only in discharge of the debt incurred by him. 9. Hence, it can be easily held that the cheque is true and valid, and the same was issued by the deceased Shahul Hameed only in discharge of the debt incurred by him. 9. As the plaintiff has established that he is entitled to recover a sum of Rs.4 lakhs from the defendants, based on the cheque, which evidenced the prior transaction between him and the deceased Shahul Hameed, the first appellate Court has granted a decree in his favour. Admittedly, the drawer of the cheque expired and hence, the plaintiff had not proceeded against him under the Negotiable Instruments Act and the cheque has been produced, in this case, only as a piece of evidence to substantiate his claim that he is entitled to recover a sum of Rs.4 lakhs from the defendants. The lower appellate Court, as a final fact finding Court, has also discussed all the above material facts, including the execution of the agreement between the plaintiff and the deceased Shahul Hameed, and also the payment of amounts supported by the cheque under Ex.A5, had decreed the suit. As the issuance of the cheque in discharge of the debt has been proved by the plaintiff, the same was used only to establish the outstanding and the Negotiable Instruments Act is not attracted. Hence, the questions of law framed are answered in the negative. 10. In the result, this second appeal is dismissed, confirming the judgment and decree passed by the first appellate Court. The plaintiff is entitled to recover a sum of Rs.4 lakhs from the defendants with interest. The first appellate Court has granted the decree holding that the amount is recoverable from the estate of Shahul Hameed. From the pleadings, it is evident that the suit schedule properties are the schedule properties mentioned in the sale agreement, dated 16.06.2003. So far as the said agreement is concerned, it is stated that there was a suit filed in O.S.No.673 of 2007 for specific performance, wherein the plaintiff is also a party and the result of which is not known. When it is not established that the defendants are the owners of the said properties, there cannot be a charge over the same. It is open to the plaintiff to recover the same in the manner known to law. No costs. Consequently, connected miscellaneous petition is also dismissed.