Bangalore District Court
Sri.Sanjay Kumar Tiwari vs Sri.Addanki Venkatavara Prasad on 30 May, 2019
IN THE COURT OF THE XX ADDL. CITY CIVIL &
SESSIONS JUDGE(CCH-32), BANGALORE CITY
Dated this the 30th day of May, 2019
Present:
Sri.Ningouda B.Patil, B.Sc., LL.M.,
XX Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.52/2017
Plaintiff: Sri.Sanjay Kumar Tiwari,
S/o.Mr.S.D.Tiwari,
Aged 48 years,
No.9, Grama Devathe Cross,
Chikka Mavalli,
Basavanagudi,
Bengaluru-560 004.
(By Sri.D.Prabhakar, Advocate.)
/VS/
Defendant: Sri.Addanki Venkatavara Prasad
@ A.V.Prasad,
Father's name not known to
plaintiff, Aged about 45 years,
Residing at Flat No.10D,
West 10th Floor, Klassic Benchmark
Partments, Sy.No.10/1 and 11/1,
Kalena Agrahara, Bannerghatta
Road, Opp.Meenakshi Temple,
Bengaluru-560 076.
(By Sri.S.Santhosh Shetty,
Advocate.)
Date of Institution of the
suit: 02.01.2017
Nature of suit: Suit for recovery of
money.
2 O.S.No.52/2017
Date of commencement of
recording of evidence: 05.04.2018
Date on which Judgment
pronounced: 30.05.2019
Total Duration: Years Months Days
02 04 28
JUDGMENT
Plaintiff instituted this suit for recovery of money against the defendant.
2. The case of the plaintiff is that, he is a businessman; defendant well known to him through his relative Aravidanath Tiwari; defendant also a businessman; both plaintiff and defendant are the friends; defendant sought hand loan of Rs.6,00,000/-; plaintiff lent Rs.6,00,000/- on 10.10.2013; defendant on 22.02.2014 issued three post dated cheques bearing no. 019722,019723 and 019724 for discharge of loan; defendant agreed to repay the said hand loan with interest @ 18% p.a; accordingly defendant paid interest for five months.
3. Plaintiff further pleaded that, defendant again approached him and sought additional hand loan of Rs.13,00,000/-; plaintiff again lent additional hand loan of Rs.12,58,900/-; defendant acknowledged the additional hand loan and on 19.03.2015 executed the receipt of the said amount on a stamp paper; further defendant agreed to repay the said loan amount in installment; defendant in order to repay the loan amount issued four cheques, Viz. cheque bearing no.000171 for Rs.100,000/- dated 05.05.2015, cheque bearing no. 019722 for Rs.2,00,000/- dated 3 O.S.No.52/2017 16.06.2015, cheque bearing no. 0019723 for Rs.2,00,000/- dated 16.06.2015, cheque bearing no. 019724 for Rs.2,00,000/-dated 16.06.2015; plaintiff presented the said cheques for collection, but the same are dishonored, as "funds insufficient" in the account of the defendant; there after plaintiff paid Rs.1,00,000/-, but failed in repaying remaining amount; therefore plaintiff lost his confidence on defendant and issued legal notice on 17.07.2015; the intimation of the said notice was given to the defendant; defendant not responded the said notice and hence plaintiff filed private complaint against defendant for offences punishable under Section 138 of N.I.Act before the court of learned XVIth ACMM,Bangalore; mean time plaintiff also lodged complaint before Police and defendant appeared before and assured that he will repay the loan amount, but failed in following the assurance; in mean time the learned XVIth ACMM, Bangalore on 21.11.2015 dismissed the complaint for default; plaintiff requested defendant several times for repayment of loan amount, but defendant totally failed in repayment of loan amount with interest; defendant as on the date of the suit under the liability of payment of Rs.23,14,953/- including interest; therefore, plaintiff constrained to institute the suit against the defendant for recovery of money under due.
4. Plaintiff further also stated that, the cause of action for the suit arose on 22.02.2014 when defendant received the loan amount and resulted lastly on 05.10.2016 when a complaint is lodged before Police. Plaintiff further also pleaded that, defendant is also from Bangalore and the cause of action for the suit also at Bangalore. Hence this court is having jurisdiction to entertain the suit.
4 O.S.No.52/20175. This court issued summons to the defendants; the said summons was served on defendant. Defendant appeared through his counsel, but he failed in contested the suit by filing written-statement. Hence the matter is posted for evidence. Accordingly plaintiff adduced oral evidence and also produced the documentary evidence.
6. Perused the plaint averments, documents available on record and evidence led. Heard the counsel appearing for plaintiff.
7. The points that which arose for my consideration are:
i) Whether the plaintiff is entitle for the recovery of suit claimed amount?
ii) What order or decree?
8. My answers to the above point No.(i) is partly in affirmative and for point No.(ii) as per final order passed, for the following REASONINGS
9. Point No.(i): The grievance of the plaintiff is that, though defendant availed hand loan facility from him, and admitted the liability, not paid the outstanding of loan amount.
10. To substantiate the claim, plaintiff has to prove that defendant is under liability of repayment of a sum of Rs.23,14,953/- with a rate of interest at 18% p.a. as on the date of suit.
5 O.S.No.52/201711. For the purpose of proving of the factual aspect, plaintiff adduced oral evidence and also produced documentary evidence. Plaintiff got examined himself as P.W.1 and produced documentary evidence which are marked at Ex.P.1 to Ex.P.16.
12. Ex.P.1 is a Acknowledgment issued by the defendant, Ex.P.2 is Confirmation and Assurance letter given by defendant, Ex.P.3 to 6 are four cheques, Ex.P.7 is a Legal Notice dated 17.7.2015, Ex.P.8 is the RPAD Cover with acknowledgment, Ex.P.9 is the two postal receipts, Ex.P.10 is the notarized copy of PAN card, Ex.P.11 is the Statement of Account, Ex.P.12 is the another Statement of Account, Ex.P.13 to 15 are three printed Memos of Karnataka Bank dated 18.6.2015 and Ex.P.16 is the Bank Shara.
13. Plaintiff in his affidavit of exam-in-chief categorically stated that, he paid Rs.6,00,000/- and 12,58,900/- as hand loans to the defendant. The learned counsel for plaintiff argued that, defendant by executing letter dated 22-02-2014 and assurance letter dated 19-03-2015 admitted and acknowledged the loans received. To substantiate the same, plaintiff produced documentary evidence. Out of the documentary evidence, the documentary evidence at Ex.P.1 and Ex-P.2 are the crucial documents. The case of the plaintiff is that, initially he paid Rs.6,00,000/- as hand loan to the defendant and defendant in order to repay the same issued cheques bearing no.019722, 019723 and 019724. The said cheques were dishonored. Plaintiff produced the said cheques and the same are marked as Ex-P.4 to 6. Ex-P.1 confirms the said loan 6 O.S.No.52/2017 transaction. Plaintiff also produced the documentary evidence at Ex-P.13 to 15 which discloses that the cheques issued by the defendant were dishonored. Defendant not chosen to challenge the said documentary evidence. Thus plaintiff by producing the documentary evidence at Ex.P.1 and Ex.P.13 to 15 and also by adducing the oral evidence proved that, he paid Rs.6,00,000/- as hand loan to the defendant and defendant not paid the same.
14. Ex.P.1 is a letter of undertaking written on a plain paper. Defendant by executing the said letter undertook that he is going to pay Rs.6,00,000/-. No stamp duty has been paid on the said document. Article 32 to the Schedule-1 of the Karnataka Stamp Act, 1957 provides that:
Description of Instrument Proper Stamp Duty Art.32. Letter of licence- that is One hundred rupees. to say, any agreement between a debtor and his creditors that the latter shall, for a specified time, suspend their claims and allow the debtor to carry on business at his own discretion.
Thus, as per the provisions of Article 32 of Karnataka Stamp Act, 1957 plaintiff has to pay Rs.100/- as stamp duty, but he not paid the same before getting marked. Plaintiff without paying proper stamp duty got marked the said document. Plaintiff as per the provisions of Section 34 of Karnataka 7 O.S.No.52/2017 Stamp Act, 1957, ought to have paid ten times the actual stamp duty on a document which insufficiently stamped. Any how, this court without considering the stamp duty marked the document as Ex.P.1. Hence, this court acting under Section 58 of Karnataka Stamp Act, 1957 directs the plaintiff to pay the regular stamp duty plus ten times of the same on Ex.P.1, which comes Rs.100 + (10 x 100) = Rs.1100/-. Only after payment of the said stamp duty plus penalty, plaintiff is entitled to have the evidentiary benefit of Ex.P.1. Otherwise the said document is liable for impounding.
15. Plaintiff not produced any document to show that he paid Rs.12,58,900/- as hand loan to the defendant. Plaintiff also not pleaded in his plaint that when he paid Rs.12,58,900/- to the defendant. The learned counsel for plaintiff vehemently argued that plaintiff subsequently paid further hand loan of Rs.12,58,900/- to the defendant and to compress the same he took the attention of court to the documentary evidence marked at Ex-P.2. The said document is Confirmation and assurance letter dated 19-03-2015. Defendant executed the said document admitting that he received a sum of Rs.12,58,900/- and could not repaid the same. The said transaction is written on an e-stamp paper of Rs.100/-. It is pertinent to note that though defendant appeared before this court through his counsel, not defended the suit by filing written statement and also not chosen to challenge the evidence of plaintiff. The silence on the part of the defendant generates the case of the plaintiff. P.W.1 also in his affidavit of examination-in-chief clearly stated that, subsequently he paid Rs.12,58,900/- to the defendant as hand 8 O.S.No.52/2017 loan and defendant acknowledged the same by executing the confirmation and assurance letter dated 19.3.2015, which is marked at Ex.P.2. Thus, plaintiff by producing the documentary evidence at Ex.P.2 and also by adducing oral evidence proved that, defendant received a sum of Rs.12,58,900/-. The other documents also support the case of the plaintiff.
16. The counsel for plaintiff argued that the loan transactions in between plaintiff and defendant are commercial in nature. But plaintiff not produced any document to show that the said loan transactions are commercial in nature. Infact plaintiff himself pleaded in his pleadings that the said loan transactions are hand loan transactions. Plaintiff cannot contend that he is having business loan transactions with defendant merely because he is a businessman. Hence, plaintiff is not entitled for the interest at the rate of business norms. Therefore, plaintiff is not entitled to claim 18% p.a. interest on principal loan amount. The records produced reveals that the loan transactions between plaintiff and defendant are simple hand loans. Hence, plaintiff is entitled to claim the interest at the rate of 6% p.a.
17. As per pleadings of plaintiff, initially defendant received an amount of Rs.6,00,000/- as hand loan from plaintiff and out of the said amount, he repaid Rs.1,00,000/-. Subsequently defendant further received an amount of Rs.12,58,900/- as hand loan from defendant. In all defendant has to repay an amount of Rs.17,58,900/-. Plaintiff not pleaded in his plaint when he paid Rs.12,58,900/- as hand 9 O.S.No.52/2017 loan to the defendant. The subsequent hand loan of plaintiff is under suspicious. However, as defendant admitted through Ex.P.2 that he owes Rs.12,58,900/- to the plaintiff, there is no alternative for this court to disbelieve the case of the plaintiff regarding the said loan. Thus, defendant is under liability of repayment of Rs.17,58,900/- at the rate of interest at 6% p.a. With these observations, I answered to point No.(i) in affirmative.
18. Point No.(ii): In view of my above said observations, I proceed to pass the following ORDER Suit of the plaintiff is hereby partly decreed.
Plaintiff is entitled to recover Rs.17,58,900/- from defendant with a rate of interest at 6% p.a. from the date of the suit till full payment.
Draw decree accordingly, after collecting stamp duty and penalty on Ex.P.1.
(Dictated to the Judgment Writer on computer, computerized by her, corrected and then pronounced by me in open court on the 30th day of May, 2019.) (Ningouda B.Patil) XX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
10 O.S.No.52/2017ANNEXURE List of witnesses examined for the Plaintiff:
PW.1 : Sri.Sanjay Kumar Tiwari.
List of documents marked for the Plaintiff:
Ex.P.1 Acknowledgment issued by the
defendant.
Ex.P.2 Confirmation and Assurance letter
given by defendant.
Ex.P.3 to 6 Four cheques.
Ex.P.7 Legal Notice dated 17.7.2015.
Ex.P.8 RPAD Cover with acknowledgment.
Ex.P.9 Two Postal receipts.
Ex.P.10 Notarized copy of PAN card.
Ex.P.11 Statement of Account.
Ex.P.12 Another Statement of Account.
Ex.P.13 to 15 Three printed Memos of Karnataka
Bank dated 18.6.2015.
Ex.P.16 Bank Shara.
List of Witnesses examined for the defendant:
Nil.
List of documents marked for the defendant:
Nil.
(Ningouda B.Patil) XX ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.11 O.S.No.52/2017
Judgment pronounced in the open court(vide separate judgment).
ORDER Suit of the plaintiff is hereby partly decreed.
Plaintiff is entitled to recover Rs.17,58,900/- from defendant with a rate of interest at 6% p.a. from the date of the suit till full payment.
Draw decree accordingly.
XX Addl. C.C & S.J, Bengaluru.12 O.S.No.52/2017 13 O.S.No.52/2017