Bangalore District Court
Sri.Kanakraj Kanunga vs Mr.Channappa H on 5 November, 2015
IN THE COURT OF THE XX ADDL.CITY CIVIL &
SESSIONS JUDGE(CCH.32), BANGALORE CITY
Present
Sri. V.B.Suryavanshi, B.Com.,LL.B.(Spl.),
XX Addl. City Civil & Sessions Judge,
Bangalore
DATED THIS THE 5th DAY OF NOVEMBER, 2015
O.S.No.3340/2013
Plaintiff: Sri.Kanakraj Kanunga,
S/o Neinmal, Aged about 32 years,
Proprietor of M/s Mahaveer Metal,
No.14, Lakshmi Market, Siddanna
Lane, J.M.Road Cross, Bangalore-02.
(by-Sri.S.Chennakesavulu, Adv)
/VS/
Defendant: Mr.Channappa H,
Aged about 40 years,
R/at No.51, 3rd Cross, Santriptinagar,
J.P.nagar 7th phase,
Bangalore-560 078.
Also at: No. 46, 3rd Cross, Jambu
Savari Dinne, B.K.Circle, Near BMTC
Bus stop, J.P.Nagar, Bangalore-78.
(By Sri Shrinath.A, Adv.)
Date of Institution of the
26.04.2013
suit
Nature of the suit Money suit
Date of commencement
27.11.2013
of recording of evidence
Date on which Judgment 05.11.2015
pronounced
Total Duration Years Months Days
02 06 02
JUDGEMENT
This is a suit filed by the plaintiff against the defendant for recovery of money.
2 O.S.3340/2013
2. It is the specific case of the plaintiff that, the defendant was well acquainted with the plaintiff and availed loan of Rs.4,00,000/- on 23.08.2010, Rs.2,00,000/- by way of cheque and Rs.2,00,000/- by way cash. Thereafter, the defendant has made part payment of Rs.48,000/- on 03.09.2011 and he is due of Rs.3,52,000/-. On 24.08.2010, the defendant has executed an agreement of loan in favour of the plaintiff and the defendant had issued a cheque of Rs.48,000/- as part payment of Rs.3,52,000/- on 21.03.2012 and the same was returned with an endorsement as 'insufficient funds' and accordingly, the plaintiff has issued notice to the defendant U/s 138 of the N.I.Act and filed private complaint before the jurisdictional court. The plaintiff has also filed suit for recovery of money.
3. On the contrary, the defendant has filed his written statement denied the case of the plaintiff and contended that the suit filed by the plaintiff is not maintainable.
3 O.S.3340/2013
4. It is the specific defence of the defendant, that he had borrowed Rs.2,00,000/- interest free from the plaintiff on 26.08.2010 for his personal problems and he never availed a loan of Rs.4,00,000/-, as contended by the plaintiff. The plaintiff had issued cheque for Rs.2,00,000/- and at no point of time, the plaintiff has given cash, as contended by the plaintiff. The defendant had given blank cheques and had given two stamp papers for Rs.50/-each at the time of availing loan and he has put his signatures on the blank papers. The defendant has repaid the amount of Rs.2,00,000/- in the year 2012 by paying it in four installments.
5. The defendant further contended that, initially he has paid a sum of Rs.48,000/- on 07.09.2011 by way of cheque bearing No.863228 drawn on Vijaya Bank in the name of M/s Mahaveer Metals to which the plaintiff is the Proprietor. Again he has paid Rs.10,000/- on 25.03.2012 by way of cheque bearing No.884055 drawn on Vijaya Bank in the name of 4 O.S.3340/2013 plaintiff. On 05.05.2012 again, he has paid Rs.75,000/- by way of cheque bearing No.884055 drawn on Vijaya Bank in the name of the plaintiff. Again on 05.05.2012, he had paid substantial sum of Rs.1,33,000/- out of Rs.2,00,000/- and the defendant as per the desire of the plaintiff has paid remaining balance amount of Rs.67,000/- by way of cash on 20.05.2012 and requested the plaintiff to return the security blank cheques and blank two stamp papers, but the plaintiff did not return the said documents.
6. Further, he has stated that, at the time of lodging the complaint U/s 200 Cr.P.C., the plaintiff has not stated in the complaint that, he had lent a sum of Rs.4,00,000/- and also he does not mention any particulars, as to the extent of loan amount and loan agreement produced by the plaintiff is created only for the purpose of this suit. The defendant further contended that, by misusing the said two stamp papers, the plaintiff had filed the false suit only in order to make wrongful gain and he never received 5 O.S.3340/2013 Rs.4,00,000/-, as contended by the plaintiff. Hence, the defendant prayed for dismissal of the suit.
7. On the rival pleadings of the both the parties, the following issues have been framed by the court:
1) Does the plaintiff proves that the defendant has availed a hand loan of Rs.4 lakhs from him for the purpose of business commitments by executing an Agreement for loan Dt.24.08.10 as alleged?
2) Whether the plaintiff further proves that out of the hand loan availed the defendant has cleared off an amount of Rs.48,000/- only on 03.09.11 keeping a balance amount of Rs.3,52,000/-?
3) Whether he further proves that the cheque issued by the defendant Dt.21.03.12 for Rs.2,48,000/- towards discharge of the balance amount came to be dishonoured ?
4) Whether the plaintiff further proves that the defendant is due an amount of Rs.3,52,000/- and an interest of Rs.1,29,066/-: thus a total sum of Rs.4,81,066/- as on the date of the suit?
5) Whether the plaintiff is entitled for current and future interest as claimed?
6) What order or decree?6 O.S.3340/2013
8. The plaintiff himself has been examined as PW.1 and 4 other witnesses have been examined as PWs.2 to 5 and got marked documents at Ex.P1 to P15 and closed plaintiff's side. On behalf of the defendant, the defendant himself has been examined as DW.1 and got marked documents at Ex.D1 to D8 and closed his side.
9. Heard the arguments.
10. My findings on the above issues are as follows:
Issue No.1 : In the Negative
Issue No 2 : In the Negative
Issue No 3 : In the Negative
Issue No 4 : In the Negative
Issue No 5 : In the Negative
Issue No 6 : As per final order
for the following
Reasons
11. Issue Nos.1, 2 & 4: Since, these issues being interconnected and interlinked to each other, to avoid repetition of facts and evidence, I have taken these issues together for common consideration.7 O.S.3340/2013
12. This is the suit filed by the plaintiff against the defendant for recovery of money.
It is the specific assertion of the plaintiff that, since the plaintiff has paid Rs.4,00,000/- to the defendant, Rs.2,00,000/- by way of cheque and Rs.2,00,000/- by way cash, in all he has paid Rs.4,00,000/-. Out of the total balance consideration, the defendant has only paid Rs.48,000/- on 03.09.2011 and still he is due of Rs.3,52,000/-. To discharge the part of the total balance consideration, the defendant issued cheque for Rs.2,48,000/- and on the presentation, the said cheque was returned with unpaid, hence, the plaintiff is constrained to file this suit.
13. Admittedly, the defendant has specifically denied the case of the plaintiff and he has contended that, he has received only Rs.2,00,000/- from the plaintiff and he has not received Rs.4,00,000/-, as contended by the plaintiff. Apart from that, it is also specific defence of the defendant that, since at the time 8 O.S.3340/2013 of availing the loan from the plaintiff, he had issued two blank stamp papers and two cheques as a security and even despite repayment of entire Rs.2,00,000/- by the defendant to the plaintiff, the plaintiff instead of returning those documents has misused and filed false suit for making wrongful gain, hence he is not liable to pay any suit claim.
14. The plaintiff himself got examined as PW.1 and he reiterated the contents of the plaint averments in his oral testimony. He has produced agreement of loan marked as Ex.P1, copy of legal notice marked as Ex.P2, postal receipt and postal covers marked as Ex.P3 to P5.
15. PW.2 is one D.Laxmana, PW.3 is one Piyush Kumar, PW.4 is one Vasantha Kumar Sheety and PW.5 is one Smt.RitaV.Sdanandan, have been examined in support of the case of the plaintiff.
16. On the contrary, the defendant examined himself as DW.1 and got marked documents at Ex.D1 9 O.S.3340/2013 to D8. Ex.D1 is the legal notice and Ex.D2 is the certified copy of the complaint filed by the plaintiff before 16th Addl. CMM, in C.C.No.16007/12 and the evidence of the complainant is marked as Ex.D5 and certified copy of the cheque is marked as Ex.D4 and the Bank pass-book is marked as Ex.D8.
17. It is very significant to note that, as it is the specific case of the plaintiff that, since he has advanced a loan of Rs.4,00,000/- to the defendant and he has paid Rs.2,00,000/- by way of cheque and Rs.2,00,000/- by way of cash to the defendant.
18. On perusal of Ex.D1, i.e., the legal notice issued by the plaintiff to the defendant through his counsel wherein, he has never stated that he has advanced Rs.4,00,000/- to the defendant and apart from that, on perusal of the entire legal notice, nowhere the plaintiff has given the details about payment made by him to the defendant. Apart from that, even in the legal notice and also in Ex.D2 i.e., 10 O.S.3340/2013 complaint lodged by the plaintiff U/s 138 of the N.I.Act, he has just stated that, the defendant has issued cheque for Rs.2,48,000/-, but nowhere he has stated in that complaint or in his evidence that, he has advanced a total sum of Rs.4,00,000/- to the defendant.
19. It is also very significant to note that, PW.1 in his evidence has stated that, since he has paid Rs.2,00,000/- by way of cheque and Rs.2,00,000/- by way of cash and it is also the case of the plaintiff that on 24.08.2010, the defendant has executed an agreement of loan and towards the discharge of the liability has issued cheque for Rs.2,48,000/-, out of the total amount due of Rs.3,53,000/-. The PW.1 has produced agreement of loan i.e., marked as Ex.P1. So, on perusal of Ex.P1, wherein the first party has paid Rs.4,00,000/- to the defendant and it is also recited that Rs.2,00,000/- by way of cheque and Rs.2,00,000/- by way of cash.
11 O.S.3340/2013
20. PWs.2 and 3, who have been examined in order to prove Ex.P1. On perusal of cross examination of PW.3, wherein, he has categorically admitted that, he has put up his signature on Ex.P1, but as on 24.08.2010 no amount was paid in his presence.
21. It is very significant to note that, though the present plaintiff has filed a private complaint U/s 200 Cr.P.C., for the offence punishable U/s 138 of the N.I.Act against the present defendant wherein, the said complaint was came to be dismissed and accused was acquitted. It is also very pertinent to note that, on perusal of the evidence given by the plaintiff before the criminal court, wherein nowhere he has stated that, he has advanced a loan of Rs.4,00,000/- by way of cheque and Rs.2,00,000/- by way of cash. If at all, the plaintiff has really paid Rs.4,00,000/- to the defendant, he ought to have mentioned either in the legal notice or in the complaint before the criminal court. So, on perusal of the Ex.D1, i.e., legal notice issued by the plaintiff through his counsel to the 12 O.S.3340/2013 defendant, wherein, the plaintiff has never uttered anything about advancing loan to the tune of Rs.4,00,000/- to the defendant.
22. It is the specific defence of the defendant that, since he has received only Rs.2,00,000/- from the plaintiff and he has repaid the entire loan amount to the plaintiff in four installments. The DW.1 further stated that, on 07.09.2011 he has paid Rs.48,000/- by way of cheque and Rs.10,000/- on 25.03.2012 by way of cheque and Rs.75,000/- on 05.05.2012 through cheque and Rs.67,000/- by way of cash on 20.05.2012. On the contrary, the plaintiff has categorically denied that, except Rs.48,000/- he has not received any other amount, as contended by the defendant.
23. PW.4 is one Vasantha Kumar Shetty, Asst. Branch Manager, Vijaya Bank, during his cross examination has admitted that, on the backside of Ex.P11 and P12, the name of Kanakraj and his signature is appeared. It is very significant to note 13 O.S.3340/2013 that, on perusal of Ex.D8 i.e., Bank pass book stands in the name of the defendant wherein, the Account No. is shown as 139901010004099. So, on perusal of the evidence of PW.4, wherein he has stated that, the cheque bearing Nos.884055 and 884059 have been issued in the same account. So, it is crystal clear that, though the plaintiff has denied the payment through cheques i.e., on 25.03.2012 and 05.05.2012 to the tune of Rs.10,000/- and Rs.75,000/- is totally false. So, on perusal of the evidence of PW.4, it is crystal evident that, the plaintiff has received the amount through cheques given by the defendant.
24. It is very significant to note that, it is the case of the plaintiff that, he has advanced Rs.2,00,000/- by way of cheque through his Company i.e, Mahaveer Metals and remaining amount of Rs.2,00,000/- by way of cash. If at all, the plaintiff really advanced the loan to the tune of Rs.4,00,000/- to the defendant, he ought to have issued cheque for Rs.4,00,000/- to the defendant either through his company or personally. 14 O.S.3340/2013 Wherein, the plaintiff has contended that, he has advanced loan of Rs.4,00,000/- i.e., Rs.2,00,000/- by way of cheque and Rs.2,00,000/- by way of cash and he has produced the account extract to show that, he has advanced Rs.2,00,000/- by way of cheque, but, in order to substantiate that he has paid Rs.2,00,000/- by way of cash, no iota of evidence is forthcoming before the court except Ex.P1.
25. It is the specific assertion of the defendant that, since he had availed only Rs.2,00,000/- from the plaintiff and at the time of advancing the loan, he had given signed blank cheques and two stamp papers, as a security. So, when the defendant has repaid the entire loan amount of Rs.2,00,000/- to the plaintiff, the plaintiff instead of returning the cheques and stamp papers, he had misused the same and created Ex.P1. Therefore, on perusal of the evidence of PW.3, wherein, he has stated categorically that, in his presence no amount was paid. Therefore, I am of the considered opinion that, when the defendant availed a 15 O.S.3340/2013 loan of Rs.2,00,000/- and he had returned the amount and moreover, on perusal of the entire documents and evidence, it is crystal clear that, only one transaction has taken place between the plaintiff and the defendant and the plaintiff has substantially failed to prove that he has advanced a loan of Rs.4,00,000/-. Under such circumstances, I answer issue Nos.1, 2 and 4 in the Negative.
26. Issue No.3: In view of findings on issue Nos. 1, 2 and 4, the cheque Dt. 21.03.2012 for Rs.2,48,000/- was not towards the discharge of any legal debt and it was filled up by the plaintiff in order to make a wrongful gain, accordingly, I answer this issue in the Negative.
27. Issue No.5: In view of findings on issue Nos.1 to 4, the plaintiff is not entitled for any suit claim nor interest, as claimed, accordingly, I answer this in the Negative.
16 O.S.3340/2013
28. Issue No.6: For the aforesaid reasons, I proceed to pass the following ORDER The suit of the plaintiff is dismissed. Parties are directed to bear their own cost. Draw decree accordingly.
(Dictated to the judgment writer, transcribed by her, corrected and then pronounced by me in open court, this the 5th day of November, 2015) ( V.B.SURYAVANSHI ) XX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
ANNEXURE List of witnesses examined for the Plaintiff :
PW.1 : Sri Kanakraj Kanunga PW.2 : Sri D.Laxmana PW.3 : Sri Piyush Kumar PW.4 : Sri Vasanthkumar Shetty PW.5 : Smt.Rita V. Sadanandan List of documents marked for the Plaintiff :
Ex.P1 Loan agreement executed by
defendant
Ex.P2 Copyof legal notice
Ex.P3 Postal receipt
Ex.P4 & 5 RPAD covers with notice
Ex.P6 Ledger account extract of defendant
17 O.S.3340/2013
Ex.P7 Copy of Vijaya Bank SB account
Ex.P8 to Copies of statements of accounts of
10 current account in Kotek Mahinda
Bank
Ex.P11 C/c of cheques (2)
&12
Ex.P13 Statement of bank account
Ex.P14 C/c of Deposition in C.C.16007/12
Ex.P15 C/c of Income tax returns for the
year 2011-12
Witnesses examined for the defendant:
DW.1 Sri. H.Channappa Documents marked for the defendant:
Ex.D1 Legal notice
Ex.D2 C/c of complaint in C.C.16007/12
Es.D3 C/c of statement
Ex.D4 C/c of Cheque
Ex.D5 C/c of Deposition in C.C.16007/12
Ex.D6 Salary certificate
Ex.D7 S.B account extract
Ex.D8 Bank pass book
( V.B.Suryavanshi )
XX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY 18 O.S.3340/2013 Judgment pronounced in the open court (vide separate Judgment) Order The suit of the plaintiff is dismissed. Draw decree accordingly.
XX ACC & SJ,B'lore 19 O.S.3340/2013