9911796707
TMI Blog2003 (8) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... (Ext. A4) and another dated 2.3.1993 for ₹ 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tten 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tle 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 ₹ 2,65,000/- with interest at 9% per annum on the principal amount of ₹ 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 Order XXI Rule 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 favo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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