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TMI Blog2020 (9) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... lief of recovery of money. On perusal of the entire findings, arrived by the Trial Court, which is in consonance with the document and evidence, this Court is of the opinion that there is no perversity or infirmity as such so as to interfere with the findings of the Trial Court - Appeal dismissed. - A.S.No.804 of 2010 M.P.Nos.1 of 2010 & 1 of 2011 - - - Dated:- 28-1-2020 - THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM For the Appellant : Mr. S. Ramanarayanan for M/s. Sampathkumar Associates For the Respondents : Mr. T. Murugamanickam Senior Counsel for Mr. V. Rajesh for RR2 3 RR1 5-Died steps taken Non-appearance for R4 JUDGMENT The appeal suit on hand is directed against the judgment and decree dated 29.09.2009 passed in O.S.No.172 of 2005 on the file of the Additional District Judge, Salem. 2. The defendant is the appellant in the appeal suit and the respondent/plaintiff instituted a suit for recovery of money with interest and costs. 3. The facts in nutshell as narrated in the plaint are that the defendant borrowed a sum of ₹ 17,00,000/- from the plaintiff and issued a cheque No.063931 dated 11.03.2003 drawn on Bank of India Shevapet Bran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10th or 11th March 2003. The defendant agreed to advance a loan of ₹ 17 lakhs to the plaintiff and asked the plaintiff along with his sons, to execute a promissory note and also asked the plaintiff to deposit the title deeds of his properties as security. The defendant used to go over to NIMHANS Hospital, Bangalore and Chennai frequently for his professional and other works. Hence, the plaintiff wanted the defendant to give him a post dated cheque dated 11.03.2003 so that he will be collecting the money on that date for his requirements. The plaintiff, after receiving the cheque, did not give the promissory note and did not also deposit the title deeds. So, the defendant sent a letter on 03.03.2003 to the plaintiff reminding him about the non-execution of promissory note. In that letter itself, the defendant has stated that he had sent a letter to the Bank with 'stop payment' instruction and even after service of the letter dated 03.03.2003, the plaintiff did not execute the promissory note and did not deposit the title deed. Hence, the defendant did not make sufficient provisions in the account and therefore, the cheque, when presented for collection, was returned wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the plaintiff under Section 138 of Negotiable Instruments Act against the defendant before J.M.No.5, Salem ended in an order of acquittal. The main contention of the defendant was that the plaintiff and the defendant were having long standing relationship and therefore, he issued a post dated cheque as requested by the plaintiff and the said cheque was misused without complying his part. The post dated cheque was issued on account of the fact that the defendant would not be available in the month of March, and as directed by the plaintiff, he filled up the post dated cheque on 11.03.2003 and since the plaintiff failed to execute promissory note in favour of the defendant along with his sons and deposit of title deeds as promised, the defendant was constrained to send Ex.B5 notice on 03.03.2003 to the plaintiff and the plaintiff had admitted the receipt of the same in his evidence. 10. The contention of the plaintiff in this regard is that the notice dated 03.03.2003 was acknowledged by the plaintiff, at no point of time. The said notice was not sent through Registered post or delivered in person. Contrarily, it was stated that it was sent by the certificate of posting. Eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to issue instructions of stop payment . In the absence of sufficient funds, the instructions of stop payment cannot be issued and such an instruction is legally unacceptable. 13. The contention raised by the defendant, even before the Trial Court, is that he is an income tax assessee, paying huge amount to the income tax and there was no necessity to borrow a loan from the plaintiff. This apart, the plaintiff could not able to establish that he was possessing ₹ 17 lakhs, during the relevant point of time, and in the absence of any proof to establish that he was having sufficient funds to pay loan to the defendant, the suit is liable to be dismissed. The defendant has produced income tax documents and established that he is an assessee. He was paying huge amount of income tax and therefore, there was no necessity to borrow any loan amount from the plaintiff. However, the plaintiff has produced Exs.A2 to A5 to show that he and his sons were already partitioned and the said fact is known to the defendant, and the defendant had purchased the separate properties from the plaintiff and his sons, based on Ex.A2 partition deed. According to the plaintiff, the entire defence tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff and therefore, there is no reason for allowing the civil suit by the Trial Court. In yet another judgment by the Supreme Court in the case of KRISHNA JANARDHAN BHAT v. DATTATRAYA G.HEGDE reported in AIR 2008 SC 1325, the Supreme Court held that merely raised persumption in favour of holder of cheque that same has been issued for discharge of any debt or other liability- Existence of legally recoverable debt- Is not a matter of presumption. 16. In this regard, it is contended that the trial Court proceeded, based on the presumption, which is not in consonance with the legal principles. Merely the application of presumption, as contemplated under Section 139 of Negotiable Instruments Act, the same would lead to injustice and the said judgment was delivered by the Hon'ble Supreme Court, with reference to the Negotiable Instruments Act. The learned counsel for the appellant/defendant mainly pointed out that the plaintiff has not established that he had sufficient funds, during the relevant point of time, to lend money to the defendant to the tune of ₹ 17 lakhs. Therefore, the suit is to be rejected. 17. The learned counsel appearing on behalf of the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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