Bangalore District Court
Mrs.T.Sunanda Kini vs Mr.Vinod V.Karia on 15 February, 2018
IN THE COURT OF THE XXXVIII ADDITIONAL CITY
CIVIL JUDGE AT BENGALURU CITY(CCH-39)
Dated this the 15th Day of February 2018
Present
Sri Devanand Puttappa Nayak B.A., LL.B.,(Spl.)
XXXVIII Additional City Civil & Sessions Judge, Bangalore City.
Original Suit No.7522/2011
Plaintiffs:
1. MRS.T.SUNANDA KINI,
W/o late Sri T.Kamalaksha Kini,
aged about 75 years, represented
by her General Power of Attorney
holder Mr.T.Anil Kumar Kini,
plaintiff No.2 herein
2. MR.T.ANIL KUMAR KINI,
S/o late Sri T.Kamalaksha Kini,
aged about 46 years,
Both residing at No.83/2, II Main
road, Seshadripuram, Bangalore-
560 020
[by advocate Sri V.Ramkumar]
-Vs-
Defendants:
1. MR.VINOD V.KARIA
S/o late Sri Vallabhdas
2. MR.PRAKASH V.KARIA
S/o late Sri Vallabhdas
3. SMT.SMITHA KARIA
W/o Mr.Vinod V.Karia
{2} O.S.No.7522/2011
Partners, M/s Krishna Creations,
Nagappa Street, 3rd Cross, Pipeline
A Cross, Opp.Kalamma Temple,
Bangalore-560 003
[by advocate Sri J.P.]
Date of institution of the suit 20/10/2011
Nature of the suit: Recovery of money
Date of commencement of 02/01/2015
recording of evidence:
Date on which Judgment was 15/02/2018
pronounced
Total duration: Year Month Days
06 03 26
JUDGMENT
This suit is filed by the plaintiffs against the defendants for recovery of Rs.44,39,664/-.
2. The case of the plaintiffs as per the plaint averments is that the defendants are the partners in the partnership firm M/s Krishna Creations. The plaintiffs and their family members lend money to the firms directly in the firm name and also through its partners. During the tenure of partnership of 2nd plaintiff in the partnership firm M/s Krishna Creations, as requested by the defendants, the {3} O.S.No.7522/2011 plaintiffs had furnished their family property as collateral security and surety towards the loan availed by the partners in the name of partnership firm from M/s Karnataka State Financial Corporation and the defendants assured to refund the loan amount with interest at the rate of 18% p.a. and also pay amount as consideration to the property furnished as collateral security and surety.
The plaintiffs further submits that on the date when the 2nd plaintiff opted to retire from the partnership firm, the defendants were called upon to settle the dues and also release the property documents from M/s Karnataka State Financial Corporation. After discussion, the defendants agreed to settle amount of Rs.25,00,000/-,which was accepted by the plaintiffs.
The plaintiffs further submit that towards payment, the defendants issued cheques bearing No.388440 dt.4.7.2007 for Rs.20,00,000/- in the name of first plaintiff and cheque bearing No.388439 dt.4.7.2007 for Rs.5,00,000/- in the name of 2nd {4} O.S.No.7522/2011 plaintiff, in total for a sum of Rs.25,00,000/- drawn on Canara Bank, Seshadripuram branch, Bangalore. The said amount includes the balance loan amount with interest.
At para 6, the plaintiffs submit that during the transit from the plaintiffs' residence to the bank, the above-mentioned cheques were lost and the same was communicated to the defendants verbally. The defendants assured to issue fresh cheques towards settlement in lieu of the lost cheques. But in spite of repeated requests made by the plaintiffs, the defendants have not issued the cheques. The defendants started to give amount in bits and piece between the period July 2007 and October 2008, amounting to Rs.2,40,000/- and the balance amount due by the defendants is Rs.29,11,255/-. Towards repayment of the said amount, the defendant No.3 issued the cheque bearing No.332406 dt.4.11.2008 for Rs.22,76,762/- in favour of first plaintiff and cheque No.332405 dt.4.11.2008 for a sum of Rs.6,34,493/- in favour of 2nd plaintiff, in total Rs.29,11,255/- drawn on {5} O.S.No.7522/2011 Canara Bank, Seshadripuram branch, Bangalore. But on presentation of the said cheques by the plaintiffs with their bankers i.e., Syndicate Bank, Seshadripuram branch, Bangalore, the same were dishonoured and returned with endorsement 'funds insufficient' on 16.3.2009. Hence the plaintiffs got issued two separate legal notices dt.19.3.2009 by RPAD and under certificate of posting demanding payment from the defendants and the said notices were served on the defendants. The defendants replied through reply notice dt.1.4.2009 and 10.4.2009 denying their liability and attached the statement of payment made to the plaintiffs amounting to Rs.29,60,143.50, inclusive of loan amount and surety amount.
The plaintiffs submit that they do not dispute the receipt of the payment from the defendants as detailed by them. But further submitted that after accounting for all the payments made by the defendants, the defendants further owed a sum of Rs.29,11,255/-
{6} O.S.No.7522/2011 towards which the defendants have issued above said two cheques.
The plaintiffs submit that they filed a criminal case against the defendants u/s 138 of N.I.Act and the same is pending in the additional CMM Court. The defendants issued the above said cheques without bothering to maintain sufficient balance in their account with an intention to harass the plaintiffs and deprive the defendants of their right over the amount which the defendants are due to the plaintiffs. Therefore, as on the date of filing of this suit, the defendants are due to the plaintiffs a sum of Rs.29,11,255/- along with interest at 18% p.a. from 4.1.2008 to October 2011.
The plaintiffs further submit that the cause of action for filing of the suit arose on 4.7.2007 when the defendants issued cheques for final settlement, on 4.11.2008 when the defendants issued cheques in lieu of lost cheques, on 13.3.2009 when the cheques were returned dishonoured and on 16.3.2009 when the plaintiffs were notified by their bankers at Bangalore {7} O.S.No.7522/2011 and on 19.3.2009 when the demand notice was sent to the defendants which was served on the defendants on 20.3.2009 and when the defendants failed to make payment. The parties to the suit are residing and the transaction was held in Bangalore within the jurisdiction of this Court and hence this Court has territorial jurisdiction to try this case. Therefore, the plaintiffs requested the court to decree the suit as prayed in the prayer column of the plaint.
3. On the other hand, the defendant No.2 filed written statement and the same is adopted by defendants 1 and 3. In the written statement, the defendant No.2 took contention that the suit is not maintainable either in law or on facts and the same is liable to be dismissed in lumine. Further contended that the plaintiffs have alleged that the cause of action arose on 4.7.2007 when the alleged cheques bearing Nos.388440 and 388439 were issued by the defendants and, it is the case of the plaintiffs that the said cheques were lost and the cheques dt.4.11.2008 are alleged to have been issued by M/s Balaji Creations who are not {8} O.S.No.7522/2011 parties to the suit. But it is submitted by the 2nd defendant that the cause of action for the suit, as per the plaint averments, arose on 4.7.2007 and not on 4.11.2008 or 13.3.2009 or 16.3.2009 or 19.3.200 or on 20.3.2009 and that the suit has been filed on 20.10.2011 and therefore, the suit is barred by limitation. The suit based on the alleged joinder of cause of action is not maintainable as the cause of action of each plaintiff is different from other and the transactions are independent of the other as per the plaint averments. Therefore the suit is not maintainable due to mis-joinder and non-joinder of parties.
It is further submitted by the 2nd defendant that the alleged cheques referred to by the plaintiffs belong to M/s Balaji Creations and its Propretrix is Mrs.Smitha V.Karia. Therefore without impleading the said person, the suit filed by the plaintiff is bad for non-joinder of necessary party.
The defendants denied the allegations made at para 3 of the plaint, but submits that the plaintiffs claim to be money lenders, but they have not {9} O.S.No.7522/2011 possessed money-lenders' licence, hence the plaintiffs are not entitled to any relief. The 2nd defendant submits that the defendants who are partners of the firm by name M/s Krishna Creations were on the look out to obtain financial assistance from banks and it was during that time, the husband of 1st plaintiff by name Mr.Kamalskha Kini offered the immovable property bearing No.83/2,2nd Main, Anjaneya Block, Seshadripuram, Bangalore as security to the KSFC and against the security of the said property, the defendants have raised loan and at that point of time, Mr.Kamalaksha Kini imposed a condition that the 2nd plaintiff should be inducted as a partner of the defendant firm and accordingly the 2nd plaintiff was inducted as a partner of the defendant firm vide Reconstitution of the Partnership deed dt.1.4.1996. The 2nd plaintiff is only a sleeping partner and contribution was in the form of collateral security of the building.
The 2nd defendant further submits that during the period of 2nd plaintiff's partnership with the {10} O.S.No.7522/2011 defendant firm, the defendants were paying commission to the facility provided and the said commission agreed to was oral and there was no written document or agreement between the parties and that the security offered continued during the life time of Mr.Kamalaksha Kini and that the defendants were drawing the cheque and making the cash payment as per the instruction of Mr.Kamalaksha Kini during his life time and payments were made in the name of various members of the plaintiffs' family.
The 2nd defendant submits that there has been no financial borrowings from the plaintiffs or any member of their family and hence there was no agreement to the contrary with regard to the payment of interest of 18% p.a. and the defendants were paying only commission of the collateral security offered. Further 2nd defendant submits that after death of Mr.Kamalaksha Kini, the 2nd plaintiff was insisting on obtaining the release of the collateral security from the Karnataka State Finance Corporation and accordingly the defendants made arrangements for the release of {11} O.S.No.7522/2011 the collateral security as per the letter dt.3.7.2007 issued by the Karnataka State Finance Corporation. Further submits that after release of collateral security, the 2nd plaintiff retired from the partnership firm vide Reconstitution Deed dt.12.7.2007. In the said Reconstitution Deed, it is clearly mentioned that the 2nd plaintiff has received all the dues from the Firm and has no claim whatsoever and therefore there was no further privity of contract between the 2nd plaintiff and defendant firm for payment of any commission, since the collateral security was duly released and the original documents of title from the Karnataka State Finance Corporation were delivered to the 2nd plaintiff.
It is denied by the 2nd defendant that on the retirement of the 2nd plaintiff, the defendants had agreed to settle the alleged claim of the 2nd plaintiff in a sum of Rs.25,00,000/- as absolutely false. Further submits that on the retirement of the 2nd plaintiff from the 2nd defendant firm, the accounts were duly settled and there was no promise or any contract to pay any amount as claimed by the 2nd plaintiff.
{12} O.S.No.7522/2011 Further the 2nd defendant submits that the submission of the plaintiffs made in para 5 of the plaint that the alleged amount of Rs.25 lakhs included the loan amount with interest is totally false and there is no clarity. The 2nd defendant categorically states that no amount is due or payable to the plaintiffs.
In para 13 of the written statement, the 2nd defendant submits that the loss of cheques bearing Nos.388440 and 388439 is propounded by the plaintiffs, since the 2nd plaintiff who had access to the office of the defendant firm during his tenure as sleeping partner, has misused the trust and has concocted the theory of loss of cheques dt.4.7.2007.
The 2nd defendant further submits that there was no privity of contract like surety consideration payable as there has been no financial loan transaction between the plaintiffs and the defendant firm. Further contention of the plaintiffs that the cheques bearing Nos.388440 and 388439 dt.4.7.2007 were lost in transit and the same was intimated to the defendants verbally is false and untrue.
{13} O.S.No.7522/2011 Further the 2nd defendant submits that the 2nd plaintiff who had access to the office of the defendant firm has clandestinely removed some cheques of Balaji Creations of which Mrs.Smitha V.Karia is the Proprietrix, has forged the signature, filled up the amount and had presented the cheques bearing No.332405 dt.4.11.2008 for Rs.6,34,493/- and cheque bearing No.332406 dt.4.11.2008 for Rs.22,76,762/- drawn on Canara Bank, Seshadripuram branch, Bangalore. Therefore, the 2nd defendant submits that annexure 'G' & 'H' were never issued by propritriex as there was no privity of any contract between the plaintiffs and M/s Balaji Creations and the amount mentioned in the said cheques is neither due nor payable either by Balaji Creations or by the defendant firm and that the suit of the plaintiffs based on the said cheque is not maintainable as the said negotiable instrument is not supported by any consideration and is not a legally enforceable instrument.
Further the defendants denied the pleadings of the plaint at para 7 stating that the suit is not {14} O.S.No.7522/2011 maintainable since the plaintiffs have not specifically stated as to the nature of the suit whether the suit is based on accounts or on negotiable instrument and therefore, the suit as bought about by the plaintiffs is not maintainable and is liable to be dismissed with costs.
The defendants denied the allegations made at para 8 of the plaint as false and untrue. Further the defendants denying the allegations made in para 9 of the plaint that the suit cheques were dishonored for want of sufficient funds, submits that since the plaintiffs neither lawful owners of the suit cheques nor in lawful possession nor there is any legally enforceable debt or binding privity of contract between the plaintiffs and Balaji Creations.
Further the defendants submit that it is evident from the bank statement that the suit cheques pertaining to the year 2007 and the plaintiffs claims that the suit cheques were issued during November, 2008, when the intervening cheques of M/s Balaji Creations were cleared during June 2007. The 2nd {15} O.S.No.7522/2011 defendant submits that the suit cheques are fabricated documents and manipulated by the plaintiffs with the malafide intention to make a wrongful gain at the cost of the defendants.
The defendants further submit that there is no cause of action arose for filing of this suit as alleged in para 16 of the plaint and the same is false and the suit suffers for want of cause of action, and hence the plaint is liable to be rejected under Order VII Rule 11 of C.P.C. Therefore, on these grounds, the defendants prayed to dismiss the suit filed by the plaintiffs in the interest of justice and equity.
4. On perusing the pleadings of the plaint and also written statement filed by the defendants, my predecessor has framed Issue Nos.1 to 7 on 31.1.2013 and one additional issue is framed by this court on 8.1.2018, as follows:-
1. Whether the Plaintiffs prove that the defendants offered to sell the plaintiff's claim for Rs.25 lakhs and thereafter issued a cheque for Rs.20 lakhs dt.4.7.2007 in the name of the first defendant and another cheque dated 4.7.2007 for Rs.5 lakhs in the name of the second defendant(total sum of Rs.25 lakhs) drawn on Canara Bank, {16} O.S.No.7522/2011 Seshadripuram branch, Bangalore as alleged in the plaint?
2. Whether the plaintiffs further prove that the cheque dt.4.7.2007 for Rs.20 lakhs and for a sum of Rs.5 lakhs drawn in favour of the defendants 1 and 2 respectively were lost during the transit from the plaintiff's residence to their bank and the same was communicated to the defendants verbally as alleged in the plaint?
3. Whether the plaintiffs further prove that the defendants are liable to pay a sum of Rs.29,11,255/- as on 31.10.2008 as alleged in the plaint?
4. Whether the plaintiff further prove that on 4.11.2008 the third defendant issued a cheque for Rs.22,76,762/- in favour of the first plaintiff and another cheque dt.4.11.2008 for Rs.6,34,493/- in favour of the second plaintiff(total amount of Rs.29,11,255/-) drawn on Canara Bank, Seshadripuram branch, Bangalore and the said cheques came to be dishonoured as alleged in the plaint?
5. Whether the Plaintiffs further prove that the defendants are liable to pay a sum of Rs.44,39,664/- with costs and interest as alleged in the plaint?
6. To what reliefs the plaintiff is entitled?
7. What order or decree?
Addl.Issue framed on 8.1.2018: 1.Whether the defendants prove that suit held by the plaintiffs is barred under law of limitation?
{17} O.S.No.7522/2011
5. In this case, the 2nd plaintiff himself
adduced his oral evidence by filing his sworn affidavit considered as PW1 and in further chief examination of PW1, the documents produced by him are marked as Ex.P1 to P30. In the cross-examination of PW1, the documents confronted by the side of the defendants are marked as Ex.D1 to D7. On the other hand, the defendants have not led any oral and documentary evidence.
6. Heard the oral arguments on both sides on merits of the case and also perused the written arguments submitted by the side of plaintiffs and then this case is posted for judgment.
7. My findings for 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: In the negative
Addl.Issue No.1: In the negative
Issue No.7: As per final order, for the
following:
{18} O.S.No.7522/2011
REASONS
8. ISSUE NOs.1 to 6: These six Issues are taken together for common discussion in order to avoid repetition of facts and evidence since the burden of proving these Issues lies on the plaintiffs.
9. It is the case of the plaintiffs that during the tenure of partnership of 2nd plaintiff in the partnership firm M/s Krishna Creations, as requested by the defendants, they had furnished their family property as collateral security and surety towards the loan availed by the partners in the name of partnership firm from M/s Karnataka State Financial Corporation. Further it is the case of the plaintiffs that the defendants assured to refund the loan amount with interest at the rate of 18% p.a. On the date when the 2nd plaintiff opted to retire from the partnership firm, the plaintiffs called upon the defendants to settle the dues and also get release the property documents from M/s Karnataka State Financial Corporation. The defendants agreed to settle amount of Rs.25,00,000/- and they also released the documents from Karnataka {19} O.S.No.7522/2011 State Finance Corporation. The plaintiffs further submit that towards payment, the defendants issued cheques bearing No.388440 dt.4.7.2007 for Rs.20,00,000/- in the name of first plaintiff and cheque bearing No.388439 dt.4.7.2007 for Rs.5,00,000/- in the name of 2nd plaintiff, in total for a sum of Rs.25,00,000/- drawn on Canara Bank, Seshadripuram branch, Bangalore. As per the contention of the plaintiffs, the said cheques were lost in transit while going from the plaintiffs' residence to their bank and the same was communicated orally to the defendants. The defendants assured to issue fresh cheques towards settlement in lieu of the lost cheques. But in spite of repeated requests made by the plaintiffs, the defendants have not issued the cheques, but started to give amount in bits and piece between the period July 2007 and October 2008, amounting to Rs.2,40,000/- and undertook to pay the balance amount with interest. Towards repayment of the said amount, the defendant No.3 issued the cheque bearing No.332406 dt.4.11.2008 for Rs.22,76,762/- in favour {20} O.S.No.7522/2011 of 1st plaintiff and cheque No.332405 dt.4.11.2008 for a sum of Rs.6,34,493/- in favour of 2nd plaintiff, in total for Rs.29,11,255/- drawn on Canara Bank, Seshadripuram branch, Bangalore. But on presentation of the said cheques by the plaintiffs with their bankers i.e., Syndicate Bank, Seshadripuram branch, Bangalore, the same were dishonoured and returned with endorsement 'funds insufficient' on 16.3.2009 and endorsement was also issued by the said bank separately. Therefore the plaintiffs got issued two separate legal notices dt.19.3.2009 through RPAD and Under certificate of posting demanding payment from the defendants and the said notices were served on the defendants. The defendants replied through reply notice dt.1.4.2009 and 10.4.2009 denying their liability. But in spite of repeated requests and demand made by the plaintiffs, the defendants failed to make payment of amount due from them to the plaintiffs. Further the plaintiffs submit that a criminal case against the defendants U/S 138 of N.I.Act has been filed.
{21} O.S.No.7522/2011
10. In order to prove whether defendants have issued cheque bearing No.332406 dt.4.11.2008 for a sum of Rs.22,76,762/- and cheque bearing No.332405 dt.4.11.2008 for a sum of Rs.6,34,493/-, the plaintiff No.2 who is son also General Power of Attorney holder of 1st plaintiff as per Ex.P29, adduced his oral evidence by way of filing his sworn affidavit as PW1 and in further chief examination of PW1, the documents produced by him are marked as Ex.P1 to P30. Here the facts narrated in the chief examination of PW1 are nothing but repetition of the pleadings of the plaint. Therefore again it need not requires further explanation. In the cross-examination of PW1, Ex.D1 to D7 are marked.
11. In this case the 2nd defendant filed written statement and the same is adopted by defendants 1 and 3. In the written statement, they have totally denied that there is privity of contract between plaintiffs with them. They admitted that they are the partners of the firm M/s Krishna Creations. Further the contention of the defendants is that cheque {22} O.S.No.7522/2011 dt.4.11.2008 is alleged to have been issued by M/s Balaji Creations, who is not party to the suit. Therefore the firm contention of the defendants is that there is no any legally recoverable debt existed in respect of the transaction taken place between plaintiffs and defendants, as per the contention taken by the plaintiffs in the plaint.
12. Here on perusing the cross-examination of PW1, there are so many admissions. In the cross- examination he admitted that after death of his father Mr.Kamalaksha Kini, he continued the same business which was being carried on by his father. But in the cross-examination of PW1, goes to show that his mother, the 1st plaintiff has not given any authority to this PW1 for conducting this case in respect of alleged cheque said to has been issued by defendants dt.4.11.2008.
13. Now looking to the contents of Ex.P29, it is not specifically mentioned that Ex.P29 has been executed in favour of 2nd plaintiff i.e., PW1 for conducting the case for recovery of money in respect of {23} O.S.No.7522/2011 the cheques said to has been issued by the defendants, bearing No.332406 and 332405 dt.4.11.2008. Therefore PW1 deposed in his cross-examination at page 10 that there was no any direct money transaction held in between his mother, the 1st plaintiff and M/s Krishna Creations which is the partnership firm of the defendants. So here from the cross-examination of PW1, he admitted that during the life time of his father, he was doing the money-lending business. But no such licence has been produced by PW1 as to show that his father was doing money-lending business during his life time. Here in the cross-examination of PW1, he admitted that during the life time of his father, he raised loan in Karnataka State Finance Corporation by furnishing the property No.83/2 as collateral security to the M/s Krishna Creations which is partnership firm of the defendants. In this case, PW1 has not produced any document as to show that his father was an Income-tax assessee in order to prove that there was money-lending business being carried on by his father with the defendants. In the cross-examination of PW1 {24} O.S.No.7522/2011 he admitted Ex.P27 which is Reconstitution Deed of Partnership executed on 19.3.2004. As per clause 21 of Ex.P27, it shows payment to the surety. Here on the basis of collateral security, the Karnataka State Finance Corporation has sanctioned the finance for the partnership firm of the defendants, but not to the defendants individually. Therefore the person who has given surety for raising the loan in Karnataka State Finance Corporation has to get Rs.23,000/- p.m. and said amount was enhanced to Rs.2,000/- annually with effect from 1st April 2005 until the said security is discharged from Karnataka State Finance Corporation. Therefore in the cross-examination of PW1, he admitted that though he was one of the partners in the defendants' partnership firm, there is no any responsibility on him with regard to Profit & Loss. Here as per Ex.P27, PW1 also become one of the partners. PW1 also admitted that it was only decided to pay interest to the person who offered surety of property No.83/2 as a collateral security. Therefore in the cross- examination of PW1, he admitted that the amount in {25} O.S.No.7522/2011 the manner of interest that was being paid as per clause 21 mentioned on Ex.P27 is to be deposited in the account of his mother i.e., plaintiff No.1. PW1 also admitted that from the month of April, 2005 it was decided that Rs.2000/- has to be enhanced per month as per clause 21 of Ex.P27 to be paid to the plaintiffs. Therefore PW1 in the cross-examination admitted that in the year 2007, he asked the defendants' firm to enhance the monthly amount being paid to his mother. Therefore in the cross-examination of PW1 at page 14, admitted that he asked the defendants' firm to discharge the collateral security of the property bearing No.83/2 belongs to them when the defendants fail to enhance the monthly amount being paid to the 1st plaintiff. PW1 also admitted that on 18.7.2007 the property No.83/2 which has been deposited as collateral security in Karnataka State Finance Corporation has been discharged and also admitted that there is a document to show that the property No.83/2 has been discharged from Karnataka State Finance Corporation by the defendants' firm. Here {26} O.S.No.7522/2011 Ex.D1 is the certified copy of the letter by Karnataka State Finance Corporation, clearly goes to show that property bearing No.5,83/2 has been discharged. This has been identified by PW1 and the same is marked as Ex.D1.
14. PW1 also admitted that prior to discharge of collateral security, he was retired from the partnership firm of the defendants on 12.7.2007 as per the document executed in between the plaintiffs with the defendants' firm which is marked as Ex.D2. So here it was the condition of the father of PW1, during his life time, to raise loan from Karnataka State Finance Corporation by depositing the property belongs to the plaintiffs bearing No.5,83/2 in Karnataka State Finance Corporation if his son i.e., PW1 is taken as a partner of the defendants' firm. So here as per the Reconstitution Deed of Partnership dt.12.7.2007 as per Ex.D2, PW1 is retired from the partnership firm and there is no any transaction held in between the plaintiffs and defendants till 18.7.2007.
{27} O.S.No.7522/2011
15. So here on perusing the cross-examination of PW1, the cheques bearing Nos.388440 and 388439 dt.4.11.2008 have been lost while plaintiffs were going to present the said cheques in their bank i.e, Syndicate Bank, Sheshadripuram branch. But here PW1 being the educated person has not intimated the cheques lost while they were going to present them, by writing to Canara Bank, Seshadripuram branch, Bangalore in which bank those cheques were drawn by the defendants, as per the contention of the plaintiffs. Further the plaintiffs have not at all filed a police complaint as to prove that the above said cheques were lost while they were going to be presented for encashment. Further the plaintiffs also not made any attempt to intimate the above said fact to the defendants by way of writing. This goes to show that there was no any legal debt liability due from the defendants.
16. Now it is pertinent to note that Ex.P28 is the document prepared by PW1 himself. Therefore in the cross-examination of PW1, he admitted that M/s Balaji {28} O.S.No.7522/2011 Creations Firm belongs to defendant No.3. PW1 also admitted that there is no any transaction held with M/s Balaji Creations Firm. However, surprisingly PW1 admitted that Ex.P1and P14 which are the cheques were issued in the name of M/s Balaji Creations Firm. Therefore the transaction was held in between M/s Balaji Creations with M/s Krishna Creations. PW1 admitted that neither in the pleadings of the plaint nor in the sworn affidavit it is mentioned about the cheques issued in the name of M/s Balaji Creations Firm. Now looking to Ex.P1, which is the cheque for Rs.6,34,493/- issued by Proprietor of M/s Balaji Creations. But here in the cross-examination of PW1, goes to show that Proprietor of M/s Balaji Creations has issued Ex.P1 and also Ex.P14. Therefore in the Reconstitution Deed of Partnership which is marked as Ex.P27, it clearly goes to show that the defendants have settled all the dues while PW1(plaintiff No.2) retired as a partner from M/s Krishna Creations. Therefore under these circumstances in the year 2007, all the dues remained to be paid to the Plaintiff has been discharged or settled {29} O.S.No.7522/2011 in the year 2007 only. Therefore there was no necessity to issue a cheque for discharge of loan dt.4.11.2008 under cheques bearing Nos.332406 and 332405 both dt.4.11.2008. So here Ex.P1 and Ex.P14 are issued by Prop:M/s Balaji Creations. Under these circumstances how far the defendants are responsible for discharging the loan due to the cheques as per Ex.P1 and Ex.P14 have been dishonoured. So here on Ex.P27, PW1 also put the signature. So under these circumstances when PW1 retired from the partnership firm i.e., M/s Krishna Creations by putting his signature on Ex.P27 agreeing to the terms of the partnership firm regarding the full and final settlement, then under such circumstances, there is no any due loan amount remained by the side of the defendants to be paid to the plaintiffs as urged in the pleadings of the plaint and also in the sworn affidavit of PW1. Here Ex.P2 is the endorsement. But the cheque numbers as per Ex.P1 and Ex.P14 are not mentioned on Ex.P2. Further on Ex.P2 there is no designated signature of the Manager who has issued the endorsement as per Ex.P2. Under these {30} O.S.No.7522/2011 circumstances Ex.P2 is also created document in order to establish the false claim against the defendants. Here PW1 is further chief-examined and Ex.P30 is marked. Ex.P30 is the endorsement issued by Manager of Canara Bank. Again PW1 was cross-examined. Even PW1 admitted that on Ex.P30 it is not mentioned that cheque bearing Nos.332406 and 332405 both dt.4.11.2008 have been issued by the defendants. PW1 also produced Ex.D6 which is the statement of current account of M/s Krishna Creations firm. PW1 also admitted the statement of current account of M/s Balaji Creations which is marked as Ex.D7. So here in the pleading of the plaint, it is pleaded that the cheques dt.4.11.2008 issued by the defendants, when presented, have been dishonoured. But here as per Ex.P30 those cheques have been dishonoured due to stop payment. But here in the pleadings of the plaint, it is pleaded that the said cheques were dishonoured due to 'insufficient funds' in the account of the defendants. So there is a contradiction in the cross-examination of PW1 and also in the pleadings pleaded in the plaint.
{31} O.S.No.7522/2011 Looking to Ex.P13, goes to show that there is no certainty with regard to cheques issued as per Ex.P1 and Ex.P14 have been dishonoured either due to insufficient funds or there is a stopped payment as directed by the drawer of the said cheques. Therefore in the cross-examination of PW1 at page 18, he admitted that there is no document to show that Ex.P1 and Ex.P14 have been issued by the defendants for discharge of the suit claim. Further in the cross- examination of PW1 at page 15, admitted that there are criminal cases in C.C.No.16659/2009 and 16660/09 registered against the present defendants as accused in respect of cheques issued as per Ex.P1 and Ex.P14 U/S 138 of N.I.Act. In those two criminal cases, the present defendants, as accused, have been acquitted. The certified copies of judgments are marked as Ex.D3 and D4. Against the said Judgments, the present plaintiffs preferred the appeal in Crl.Appeal No.93/13 and 94/13 before the Hon'ble High Court of Karnataka. Those two criminal appeals also dismissed. The certified copies of the judgments passed in above said Criminal Appeals {32} O.S.No.7522/2011 also produced. The certified copy of the judgment passed in Crl.Nos.93/13 and 94/13 are marked as Ex.D5. So here on perusal of oral evidence of PW1 and admissions in the cross-examination of PW1, itself goes to show that Ex.P1 and Ex.P14 are not issued by the partners of M/s Krishna Creations i.e., defendants towards discharge of the suit claim.
17. In this case even though the defendants filed written statement, not adduced oral or documentary evidence, but the documents by the side of the defendants confronted to PW1 are marked as Ex.D1 to D7. Further the admissions in the cross-examination of PW1, itself sufficient that the plaintiffs by relying on the false facts by creating Ex.P1 and Ex.P14 filed this false suit claiming the false claim. Therefore viewed from any angle and looking to the oral and documentary evidence by the side of the plaintiffs, reveals that the plaintiffs utterly failed to prove that the defendants are liable to pay the suit claim. Hence I answered Issue Nos.1 to 6 in the Negative.
ADDITIONAL ISSUE NO.1:
{33} O.S.No.7522/2011
18. Here in the written statement filed by the defendants at para 4.1, they specifically took contention that the suit is barred by limitation. But here in this case the suit filed by the plaintiffs is for recovery of money due from the defendants. Here the plaintiffs before filing the suit got issued notice as per Ex.P3 dt.19.3.2009. So here even though taking the date of issuance of cheques as per Ex.P1 and Ex.P14 dt.4.11.2008, the suit filed by the plaintiffs is within three years from the date of refusal of the suit claim in the reply notice got issued by the defendants as per Ex.P13. Moreover there is no unequivocal evidence by the side of the defendants since the defendants have not stepped into the witness box as to prove that the suit filed by the plaintiffs is barred by limitation. Hence the defendants failed to prove additional Issue No.1. Hence I answered additional Issue No.1 in the Negative.
ISSUE NO.7:
19. In view of the foregoing discussion, observation made on Issue Nos.1 to 6 and additional {34} O.S.No.7522/2011 Issue No.1, this court proceeds to pass the following order:-
ORDER Suit filed by the plaintiffs is hereby dismissed.
Under the circumstances, the parties are directed to bear their own costs.
Draw decree accordingly.
(Dictated to the judgment Writer, typed by her, corrected, signed and then pronounced by me in the open Court on this the 15th Day of February 2018) (DEVANAND PUTTAPPA NAYAK) XXXVIII Addl. City Civil & Sessions Judge, Bangalore City.
ANNEXURE
List of witnesses examined on behalf of the
Plaintiff
P.W.1 T.Anil Kumar Kini
List of documents marked on behalf of the Plaintiff:
Ex.P1 Cheque dt.4-11-2008.
Ex.P2 Bank memo dt.13-3-2009.
Ex.P3 Office copy of the legal notice dt.19-3-
2009.
Ex.P4 to P6 RPAD receipts.
{35} O.S.No.7522/2011
Ex.P7 to P9 Postal receipts.
Ex.P10 to P12 Postal acknowledgements.
Ex.P13 Reply notice dt.1-4-2009 Ex.P14 Cheque dt.4-11-2008. Ex.P15 Bank memo. Ex.P16 Office copy of the legal notice. Ex.P17 to P19 RPAD receipts. Ex.P20 to P22 Postal receipts.
Ex.P23 to P25 Postal acknowledgements.
Ex.P26 Reply notice dt.10-4-2009.
Ex.P27 Certified copy of the deed of the
Reconstitution firm.
Ex.P28 Certified copy of the consolidated
Statement of accounts.
Ex.P29 General Power of Attorney .
Ex.P30 Endorsement issued by Canara Bank,
Seshadripuram branch, Bangalore
dt.18.12.2015
List of witnesses examined on behalf of the Defendants :
NIL List of documents marked on behalf of the Defendants :
Ex.D1 Letter from Karnataka State
Finance Corporation
Ex.D2 Reconstitution Deed
Ex.D3 Certified copy of Judgment
passed in C.C.No.16659/2009
Ex.D4 Certified copy Judgment passed
{36} O.S.No.7522/2011
in C.C.No.16660/2009
Ex.D5 Certified copy of Order passed in Criminal Appeal No.93/2013 C/w 94/2013 Ex.D6 Statement of account Ex.D7 Statement of account XXXVIII Addl. City Civil and Sessions Judge, Bangalore City.
{37} O.S.No.7522/2011
-38- O.S.No.5223/2010
Order pronounced in the open court vide separate judgment ORDER Suit filed by the plaintiffs is hereby dismissed.
Under the circumstances, the parties are directed to bear their own costs.
Draw decree accordingly.
XXXVIII Addl. City Civil and Sessions Judge, Bangalore City.