Bangalore District Court
Smt. M. Meena vs B.M. Sreenivasa on 1 September, 2015
IN THE COURT OF THE XXXI ADDL.CITY CIVIL & SESSIONS
JUDGE (CCH 14), BANGALORE CITY.
PRESENT:
Sri G.S.REVANKAR, B.Com., LL.B. (Spl.),
XXXI ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE CITY
DATED THIS THE 1st DAY OF SEPTEMBER 2015
O.S.No.10934/2006
PLAINTIFF: Smt. M. Meena,
W/o B.M. Ramakrishnappa,
Aged about 46 years,
R/at No.32, 1st Cross,
Bagulugunte,
Nagasandra Post,
Bengaluru-73.
(By Sri. S. Rajashekar, advocate)
/VS/
DEFENDANT: B.M. Sreenivasa,
S/o Late Munikondappa,
Aged about 46 years,
R/at No.19/3,
2nd Floor, Munikondappa Building,
3rd Cross, Near Mariamma Temple,
Bagulugunte, Nagasandra Post,
Bengaluru-73.
(By Sri V.B. Shiva Kumar, Advocate)
2 O.S.No.10934/2006
Date of Institution of the 13.12.2006
suit
Nature of suit Recovery of money
Date of commencement of 25.08.2009
recording of evidence.
Date on which Judgment 01.09.2015
was pronounced.
Total Duration. Years Months Days
08 08 18
JUDGMENT
The plaintiff has filed this suit for recovery of sum of Rs.11,20,000/- from the defendant with future interest @ 24 % p.a. from the date of suit till its realization.
2. The facts of the case of the plaintiff are as follows:-
The plaintiff has contended that, the defendant is the brother of her husband. Further it is contended that, the defendant owing to his financial difficulty and commitments sought financial assistance of Rs.7,00,000/- by way of hand loan. It is further contended that, appreciating the difficulty of the defendant, plaintiff lent a sum of Rs.7,00,000/- to the defendant on 05/01/2004 and the defendant agreed to repay the said loan with interest at the rate of 24% p.a. within four months. It is also contended that, the defendant has 3 O.S.No.10934/2006 executed an on demand promissory note and consideration receipt dated 05/01/2004. The plaintiff further contended that, the defendant paid interest till April 2004 and the said interest amount was paid on 05/05/2004. Thereafter, the defendant has not paid the interest nor principal amount inspite of several requests. The plaintiff also contended that the defendant was pleading difficulty and was postponing the payment. It is also contended that, considering the proximity of the relationship and the difficulty of the defendant, plaintiff waited for sometime and did not initiate any action against the defendant. It is also contended that, the plaintiff has issued the legal notice dated 25/08/2006. But the defendant has given the false and reckless reply. On these grounds the plaintiff has filed this suit.
3. The defendant has filed the written statement and contended that, the suit is not maintainable and liable to be dismissed. The defendant has contended that, he has not availed loan of Rs.7,00,000/- from the plaintiff. The defendant further contended that, he had severed all his relationship with the husband of the plaintiff in respect of all the properties and also blood relationship. It is also contended that, on 08/05/2002 there was a written partition interse between himself and the husband of 4 O.S.No.10934/2006 the plaintiff. Upon the division of all properties there is absolutely no relationship with the plaintiff and her husband. So, the question of approaching and availing loan from the plaintiff does not arise. The defendant has also contended that, there was quarrel in the house and the relation was strained between himself and the plaintiff and her husband. It is also contended that, the plaintiff with the help of her husband has concocted, fabricated and created the documents. The plaintiff and her husband have indulged in tracing his signature on the documents styled as on demand promissory note and consideration receipt. The defendant further contended that, from the date of partition in the year 2002 there was no relationship between himself, plaintiff and her husband. The defendant further contended that, he and his family members were thrown out by the plaintiff and her husband. So, question of availing the loan from the plaintiff does not arise. The defendant also contended that, taking in to consideration the illegalities committed by the plaintiff and her husband, he has initiated prosecution for forgery and also for fabricating, concocting and creating the documents in PCR No.10428/2007 before the ACMM, Court and the said matter is pending. The defendant further contended that, the plaintiff and her husband are money lenders 5 O.S.No.10934/2006 and they have lended money to several persons. While doing money lending business and during the course of money lending business they have also indulged in the act of fabricating, concocting and creating documents. It is also contended that, the suit of the plaintiff is bad under the provisions of Money Lenders Act. On these grounds the defendant has prayed for dismissal of the suit.
4. Based on the above pleadings, this Court has framed the following issues:-
1) Whether the plaintiff proves that on 05/01/2004 the defendant having availed loan of Rs.7,00,000/- executed on demand promissory note and consideration receipt agreeing to repay the same with interest at the rate of 24% p.a.?
2) Whether the defendant proves that, the plaintiff is doing the money lending business?
3) What order or decree?
5. In support of the case of the plaintiff, the plaintiff herself examined as P.W.1 and two other witnesses are examined as P.W.2 and 3 and got marked Ex.P1 to P15 and closed her side. In support of the case of the defendant, defendant is examined as D.W.1 and three other witnesses are examined as D.W.2 to 4 and got marked Ex.D1 and closed their side.
6 O.S.No.10934/2006
6. Heard the arguments.
7. My findings to the above issues are as follows :-
Issue No.1: Affirmative Issue No.2: Negative Issue No.3: As per final order, for the following,
8. Issue No.1: The plaintiff has filed this suit for recovery of sum of Rs.11,20,000/- from the defendant with future interest at the rate of 24% p.a. from the date of suit till its realization.
9. It is an admitted fact that the defendant is the brother-in- law of the plaintiff. The plaintiff has contended that, the defendant approached for his financial difficulties and commitment and sought for the financial assistance of Rs.7,00,000/- by way of hand loan. The plaintiff further contended that, considering the difficulties of the defendant she lent a sum of Rs.7,00,000/- to the defendant on 05/01/2004 and the defendant agreed to repay the said loan amount with interest at the rate of 24% p.a. within four months. The plaintiff has also contended that, the defendant has executed on demand promissory note and consideration receipt.
10. The defendant has contended that, he has not availed the loan of Rs.7,00,000/- from the plaintiff nor he executed on demand promissory note and consideration receipt. The defendant has taken 7 O.S.No.10934/2006 a specific stand that, the relation between himself and the husband of the plaintiff was strain because of the family property dispute and there was a written partition on 08/05/2002 and since from 2002 himself, plaintiff and her husband were not in talking terms and the plaintiff and her husband thrown him and his children out of the house and as such there was no occasion for him to approach the plaintiff for the hand loan amount.
11. D.W.1 in his chief-examination reiterated the pleadings of his written statement. D.W.1 in his evidence stated that, while he was residing in the joint family property, plaintiff's husband ill treated him and also collected all the incomes of the agricultural land of the joint family. He has also stated that, the plaintiff and her husband were treating his family as third class labour in the family and also he has stated that, he has insisted for the separation and there was a big quarrel. He has also stated that, deed of partition took place in writing on 08/05/2002 and also he has stated that, the relationship between himself and plaintiff's husband was strange and as such there was no occasion for him to avail the hand loan from the plaintiff. Defendant has examined D.W.2 to 4 to establish that, there was a strange relationship between himself and 8 O.S.No.10934/2006 the plaintiff's husband, so as to prove that, absolutely there was no occasion for him to avail loan from the plaintiff.
12. D.W.2 in his evidence stated that, he knows the defendant and husband of the plaintiff and there was always big quarrel in their house. He has also stated that, the defendant and plaintiff's husband were quarrelling each other and the women and children were also joining in the quarrel. Further, he has stated that, in the year 2001-02 due to quarrel and subsequent amicable settlement with the intervention of the elders, partition was prepared and signed. He has also stated that, there was no occasion from 2002, to the defendant to go to the house of plaintiff's husband. In the cross-examination D.W.2 has stated that, he is friend of defendant. Merely because of D.W.2 is friend of defendant, only on that ground we cannot discard his evidence. We have to scrutinize his evidence utmost careful attention.
13. D.W.2 in the cross-examination stated that, defendant has asked him to give evidence relating to the money transaction between himself and the plaintiff. But, as I mentioned above the object of the defendant to examine D.W.2 is to establish the strange relationship between himself and plaintiff's husband. 9 O.S.No.10934/2006
14. D.W.3 in the evidence stated that, after the children of defendant grew up, there was huge difference in the house of plaintiff and defendant and everyday there was quarrel and the said quarrel went to an extent of assaulting each other. D.W.3 has further stated that, he told to the defendant and husband of plaintiff and their family members not to quarrel. But in the cross- examination he has stated that, except the partition deed, sale of site, he do not know other family affairs of defendant and husband of plaintiff. The said admission of D.W.3 goes to show that, he do not know the family dispute of the plaintiff and the defendant.
15. D.W.4 in his evidence stated that, he has purchased the property from the husband of the plaintiff in the year 1999 and he has also stated that, after the said sale, there was serious dispute between the defendant and the husband of the plaintiff and they were not in talking terms. He has also stated that, a partition deed also came to be executed between the defendant and his brother and the said partition was took after the quarrel and fighting. But in the cross-examination D.W.4 ha stated that, after the partition in the year 2002 he has not interfered with the matter of defendant and plaintiff's husband.
10 O.S.No.10934/2006
16. In the above paras to some extent I have referred the chief-examination of D.W.1. During the cross-examination of D.W.1, three photos were confronted by the advocate for the plaintiff and those are marked as Ex.P.11 to P.13. These photos are pertaining to the function of puberty ( gÀÄvÀĪÀÄw) of daughter of defendant. D.W.1 in the cross-examination has admitted that, in Ex.P.11 himself and plaintiff's husband are appearing. He has also admitted that, in Ex.P.12 plaintiff and his wife are appearing and in Ex.P.13 his son and his brother is seen. He has also admitted that, Ex.P.11 to P.13 were taken in the function of his daughter's puberty function. He has also admitted that, Ex.P.11 to P.13 was after the partition between himself and his brother. He has also admitted that, the said function of his daughter was taken place in the house of the plaintiff. Not only D.W.1, D.W.4 also in his cross-examination admitted that, Ex.P.11 to 13 are pertaining to the function of defendant's daughter. D.W.1 also admitted that, after partition between the defendant and plaintiff's husband the function of puberty as per Ex.P.11 to P.13 took place. D.W.2 also in the cross- examination admitted that, Ex.P.11 is the photo of the defendant and husband of the plaintiff and daughter of defendant. As the defendant's daughter's function was held in the house of the 11 O.S.No.10934/2006 plaintiff subsequent to the partition, I am of the opinion that, defence taken by the defendant that, after partition there was a strained relationship between himself and plaintiff's husband is not correct.
17. D.W.1 in his evidence stated that, the plaintiff has forged and concocted Ex.P.1 and P.2. So he has filed P.C.R No.10428/2007 before ACCM, Court and the matter was referred to the jurisdictional police station for the purpose of enquiry. He has also stated that, the police did not conduct investigation and the Magistrate has dismissed the complaint. Further, he has stated that, he has filed the appeal and the same is pending for consideration. Ex.P.14 is the judgment of Cr.R.P.No.326/2009 which goes to show that, the revision petition filed by the defendant is came to be dismissed.
18. Ex.P.8 is the certified copy of the complaint in PCR No.8825/2004 filed by one Smt. K. Vasantha against the plaintiff. P.W.1 in her evidence stated that, herself and her husband availed loan of Rs.6,00,000/- from Smt. Vasantha by issuing two cheques for Rs.3,00,000/- each. P.W.1 also stated that, Smt. Vasantha has filed complaint against her i.e. Ex.P.8. Merely because the plaintiff has availed loan from Smt. Vasantha on that ground it cannot be 12 O.S.No.10934/2006 said tat the plaintiff has lent loan to the defendant. But, the same is one of the circumstances which help the plaintiff's case. P.W. 1 in her evidence stated about the availment of loan by the defendant on 05/05/2004 and also execution of pronote and consideration receipt as per Ex.P.1 and P.2 by the defendant. P.W. 1 in the cross- examination admitted that, Ex.P.1 and P.2 does not disclose the name of the scribe. But she has stated hat, one Sylesh and Jaikumar have signed the pronote as witnesses. These two witnesses are examined as P.W. 2 and 3.
19. P.W. 2 in his evidence stated that, in the month of January 2004 he went to the house of plaintiff's husband for delivering his scooter. He has also stated that, P.W. 3 also came along with him. Further, he has stated that, at that point of time, the defendant and his brother called him inside the house. P.W. 2 further stated that, in his presence the plaintiff has lent a sum of Rs.7,00,000/- as a loan to the defendant and the defendant has executed on demand promissory note and consideration receipt. He has also stated that, he signed as a witness. P.W. 2 has stated that, he is a scooter mechanic and his shop is near Geetanjali cinema theatre, Malleshwaram. It is a admitted fact that, the plaintiff's husband was working in Kirloskar company, Yeshwanthpura. P.W. 13 O.S.No.10934/2006 2 in his cross-examination stated that, the distance between Kirloskar Company of Yeshwanthpura and his shop is about 4 to 4 ½ k.m. As I mentioned above, P.W. 2 has stated that, he came to the house of the plaintiff to deliver the scooter. Merely because the garage of P.W. 2 is far away from the house of the plaintiff so also the office of the plaintiff's husband, on that ground we cannot disbelieve the version of P.W. 2. Normally, people will get their vehicle repaired from the garage which is known to them. P.W. 2 has stated that, the plaintiff's husband so also the defendant used to give their vehicle to him for service and he had acquaintance with them since from long period. P.W. 2 in the entire evidence consistently stated about the availment of the loan by the defendant in his presence and also execution of Ex.P.1 and P.2.
20. P.W. 3 is another attesting witness has also stated that, in the month of January 2004 he went to the house of plaintiff's husband for delivery of the scooter along with his friend P.W. 2. P.W. 3 also stated about the availment of loan of Rs.7,00,000/- by the defendant and also execution of Ex.P.1 and P.2. P.W. 1 in the cross-examination stated that, defendant has prepared the pronote. But, P.W. 3 has stated in the cross-examination that, Ex.P.2 was written by Sylesh. Based on one stray admission, it cannot be said 14 O.S.No.10934/2006 that, P.W. 3 was not present at the time of execution of pronote and consideration receipt. It is true that, P.W. 3 has stated that, Ex.P.2 was written by Sylesh. But, again he has given the explanation that, Sylesh wrote his name and address on Ex.P.2 and then he put his signature. It is true that, defendant has denied Ex.P.1 and P.2. But the evidence of P.W. 1 so also the evidence of attesting witnesses P.W. 2 and 3 goes to show that, defendant has executed Ex.P.1 and P.2 and availed the loan. Considering the material on record and discussion made here before, I am of the opinion that, the plaintiff has proved that the defendant has availed loan of Rs.7,00,000/- from her on 05/01/2004 and executed Ex.P.1 and P.2 agreeing to repay the loan amount with interest at the rate of 24% p.a. Hence, I answer issue No.1 in the affirmative.
21. Issue No.2: The defendant has contended that, plaintiff is doing money lending business. But, in support of this contention, defendant has not placed any materials. Hence, I answer issue No.2 in the negative.
22. Issue No.3 : In view of the reasons stated above, I proceed to pass the following, 15 O.S.No.10934/2006 ORDER The suit is decreed with cost.
The plaintiff is entitled to recover a sum of Rs.11,20,000/- from the defendant with future interest @ 12 % p.a. from the date of suit till its realization.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected, signed and then pronounced by me in the open court on this the 1st Day of September 2015) (G.S.REVANKAR) XXXI ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE Annexure List of witnesses examined on behalf of the plaintiff:
P.W.1 - Smt. M. Meena P.W.2 - C. Shylesh P.W.3 - P. Jaikumar
Documents marked on behalf of the plaintiff:
Ex.P1 Pronote Ex.P.1(a)& (b) Signatures of defendant Ex.P.2 Consideration receipt Ex.P.2(a) and (b) Signatures of defendant Ex.P.2(c) Signature of P.W.2 Ex.P.2(d) Signature of P.W.3 Ex.P.3 Legal notice 16 O.S.No.10934/2006 Ex.P.4 Reply given by defendant Ex.P.5 Certified copy of the order sheet Ex.P.6 Certified copy of the 'B' report Ex.P.7 Certified copy of the order sheet in C.C.No.13384/2004 Ex.P.8 Complaint filed under Section 200 of Cr.P.C Ex.P.9 & 10 Certified copy of two sale deeds
Ex.P.11 to 13 Three photos pertaining to ruthumathi function of daughter of defendant Ex.P.14 Certified copy of the judgment copy in R.P.No.356/2009 Ex.P.15 Copy of decree in O.S.No.546/1981 List of witnesses examined on behalf of the Defendant:
D.W.1 Sri B.M. Srinivasa D.W.2 Sri. Dr.M.G. Ananda D.W.3 Sri. B.N. Seshagiri Rao D.W.4 Sri. B. Nagraj
Documents marked on behalf of the Defendant/s:
Ex.D1 Certified copy of partition deed
(G.S.REVANKAR)
XXXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BANGALORE
17 O.S.No.10934/2006
Case called out.
Judgment pronounced in open court
(vide separate order )
The suit is decreed with
cost.
The plaintiff is entitled to
recover a sum of Rs.11,20,000/-
from the defendant with future
interest @ 12 % p.a. from the date
of suit till its realization.
Draw decree accordingly.
XXXI ACCJ:Bangalore.