Bangalore District Court
In Pebble Bay Developers Pvt.Ltd vs In 1. Mr. H.V.Gowthama on 7 March, 2020
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Com.O.S.No.26532/2009 c/w
Com.O.S.No.25412/2010
IN THE COURT OF LXXXII ADDL.CITY CIVIL & SESSIONS
JUDGE,BANGALORE CITY.(CCH.83)
Dated, this the 7th day of March 2020.
PRESENT : Sri.Jagadeeshwara.M., B.Com, LL.B.,
LXXXII Addl.City Civil & Sessions Judge, Bangalore.
Com.O.S.No.26532/2009 c/w Com.O.S.No.25412/2010
Plaintiff in Pebble Bay Developers Pvt.Ltd., having their
Com.O.S.No.26532/2009 branch office at Onxy Centre, 4th floor, No.5,
Museum Road, Bangalore -560 001
Also at Raheja Chambers, Linking Road and
Main Avenue, Santacruz West, Mumbai 400 054,
represented by its Director, Aditya Raheja.
(By Sri. Srinivas - Advocate)
1. M/s United Estates,
Plaintiffs in Com.OS No.16, Railway Parallel Road,
No.25412/2010 Kumara Park (East),
Bangalore - 560 001, represented
by its Proprietor Mr. Santhosh
Kumar C.L.
2. Mr. H.V.Gowthama,
Chartered Accountant,
Gowthama and Company,
23/57, 41st cross,
East End, "C" Main Road,
9th block, Jayanagar,
Bangalore -560 069.
(By Sri.Ganapathi Hegde-Advocate)
VS
Defendants in 1. Mr. H.V.Gowthama,
Com.O.S.No.26532/2009 Chartered Accountant,
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Com.O.S.No.25412/2010
Son of unknown, age major,
having Office at C/o Mr. Santosh
Kumar, United Estates, 16,
Railway Parallel Road, Kumara
Park East, Bangalore - 560 001,
and also at 23/57, 41st cross,
East End, "C" Main Road,
9th block, Jayanagar,
Bangalore -560 069.
2. Mr. C.L.Santhosh Kumar,
S/o C.L.N. Murthy, aged 40 years,
Proprietor, M/s United Estates,
No.16, Railway Parallel Road,
Kumara Park (East),
Bangalore - 560 020.
Defendants in Com.OS 1. Pebble Bay Developers
No.25412/2010 Pvt.Ltd., Raheja Chambers,
Linking Road & Main Avenue,
Santa Cruz (West),
Mumbai - 400 054.
Branch office at:
Onxy Centre, No.5, 4th floor,
Museum Road,
Bangalore -560 001
represented by its Managing
Director Mr. Deepak Bhagawandas
Raheja.
2. Mr.Aditya Raheja, Director,
M/s Pebble Bay Developers
Pvt.Ltd., Raheja Chambers,
Linking Road & Main Avenue,
Santa Cruz (West),
Mumbai - 400 054.
Also Available at:
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Com.O.S.No.25412/2010
Onyx Center, No.5, 4th floor,
Museum Road,
Bangalore -560 001.
3. Avani V. Raheja, Director,
D/o Vijay B.Raheja, M/s Pebble
Bay Developers Pvt.Ltd., Raheja
Chambers, Linking Road & Main
Avenue, Santa Cruz (West),
Mumbai - 400 054.
Also Available at:
Onyx Center, No.5, 4th floor,
Museum Road,
Bangalore -560 001.
4. Vijay Bhagawandas Raheja, Director,
Also Available at:
Onyx Center, No.5, 4th floor,
Museum Road,
Bangalore -560 001.
Also Available at:
Onyx Center, No.5, 4th floor,
Museum Road,
Bangalore -560 001.
And at:
24/1, GSTAAD HOTELS PVT.LTD.,
Vittal Malya Road and Kasthurba Road
Corner, Bangalore -560 001.
5. Wachovia Securities,
Functioning in the name of Wellsfargo
Bank. No.301, kWindsor, Kalina,
Santa Cruz East, Mumbai,
represented by its Nominee Director:
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Com.O.S.No.25412/2010
James Hillyer Boice III.
Date of institution of the suit : 1)14.7.2009
2)10.3.2010
Nature of the suit (suit on 1) Suit for declaration & injunction
pronote, suit for declaration
and possession suit for injunction,etc) : 2) Suit for recovery of money
Date of the commencement Common evidence recorded from
of recording of the evidence
17.9.2013
Date on which the Judgment 7.3.2020
was pronounced
Total duration Year/s Month/s Day/s
1) 10 07 22
2) 09 11 26
(JAGADEESWARA.M.),
LXXXII Addl. City Civil & Sessions Judge,
Bangalore.
COMMON JUDGMENT
IN COM. OS NOs.26532/2009 c/w 25412/2010
These two suits are between same parties. The issue involved in
these two suits is almost one and the same. Pebble Bay Developers
Pvt.Ltd., is the plaintiff in Com.O.S.No.26532/2009. This Pebble Bay
Developers Pvt.ltd., and its Directors are defendant Nos.1 to 4 in
Com.O.S.No.25412/2010. Wachovia Securities is made as defendant No.5
in this suit. One Sri. H.V.Gowthama who is Chartered Accountant and
another one M/s United Estates represented by its Proprietor Sri.
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Com.O.S.No.25412/2010
C.L.Santhosh Kumar are defendants in Com.O.S.No.26532/2009 and they
are also plaintiffs in Com.O.S.No.25412/2010. These two suits are
clubbed and common trial is held in Com.O.S.No.26532/2009. Hence, I
have taken up these two suits together for disposal through this common
judgment.
1(a). Reliefs claimed in Com.O.S.No.26532/2009 are as under:
(a) Declare that plaintiff does not owe the defendant any
sums as no services or goods have been supplied to the
plaintiff;
(b) Direct the defendant to return the Cheques to the
plaintiff as per Annexure-E;
(c) Perpetual injunction to restrain the defendants from
making any claims on the plaintiff on the grounds stated
in the notice as per Annexure-J;
(d) Pay the plaintiff a sum of Rs.12 Crores as liquidated
damages by the defendant; and
(e) Cost for the said suit and such further order as this
Hon'ble court deems fit in the interest of justice and
equity.
1(b). Reliefs claimed in Com.O.S.25412/2010 are as under:
(a) Direct the defendants to pay the plaintiff a sum of
Rs.12,05,56,314/- as on the date of realisation;
(b) Direct the defendants to pay interest at the rate of 18%
per annum on Rs.12,05,56,314/- from the date of suit till
the date of payment; and
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(c). To pay cost of these proceedings.
1(c). Pebble Bay Developers Pvt.ltd., who is plaintiff of suit
Com.O.S.No.26532/2009 and who is defendant along with Directors in
Com.O.S.No.25412/2010, would be referred to as 'Pebble'
hereinafterwards. Mr. H.V.Gowthama who is defendant No.1 of
Com.O.S.No.26532/2009 and plaintiff No.2 in Com.O.S.No.25412/2010
would be referred to as "Chartered Accountant" or "Escrow Agent"
hereinafterwards. M/s United Estates represented by its Proprietor Sri.
C.L.Santhosh Kumar who is defendant No.2 of Com.O.S.No.26532/2009
and who is plaintiff No.1 of Com.O.S.No.25412/2010, would be referred to
as "Real Estate Agent" hereinafterwards. Since issue involved in both the
suits and one and the same, common facts of both the suits are as under:
CONTENTION OF PEBBLE BAY DEVELOPERS PVT. LTD. IN
ITS PLAINT OF Com.O.S.NO.26532/2009 AND IN ITS WRITTEN
STATEMENT OF Com.O.S.No.25412/2010.
2. Pebble and M/s Kanyakumari Builders are part of Advantage
Raheja Group of Companies. The said M/s Kunyakumari builders had
entered into Joint Development Agreement relating to property at No.28,
Cubbon Road, and property No.101, Infantry Road, Bangalore (Cubbon
road property) on 16.11.2006 with the Owners M/s L.K.Trust along with
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M/s Spring Borewells Co.Pvt.Ltd. The said Company had also entered into
a Joint Development Agreement with regard to the RMV property at
Nagashetty halli village, Kasaba Hobli, Bangalore in the year 2006 and
subsequently it was canceled. The land owner of the property at Cubbon
Road had issued a notice purportedly terminating the JDA. The owner of
RMV property had introduced Real Estate Agent by name Mr. Santhosh
Kumar, the Proprietor of M/s United Estates to the Advantage Raheja
Group. In order to vacate the hutments in the RMV property, which was
obligation of the owner M/s L.K.Trust, the company M/s Kanyakumari
had spent Crores in that regard. The said M/s L.K.Trust had paid Rs.10
Crores to M/s Kanyakumari in that regard. Since the said JDA between
M/s Kanyakumari & M/s L.K.Trust was canceled, Pebble had purchased
the said property from M/s L.K.Trust in the year 2007. Real estate agent
had acted as a broker for the transaction of RMV Property. In view of the
termination notice issued by M/s L.K.Trust due to non-payment of crores
of rupees, M/s Kanyakumari was facing financial crisis and as such it
could not develop the Cubbon Road property. The case was filed by M/s
Kanyakumari against M/s L.K.Trust and M/s Spring Borwells Ltd., before
the Arbitral Tribunal for specific performance of the JDA. A case was filed
by M/s Kanyakumari against M/s L.K.Trust before City Civil Court for
recovery of money.
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2(a). In the month of January 2009 the Real estate agent informed the
Advantage Raheja Group, M/s Kanyakumari and to Pebble that he has met
M/s L.K.Trust who are ready for amicable resolution of the dispute and
they would refund the amounts to M/s Kanyakumari and if Pebble
contributes Rs.10 Crores in that regard, M/s L.K.Trust is ready to
withdraw the termination notice of the Cubbon Road property and thereby
M/s Kanyakumari can commence the development work of the said
property. Pebble agreed to participate in the said Settlement process. Real
Estate Agent demanded for a consideration of Rs.2,50,56,314/- including
service tax if he succeeds to complete said task. At that time, the Real
Estate Agent informed the Pebble that as a precondition for M/s L.K. Trust
to agree to such settlement, Cheques for the aforesaid amount was to be
deposited as a security with his nominee to secure M/s L.K.Trust. At that
time, real estate agent informed the Pebble that Chartered Accountant by
name Sri. H.V.Gowthama is well known and trusted by M/s L.K.Trust also.
Believing these words of the real estate agent and with an intention to
resolve the dispute, Pebble agreed to deposit 10 Cheques shown in
Annexure-E, as security in escrow with Chartered Accountant/Escrow
agent who was introduced to the Pebble by the real estate agent in January
2009 and at that time, in the discussion held, it was agreed that the Escrow
Agent would hold the said Cheques in trust and after return of amounts by
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M/s L.K.Trust to M/s Kanyakumari and after paying the consideration of
Real estate agent, and after paying Rs.10 Crores to M/s L.K.Trust, the
Escrow Agent would return the 10 Cheques to the Pebble. At that time,
Real Estate Agent told the Pebble that Chartered Accountant is reputed one
and worked for various companies including BPL Group of Companies
and looked after accounts of Mr. A.K.Anthony, the Defence Minister of
India. Pebble believed these words. Chartered Accountant prepared a
letter stating it as irrevocable instruction which was opposed by the Pebble,
however, believing the Real Estate Agent and also Chartered Accountant,
in good faith,Pebble had signed covering letter with which Pebble gave 10
Cheques to the Escrow Agent. But, in the month of March 2009, Real
Estate Agent informed the Pebble that M/s L.K. Trust is not responding
for settlement and Cheques lying with escrow agent would be returned.
Therefore, as an abundant caution, Pebble gave 'stop payment' instruction
to its Banker relating to those Cheques in the month of April 2009. In the
year 2009 Real Estate Agent asked the Pebble for hand loans. Since
Pebble did not give hand loans, Real Estate Agent became angry and
stopped interacting with the Pebble and told that he would teach a lesson to
the Pebble. In May 2009, Pebble sent letter to the Chartered Accountant
demanding to return 10 Cheques lying escrow. On 3.6.2009 Pebble met
Chartered Accountant and demanded to return Cheques. At that time
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Chartered Accountant told that he is an Escrow Agent only and has not
provided any services to the Pebble and he agreed to return the Cheques to
the Pebble. But, instead of returning Cheques, Chartered Accountant
issued legal notice to the Pebble claiming amounts based on said Cheques
on the ground of services provided by him to the Pebble relating to the
RMV Property. Pebble had sent reply to the said notice of the Chartered
Accountant. Since the Cheques were deposited in trust and not for payment
of any debt or liability, Pebble is not bound to pay any amount to Chartered
Accountant. The said Cheques were made in the name of the Chartered
Accountant only as an Escrow Agent and that it is without any
consideration as no services are rendered nor goods are delivered.
Chartered Accountant is not Accountant nor Auditor of Pebble. Since
Chartered Accountant/Escrow Agent has committed breach of trust and
confidence, he is liable to return Cheques and to pay liquidated damages to
the Pebble. Accordingly, Pebble has requested to decree its suit, for the
above noted reliefs in Com.O.S.No.26532/2009 and to dismiss the suit in
Com.O.S.No.25412/2010 filed against it.
3.CONTENTION OF CHARTERED ACCOUNT AND REAL
ESTATE AGENT IN THEIR PLAINT OF Com.O.S.NO.25412/2010
AND IN THEIR WRITTEN STATEMENT OF
Com.O.S.No.26532/2009.
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Chartered Accountant was throughout acting as an escrow agent
complying in toto with the instructions/understanding between the Pebble
and Real Estate Agent. The Pebble in concurrence with the Real Estate
Agent, had appointed Chartered Accountant as Escrow Agent to enable the
Pebble to make various payments due and payable to Real Estate Agent
Thus, Chartered Accountant was appointed as Escrow Agent as per mutual
agreement between the Pebble and Real Estate Agent.
3(a). Further it is also contended by them that in the year 2006 the
Directors of the Pebble had approached and engaged the professional
services of Real Estate Agent for the purpose of negotiating, structuring
and finalizing the development of real estate projects in Bangalore on
behalf of the Pebble and its sister company by name M/s Kanyakumari
Developers Pvt.Ltd., with regard to the "Pebble Bay" Project which was
the flagship project in Bangalore. Pebble and its sister concern were
intending to use funding for this project from foreign investors. They
entrusted this work to secure foreign investors, to Real Estate Agent, who
made efforts and carried out a series of meetings with the foreign
investors, who after discussing all the issues relating to the project, agreed
to invest in the Pebble. Accordingly the Pebble was able to meet the huge
investments. Relating to this service rendered, Real Estate Agent used to
raise invoices on the Pebble and its sister concern for his professional fee
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and same was paid to him in April 2006 and January 2007.
3(b). It is further contended by them that again in January 2007,
Pebble approached the Real Estate Agent requesting his expertise in
selling luxury apartments in the "Pebble Bay Project" and promised that
he would be paid with fixed percentage of commission for the services
rendered by him. Hence Real Estate Agent continued his services and
succeeded in selling more number of apartments in the "Pebble Bay
Project" during the year December 2007 to January 2009 for which he was
entitled for huge amount of commission and professional fee etc. he had
raised periodical invoices to the Pebble claiming these charges. But Pebble
cleared some invoices only and it failed to clear remaining invoices
amounting to Rs.11,95,18,812/-. Hence Real Estate Agent expressed his
inability to the Pebble to render any further service and informed the
Pebble to terminate the service agreement. Therefore a meeting was held
between the Chairman of the Pebble and Real Estate Agent on 19-09-2008
in which Chairman of Pebble expressed indebtedness and requested time
till 31-03-2009 to clear his dues. At that time Real Estate Agent sought a
guarantee from the Pebble for payment of the amount due in the form of
post dated Cheques to be issued to him and to be encashed after 31.3.2009.
Pebble had agreed to issue Cheques for the due amount on the condition
that the said Cheques would be issued in favor of an Escrow Agent who
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Com.O.S.No.25412/2010
would hold the Cheques till 31.3.2009 after which the Cheques could be
presented to the Bank for encashment and then Escrow Agent would make
the necessary payments to the Real Estate Agent and for this work the
Escrow Agent would also be entitled for a fixed sum of fee. But, due to
bitter experience faced, the Real Estate Agent insisted the Pebble to issue
Cheques of the current date in favor of Escrow Agent and further he told
that if current dated Cheques are not issued in favor of Escrow Agent, he
would immediately terminate the Agreement. After negotiation done,
Pebble and its Directors agreed to issue Cheques of current date in favor of
Escrow Agent with authority to him to present those Cheques to the Bank
after 31.3.2009 and make payments to the Real Estate Agent. Accordingly,
after deliberations and negotiations between the Real Estate Agent and also
representatives of the Pebble, they had agreed to appoint
Sri.H.V.Gowthama, the Chartered Accountant, as Escrow Agent. The said
Sri.H.V.Gowthama gave his consent to be appointed as Escrow Agent on
such terms and conditions that he should hold in his custody all the
Cheques to be issued in his name by the Pebble till 31.3.2009 and
thereafter to present said Cheques to the Bank and after encashment to
make payments to the Real Estate Agent. Accordingly, Pebble and its
Directors issued 10 Cheques in all i.e., 9 Cheques bearing Nos.440236 to
440244 dated 12.1.2009 for Rs.1 Crore each respectively and one Cheque
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Com.O.S.No.25412/2010
No.468414 dated 12.1.2009 for Rs.3,05,56,314/-, in all Rs.12,05,56,314/-
in favour of Chartered Accountant. Out of said total Cheque amount of
Rs.12,05,56,314/-, a sum of Rs.11,95,18,812/- was to be paid to the Real
Estate Agent being the due amount and the balance of Rs.10,37,502/- was
the amount to be paid to the Chartered Accountant towards his professional
fee for acting as the Escrow Agent. Those Cheques were sent by the Pebble
to the Chartered Account with covering letter dated 12.1.2009 clearly
stating that the said Cheques would not be revoked for whatever reasons.
Pebble had assured that the said Cheques would be honoured on their
presentation by the Banker after 31.3.2009.
3(c). Further it is contended by them that in the month of May 2009
Chartered Accountant presented those Cheques to the Bank for encashment
and those Cheques were dishonoured with the endorsement 'stop
payment'. Hence, Chartered Accountant got issued legal demand notice
on 12.6.2009 to the Pebble & its Directors demanding to pay a sum of
Rs.12,05,56,314/-. But, instead of paying the amount as demanded, they
have issued untenable reply notice dated 23.6.2009. Hence, Chartered
Accountant filed 10 separate criminal complaints before the 16 th Additional
Chief Metropolitan Magistrate at Bangalore in PCR No.13593 to
13602/2009 under Sec.200 of Cr.P.C., against the Pebble and its Directors
for the offence punishable under Sec.138 of N.I. Act. But the Pebble filed
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Com.O.S.No.25412/2010
complaint before the Cubbon Park Police Station against against the Real
Estate Agent and Chartered Accountant suppressing the facts and got
registered a case in Cr.No.214/2009 and this was challenged before
Hon'ble High Court of Karnataka in Crl.P.No.3786/2009 and stay has been
granted for further investigation. Pebble has also filed a suit OS
No.26532/2009 seeking direction for return of Cheques.
3(d). Further it is contended that Pebble and its Directors are liable to
make good the loss caused to the Real Estate Agent along with interest at
18% per annum.. The Pebble had to pay a total sum of Rs.12,05,56,314/-
excluding tax to Real Estate Agent and out of the said amount, a sum of
Rs.11,95,18,812/- is to be paid to the Real Estate Agent and the after
collectin of the due amount, the Chartered Accountant was entitled to
deduct his professional charges of Rs.10,37,702/-. As per the
understanding between the Pebble, Chartered Accountant and the Real
Estate Agent. The Chartered Accountant would also be held liable by the
Real Estate Agent, in case the Cheques presented to the Chartered
Accountant by the Pebble were dishonoured. It is for this reason that the
Chartered Accountant on getting information regarding dishonour of
Cheques, on 12.6.2009 got issued legal notice to the Pebble and its
Directors. As the Chartered Accountant was not in a position to encash the
amount under the Cheques which he had held as Escrow Agent, he was
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compelled to file complaints before the 16th Additional C.M.M., Bangalore
in PCR No.13593 to 13562 of 2009. Accordingly, Real Estate Agent and
Chartered Accountant have requested to dismiss Com.O.S.No.26532/2009
and grant decree in Com.O.S.No.25412/2010.
4. The 5th Defendant has filed its written statement in
Com.O.S.No.25412/2010 contending that There is no entity in the name
of Wachovia Securities that exist. WDV Ventures Ltd. (WDCV) is a
company incorporated in Mauritius and is a subsidiary of Wells Fargo &
Company, which is a Company incorporated in the United States of
America. Wells Fargo Bank, National Association (WFBNA) also is a
subsidiary Company of Wells Fargo & Company and is engaged in the
business of banking. WDCV invested money in the defendant No.1 and
entered into a Share Subscription Agreement with defendant No.1 and by
virtue of the said investments made, WDCV held 49% shareholding in
defendant No.1. As on the date of filing of the present written statement,
WDCV has exited from the relationship with defendant No.1 and has since
sold its share to the Raheja Group. At no point of time employee/officer of
WDCV or WFBNA interacted with the plaintiffs and since the plaintiffs
have impleaded the so called Wachovia Securities, functioning in the name
of Wells Fargo Bank at Mumbai, WFBNA is filing the present written
statement. The suit filed against defendant No.5 is malicious, vexatious
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and not maintainable. Defendant No.5 has been unnecessarily impleaded in
the present suit and the defendant No.5 has no liability towards plaintiffs.
There is no cause of action to file the suit against the defendant No.5. The
suit is for recovery of money allegedly from the defendant No.1. Thus,
there is no cause of action to file the suit against defendant No.5.
Accordingly, defendant No.5 has requested to dismiss the suit in
Com.O.S.No.25412/2010.
5. The following issues have been framed in
Com.O.S.No.26532/2009 :
ISSUES In Com.O.S.No.26532/2009
1) Whether the plaintiff proves that he don't owe any sums to the
defendants?
2) Whether the defendant is liable to return the Cheques to the
plaintiff?
3) Whether the plaintiff is entitled for permanent injunction?
4) Whether the defendant is liable to pay Rs.12 crores as
liquidated damages?
5) Whether suit is hit by non joinder of necessary parties?
6) Whether the defendant proves that the Cheques were sent
towards discharge of legal liabilities of M/s United estates and
defendant?
7) What order or decree?
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6. The following issues have been framed in
Com.O.S.No.25412/2010 :
ISSUES IN Com.O.S.No.25412/2010
1) Whether the plaintiff proves that the defendant No.2 to 5 being
the directors of the defendant No.1 company who are jointly
and severally liable to pay a sum of Rs.12,05,56,314/- to the
plaintiff?
2) Whether the plaintiff is entitle for interest at the rate of 18%
p.a.?
3) Whether the defendant prove that plaintiff No.2 has acted as an
Escrow Agent, received the Cheques in fiducially capacity as
trustee Escrow Agent, defendants are not due of any amount to
the plaintiff?
4) Whether the suit is hit by mis joinder of parties?
5) What order or decree?
7. In proof of suit claim, Director of the Pebble got examined himself
as PW.1 and got marked documents as Ex.P.1 to Ex.P.12. On the other
hand, the Chartered Accountant got examined himself as DW.1 and got
marked documents as Exs.D.1 to D.25 & D.25(a) & (b). There is no oral
and documentary evidence placed by the Real Estate Agent.
8. I have heard arguments of both sides and I have
carefully gone through the notes of arguments submitted by both
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sides.
9. My findings on the above issues are as under:
FINDINGS
Com.O.S.No.26532/2009
Issue No.1 : Affirmative
Issue No.2 : Does not arise
Issue No.3 : Affirmative
Issue No.4 : Partly in the Affirmative
Issue Nos.5 & 6: Negative
Issue No.7 : As per final order
Com.O.S.No.25412/2010
Issue Nos. 1 & 2 : Negative
Issue No.3 : Affirmative
Issue No.4 : Negative
Issue No.5 : As per final order
for the following:
REASONS
10. ISSUE NOS.1,3 & 6 OF Com.O.S.No.2653/2009 & ISSUE
NOS.1 TO 3 OF Com.O.S.No.25412/2010 : It is argument of learned
advocate for Pebble Bay Developers Pvt.Ltd., who is plaintiff in
Com.O.S.No.26532/2009 and defendant No.1 to 4 of
Com.O.S.No.25412/2010 that it is admitted fact that Chartered Accountant
by name Sri. H.V.Gowthama was consented to Act as Escrow Agent
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relating to some transaction for which one Mr. Santhosh Kumar, the
Proprietor of M/s United Estates, was working as Real Estate Agent and he
agreed to assist for the transactions of Pebble Bay Developers Pvt.Ltd. It
is also undisputed fact that Pebble delivered 10 Cheques to Escrow Agent.
Though Escrow Agent had issued notice as per Ex.D.11 after presentation
of the Cheques, which Cheques were returned unpaid with endorsement
'Stop payment', stating in the notice that Cheque amount of
Rs.12,05,56,314/- was payable by the Pebble for his services rendered.
Subsequently Chartered Accountant/Escrow Agent initiated criminal
prosecution on the basis of those Cheques for the offence punishable under
Sec.138 of N.I. Act, but the said criminal prosecution was ended in
acquittal as per Ex.D.14 with the observation that the Cheques in question
were not issued for discharge of legal liability. The said Chartered
Accountant/Escrow Agent has been examined as DW.1 in the cases on
hand and he has clearly admitted that he was purely Escrow Agent to hold
the Cheques in trust and he never rendered any services to the Pebble and
there was no agreement between him and Pebble to pay Rs.10,37,702/-
towards his professional charges. Further it is also submission of learned
advocate for Pebble that and Pebble and M/s Kanyakumari Builders are
part of Advantage Raheja Group of Companies. The said M/s
Kanyakumari Builders had entered into JDA relating to property No.28,
21
Com.O.S.No.26532/2009 c/w
Com.O.S.No.25412/2010
Cubbon Road, Property No.101, Infantry Road, Bangalore (Cubbon Road
Property) on 16.11.2006 with the owners M/s L.K.Trust along with M/s
Spring Borewell Co.Pvt.Ltd. The said Company had also entered into JDA
with regard to the RMV Property at Nagashettyhalli village, Kasaba Hobli,
Bangalore in the year 2006 and subsequently the said JDA was canceled.
The land owners of Cubbon Road Property had issued notice purportedly
terminating the JDA. Pebble had purchased RMV property from M/s
L.K.Trust. Mr. Santhosh Kumar C.L., who is Real Estate Agent, had acted
as a broker for the said transaction of RMV property. Further it is also
submission of learned advocate for Pebble that a case was filed by M/s
Kanyakumari against M/s L.K.Trust and M/s Spring Borewell Co.Pvt.Ltd.,
before the Arbitral Tribunal for specific performance of JDA. Similarly a
case was filed by M/s Kanyakumari against M/s L.K.Trust before the City
Civil Court for recovery of money. Due to these disputes relating to the
property, in the month of January 2009, the Real Estate Agent i.e., Mr.
Santhosh Kumar C.L., informed the Advantage Raheja Group, M/s
Kanyakumari and the Pebble that he has met M/s L.K.Trust who are ready
for amicable resolution of the dispute if they would refund the amounts to
M/s Kanyakumari and if Pebble contributes Rs.10 Crores in that regard,
M/s L.K.Trust is ready to withdraw the termination notice of the Cubbon
Road property and thereby M/s Kanyakumari can commence the
22
Com.O.S.No.26532/2009 c/w
Com.O.S.No.25412/2010
development work of the said property. Due to this proposal for
settlement, Pebble had agreed to participate in the settlement process. Real
Estate Agent demanded for his charges of Rs.2,50,56,314/- including
service tax if he succeeds in the settlement task. This was also agreed to.
At that time Real Estate Agent informed the Pebble that as a pre-condition
for M/s L.K.Trust to agree to such settlement, Cheques for the aforesaid
amount was to be deposited as security with the Escrow Agent. Real
Estate Agent introduced one Mr. H.V.Gowthama who is Chartered
Accountant, to the Pebble and told that the said Chartered Accountant is
well known, reputed and believable person and Cheques can be deposited
with him as Escrow Agent. Further it is also submission of learned
advocate for Pebble that believing the words of Chartered Accountant,
Pebble agreed to deposit 10 Cheques as security in escrow with Chartered
Accountant/Escrow Agent. The said Chartered Accountant, at the instance
of Real Estate Agent, had prepared letter at Ex.P.1 showing that Pebble
issued Cheques in favour of Chartered Accountant and it will not revoke
those Cheques. Though Pebble opposed to such letter, but believing the
words of Real Estate Agent, it signed the letter at Ex.P.1 and delivered 10
Cheques to the Escrow Agent. It was agreed to return the Cheques
immediately after settlement of the property was completed. But
settlement was failed. Instead of returning those 10 Cheques, Escrow
23
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Com.O.S.No.25412/2010
Agent started to demand money of the Cheques. Hence, Pebble sent letter
to the bank with 'Stop Payment' instruction relating to those Chques.
Further it is also submission of learned advocate for Pebble that Chartered
Accountant/Escrow Agent has presented those 10 Cheques to the bank
which were returned with endorsement 'Stop Payment'. Factually there
was no service rendered by the Escrow Agent to the Pebble. There was no
agreement to pay any charges to the Escrow Agent. Escrow Agent misused
the trust and belief by presenting the Cheques for encashment. Escrow
Agent initiated criminal prosecution based on those Cheques for the
offence punishable under Sec.138 of N.I. Act which were ended in
acquittal as per Ex.D.14 with the observation that Cheques in question
were not issued towards discharge of any debt. Further it is also
submission of learned advocate for Pebble that PW.1 in his oral evidence
has clearly narrated these facts. These facts are not controverted by the
other side in the cross-examination of PW.1. Escrow Agent has been
examined as DW.1 and in the cross-examination he has admitted that he
was purely Escrow Agent only to hold the Cheques and he never rendered
any services to the Pebble and there was no agreement to pay any charges
to him. Accordingly it is submission of learned advocate for Pebble that
Pebble is not due any amount to the Escrow Agent. Though it is
contention of Escrow Agent and also Chartered Accountant that Escrow
24
Com.O.S.No.26532/2009 c/w
Com.O.S.No.25412/2010
Agent held the Cheques submitted by the Pebble to encash it and to make
payment to the Real Estate Agent relating to the service rendered by the
Real Estate Agent to the Pebble, but Real Estate Agent has not placed oral
and documentary evidence to prove that he rendered such services to the
Pebble and he was entitled for the amounts of the Cheques towards his
services. Accordingly it is submission of learned advocate for Pebble that
it is clearly proved by the Pebble that it does not owe any sums to the
Escrow Agent and Real Estate Agent who have failed to prove that
Cheques were sent by the Pebble towards discharge of legal liabilities of
the Real Estate Agent. Accordingly learned advocate for Pebble has
requested to answer Issue Nos.1 & 3 of Com.O.S.No.26532/2009 in the
affirmative and Issue No.6 of the said suit in the negative and Issue Nos.1
& 2 of Com.O.S.No.25412/2010 in the negative and Issue No.3 of the said
suit in the affirmative.
11. On the other hand, it is submission of learned advocate for Real
Estate Agent that it is admitted fact that relating to the dispute of the
transaction of the property between the Advantage Raheja Group
Company, M/s Kanyakumari Builders, Pebble, M/s L.K.Trust and M/s
Spring Borewells Co.Pvt.Ltd., relating to the Cubbon Property, RMV
property etc., Pebble took services of Real Estate Agent to solve the
dispute and also took his services for marketing of the plots of Pebble Bay
25
Com.O.S.No.26532/2009 c/w
Com.O.S.No.25412/2010
Project which was the flagship project in Bangalore, agreeing to pay
commission and also charges for the services of Real Estate Agent. Further
it is also submission of learned advocate for Escrow Agent that for the
continuous services rendered, Real Estate Agent used to raise invoices to
the Pebble who made part payment only. Due to non-payment of his
service charges, Real Estate Agent stopped to render his services to the
Pebble and requested the Pebble to terminate the agreement. Being afraid
of the decision taken by the Real Estate Agent and realising that services of
Real Estate Agent is required for sale of flats of Pebble Bay project and
also for other works, the Chairman of Pebble convened Meeting and
expressed its indebtedness due to dispute of the family members of the
Advantage Raheja Group company and at that time, it was assured to the
Real Estate Agent that his charges would be paid after 31/3/2009 and
accordingly Real Estate Agent was requested to continue his services to the
Pebble. Further it is also submission of learned advocate for Escrow
Agent that at that time Real Estate Agent demanded the Pebble to issue
Cheques for the dues and then only he would continue his services. At that
time, Pebble agreed to issue post dated Cheques for the dues payable to the
Real Estate Agent. But having bitter experience with the Pebble, Real
Estate Agent demanded the Pebble to issue current dated Cheques and to
deliver Cheques with the Escrow Agent and those Cheques would be
26
Com.O.S.No.26532/2009 c/w
Com.O.S.No.25412/2010
encashed after 31.3.2009. Pebble had agreed to deliver current dated
Cheques with the Escrow Agent. Accordingly Mr. H.V.Gowthama, who is
well known and reputed Chartered Accountant, was introduced to the
Pebble who delivered Cheques in favour of Chartered Accountant/Escrow
Agent with the letter at Ex.P.1 admitting that it will not revoke those
Cheques. Those 10 Cheques for Rs.12,05,56,314/- in question were
delivered to the name of Escrow Agent who was to encash the Cheques
and to make payment of Rs.11,95,18,812/- towards dues of Real Estate
Agent by retaining his professional charges of Rs.10,37,702/-. Further it is
also submission of learned advocate for Escrow Agent/Chartered
Accountant that there are contradictory stands in the pleading as well as in
the evidence of Pebble. Letter at Ex.P.1 issued by the Pebble along with 10
Cheques in favour of Escrow Agent is admitted Act. Contents of letter at
Ex.P.1 clearly supports the contention of Real Estate Agent and also
Escrow Agent. Accordingly learned advocate for Escrow Agent/Chartered
Accountant has requested to answer Issue Nos.1 & 3 of
Com.O.S.No.26532/2009 in the negative and Issue No.6 of the said suit in
the affirmative and Issue Nos.1 & 2 of Com.O.S.No.25412/2010 in the
affirmative and Issue No.3 of the said suit in the negative.
12. After having heard both sides relating to these issues, I have
carefully gone through the materials on record. At this stage itself it is
27
Com.O.S.No.26532/2009 c/w
Com.O.S.No.25412/2010
material to note that onus in Com.O.S.No.26532/2009 is on the Pebble to
prove that it delivered 10 Cheques along with letter at Ex.P.1 to the
Chartered Accountant to keep it in escrow as security till settlement of
dispute between the Pebble, M/s Kanyakumari and M/s L.K.Trust relating
to the Cubbon Road property and Real Estate Agent was convening this
settlement process and those Cheques were not given towards charges and
professional fees of Real Estate Agent and Chartered Accountant/Escrow
Agent. In the same way, onus in Com.O.S.No.25412/2010 is on the Real
Estate Agent and also Chartered Accountant to prove that relating to the
services rendered by the Real Estate Agent to the Pebble with regard to the
sale etc., of the Pebble Bay Project property, Rs.11,95,18,812/- was due to
be paid to the Real Estate Agent by the Pebble and towards payment of
said amount and as per the decision taken in the meeting held, Pebble
delivered current dated 10 Cheques for Rs.12,05,56,314/- with letter at
Ex.P.1 in favor of Chartered Accountant who should hold Cheques till
31.3.2009 and then he should encash the Cheques and make payment of
Rs.11,95,18,812/- to the Real Estate Agent and to retain remaining amount
of Rs.10,37,702/- towards his professional fees and further to prove that
those Cheques were not delivered by the Pebble to keep in escrow only by
the Chartered Accountant till settlement of disputes with the assistance of
Real Estate Agent and to return those Cheques either settlement succeeds
28
Com.O.S.No.26532/2009 c/w
Com.O.S.No.25412/2010
or settlement fails.
13. To discharge the onus in Com.O.S.No26532/2009, Director of
Pebble has been examined as PW.1 and marked records at Exs.P.1 to P.12.
Similarly, to discharge onus in Com.O.S.No.25412/2010, Chartered
Accountant has been examined as DW.1 and marked Exs.D.1 to D.25.
14. Records produced and marked by the Pebble i.e., plaintiff of
Com.O.S.No.26532/2009 are as under:
Sl.No. Description of the document Exhibits
1. Copy of Letter dated 12.1.2009 issued by the Pebble to the Ex.P.1
Chartered Accountant with 10 Cheques
2. Copy of Letter dated 12.1.2009 said to have been issued by Ex.P.2
the Pebble to the Chartered Accountant relating to the 10
Cheques
3. Copy of Letter dated 13.4.2009 issued by the Pebble to its Ex.P.3
Banker with 'Stop Payment' instruction relating to the 10
Cheques in question.
4. Copy of Letter dated 10.5.2009 sent by the Pebble to the Ex.P.4
Chartered Accountant requesting to return 10 Cheques
5. Certified copy of registered sale deed dated 31.1.2007 Ex.P.5
6. Certified copy of JDA dated 1.2.2006 entered into between Ex.P.6
M/s L.K.Trust and M/s Kanyakumari.
7. Copy of Board Resolution dated 29.6.2009 of Pebble Ex.P.7
authorizing to institute suit etc.
8. Copy of Legal Notice dated 12.6.2009 issued by the Chartered Ex.P.8
Accountant to the Pebble.
9. Reply notice dated 23.6.2009 issued by the Pebble to Ex.P.9
Chartered Accountant.
10. Ledger Account Extract of M/s Kanyakumari Builders Ex.P.10
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Com.O.S.No.26532/2009 c/w
Com.O.S.No.25412/2010
Pvt.Ltd. From 1.4.2004 to 11.11.2013.
11. Bank statement of M/s Kanyakumari Builders from Ex.P.11
Standard Chartered Bank dated 12.11.2005.
15. Records produced and marked by the Chartered Accountant i.e.,
plaintiff No.2 of Com.O.S.No.25412/2010 are as under:
Sl.No. Description of the document Exhibits
1. Certified copies of 10 Cheques said to have been issued by Ex.D.1 to
the Pebble to the Chartered Accountant. D.10
2. Copy of legal notice dated 12.6.2009 issued by the Chartered Ex.D.11
Accountant to the Pebble demanding to pay Cheque
Amounts since Cheques were dishonoured (It is also marked
as Ex.P.8)
3. Reply notice dated 23.6.2009 issued by the Pebble to the Ex.D.12
Chartered Accountant. (It is also marked as Ex.P.9)
4. C.C. of letter dated 12.1.2009 issued by the Pebble to the Ex.D.13
Chartered Accountant. (It is also marked as Ex.P.1)
5. C.C. of Judgment dated 10.7.2005 passed in CC Ex.D.14
Nos.32097/2009, 32099/2009 and 32101 to 32108/2009
acquitting the Pebble and its Directors for the offence under
Sec.138 of N.I. Act.
6. C.C. of Order dated 13.8.2010 passed in Ex.D.15
Crl.Ptn.Nos.3786/2009 quashing the FIR registered in
Cr.No.214/2009 against the Real Estate Agent and Chartered
Accountant.
7. C.C. of Synopsis and facts of Crl.Appeal No.1289/2015 filed Ex.D.16(a) &
by the Chartered Accountant against the Pebble before (b)
Hon'ble High Court of Karnataka challenging acquittal
judgment passed for the offence under Sec.138 of N.I.Act.
8. C.C. of Synopsis and facts of Crl.Appeal No.1290/2015 filed Ex.D.17(a) &
by the Chartered Accountant against the Pebble before (b)
Hon'ble High Court of Karnataka challenging acquittal
30
Com.O.S.No.26532/2009 c/w
Com.O.S.No.25412/2010
judgment passed for the offence under Sec.138 of N.I.Act.
9. C.C. of Synopsis and facts of Crl.Appeal No.1291/2015 filed Ex.D.18(a) &
by the Chartered Accountant against the Pebble before (b)
Hon'ble High Court of Karnataka challenging acquittal
judgment passed for the offence under Sec.138 of N.I.Act.
10. C.C. of Synopsis and facts of Crl.Appeal No.1292/2015 filed Ex.D.19(a) &
by the Chartered Accountant against the Pebble before (b)
Hon'ble High Court of Karnataka challenging acquittal
judgment passed for the offence under Sec.138 of N.I.Act.
11. C.C. of Synopsis and facts of Crl.Appeal No.1293/2015 filed Ex.D.20(a) &
by the Chartered Accountant against the Pebble before (b)
Hon'ble High Court of Karnataka challenging acquittal
judgment passed for the offence under Sec.138 of N.I.Act.
12. C.C. of Synopsis and facts of Crl.Appeal No.1294/2015 filed Ex.D.21(a) &
by the Chartered Accountant against the Pebble before (b)
Hon'ble High Court of Karnataka challenging acquittal
judgment passed for the offence under Sec.138 of N.I.Act.
13. C.C. of Synopsis and facts of Crl.Appeal No.1295/2015 filed Ex.D.22(a) &
by the Chartered Accountant against the Pebble before (b)
Hon'ble High Court of Karnataka challenging acquittal
judgment passed for the offence under Sec.138 of N.I.Act.
14. C.C. of Synopsis and facts of Crl.Appeal No.1296/2015 filed Ex.D.23(a) &
by the Chartered Accountant against the Pebble before (b)
Hon'ble High Court of Karnataka challenging acquittal
judgment passed for the offence under Sec.138 of N.I.Act.
15. C.C. of Synopsis and facts of Crl.Appeal No.1297/2015 filed Ex.D.24(a) &
by the Chartered Accountant against the Pebble before (b)
Hon'ble High Court of Karnataka challenging acquittal
judgment passed for the offence under Sec.138 of N.I.Act.
16. C.C. of Synopsis and facts of Crl.Appeal No.1298/2015 filed Ex.D.25(a) &
by the Chartered Accountant against the Pebble before (b)
Hon'ble High Court of Karnataka challenging acquittal
judgment passed for the offence under Sec.138 of N.I.Act.
31
Com.O.S.No.26532/2009 c/w
Com.O.S.No.25412/2010
16. From the above noted records and also from the oral evidence of
PW.1 and DW.1 it is clear that Pebble gave 10 Cheques at Exs.D.1 to D.10
to the Chartered Accountant on 12-01-2009 and at that time it signed letter
at Ex.P.1. Subsequently, Pebble issued letter dated 13-04-2009 at Ex.P.3 to
its Banker instructing to stop payment relating to these Cheques.
Subsequently, Pebble wrote letter dated 10-05-2009 to the Chartered
Accountant requesting to return those 10 Cheques. But Chartered
Accountant presented all the Cheques to the bank for encashment and
those Cheques were returned unpaid with endorsement "stop payment".
Hence Chartered Accountant issued legal notice dated 12-06-2009 as per
Ex.P.8/Ex.D.11 to the Pebble and its directors demanding to pay
Rs.12,05,56,314/- shown in those Cheques. Pebble issued reply notice
dated 23-06-2009 as per Ex.P.9/Ex.D.12 to the Chartered Accountant.
Subsequently Chartered Accountant initiated criminal prosecution against
Pebble and its Directors for the offence punishable under Sec.138 of
N.I.Act in CC Nos.32097/2009, 32099/2009 and 32101 to 32108/2009. All
these criminal cases were ended in acquittal through common judgment
dated 10-07-2005 at Ex.D.14 by holding that Cheques in question were not
issued for discharge of legal liability. Subsequently Chartered Accountant
has filed appeals before the Hon'ble High Court of Karnataka as per
Ex.D.15(a) and (b) to 25(a) and (b) against acquittal judgment.
32
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Com.O.S.No.25412/2010
17. In the letter dated 12-01-2009 at Ex.P.1/ Ex.D.13, in which it is
stated that Pebble gave 10 Cheques to Chartered Accountant, it is written
that Pebble will not revoke the 10 Cheques issued to the Chartered
Accountant towards his fee. It is say of Pebble in its suit in
Com.O.S.No.26532/2009 that this letter was prepared by the Chartered
Accountant at the instance of Real Estate Agent and Pebble opposed to this
letter. But it signed this letter reposing trust on Real Estate Agent and
Chartered Accountant and believing their say that reputed and well known
Chartered Accountant will hold these Cheques as Escrow Agent for
security only till the compromise effected relating to the Cubbon Road
property dispute between Pebble, M/s Kanyakumari and M/s L.K.Trust and
then he will return those Cheques to the Pebble. Further it is say of Pebble
that immediately on the same day on 12-01-2009 it gave another letter at
Ex.P.2 to the Chartered Accountant relating to 10 Cheques. Contents of
Ex.P.2 are as under :-
"The Cheques (10 nos. bearing Nos.440236, 440237, 440238,
440239, 440240, 440241, 440242, 440243, 440244, 468414 on Stan
Chart Bank) as per the enclosed letter dated 12-01-2009 would
be held in escrow as security by you until :
1. Mr. Santhosh Kumar would settle the matter between M/s
L.K.Trust and Kanyakumari builders Pvt. Ltd., to withdraw
their cancellation of Joint Development Agreement and Power
of Attorney on the Cubbon Road property.
2. Mr. Santhosh Kumar would also settle with L.K.Trust to
33
Com.O.S.No.26532/2009 c/w
Com.O.S.No.25412/2010
reimburse Kanyakumari builders Pvt. Ltd., the sums spent
on clearance of hutments.
3. M/s Pebble Bay Developers Pvt. Ltd., returning the sum of
Rs.10 crores to L.K.Trust.
4. Mr. Santhosh Kumar gets his commission of Rs.2,05,56,314
inclusive of service tax.
On these conditions been fulfilled the cheques will be returned
by you to Pebble Bay. However in the event the above events do
not happen by 31st April 2009 the cheques will be returned
immediately by you."
This letter issued by the Pebble as per Ex.P.2 has not been disputed by the
Chartered Accountant in his oral evidence being deposed as DW.1.
18. It is relevant to note that after 10 Cheques returned from the
bank with endorsement "stop payment", the Chartered Accountant issued
demand notice dated 12-06-2009 as per Ex.P.8/ Ex.D.11 to the Pebble and
its Directors. In this notice it was stated by the Chartered Accountant that
he rendered various services to the various projects of Pebble and entitled
for service charges and therefore towards amount due for his service
charges, Pebble issued 10 Cheques for Rs.12,05,56,314/-. Accordingly in
the statutory demand notice, Chartered Accountant demanded the Pebble to
pay Cheques amount of Rs.12,05,56,314/- being due amount towards his
charges for the services rendered. This is also pleaded by the Chartered
Accountant in the complaints filed by him against Pebble and its directors
for the offence under Sec.138 of N.I.Act as could be seen in Ex.D.14
34
Com.O.S.No.26532/2009 c/w
Com.O.S.No.25412/2010
which is certified copy of acquittal judgment.
19. It is important to note that stand taken by the Chartered
Accountant in the statutory demand notice at Ex.P.8/ Ex.D.11 and also in
the complaints filed against the Pebble and its directors for the offence
under Sec.138 of N.I.Act stating that for the services rendered by him the
Pebble was due to pay his service charges of Rs.12,05,56,314/- and to
discharge the same 10 Cheques were issued to him by the Pebble, this
stand is not only false story but also contradictory one to the stand taken by
the Chartered Accountant in these two suits for the reasons that in these
suits it is his stand that he was holding 10 Cheques of Pebble as Escrow
Agent to make payment to the Real Estate Agent after 31-03-2009 relating
to charges of services rendered to the Pebble. This theory that he was
holding Cheques as Escrow Agent to make payment to the Real Estate
Agent after 31-03-2009 relating to charges to his services rendered by the
Real Estate Agent to the Pebble, has not been stated in the statutory
demand notice at Ex.P.8/ Ex.D.11 and also in the complaints filed for the
offence under Sec.138 of N.I.Act.
20. Now it is necessary to go through the oral evidence of PW.1 and
DW.1. It is consistent oral evidence of PW.1 that Pebble and M/s
Kanyakumari Builders are part of Advantage Raheja Group of Companies.
The said M/s Kunyakumari builders had entered into Joint Development
35
Com.O.S.No.26532/2009 c/w
Com.O.S.No.25412/2010
Agreement relating to property at No.28, Cubbon Road, and property
No.101, Infantry Road, Bangalore (Cubbon road property) on 16.11.2006
with the Owners M/s L.K.Trust along with M/s Spring Borewells
Co.Pvt.Ltd. The said Company had also entered into a Joint Development
Agreement with regard to the RMV property at Nagashetty halli village,
Kasaba Hobli, Bangalore in the year 2006 and subsequently it was
canceled. Further it is evidence of PW.1 that the land owner of the Cubbon
Road property had issued a notice purportedly terminating the JDA. The
owner of RMV property had introduced Real Estate Agent by name Mr.
Santhosh Kumar, the Proprietor of M/s United Estates to the Advantage
Raheja Group. Further it is evidence of PW.1 that there was dispute and as
such the case was filed by M/s Kanyakumari against M/s L.K.Trust and
M/s Spring Borwells Ltd., before the Arbitral Tribunal for specific
performance of the JDA and further a case was also filed by M/s
Kanyakumari against M/s L.K.Trust before City Civil Court for recovery
of money. Further it is evidence of PW.1 that in the month of January 2009
the Real estate agent informed the Advantage Raheja Group, M/s
Kanyakumari and to Pebble that he has met M/s L.K.Trust who are ready
for amicable resolution of the dispute and they would refund the amounts
to M/s Kanyakumari if Pebble contributes Rs.10 Crores in that regard, and
M/s L.K.Trust is ready to withdraw the termination notice of the Cubbon
36
Com.O.S.No.26532/2009 c/w
Com.O.S.No.25412/2010
Road property and thereby M/s Kanyakumari can commence the
development work of the said property. Further it is evidence of PW.1 that
Pebble agreed to participate in the said Settlement process. Real Estate
Agent demanded for a consideration of Rs.2,50,56,314/- including service
tax if he succeeds to complete said task. At that time, the Real Estate Agent
informed the Pebble that as a precondition for M/s L.K. Trust to agree to
such settlement, Cheques for the aforesaid amount was to be deposited as a
security with his nominee to secure M/s L.K.Trust. At that time, real estate
agent informed the Pebble that Chartered Accountant by name Sri.
H.V.Gowthama is well known and trusted by M/s L.K.Trust also. Believing
these words of the real estate agent and with an intention to resolve the
dispute, Pebble agreed to deposit 10 Cheques as security in escrow with
Chartered Accountant/Escrow agent who was introduced to the Pebble by
the real estate agent in January 2009 and at that time, in the discussion
held, it was agreed that the Escrow Agent would hold the said Cheques in
trust and after return of amounts by M/s L.K.Trust to M/s Kanyakumari
and after paying the consideration of Real estate agent, and after paying
Rs.10 Crores to M/s L.K.Trust, the Escrow Agent would return the 10
Cheques to the Pebble. At that time, Real Estate Agent told the Pebble that
Chartered Accountant is reputed one and worked for various companies
including BPL Group of Companies and looked after accounts of Mr.
37
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Com.O.S.No.25412/2010
A.K.Anthony, the Defence Minister of India. Pebble believed these words.
Chartered Accountant prepared a letter stating it as irrevocable instruction
which was opposed by the Pebble, however, believing the Real Estate
Agent and also Chartered Accountant, in good faith,Pebble had signed
covering letter with which Pebble gave 10 Cheques to the Escrow Agent.
Further it is evidence of PW.1 that in the month of March 2009 Real
Estate Agent informed the Pebble that M/s L.K. Trust is not responding
for settlement and Cheques lying with escrow agent would be returned.
Therefore, as an abundant caution, Pebble gave 'stop payment' instruction
to its Banker relating to those Cheques in the month of April 2009. In the
year 2009 Real Estate Agent asked the Pebble for hand loans. Since
Pebble did not give hand loans, Real Estate Agent became angry and
stopped interacting with the Pebble and told that he would teach a lesson to
the Pebble. Further it is evidence of PW.1 that in May 2009 Pebble sent
letter to the Chartered Accountant demanding to return 10 Cheques lying
escrow. On 3.6.2009 Pebble met Chartered Accountant and demanded to
return Cheques. At that time Chartered Accountant told that he is an
Escrow Agent only and has not provided any services to the Pebble and he
agreed to return the Cheques to the Pebble. But, instead of returning
Cheques, Chartered Accountant issued legal notice to the Pebble claiming
amounts based on said Cheques on the ground of services provided by him
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Com.O.S.No.25412/2010
to the Pebble relating to the RMV Property. Pebble had sent reply to the
said notice of the Chartered Accountant. Since the Cheques were deposited
in trust and not for payment of any debt or liability, Pebble is not bound to
pay any amount to Chartered Accountant. The said Cheques were made in
the name of the Chartered Accountant only as an Escrow Agent and that it
is without any consideration as no services are rendered nor goods are
delivered. Chartered Accountant is not Accountant nor Auditor of Pebble.
Since Chartered Accountant/Escrow Agent has committed breach of trust
and confidence, he is liable to return Cheques and to pay liquidated
damages to the Pebble.
21. In the Cross examination also PW.1 stood consistent relating to
his evidence deposed in his examination in chief. There are no reliable
materials brought out in the Cross examination of PW.1 to prove the
defence of Real Estate Agent and also Chartered Accountant.
22. Chartered Accountant/Escrow Agent has been examined as
DW.1. This DW.1 in his examination in chief affidavit has reiterated stand
as taken by him and also Real Estate Agent in their pleading filed in both
the suits. It is relevant to note that, as noted above, after presenting the 10
Cheques in question to the bank for encahsment, which were returned
unpaid with endorsement 'stop Payment', Chartered Accountant had issued
statutory demand notice dated 12.6.2009 as per Ex.P.8/D.11 to the Pebbel
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Com.O.S.No.25412/2010
and its Directors. In this notice it was stated by the Chartered Accountant
that he rendered various services to the Pebble and as such he was entitled
for service charges and therefore, towards amount due for his service
charges, Pebble had issued 10 Cheques for Rs.12,05,56,314/-. Accordingly
in the statutory demand notice, Chartered Accountant demanded the Pebble
to pay Cheque amount of Rs.12,05,56,314/- being amount due towards his
charges for the services rendered. This type of claim made by the
Chartered Accountant in the statutory demand notice dated 12.6.2009 as
per Ex.P.8/D.11 is totally false claim for the reasons that in the Cross
examination it is evidence of DW.1 as under:
"It is true that I have not provided any services to the plaintiff
Pebble Bay Developers Pvt.ltd. It is true that in Ex.D.11 the
statements that I have provided the services to the plaintiff is
false. The witness states that it is Santhosh Kumar who has
provided the services to the plaintiff."
Thus, DW.1 has categorically admitted that statement made by him in the
statutory notice at Ex.D.11 that he rendered services to the Pebble and as
such Pebble was liable to pay his services charges of Rs.12,05,56,314/- is
false statement. It is further evidence of DW.1 that it is Santhosh Kumar
who has provided the services to the plaintiff/Pebble. It is relevant to note
that either in the statutory demand notice at Ex.D.11 or in the private
complaints filed by the Chartered Accountant against the Pebble and its
40
Com.O.S.No.26532/2009 c/w
Com.O.S.No.25412/2010
Directors for the offence under Sec.138 of N.I.Act, it was not stated by the
Chartered Accountant that one Santhosh Kumar has provided the services
to the Pebble and the amount of Rs.12,05,56,314/- of the 10 Cheques was
payable to the said Santhosh Kumar/Real Estate Agent.
23. Further in the Cross examination it is evidence of DW.1 as under:
"It is true that I have not claimed that I have provided Escrow
services to the plaintiff-Pebble Bay Developers Pvt.ltd. It is true
that the plaintiff - Pebble Bay Developers Pvt.Ltd. Does not owe
me Rs.12,05,56,314/-. There is no written agreement between me
and Pebble Bay Developers Pvt.Ltd., agreeing to pay me
Rs.10,37,502/-."
Thus, in the Cross examination, it is admission of DW.1 that he has not
claimed for escrow services to the Pebble. The said Pebble does not owe
him Rs.12,05,56,314/-. There is no agreement between him and Pebble to
pay Rs.10,37,502/- to him for his services as escrow agent. Further in the
Cross examination at page No.11 it is evidence of DW.1 that he is not
Chartered Accountant nor Auditor to Pebble Bay Developers Pvt.Ltd., or to
Mr. Deepak Raheja, Adithya Raheja, to their family members or any
Companies promoted by them. Further it is his evidence that he is also
Chartered Accountant and Auditor to Mr. Santhosh Kumar - Proprietor of
M/s United Estates since the year 1995.
24. Thus, in the Cross examination it is evidence of DW.1/Chartered
Accountant that he is providing services as Chartered Accountant and
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Com.O.S.No.26532/2009 c/w
Com.O.S.No.25412/2010
Auditor to Mr. Santhosh Kumar who is Proprietor of M/s United Estates
and who is Real Estate Agent since the year 1995. This DW.1 is not the
Chartered Accountant nor Auditor to the Pebble. As per evidence deposed
by this DW.1 he has not claimed for the services rendered to the Pebble as
escrow agent. He has not provided any services to the Pebble. His
statement in the statutory demand notice at Ex.P.8/D.11 issued to the
Pebble and its Directors demanding to pay Cheque amount of
Rs.12,05,56,314/- is false statement. Pebble does not owe him
Rs.12,05,56,314/- . There is no written agreement to pay Rs.10,37,502/- to
him by the Pebble. It is also relevant to note that though this Chartered
Accountant and also Real Estate Agent jointly have filed suit in
Com.O.S.No.25412/2010 for recovery of Rs.12,05,56,314/- , with the
pleading which is contrary to the averments in the statutory demand notice
at Ex.P.8/D.11, in the Cross examination at Page No.11 it is evidence of
this DW.1 as "I have verified the plaint in O.S. No.25412/2010 before its
filing. The averments made in the said plaint are not within my
personal knowledge." Thus, it is evidence of DW.1 that though he has
verified the plaint of Com.O.S.No.25412/2010, but averments of the said
plaint are not within his personal knowledge. From the above noted
evidence deposed by DW.1 it is manifest and clear that this DW.1 who is
Chartered Accountant has not rendered any services to the Pebble except
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Com.O.S.No.25412/2010
he being acted as escrow agent to hold 10 Cheques in trust, which were
delivered by the Pebble. Pebble does not owe any money to him. Even
there is no agreement to pay Rs.12,05,56,314/- or Rs.10,37,502/- to him by
the Pebble. This evidence of DW.1 clearly supports the contention of the
Pebble that it does not owe any money to the Chartered Accountant who
acted as Escrow Agent and received the Cheques in fiduciary capacity as
trustee escrow agent.
25. It is also important to note that Mr. Santhosh Kumar C.L., the
Proprietor of M/s United Estates, who is Real Estate Agent and who is
defendant No.1 of Com.O.S.No.26532/2009 and plaintiff No.1 of
Com.O.S.No.25412/2010 has not opted to place his oral and documentary
evidence to prove his contention for recovery of amounts and to disprove
the contention of the Pebble. Thus, there is no oral and documentary
evidence placed by the Real Estate Agent. Therefore, there are no materials
to hold that Pebble is liable to pay any sums to the Real Estate Agent.
Therefore, Pebble is entitled for the relief of permanent injunction as
claimed in Com.O.S.No.26532/2009. For these reasons, Issue Nos.1 & 3 of
Com.O.S.No.26532/2009 are answered in the Affirmative and Issue No.6 of this
suit is answered in the 'Negative', Issue Nos.1 & 2 of Com.O.S.No.25412/2010 are
answered in the Negative and Issue No.3 of the this suit is answered in the
'Affirmative'.
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Com.O.S.No.25412/2010
26. ISSUE NO.2 of Com.O.S.No.26532/2009 : This issue does not
survive for consideration for the reasons that already Chartered Accountant
used 10 Cheques by way of presenting the Cheques to the bank for
encashment and since those Cheques were returned unpaid with
endorsement "stop payment", already Chartered Accountant filed
complaints before the court for the offence under Sec.138 of N.I.Act and
those Cheques were produced before the court which rendered acquittal
Judgment as per Ex.D.14. Therefore, question of return of those Cheques
to the Pebble does not arise at all. Hence, this Issue is answered that 'does not
survive for consideration'.
27. ISSUE NO.5 of Com.O.S.No.26532/2009 : Initially Pebble had
filed this suit against Sri. H.V.Gowthama only who had filed written
statement contending that Real Estate Agent by name Sri. C.L.Santhosh
Kumar-the Proprietor of M/s United Estates is necessary party and suit is
bad for non-joinder of said Real Estate Agent. Subsequently, Pebble has
included said Real Estate Agent as defendant No.2. Therefore, suit is not
bad for non-joinder of necessary parties. Hence, this Issue No.5 is answered
in the 'Negative'.
28.ISSUE NO.4 OF Com.O.S.No.25412/2010 : It is contention of
defendant No.5 of this suit that there is no privity of contract between it
and other parties to the suit and it has been wrongly and unnecessarily
44
Com.O.S.No.26532/2009 c/w
Com.O.S.No.25412/2010
made as party to the suit and therefore, suit is bad for mis-joinder of
parties.
29. As noted above, Chartered Accountant has been examined as
DW.1. M/s Wachovia Securities, functioning in the name of 'Wellfargo
Bank' at Mumbai, is made as defendant No.5 in this suit in
Com.O.S.No.25412/2010. In para No.12 of chief examination affidavit of
DW.1 it is stated that defendant No.5 Company was a foreign Investor in
the Pebble holding 49% shares and since it was a shareholder and it was
represented by a nominee Director, it is also made as party. But, in the
cross examination it is evidence of this DW.1 that there is no privity of
contract between the plaintiff and defendant No.5. There is no direct
dispute between the plaintiff and defendant No.5. Defendant No.5 is not
party to the Cheques in question. Defendant No.5 does not owe any money
to the plaintiff. There are no documents to substantiate para No.12 of chief
examination affidavit. In view of this evidence of DW.1, defendant No.5
of Com.O.S.No.25412/2010 is not a necessary party to the suit. Hence,
this suit is bad for mis-joinder of defendant No.5. Hence, this Issue No.5 is
answered in the 'Affirmative'.
30. ISSUE NO.4 OF COM.O.S.No.26532/2009 : As noted above, initially
Pebble had filed its suit in Com.O.S.No.26532/2009 against Sri.
H.V.Gowthama, the Chartered Accountant. Pebble has claimed recovery of
45
Com.O.S.No.26532/2009 c/w
Com.O.S.No.25412/2010
Rs.12 Crores as liquidated damages from the Chartered Accountant. Since
Chartered Accountant was only defendant in the suit, raised contention that
Mr. C.L.Santhosh Kumar, the Proprietor of M/s. United Estates, who is
Real Estate Agent, is necessary party to the suit and suit is bad for non-
joinder of said Real Estate Agent, subsequently Pebble has arrayed said
Real Estate Agent as defendant No.2 in Com.O.S.No.26532/2009. But
there is no consequential and corresponding amendment made in the body
of the plaint of this Com.O.S.No.26532/2009 so as to claim recovery of
damages from the Real Estate Agent also. Therefore, now it is necessary to
go through the materials as to whether Pebble is entitled to recover
liquidated damages.
31. As discussed above, from the materials on record it is clearly
proved by the Pebble that 10 Cheques in question were handed over by the
Pebble as security to the transaction, with the Chartered Accountant, to
hold it in trust as Escrow Agent till particular period/event happens. Those
Cheques were not given by the Pebble to the Chartered Accountant for
payment of any money towards any services rendered or towards any
goods supplied. Those 10 Cheques were handed over by the Pebble to the
Chartered Accountant /Escrow Agent along with letter at Ex.P.1 dated
12.1.2009. Pebble has explained as to under which circumstances it had to
sign such letter at Ex.P.1 stating that it will not revoke those Cheques.
46
Com.O.S.No.26532/2009 c/w
Com.O.S.No.25412/2010
Pebble has produced letter dated 12.1.2009 at Ex.P.2 stating that it had
given said letter narrating the details for which Cheques were delivered
and when those Cheques were to be returned back etc. At the cost of
repetition,it is necessary to note the contents of the letter at Ex.P.2 as
under:
"The Cheques (10 nos. bearing Nos.440236, 440237, 440238,
440239, 440240, 440241, 440242, 440243, 440244, 468414 on Stan
Chart Bank) as per the enclosed letter dated 12-01-2009 would
be held in escrow as security by you until :
1. Mr. Santhosh Kumar would settle the matter between M/s
L.K.Trust and Kanyakumari builders Pvt. Ltd., to withdraw
their cancellation of Joint Development Agreement and Power
of Attorney on the Cubbon Road property.
2. Mr. Santhosh Kumar would also settle with L.K.Trust to
reimburse Kanyakumari builders Pvt. Ltd., the sums spent
on clearance of hutments.
3. M/s Pebble Bay Developers Pvt. Ltd., returning the sum of
Rs.10 crores to L.K.Trust.
4. Mr. Santhosh Kumar gets his commission of Rs.2,05,56,314
inclusive of service tax.
On these conditions been fulfilled the cheques will be returned
by you to Pebble Bay. However in the event the above events do
not happen by 31st April 2009 the cheques will be returned
immediately by you."
This letter issued by the Pebble as per Ex.P.2 has not been disputed by the
Chartered Accountant in his oral evidence being deposed as DW.1. Real
Estate Agent did not step into the witness box to deny this letter at Ex.P.2.
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Com.O.S.No.25412/2010
Therefore, there are no reasons to disbelieve this letter at Ex.P.2 which
narrates the purpose for which Pebble had delivered Cheques to the
Chartered Accountant and when those Cheques were to be returned back
to the Pebble etc.
32. From the materials on record it is clearly found that there was no
services rendered by the Chartered Accountant to the Pebble and nothing
amount was payable to the Chartered Accountant in that regard. As noted
above, in the cross examination it is evidence of DW.1 that he has not
provided any services to the Pebble. His statement in the statutory demand
notice at Ex.D.1 is false statement. Pebble does not owe
Rs.12,05,56,314/- or Rs.10,37,502/- to him. In the pleading it is say of the
Chartered Accountant that he held the Cheques in question as Escrow
Agent and Pebble had delivered those Cheques to him to hold it as Escrow
Agent till 31.3.2009 and subsequently to make payment of
Rs.11,95,18,182/- to Real Estate Agent being amount due towards services
rendered by the Real Estate Agent and then to retain balance amount of
Rs.10,37,502/- for his services as Escrow Agent. Any how, in the pleading
of these suits it is admission of the Chartered Accountant that Cheques in
question were delivered by the Pebble to him to hold it as Escrow Agent.
33. It is undisputed fact that Chartered Accountant presented 10
Cheques to the bank for encashment and those Cheques were returned
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Com.O.S.No.26532/2009 c/w
Com.O.S.No.25412/2010
unpaid with endorsement "stop payment". Subsequently Chartered
Accountant issued statutory demand notice as per Ex.P.8/D.11 to the
Pebble and its Directors demanding to pay Cheque amount of
Rs.12,05,56,314/- and by stating in the said notice that he rendered various
services to the Pebble and as such, he was entitled for service charges for
which 10 Cheques for Rs.12,05,56,314/- were issued to him by the Pebble.
With the same contentions, Chartered Accountant filed complaints before
the Court against the Pebble and its Directors for the offence under
Sec.138 of N.I. Act.
34. As discussed supra, the stand taken by the Chartered Accountant
in the statutory demand notice at Ex.P.8/D.11 and also in the complaints
filed against the Pebble and its Directors for the offence under Sec.138 of
N.I. Act, is not only false story but also contradictory one to the stand
taken by him in the pleadings of these two suits for the reasons that in
these two suits it is his stand that he was holding 10 Cheques of the Pebble
as Escrow Agent to make payment to the Real Estate Agent after
31.3.2009 relating to charges to his services rendered to the Pebble. This
theory that he was holding Cheques as Escrow Agent to make payment to
the Real Estate Agent after 31.3.2009, has not been stated in the statutory
demand notice at Ex.P.8/D.11 and also in the complaints filed for the
offence under Sec.138 of N.I.Act. The prosecution initiated by the
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Com.O.S.No.26532/2009 c/w
Com.O.S.No.25412/2010
Chartered Accountant against the Pebble and its Directors for the offence
under Sec.138 of N.I.Act, was ended in the acquittal as per acquittal
judgment at Ex.D.14. No doubt, Chartered Accountant has produced
records at Exs.D.16(a) & (b) to D.25(a) & (b) to show that he has
preferred Criminal Appeals before Hon'ble High Court of Karnataka
against acquittal judgment passed as per Ex.D.14. But it is not shown by
the Chartered Accountant as to what has happened to those criminal
appeals.
35. Learned advocate for Pebble produced some records with memo
which disclose that Pebble lodged complaint to the Institute of Chartered
Accountants of India against the Chartered Accountant making allegations
of misconduct etc. The Board of Discipline constituted under Sec.21A of
the Chartered Accountants (Amendment) Act 2006, conducted enquiry
relating to the allegations made against the Chartered Accountant and it
has held in its report dated 9.2.2017 that the Chartered Accountant is
guilty of "Other Misconduct" falling within the meaning of Clause(2) of
Part-IV of the First Schedule to the Chartered Accountants Act 1949.
Accordingly it issued caution on 21.8.2017 to Sri. H.V.Gowthama who is
Chartered Accountant to be more careful in future in complying with the
provisions of the Chartered Accountants Act and Regulations framed
thereunder. Thus, relating to the same issue of Cheques, the Board of
50
Com.O.S.No.26532/2009 c/w
Com.O.S.No.25412/2010
Discipline of the Institute of Chartered Accountants of India found the said
H.V.Gowthama as guilty of misconduct.
36. It is undisputed fact that Pebble Bay Developers Pvt.Ltd.,, is
incorporated under the Companies Act 1956 and it is part of Advantage
Raheja Group of Companies which is reputed one and which undertook
valuable and important projects. After going through the materials on
record and also for above discussed reasons the contention of the Pebble
that it had to deliver 10 Cheques to the Chartered Accountant to hold it as
Escrow Agent as narrated in the letter at Ex.P.2 is more probable one and
this contention is to be accepted. As noted above, there is no oral and
documentary evidence of Real Estate Agent. After holding 10 Cheques as
Escrow Agent, which Cheques were delivered by the Pebble, since there
was no settlement of the dispute relating to the Cubbon Road/RMV
property, Chartered Accountant/Escrow Agent was bound to return 10
Cheques to the Pebble. But, he misused the trust reposed on him and
with malafide intention to enrich himself presented those Cheques to the
bank for encashment. After return of those Cheques unpaid with
endorsement "Stop Payment", he issued statutory demand notice to th
Pebble and its Director as per Ex.P.8/D.11 and then he filed complaints to
the court against them for the offence punishable under Sec.138 of N.I.
Act, by contending that for the services rendered by him, the Pebble was
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Com.O.S.No.25412/2010
due to pay his service charges of Rs.12,05,56,314/- and to discharge the
same, 10 Cheques were issued to him by the Pebble. This theory pleaded
by him in the statutory demand notice at Ex.P.8/D.11 and also in the
complaints filed to the court for the offence under Sec.138 of N.I. Act, is
nothing but false story and this fact is clearly admitted by him in his cross
examination being deposed as DW.1 in these two suits. Though he faced
acquittal judgment as per Ex.D.14 relating to the criminal prosecution
initiated by him against the Pebble and its Directors for the offence
punishable under Sec.138 of N.I.Act, he has preferred criminal appeals
before the Hon'ble High Court of Karnataka as per Exs.D.16(a) & (b) to
D.25(a) & (b). In the pleading of these two suits he has taken totally
different stand and defence by stating that he was holding the Cheques as
Escrow Agent to make payment after 31.3.2009 to the Real Estate Agent
to the services rendered by him to the Pebble. In fact Real Estate Agent
has not placed oral and documentary evidence to show that 10 Cheques in
question were delivered by the Pebble to the Chartered Accountant with
instructions to make payment after 31.3.2009 to the Real Estate Agent.
By playing this type of activities, Chartered Accountant caused severe loss
and damage to the Pebble Bay Developers Pvt.Ltd. Company. This type of
play of the Chartered Accountant with the Companies certainly will
destroy commercial activities resulting in severe loss to the Companies.
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Com.O.S.No.25412/2010
Even the Board of Discipline constituted by the Institute of Chartered
Accountants of India also found the Chartered Accountant as guilty of
misconduct. Therefore, Chartered Accountant is liable to pay damages to
the Pebble.
37. So far quantum of damages payable by the Chartered Accountant
to the Pebble is concerned, it is relevant to note that Pebble has claimed
recovery of damages of Rs.12 Crores. This claim is excessive and
exorbitant. Under the circumstances of these cases and by considering the
act of Chartered Accountant in dragging the Pebble and its Directors to the
Court due to initiation of criminal prosecution for the offence punishable
under Sec.138 of N.I. Act, which prosecution was initiated by misusing the
fiduciary relationship and also trust reposed by the Pebble who delivered
Cheques to hold it as Escrow Agent, and by considering the finding
recorded by the Board of Discipline constituted by the Institute of
Chartered Accountants of India, which found this Chartered Accountant as
guilty of misconduct and to protect the interest in the commercial activities
of the commercial world, it is just and proper to award damages of Rs.10
Lakhs payable by the Chartered Accountant to the Pebble. For these
reasons, this Issue No.4 is answered 'Partly in the Affirmative'.
38.ISSUE No.7 of COM.O.S.No.26532/2009 and ISSUE NO.5 of
COM.O.S.No.25412/2010 : For the above discussed reasons, I proceed to
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Com.O.S.No.25412/2010
pass the following:
ORDER
Suit in Com.O.S.No.26532/2009 is decreed partly with proportionate cost.
It is declared that plaintiff of this suit does not owe the defendants any sums as no services or goods have been supplied to the plaintiff.
Perpetual injunction is granted restraining the defendants from making any claims on the plaintiff relating to subject matter of this suit is concerned.
Defendant No.1 of this suit shall pay liquidated damages of Rs.10 lakhs to the plaintiff within 2 months from today.
Suit in Com.O.S.No.25412/2010 is dismissed with cost.
Draw up decree accordingly.
Keep original judgment in Com.O.S.No.26532/2009 and its copy in Com.O.S.No.25412/2010.
(Dictated to the JW, typed by her, corrected and then pronounced by me in Open Court, on this the 7th day of March, 2020.) (JAGADEESWARA.M.) LXXXII Addl. City Civil & Sessions Judge, Bangalore.
54Com.O.S.No.26532/2009 c/w Com.O.S.No.25412/2010 ANNEX URE LIST OF WITNESSES EXAMINED FOR PLAINTIFF:
PW.1 Sri Aditya Raheja LIST OF DOCUMENTS MARKED FOR PLAINTIFF IN O.S. NO.26532/09 Exs.P-1 & 2 Copy of two letters 12-01-20009 " P-3 Copy of the letter to Standard Chartered Bank " P-4 Copy of the letter dated 14-05-2009 " P-5 Sale deed dated 31-01-2007 " P-6 Certified copy of JDA dated 01-02-2006 " P-7 Board resolution copy " P-8 Copy of legal notice " P-9 Reply to notice " P-10 & 11 Two account statement ledger " P-12 Certified copy of Further evidence of complainant/PW.1 in CC No.32097/2009.
LIST OF WITNESSES EXAMINED FOR DEFENDANTS:
DW.1 H.V.Gowthama LIST OF DOCUMENTS MARKED FOR DEFENDANTS Exs.D-1 to 10 Certified copy of the Cheque and related bank memos Exs.D-11 Office copy of the notice Exs.D-12 Certified copy of the reply letter Exs.D-13 Certified copy of the letter Exs.D-14 Certified copy of the Common judgement in C.C.No.32097/2009 Exs.D-15 Certified copy of the Order in 55 Com.O.S.No.26532/2009 c/w Com.O.S.No.25412/2010 Crl.P.No.3786/2009 Exs.D-16(a) & (b) Certified copy of the Synopsis and application in Crl.A.No.1289/2015 Exs.D-17 (a) & (b) Certified copy of the Synopsis and application in Crl.A.No.1290/2015 Exs.D-18 (a) & (b) Certified copy of the Synopsis and application in Crl.A.No.1291/2015 Exs.D-19 (a) & (b) Certified copy of the Synopsis and application in Crl.A.No.1292/2015 Exs.D-20 (a) & (b) Certified copy of the Synopsis and application in Crl.A.No.1293/2015 Exs.D-21 (a) & (b) Certified copy of the Synopsis and application in Crl.A.No.1294/2015 Exs.D-22 (a) & (b) Certified copy of the Synopsis and application in Crl.A.No.1295/2015 Exs.D-23 (a) & (b) Certified copy of the Synopsis and application in Crl.A.No.1296/2015 Exs.D-24 (a) & (b) Certified copy of the Synopsis and application in Crl.A.No.1297/2015 Exs.D-25 (a) & (b) Certified copy of the Synopsis and application in Crl.A.No.1298/2015 (JAGADEESWARA.M.), LXXXII Addl. City Civil & Sessions Judge, Bangalore.