Sri S Mathivathanan vs Smt. M Jayamma

A.S. Bopanna, J.—The appellant herein is the defendant in O.S. No. 830/2009. The suit was filed by the plaintiff seeking to recover the sum of Rs. 2,00,000/- with interest at 8% p.a. The Court below after considering the rival contentions has decreed the suit for Rs. 2,00,000/-, but with interest at 6% p.a. The defendant is therefore before this Court assailing the said judgment. Learned counsel for the appellant while assailing the judgment would contend that the present suit ought not to have been entertained by the Court below and the decree ought not to have been granted inasmuch as the plaintiff had initiated the proceedings in C.C. No. 31765/2006 and at the first instance, he had been acquitted. Further, it is contended that though in Criminal Appeal No. 1903/2007 he has been convicted and has undergone sentence, the consideration of the suit and passing a decree in favour of the plaintiff would amount to double jeopardy. It is therefore contended that the Court below was not justified in decreeing the suit. It is his contention that the amount in any event has not been borrowed by the plaintiff and as such, the Court below was not justified. Further, the rate of interest granted is also attacked by the learned counsel for the appellant.

Learned counsel for the plaintiff-respondent would however seek to sustain the judgment passed by the Court below. It is contended that the present suit is for recovery of the amount, while the criminal proceedings initiated was for punishment for the offence which had been committed under the Negotiable Instruments Act. Therefore, the question of double jeopardy would not arise, inasmuch as the law is well settled that a suit for recovery in any event can be filed when the amount is due and has not been paid, notwithstanding the fact the defendant had undergone conviction for dishonour of cheque. Insofar as the claim, the learned counsel would contend that the same was established before the Court below and the Court below after referring to the evidence has decreed the suit. In that regard, the plaintiff had claimed a higher rate of interest and since the Court below had granted only 6% p.a. in any event, the judgment and decree cannot be interfered.

In the light of what has been contended, I have perused the judgment passed by the Court below. Keeping in view the rival pleadings put forth, the Court below had framed as many as five issues for its consideration. The plaintiff in order to discharge the burden cast by the Court below had examined herself as P.W.1 and had marked the documents at Exhs.P1 to P12. The defendant examined himself as D.W1 and had examined one witness. No documents had been relied on by the defendant. In the background of the pleadings and the evidence put forth, the Court below has referred to the documents at Exhs.P1 to P4 which related to the claim which had been made towards refund of the amount being the Cheques issued thereto. The memo issued by the Bank for dis-honouring the cheque was marked as Exhs.P5 to P8. The other documents were with regard to ownership of the property by the defendant.

Therefore, in the instant case, the documents i.e., the cheques which have been issued to discharge the amount would be relevant. In that circumstance, when the plaintiff had discharged the initial burden by the evidence put forth, the evidence tendered by the defendant is to be noticed. The defendant in fact had claimed the discharge of the amount. He had also admitted in the cross-examination that D.W.2 was in possession of the document to show that the amount of Rs. 3,80,000/- has been repaid, but no such document has been produced. In such circumstance, when it is contended that the amount had been discharged, it was the burden of the defendant to establish that the amount had been paid. When the same had not been done, the Court below was justified in decreeing the suit.

With regard to interest, it is no doubt true that the parties had not agreed on any contractual rate of interest. The plaintiff in fact had claimed the interest at 18% p.a. on the amount which had been advanced. The plaintiff had further contended that the amount advanced was as loan for construction of the house and in such circumstance, when the amount paid has been established and when it is also established that the amount had not been refunded, even in the absence of there being any contract between the parties, the Court would be empowered to grant the interest by keeping in view the commercial rate prevailing and the bank interest at that point. In any event, the Court below has granted the interest at 6% p.a., which is also justified and the same does not call for interference.

At this stage, learned counsel for the defendant-appellant would contend that there is great financial stringency for the defendant and as such the defendant may be permitted to pay the amount in installments and if the attachment as ordered in the execution is effected, the defendant would be left with no roof over his head.

Learned counsel for the respondent would state that the amount in any event would have to be cleared by the defendant within a period of six months. Keeping these aspects in view, I am of the opinion that the defendant/appellant may be permitted to pay the amount within a period of six months even if it be by installments, if need be. However, in any event, the amount shall be discharged before the end of six months from this day. To the said extent, the judgment and decree stands modified holding that the amount decreed by the Court below would be payable by the appellant/defendant within a period of six months from today. In this regard, the Execution Petition No. 1215/2010 levied by the plaintiff shall be kept in abeyance for the said period of six months and if the said amount is not repaid, the matter be proceeded in accordance with law for recovery of the amount.

With the above modification, the appeal stands disposed of.