THE COMMISSIONER OF INCOM TAX A.P.-IHYD. vs. M/S/AJAY AUTOMATION PVT.LTD.HYD.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN THURSDAY, THE 1ST DAY OF JUNE 2017/11TH JYAISHTA, 1939 AS.No. 57 of 2001 (F) ---------------------- AGAINST THE JUDGMENT & DECREE IN OS 289/1997 of PRINCIPAL SUB COURT,ERNAKULAM DATED 30-08-2000 APPELLANT(S): DEFENDANTS IN O.S. --------------- * 1. MR.P.NARAYANANKUTTY AGED 55 YEARS, RESIDING AT 39/3136 RAVIPURAM ROAD, COCHIN - 682 016. (Died LRs impleaded) 2. MRS.KUSUMAM N.KUTTY AGED ABOUT 51 YEARS RESIDING AT 39/3136 RAVIPURAM ROAD, KOCHI - 16. ADDL. 3. SEEMA SREENIVAS, AGED 42 YEARS W/O.K.G.SREENIVAS, RESIDING AT HOUSE NO.50, KUMARANASAN NAGAR, KADAVANTHARA, KOCHI - 20. * (LR of deceased first appellant is impleaded as Addl. appellant No.3 as per order dated 10.4.2017 in I.A.No.573/17.) A2 AND A3 BY ADVS.SRI.V.V.SIDHARTHAN (SR) ADDL.A3 BY ADV. SRI.VIPIN D.G. SRI.KAROL MATHEWS SEBASTIAN A2 BY ADV. SRI.T.K.SHAJAHAN RESPONDENT(S): PLAINTIFFS IN O.S. -------------- 1. M/S.MUTHOOT BANKERS, ERNAKULAM A PARTNERSHIP FIRM DULY REGISTERED UNDER THE INDIAN PARTNERSHIP ACT, REPRESENTED BY ITS MANAGING PARTNER: 2. M.G.GEORGE, AGED 48 YEARS MUTHOOT HOUSE, KOZHENCHERRY VILLAGE, KOZHENCHERRY MURI. 3. GEORGE THOMAS, AGED 46 YEARS MUTHOOT HOUSE, KOZHENCHERRY VILLAGE, KOZHENCHERRY MURI.

A.S.No.57 of 2001 : 2 : 4. GEORGE JACOB, AGED 43 YEARS, MUTHOOT HOUSE, KOZHENCHERRY VILLAGE, KOZHENCHERRY MURI. 5. GEORGE ALEXANDER, AGED 41 YEARS MUTHOOT HOUSE, KOZHENCHERRY VILLAGE, KOZHENCHERRY MURI. R,R1 TO R5 BY ADV. SMT.P.F.ROSY R,R1 TO R5 BY ADV. SMT.C.B.SUMA DEVI R,R1 TO R5 BY ADV. SRI.SURESH SAMUEL R,R1 TO R5 BY ADV. SRI.V.M.SYAM KUMAR R,R1 TO 5 BY ADV. SRI.K.P.VIJAYAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 29-05-2017, THE COURT ON 01-06-2017 DELIVERED THE FOLLOWING:

V.CHITAMBARESH & SATHISH NINAN, JJ. ------------------------- A.S.No. 57 of 2001 ------------------------- Dated this the 1st day of June, 2017 J U D G M E N T Chitambaresh, J. The suit is one for realisation of a sum of ` 2,65,000/- due under Ext.A2 demand promisory note with interest thereon. The receipt of the amount by the defendants from the plaintiff firm is further evidenced by Ext.A3 cash receipt of the same date. The defendants did not deny the signatures found in Ext.A2 demand promisory note as well as in Ext.A3 cash receipt. The contention of the defendants on the other hand is that signed blank stamped papers issued to another firm was misutilised by the plaintiff. 2. The burden is on the defendants to show that the contents in Exts.A2 demand promisory note and Ext.A3 cash receipt were later filled up. The defendants have miserably failed to prove that signed blank stamp papers were

AS.No.57/2001 2 fabricated by the plaintiff. The due execution of Ext.A2 promisory note and Ext.A3 cash receipt was proved by the partner of the plaintiff firm examined as PW.1. The statutory presumption that the same is supported by consideration is also not rebutted by the defendants. 3. Much was argued on the point that the plaintiff did not produce any cash book or ledger to prove that the amount was so advanced to the defendants . It is seen that an application (I.A.No.3870/2000) was filed by the defendants only during the midst of trial. The lower court records reveal that no pre-trial steps were taken by the defendants when the suit was adjourned for the purpose for 18 months. An affidavit was in fact filed by the plaintiff stating that the documents were voluminous and entrusted to an auditor. The court below was therefore justified in drawing the presumption under Section 118 (a) of the Negotiable Instruments Act. 4. One another contention raised is that the

AS.No.57/2001 3 payment of ` 2,65,000/- could have been by an account payee cheque or account payee demand draft. Reliance in this regard is made on Section 269 SS of the Income Tax Act, 1961 by the defendants. The plea in essence is that the payment of loan by the plaintiff to the defendants cannot be upheld in the absence of a cheque or demand draft. The plaintiff on the other hand contends that it is entitled to the benefit of the proviso to Section 269 SS. We should note that such a contention was not raised in the suit nor was an issue framed by the court below in this regard. The plea raised bereft of any pleading or an opportunity to adduce evidence cannot be countenanced at the appellate stage. 5. The court below has correctly analysed the oral and documentary evidence to find that the amount claimed in the plaint is due from the defendants. The plea of partial discharge of the defendants to the tune of ` 7,200/- has also been rightly found against. We however feel that the award of

AS.No.57/2001 4 interest at the rate of 18% per annum is excessive even if it is a commercial transaction. An award of interest at the rate of 9% per annum for the pre-decretal period and 6% per annum for the post decree period would sub-serve justice. 6. The impugned judgment and decree is modified granting the plaintiff a decree for a sum of ` 3,98,717/- against the defendants. The amount will carry interest as indicated above. All other findings in the judgment impugned are confirmed. The Appeal Suit is allowed in part. No costs. Sd/- V.CHITAMBARESH, JUDGE Sd/- SATHISH NINAN, JUDGE

nj/30.05.2017 //True copy// P.S. to Judge.