Bangalore District Court
Unknown vs ) M/S. Mandoth Syndicate on 28 August, 2017
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE II ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AT BANGALORE (C.C.H. No.17)
Dated this the 28th day of August, 2017.
PRESENT:
Shri. I.F. Bidari, B.Com.,LL.B.(Spl)
II Addl. City Civil and Sessions Judge, Bangalore.
ORIGINAL SUIT No.3026/2005
PLAINTIFF :
Sri. Premraj Chopra s/o Bhagwanmul
Ji, 51 years, Proprietor of VEE PEE Silk
Mills, S.P. Market, No.7, A.M. Lane,
Chickpet cross, Bengaluru.
(By Sri. P.D.S, Advocate)
-VERSUS-
DEFENDANTS:
1) M/s. Mandoth Syndicate, No.30,
Deewan Soorappa Lane, Chickpet
cross, Bengaluru. Represented by its
partners defendants 2 and 3.
2) Tejraj H. Jain, 50 years, s/o Hastimal
Mandoth, partner of 1st defendant
firm No.30, D.S. Lane, Chickpet,
Bengaluru.
3) H. Nirmal Kumar, 40 years, s/o
Hastimal Mandoth, partner of 1st
defendant No.30, D.S. Lane,
Chickpet, Bengaluru.
(Defendants by Sri.V.B.S. Advocate)
-0-
2 O.S.No. 3026/2005
---------------------------------------------------------------------------
Date of Institution of the suit : 13.04.2005
Nature of the suit (suit on : Suit for recovery of money.
pronote, suit for declaration
and possession, suit for injun-
ction etc,)
Date of the commencement : 06.07.2009
of recording of the evidence
Date on which the Judgment : 28.08.2017
was pronounced
: Year/s Month/s Day/s
Total duration : 12 04 15
---------------------------------------------------------------------------
(I.F. Bidari)
II Additional City Civil and Sessions Judge,
Bangalore.
JUDGMENT
This suit of the plaintiff against the defendants for recovery of suit claim amount with interest.
.2. The brief facts of the plaintiff's case are:
The plaintiff is known to the defendants 2 and 3. The defendants 2 and 3 are partners of defendant No.1 firm. The defendant No.1 was doing business as wholesale textile merchant. The plaintiff has deposited the amount of Rs.50,000/- each on 23.07.1997, 3 O.S.No. 3026/2005 26.07.1997, 06.08.1997, 06.08.1997, 08.08.1997, 13.08.1997, 15.10,1997, 19.01.1998, 17.09.1998 and 18.09.1998 respectively and also deposited Rs.1,00,000/- on 21.12.1998 with the defendants through cheques described in the plaint. The plaintiff in all deposited Rs.6,00,000/- with the defendants. The plaintiff is having current account No.11069 in Lakshmi Vilas Bank, B.V.K. Iyengar Road branch (here-in-after referred as Lakshmi bank), Bengaluru. The defendant No.1 firm is having current account No.11965 in the very said Lakshmi bank and the defendants 2 and 3 being partners of defendant No.1 firm are operating the said account. The defendants had agreed to pay interest @ 21% p.a. initially on the aforesaid deposit amount of Rs.6,00,000/- and the interest payable at the end of 1998 was Rs.49,116/- and for a period from 01.04.1998 to 31.03.1999 at Rs.1,02,432/- respectively and deducting TDS of Rs.4,912/- and Rs.10,244/-
respectively in the said interest, paid the remaining Rs.44,204/- and Rs.92,188/- to the plaintiff through cheques and the plaintiff encashed the same. 4 O.S.No. 3026/2005 Thereafter, the interest was reduced to 18% from 21%. The interest for a period from 01.04.1999 to 31.03.2000 was Rs.1,09,800/- and deducting Rs.12,080/- towards TDS, the defendants paid balance of Rs.97,720/- to the plaintiff through cheque. The interest payable for the period from 01.04.2000 to 31.03.2001 was Rs.1,09,500/- and the defendants deducting TDS of Rs.12,264/-, paid balance interest amount of Rs.97,236/- to the plaintiff through cheque. The defendants have issued Form No.16A in favour of the plaintiff as per the provisions of Income Tax Act towards deduction of the aforesaid TDS, out of the interest payable to the plaintiff. The defendants were liable to pay interest of Rs.1,09,500/- for the period from 01.04.2001 to 31.05.2002 and the defendants deducted Rs.11,169/- towards TDS and issued Form No.16A in favour of the plaintiff on 31.03.2008. After deducting the TDS of Rs.11,169/-, the defendants were liable to pay Rs.98,331/- to the plaintiff, but the same was not paid and remained as balance for the said amount. The defendants have paid the aforesaid TDS deducted from 5 O.S.No. 3026/2005 the interest payable to the plaintiff on his behalf to the Income Tax Authorities. The plaintiff has submitted the aforesaid original Forms No.16A before the income tax authorities, retaining Xerox copies of the same. The defendants failed to pay the principal deposited amount and interest accrued thereon, in-spite of demand through a legal notice on 19.09.2003. The defendants have sent an untenable reply. The plaintiff as a creditor has filed Insolvency Case No.38/2003 against the defendants. The defendants 2 and 3 herein having appeared in I.C. No.38/2003, did file objections on 18.08.2004, wherein, admitted payment of interest to the plaintiff herein on the receipt of the loan borrowed from the plaintiff, deducting TDS, as per income tax rules. Thus, the defendants have admitted and acknowledged the claim of the plaintiff. The defendants were liable to pay Rs.6,00,000/- towards principal deposited amount and Rs.98,331/- towards interest portion for the period from 01.04.2001 to 31.03.2002 and also liable to pay interest from 01.04.2002 to 31.03.2005 @ 18% p.a., which comes to Rs.3,82,336/-. 6 O.S.No. 3026/2005 Therefore, the defendants were liable to pay Rs.10,80,667/- to the plaintiff. The cause of action arose on the respective dates, when the plaintiff made deposit of the amount with the defendants and on all dates when the defendants paid the interest to the plaintiff deducting TDS and on the dates when the Forms No.16A were issued by the defendants in favour of the plaintiff. The cause of action has also arisen on 18.08.2004 when the defendants herein filed statement of objections in I.C. No.38/2003 admitting the payment of interest. The suit is valued at Rs.10,80,667/- for the purpose of court fee and jurisdiction and proper court fee is paid thereon. The prayer of the plaintiff is to pass judgment and decree in his favour against the defendants, directing the defendants to pay Rs.10,80,667/- with interest @ 18% p.a. on principal amount of Rs.6,00,000/- from 01.04.2005 till realization and to allow the cost of the suit and also to grant such other reliefs as this court deems fit. 7 O.S.No. 3026/2005
.3. Pursuant to the suit summons, the defendants appeared through their counsel. The defendants have filed written statement, contending that suit of the plaintiff is false, frivolous and not maintainable in law. The plaintiff with a malafide and oblique intention to harass the defendants has filed false suit, on the basis of concocted, fabricated and created documents. The defendants had absolutely no transactions with the plaintiff, hence, the defendants are not liable to pay the suit claim amount to the plaintiff. The defendants 2 and 3 admit that the defendant No.1 is a firm, doing business as wholesale and textile merchants and the defendants 2 and 3 are its partners. The fact that the plaintiff has deposited the amount of Rs.6,00,000/- on different dates and the defendants did pay interest deducting TDS payable to the plaintiff, much less, as averred in the plaint, is denied and called upon the plaintiff to prove the same. The defendants called upon the plaintiff to prove that the plaintiff and the defendants are having current accounts in Lakshmi Bank and the alleged transactions of deposits, interest 8 O.S.No. 3026/2005 are transacted in their respective accounts, much less, as averred in the plaint. The cheques referred in the plaint are neither cheques that pertain to any deposit nor any loan and called upon the plaintiff to prove the same. The defendants never agreed to pay interest @ 21% initially, till 31.03.1999, thereafter, agreed to pay interest @ 18%, is denied. The bank statements referred in the plaint are not pertaining to the transactions of borrowing, lending, loan or deposit as alleged by the plaintiff. The plaintiff is deliberately making attempts to co-relate certain fictitious documents which are not pertaining to any of the transactions that these defendants had entered into with the plaintiff. Suit of the plaintiff is barred by limitation. The issuance of Forms No.16A and lastly the defendants issued Form No.16A on 31.05.2002, thereby, acknowledged the debt or deposit referred in the plaint, much less as averred in the plaint, is denied. The defendants pleaded that the plaintiff is deliberately co-relating the said Form No.16A with certain other items, which these defendants are neither liable to pay 9 O.S.No. 3026/2005 nor defendants have got any transactions of either payment of the amount or claim as made by the plaintiff. The alleged Form No.16A do not constitute the acknowledgement of debt, much less, as alleged by the plaintiff. The defendants denied the fact that they failed to pay principal deposit and interest accrued thereon, despite, the plaintiff demanding by legal notice. The defendants have sent the specific reply to the legal notice, thereby, made it clear that there was no deposit that was made by the plaintiff at any point of time, neither there was any transaction of lending or borrowing interse between plaintiff and the defendants. The plaintiff with an intention to tarnish the image of the defendants to bring them down in the business has filed a false Insolvency case No.38/2003. The plaintiff has also included some of the family members of the defendants 2 and 3 falsely filed I.C. No.38/2003. The objection filed by the defendants in the said I.C. No.38/2003 is not amounting to acknowledgement and admission of the deposits, interest and alleged deduction of TDS, much less, as averred in the plaint. 10 O.S.No. 3026/2005 There is no cause of action to file the suit. The cause of action finally alleged to have arisen on 31.05.2002, is false. The cause of action stated in the suit, is false and imaginary one. The defendants are not liable to pay either Rs.10,80,667/- or any part of it with interest, much less, as sought in the suit. These main grounds among others contended in the written statement, prayer to dismiss the suit with exemplary cost.
.4. On the basis of the pleadings, the following issues and additional issue are framed:
ISSUES
1. Whether the plaintiff proves that he had deposited a sum of Rs.6,00,000/-
with defendant as stated in para 3 of the plaint?
2. Whether the plaintiff proves that the defendant agreed to pay interest at 21% p.a. on the amount deposited and subsequently at the rate of Rs.18% p.a.?
3. Whether the plaintiff proves that the defendant acknowledged the liability to pay interest on the amount outstanding?
11 O.S.No. 3026/2005
4. Whether the plaintiff proves that he is entitled to recover a sum of Rs.10,82,667/- from the defendant?
5. What order or decree?
Addl. Issue No.1:
1) Whether the defendant No.1 proves that the suit is barred by law of limitation?
.5. The plaintiff to substantiate his case, got examined himself as PW.1. The documents at Exs.P-1 to 30 are marked for the plaintiff. On the other hand, the defendants have examined the defendant No.2 as D.W.1. The documents at Exs.D-1 and 2 are marked for defendants.
.6. Heard Sri. PDS, learned advocate for the plaintiff and heard Sri.VBS, learned advocate for defendants. The written arguments have been filed on behalf of plaintiff and the defendants. Perused the records and written arguments.
.7. My findings on the above issues and additional issue are:
Issue No.1 : In the Affirmative,
12 O.S.No. 3026/2005
Issue No.2 : In the Affirmative,
Issue No.3 : In the Affirmative,
Issue No.4 : In the Affirmative,
Issue No.5 : As per final order,
Addl.Issue No.1 : In the Negative,
for the following:
REASONS
.8. Addl. Issue No.1 and Issue Nos.1 to 4:
These issues are inter-related, hence, taken together for discussion, for convenience, also to avoid repetition of facts.
.9. The pleadings of the parties make it clear that the plaintiff claims that he has made deposits in the defendant No.1 firm to the tune of Rs.6,00,000/- through cheques stated in the plaint and the defendants have paid interest on deposits, deducting TDS and credited the TDS amount towards income tax on behalf of the plaintiff and the defendants were liable to pay Rs.1,09,500/- interest on deposit for the period from 01.04.2001 to 31.03.2002, but having deducted the TDS on the said interest to the tune of Rs.11,169/- paid 13 O.S.No. 3026/2005 to the Income Tax Department, but not paid the remaining interest, however, the defendants have issued form No.16A on 31.05.2002, hence, the defendants are liable to pay the suit claim amount. Per contra, the defendants denied the case of the plaintiff, much less, depositing Rs.6,00,000/- with the defendant No.1 firm, paying interest deducting TDS and paying TDS amount through cheques on behalf of the plaintiff, much less, as averred in the plaint. The plaintiff claims that the transactions with regard to the deposits, payment of interest on deposits and defendants paying TDS deducted out of the interest and the defendants encashing the cheques issued by the plaintiff towards deposit, are through banks. The defendants contending that the transactions referred in the plaint are not relating to the deposits and denied the receipt of the deposits from the plaintiff, paying of interest and TDS, much less, as contended by the plaintiff. This apart, the defendants are contending that the suit is barred by limitation, accordingly, the Addl. Issue No.1 is framed with regard to the limitation. The parties adduced oral 14 O.S.No. 3026/2005 and documentary evidence, to substantiate their stand in the instant suit. The burden of proof under issue Nos.1 to 4 is casted on the plaintiff. The burden of proof under Addl. Issue No.1 is casted on the defendants, but in fact, the said issue is with regard to the limitation, under the circumstances, irrespective of burden of proof, where plea of limitation is raised by the parties, in the suit, the court has to appreciate the evidence on record and to give finding on the limitation fact irrespective of burden of proof in that regard casted on particular party in the suit on their pleadings. Sri. PDS the learned counsel for the plaintiff referring to the relevant oral and documentary evidence on record submits that the documentary evidence on record proves that the deposits referred in the plaint, interest paid thereon, TDS deducted out of interest payable by the defendants to the plaintiff and the payment of deducted, TDS towards income liability of the plaintiff, is evidenced through bank statements and the transactions are through cheques from both plaintiff and the defendants. The learned counsel further 15 O.S.No. 3026/2005 submits that Ex.P-9 copy of the Form No.16A evidences that the defendants were liable to pay Rs.1,09,500/-
towards interest on deposit of Rs.6,00,000/- for the period from 01.04.2001 to 31.03.2002 and the defendants have deducted Rs.11,169/- towards TDS and paid the said TDS on behalf of the plaintiff through cheque dated 31.05.2002, under the circumstances, it is proved that the defendants acknowledged the liability towards plaintiff to pay deposit with interest and the suit is filed on 13.04.2005 well within 3 years from 31.05.2002, under the circumstances, as per the provisions of contemplated u/s.20 of Limitation Act 1963, the suit is well within limitation and not barred by limitation. The learned counsel in support of the argument placed reliance on the rulings reported in:
1) ILR 1043, Calcutta, volume XLII, in the case of Kedar Nath Mitra Vs. Dinabandhu Saha.
The relevant portion runs as under:
"if a cheque is delivered to a payee by way of payment and is received as such, it operates as a payment subject to a condition subsequent that 16 O.S.No. 3026/2005 if upon due presentation the cheque is not paid, the original debt revives.
Where such a cheque is signed by the debtor and paid in part payment of the principal of a debt, the cheque being subsequently honoured, the proviso to S.20 of the Limitation Act has been complied with"
2) ILR 1938, Calcutta, 538, in the case of Prafulla Chandra Nag vs. Jatindra Nath Kar. The relevant portion runs as under:
"(b) Limitation Act (1908) S.20 cheque accepted by payee operates as payment as well as acknowledgment of payment in handwriting of person making payment.
Under S.20 the mode of payment need not be in cash. Similarly the payment and acknowledgement may be simultaneous.
Further, the Indian Statue only requires that the acknowledgement must be of the payment; it is not necessary that it must also be stated that the payment is towards a particular debt. Hence, cheque accepted by payee operates as payment as well as acknowledgement of payment in the handwriting of the person making the payment "
3) AIR 1933 Lahore 741 in the case of Dial Singh and others Vs. Davindar Singh and others.17 O.S.No. 3026/2005
The relevant portion runs as under:
"(b) Limitation Act(1908), s.20-cheque signed by debtor and accepted by creditor duly honoured-
payment is sufficient for purposes of S.20.
Where a cheque signed by the debtor is accepted by the creditor and is subsequently honoured for the purpose of S.20 the payment must be deemed to have been made by the debtor and it must further be deemed to appear in his hand writing by virtue of his signature and writing on the cheque"
4) AIR 1961 SC 1236 (V 48 C 221) in the case of Shapoor Fredoom Mazda Vs. Durga Prosad Chamaria and others.
The relevant portion runs as under:
"(a) Limitation Act (1908), S.19-Scope-Essentials of acknowledgment-must admit jural relationship of debtor and creditor-Admission may be implied-Surrounding circumstances may be considered to construe document"
5) AIR 1967 SC 1118 (V-54 C238), in the case of Jiwanlal Achariya Vs. Rameshwarlal Agarwalla.
The relevant portion runs as under:
"(D) Limitation Act (1908) S.20 Fresh period-
computation of-post dated cheque accepted 18 O.S.No. 3026/2005 conditionally and honoured -payment for purposes of section can only be on the date which cheque bears and cannot be on the date the cheque is handed over"
6) AIR 1992 Delhi 76, in the case of State Bank of India Vs. Tarlok Singh and others. The relevant portion runs as under:
"(A) Limitation Act (1963) Ss.18, 20- Acknolwegement -Loan taken by defendant from Bank-deposit of large amount in bank by him towards part repayment of loan-Amounts to acknowledgement of debt"
.10. Per contra, Sri. VBS the learned counsel for the defendants referring to the relevant oral and documentary evidence submits that the evidence on record is not proving that the amount claims to have been deposited by the plaintiff is not either deposit or loan and the plaintiff has not made any such deposits with the defendant No.1 Firm and nature of transactions referred in the plaint, are not co-related or related with the alleged deposits made by the plaintiff with the defendants, interest paid thereon and TDS alleged to be deducted by the defendants. The learned 19 O.S.No. 3026/2005 counsel submits that even on going through the alleged deposits made by the plaintiff through cheques as averred in the plaint, the plaintiff ought to have filed the suit on or before 21.12.2001 and Ex.P-9 is not acknowledgement of debt by the defendants payable to the plaintiff, much less, as contended by the plaintiff, the documents produced by the plaintiff are fabricated and created to suit the purpose and only the copies of bank statements are not liable to be read in evidence, hence, prayer to hold that the suit is barred by limitation. The similar grounds are also urged in the written argument. The learned counsel in support of the argument, placed reliance on the rulings reported in:
1) AIR 1965 Madra 427 (Vol.52, C.151), in the case of Abdul Hamid Sahib and others Vs. Rahmat Bi.
The relevant portion runs as under:
"Limitation Act (9 of 1908), Art. 60 and Art. 59 - Deposit and loan-Distinction-Wife giving money to husband to use as capital in his business-Husband not entering into immediate obligation to repay but only on demand-Held amount was deposit and not loan"
2) AIR 1956 SC 12, in the case of V.E.A Annamalai Chettiar and another Vs. S.V.V.S. Veerappa Chettir and others.
The relevant portion runs as under:
20 O.S.No. 3026/2005
"(B) Limitation Act (9 of 1908), Art. 60 -
Deposit or loan-Determination of-Deposit coupled with agreement to pay-construction of"
3) AIR 1991 Kerala 83, in the case of M/s.
Craft Centre and others Vs. The Koncherry Coir Factories, Cherthala The relevant portion runs as under:
"(B) Limitation Act (36 of 1963), S. 18(2) -
Acknowledgment-Alleged in balance sheet- Not pleaded in plaint-Alleged balance sheet nor its copy before court-Oral evidence of its contents cannot be received by court"
4) AIR 1971 SC 2551, in the case of Ram Janki Devi and another Vs. M/s. Juggilal Kamlapat.
The relevant portion runs as under:
"(A)Limitation Act (1908), Art. 60- Surrounding circumstances, relationship of parties, character of transaction and the manner in which parties treated the transaction are factors decisive of whether transaction is a deposit of money or loan"
Sri. VBS the learned counsel for defendants further submits that the plaintiff has mainly referred on the Photocopies of the documents and not on the original documents or certified copies and same are not liable to be read in evidence. The learned counsel in support of the argument, placed reliance on ruling 21 O.S.No. 3026/2005 reported in ILR 2011 KAR 1, in the case of Shalimar Chemical Works Limited Vs. Surendra Oil and Dal Mills (Refineries) and Others.
The relevant portion runs as under:
"(B) Code of Civil Procedure, 1908-Order 13 Rule 4 and 3 -Admission of documents in evidence-proper procedure for-Admissibility of a document, held, to be decided at the stage of admission itself, instead of leaving it be decided subsequently-Appellant/plaintiff producing photocopy instead of original, objected to by opposite party yet Trial court provisionally admitting photocopy "subject to objection of proof and admissibility" -Held, photocopy should have been rejected in the beginning itself-Having admitted a photocopy and then dismissing Appellant/plaintiff's suit against infringement of a trade mark, was a wrong procedure-Evidence Act 1872, Section 3-Admissiblity of evidence-stage at which to be decided-Civil suit"
.11. On the other hand, Sri. PDS the learned counsel for the plaintiff, submitted the original form No.16A issued by the defendants before Income Tax Authorities and Exs.P-5 to 9 copies of form No.16A are 22 O.S.No. 3026/2005 taken from the original form No.16A issued by the defendants in favour of the plaintiff and the bank statements are submitted by the concerned bank officials, under the circumstances, same can be read as secondary evidence. The learned counsel in support of the argument placed reliance on the ruling reported in AIR 1989 Patna 96, in the case of Harijiwan Sahu Vs. Jairam Sahu and others.
The relevant portion runs as under:
"(D) Evidence Act (1872) S.63(3)-document-
secondary evidence-True copy-Admissiblity- criteria.
As to admissibility of true copy of a document sub-sec.(3) of S.63 prescribed two alternatives. First that it may be a copy made from the original and or second that it must be a copy compared with the original. If either of these two requirements had been satisfied then the document would be a proper and valid secondary evidence. Sub-section (3) of S.63 does not require that it must be proved that the copies were made from the original as well as compared with the original"
23 O.S.No. 3026/2005
.12. PW.1 Premraj Chopra s/o Bhagwanmal Ji, who is a plaintiff has filed an affidavit in lieu of his chief examination, reiterating most of the plaint averments. DW.1 Tejraj H. Jain who is a defendant No.2 has filed an affidavit in lieu of his chief examination, reiterating most of contents of written statement of defendant Nos.1 to 3. PW.1 among other facts has stated in his chief examination that he is proprietor of M/s.Veepee Silk Mills at S.P. Market and carrying on business in cloth goods in Chikpet, Bengaluru. He states in his chief examination that the defendant Nos.2 and 3 are the brothers and partners of the defendant No.1 M/s. Mandoth Syndicate firm. He knows the defendants. He further states that he has made deposit of Rs.6,00,000/- with the defendants by issuing the following cheques to the defendants:
Date Cheque Nos Amount
Rs.
23.07.1997 22485 50,000.00
26.07.1997 22487 50,000.00
06.08.1997 22489 50,000.00
06.08.1997 22490 50,000.00
24 O.S.No. 3026/2005
08.08.1997 22491 50,000.00
13.08.1997 22493 50,000.00
15.10.1997 14532 50,000.00
19.01.1998 14571 50,000.00
17.09.1998 47667 50,000.00
18.09.1998 47668 50,000.00
21.12.1998 73605 1,00,000.00
Total 6,00,000.00
.13. PW.1 further states that the defendant Nos.2 and 3 being partners of defendant No.1 have encashed the aforesaid cheques from his current account No.11069 at Lakshmi Vilas Bank. He states that the defendant No.1 Firm is having current account No.11965 in the said Lakshmi Vilas Bank and defendant Nos.2 and 3 being its partners are operating the said account. DW.1 Tejraj H. Jain in his chief examination among other facts has stated that the plaintiff is doing business under the name and style of "Veepee Silk Mills". DW.1 in his chief examination admits that the defendant Nos,2 and 3 are known to the 25 O.S.No. 3026/2005 plaintiff, since they are distant relatives, businessmen and doing business in common as wholesale textile merchants. He states that the defendant Nos.2 and 3 are partners of defendant No.1 M/s.Mandoth Syndicate Firm. DW.1 in his chief examination denied that the plaintiff has deposited Rs.6,00,000/- through cheques on different dates with the defendants and the defendants encashed the same through bank, much less, as averred in the plaint. DW.1 in his chief examination states that the alleged deposit transaction and deposit of money with the defendants referred in the plaint, is not the deposits with the defendants and there was no need for the defendants to receive the deposits from the plaintiff.
.14. DW.1 Tejraj during cross-examination deposed that the defendant No.1 is a registered partnership firm, whereas, the defendant Nos.2 and 3 are its partners. He deposed that either himself or defendant No.3 who is his younger brother are operating bank account of defendant No.1 firm. DW.1 during cross-examination deposed that the defendant No.1 has 26 O.S.No. 3026/2005 current account in Canara bank branch in Avenue Road, Bengaluru and has another account in Lakshmi bank. He deposoed that he does not know that the plaintiff has a bank account in Lakshmi Bank. DW.1 during cross-examination deposed that the statements of accounts marked at Exs.P.21 to 28 are belonging to the defendant No.1 firm. Exs.P-21 to 28 are certified copies of statement of accounts of current account No.11965 of defendant No.1 firm namely M/s. Mandoth Syndicate for a period falling between 1997 to 2002 maintained in Lakshmi Bank. Ex.P-1 is a letter dated 31.01.2004 issued by Lakshmi Bank addressed to the Veepee Silk Mills of plaintiff, wherein, it is certified that the following cheques issued by the plaintiff of his current account No.11069 in favour M/s. Mandoth Syndicate current account No.11965 are honoured by the said bank. The details of the cheques so honoured as under:
Date of payment Cheque Amount
No. Rs
23.07.1997 22485 50,000.00
27 O.S.No. 3026/2005
26.07.1997 22487 50,000.00
06.08.1997 22489 50,000.00
06.08.1997 22490 50,000.00
08.08.1997 22491 50,000.00
13.08.1997 22493 50,000.00
15.10.1997 14532 50,000.00
19.01.1998 14571 50,000.00
17.09.1998 47667 50,000.00
18.09.1998 47668 50,000.00
21.12.1998 73605 1,00,000.00
.15. In Ex.P-1 it is also stated that the cheque mentioned below, issued by M/s. Mandoth Syndicate current account No.11965 are credited into current account No.11069 of Veepee Silk Mills, Bengaluru. The details are as under:
Date of payment Cheque Amount
No. Rs
28.03.1998 205783 44204.00
05.04.1999 209460 92188.00
29.03.2000 216401 97720.00
28 O.S.No. 3026/2005
28.03.2001 216416 97236.00
Ex.P-2 is a copy of letter dated 17.10.2005 wherein the plaintiff requested Lakshmi Bank to furnish details of current account No.11965 of M/s. Mandoth Syndicate with regard to the (1) statement of accounts from 01.07.1997 to 31.03.2001 and (2) details of persons operating the said account. Ex.P-3 is copy of statement of accounts of current account No.11965 of M/s. Mandoth Syndicate the defendant No.1 firm maintained in Lakshmi Bank. The DW.1 Tejraj during his cross-examination deposed that they have encashed the cheques issued by the plaintiff in their favour. He deposed that the cheques mentioned in Ex.P-1 are encashed. The DW.1 further deposed that the plaintiff has also encashed the cheques issued by them in favour of the plaintiff as mentioned in Ex.P-1. He deposed that either himself or his younger brother might have signed the cheques issued by them mentioned in Ex.P-1. He deposed that his younger brother the defendant No.3 is residing in Bengaluru and doing business. The DW.1 during cross-examination deposed that their firm is maintaining accounts every year and 29 O.S.No. 3026/2005 submitting income tax returns every year without fail. Exs.P.5 to 9 are copies of form No.16A issued by defendant No.1 firm with regard to the payment of interest paid to Veepee Silk Mills, deducting TDS payable on interest and paying deducted TDS through cheques mentioned therein into Central Government account, through Canara bank, Avenue road, Bengaluru for the respective period mentioned therein. Ex.P-5 is for the period from 01.04.1997 to 31.03.1998 deducted TDS of Rs.4,912/-. The defendant No.1 firm deducted Rs.10,244/- for the period from 01.04.1998 to 31.03.1999, Rs.12,08/- for the period from 01.04.1999 to 31.03.2000, Rs.12,264/- for the period from 01.04.2000 to 31.03.2001 and Rs.11,169/- for the period from 1.04.2001 to 31.03.2002 towards TDS for the respective period out of interest payable to the plaintiff during respective periods and deducted TDS has been shown to be paid through cheque numbers, drawn on Canara bank, Avenue road, Bengaluru towards income tax. The records as well evidence of PW.1 evidences that pursuant to the summons issued to the bank official, they have produced bank account statements of plaintiff and the defendant No.1 firm maintained by them in 30 O.S.No. 3026/2005 Lakshmi Bank and the same are marked at Exs.P.11 to 28. Ex.P-29 is a letter dated 02.06.2009 submitted by the Sub- Manager of Lakshmi Bank stating about production of bank account statements and also it is stated that the cheques more than 5 years old are not being preserved in the said bank. Exs.P.11 to 20 are copies of statements of current account No.11069 of Veepee Silk Mills maintained in Lakshmi Bank covering period from 23.03.1998 to 18.04.2001. The oral evidence of DW.1 Tejraj coupled with the aforesaid documentary evidence marked at Exs.P.1 to 3 and Exs.P.11 to 28 evidences that the defendant No.1 firm is having a current account No.11965 in Lakshmi Bank and the defendant No.1 firm is submitting income tax returns every year without fail. The oral evidence of PW.1 and Exs.P1 to 3, Exs.P.11 to 28 evidences that the plaintiff is having current account No.11069 in Lakshmi Bank. PW.1 in his chief examination stated that the defendant No.1 firm deducted Rs.4,912/- TDS, out of interest Rs.14116/- payable to him at the end of 31.03.1998 at the rate of 21% p.a. through cheque No.205783 dated 28.03.1998 drawn by defendant No.1 firm on Lakshmi Bank and paid him Rs.44,204/-. He deposed that 31 O.S.No. 3026/2005 the defendants deducted Rs.10244/- towards TDS out of interest payable at Rs.1,02,432/- for the period from 01.04.1998 to 31.03.1999 and paid him Rs.92,188/- through cheque. He deposed that the defendants deducted Rs.12080/- towards TDS on the interest payable at Rs.1,09,800/- for the period from 01.04.1999 to 31.03.2000 and paid him Rs.97,720/- through cheque. PW.1 further stated that the defendants were to pay Rs.1,09,500/- interest at 18% p.a. for the period from 01.04.2000 to 31.05.2001 and deducted Rs.12,264/- towards TDS and paid amount of Rs.97,236/-. He further stated that the defendants deducted Rs.11,169/- towards TDS on the interest payable at Rs.1,09,800/- for the period from 01.04.2001 to 31.03.2002. PW.1 in his chief examination as well in the pleadings has stated that the defendant No.1 firm issued form No.16A towards deductions of the aforesaid TDS, out of interest payable to him, signed by defendant No.3 and the defendants paid interest through cheques and also paid deducted TDS to the income tax department, through cheques drawn on Canara Bank, Avenue road, Bengaluru. Ex.P-1 and oral evidence of PW.1 corroborates the case of the plaintiff with 32 O.S.No. 3026/2005 regard to the deposits of Rs.50,000/- each on different dates stated in the plaint and also deposit of Rs.1,00,000/- on 21.12.1998 through cheque numbers mentioned therein. The documentary evidence marked at Ex.P-3, Exs.P.11 to 28 evidences that the defendants have encashed the cheques issued by plaintiff in favour of defendant No.1 firm towards deposit averred in the plaint to the tune of Rs.6,00,000/-. This documentary evidence coupled with Exs.P-5 to 9 evidences that the defendants having deducted TDS out of interest payable to the plaintiff on the principal deposited amount for the respective periods, paid the same to the income tax department through cheques, particularly the cheques drawn on Canara Bank, Avenue road, Bengaluru. These documentary evidence coupled with the oral evidence of PW.1 leads to only probability that the plaintiff did made deposits through cheques as pleaded by him in the plaint with the defendants to the tune of Rs.6,00,000/- and the defendants were paying him interest initially at 21% p.a., later on, the defendants were paying 18% intenrest p.a. on deposit. DW.1 during cross-examination categorically admitted that they have encashed the cheques issued by the 33 O.S.No. 3026/2005 plaintiff in-favour of the defendants, likewise, the plaintiff has also encashed the cheque amount mentioned in Ex.P-1 issued by them through their current account No.11965 and the said cheque amount is credited to the current account of the plaintiff No.11069 and the same is evidenced through the aforesaid documentary evidence. Ex.P-9 evidences that the defendants did pay deducted TDS of Rs.11,169/- through cheque bearing No.446692 dated 31.05.2002, to the income tax department, drawn on Canara bank, Avenue road, Bengaluru and this TDS amount is being paid by the defendants to the income tax department, on behalf of the plaintiff payable by him to the income tax department. The instant suit O.S. No.3026/2005 is being filed by the plaintiff in this court on 13.04.2005 and Ex.P-9 evidences that the cheque number discussed above, drawn by the defendants, on Canara bank, Avenue road, Bengaluru to pay the TDS deducted, out of interest payable by the defendants to the plaintiff makes it clear that the defendants paid the interest, deducting TDS till 31.03.2002 and the said cheque, issued by the defendants towards payment of TDS is being paid, under the circumstances, as per the provisions contemplated u/s.20 34 O.S.No. 3026/2005 of Limitation Act, the suit of the plaintiff, is filed, well within the limitation period of 3 years from the period mentioned in Ex.P-9. The Ex.P.10 is a letter dated 20.11.2009 from income tax officer, ward No.5(3), Bengaluru addressed to this court. This court directed the said income tax department official to produce the TDS certificates issued by the defendant No.1 firm in favour of M/s. Vee pee Silk Mills, in form No.16A for the year ending 31.03.1998, 31.03.1999, 31.03.2000, 31.03.2001 and 31.03.2002. Ex.P-10 reflects that the plaintiff/Vee pee Silk Mills has been regularly filing returns of income tax from the assessment year 2002-03 onwards. Ex.P-10 also evidences that where there is no action to be taken against assessee, in filing income tax returns, such files will be weeded out as there is policy of weeding out the records at regular intervals, in those cases, no action is pending. This Ex.P-10 also evidences that for the later period as required by the department with regard to the details of assessee are available in their computer (customized software) for the year ending 31.03.2002 onwards i.e., Assessment years 2002-03 on wards, same has been furnished. Among the said details, the income tax returns furnished by the 35 O.S.No. 3026/2005 plaintiff for the assessment year 2002-03, the TDS claimed is Rs.11,169/-. Therefore, as rightly submitted by Sri.PDS the learned counsel for the plaintiff, this TDS claimed of Rs.11,169/- shown in Ex.P-10 is reflected in Ex.P-9. Under the circumstances, there is no hesitation to hold that the cheque submitted by the defendants to the income tax department through cheque No.446292 dated 31.05.2002 for Rs.11,169/- drawn on Canara bank, Avenue road, Bengaluru is being paid and Ex.P-10 evidences that there is nothing payable by the plaintiff towards his income tax balance as he has cleared the income tax. Therefore, it is evident that the said cheque mentioned in Ex.P.9 submitted by the defendant No.1 firm towards payment of TDS paid on behalf of plaintiff to the income tax department, Bengaluru is paid and honoured. Therefore, in view of the ratio and the principles laid down by their Lordships in the rulings cited supra, the instant case of the plaintiff is well within the limitation and provisions of section 20 of Limitation Act 1963 is applicable to the case on hand. Therefore, there is no substance in the contention of the defendants that suit of the plaintiff is barred by limitation. Per contra, the evidence on record proves that 36 O.S.No. 3026/2005 suit of the plaintiff is well within limitation. Ex.P-4 is certified copy of the objection to the main petition filed by the respondent Nos.1 and 2 in I.C. No.38/2003 on the file of City Civil Judge at Bengaluru. Premraj Chopra as a creditor has filed I.C. No.38/2003 against the respondent Nos.1 and 2, the subject matter in I.C. No.38/2003 is Rs.6,00,000/- deposit referred in the instant suit O.S. No.3026/2005. The petitioner Premraj Chopra in I.C. No.38/2003 is a plaintiff in this suit, whereas, the respondent Nos.1 and 2 in the said I.C. No.38/2003 are defendants 2 and 3 in the instant suit O.S. No.3026/2005. Sri. PDS the learned counsel for the plaintiff submits that the defendant Nos.2 and 3 herein have clearly admitted in para No.9 of the I.C. No.38/2003 with regard to the paying income tax deducted as TDS, on the interest payable to the plaintiff, on Rs.6,00,000/-. The relevant portion in para No.9 of the said objection reads asunder:
" 9. The averments ..........false. The interest was paid in respect of the loan which was borrowed by the respondent Nos.1 and 2 and as per the Income Tax Act, tax was deducted at source as the 37 O.S.No. 3026/2005 interest was paid once in year and the quantum of interest invoke the provisions of Income Tax Act"
Ex.P-30 is certified copy of the list of documents filed by the respondent Nos.1 and 2 in the aforesaid I.C. No.38/2003, being partners of M/s. Mandoth Syndicate. The documents described in Ex.P-30 are (1) Form No.1-A; (2) profit & Loss Account, balance sheet; (3) Two Nos. refund order of entry tax to be received; (4) Debtors Due statement; (5) Suit decreed list; (6) Recovery suits pending before courts; (7) Bank account statement and (8) Decree copies, attachment list etc. .16. Ex.D-2 is a copy of notice dated 09.02.2005 issued by the defendant Nos.1 and 2 herein to Sri. Paras Jain, Advocate, Bengaluru, requesting to file retirement memo in I.C. No.38/2003 and to issue NOC etc. The DW.1 during cross-examination deposed that Sri. Paras Jain did file vakalath on their behalf in I.C. No.38/2003, wherein, he was a respondent. The DW.1 during cross-examination when confronted showing Ex.P-30, he admits that same is certified copy of list of documents submitted by their counsel on their behalf. He deposed that he does not know that the 38 O.S.No. 3026/2005 documents produced as described in Ex.P-30 are not originals, but only copies. He deposed that he does not know as to where the original bank account is. He deposed that he does not know about the TDS. At the same time, DW.1 deposed that after 01.04.2004 they have not issued any cheque to the Income Tax Department with regard to the TDS. DW.1 during cross-examination deposed that he does not know that they did issue cheque to the Income Tax Department as per Ex.P-9. He further deposed that neither himself nor his younger brother did give TDS certificates. He deposed that Ex.P-4 is a copy of objections filed by them in I.C. case. He denied the suggestion that the Income Tax Department officials have shown with regard to paying of Rs.11,169/-. He deposed that he does not know what is Ex.P-10. He deposed that he cannot say through which bank, they have submitted the cheque with regard to the TDS of the year 2002. Sri.PDS the learned counsel for the plaintiff referring to these pieces of oral and documentary evidence submits that this court in the order dated 18.01.2008 on the application filed by the plaintiff under Order 11 rule 14 of C.P.C., praying to direct the defendants to produce the 39 O.S.No. 3026/2005 passbook, statement of account of current A/c No.11965, copies of TDS, form No.16A, statement copies of I.T. returns from 01.04.1996 to 31.03.2005, copies of pass book held by the plaintiff in Canara bank, Bengaluru, for which, the defendants had filed objections, contending that the entire records pertaining to the period from 1993 to 2005 are not in possession of the defendants, same are misplaced while shifting the premises, hence, the said documents are not in custody of the defendants. The learned counsel further submits that, under the circumstances, this court through order dated 18.01.2008 rejected the said I.A. observing that when the defendants not denying existence of the said documents, under the circumstances, the plaintiff can ask the court to draw adverse inference against the defendants with regard to the withholding the said documents. The learned counsel has drawn the attention of the court to the copy of the order dated 18.09.2013 passed by the Hon'ble High Court of Karnataka, Bengaluru in W.P. Nos.9207- 09/2012. The copy of the order in the said WPs discloses that the plaintiff herein had preferred the said W.Ps. against the defendants, but on submission made on behalf of the 40 O.S.No. 3026/2005 petitioner that the respondents/defendants have not produced the documents, pursuant to the order of the court dated 18.01.2008, under the circumstances, the petitioner would be entitled to argue for drawing adverse inference, accordingly, the said WPs are disposed off. Sri. PDS the learned counsel for the plaintiff referring to the aforesaid order passed in the aforesaid WPs and observations of this court in the order dated 18.01.2008 on I.A. filed under Order 11 rule 14 of C.P.C., submits to draw an adverse inference as contemplated u/s.114 of Evidence Act. The learned counsel further submits that the plaintiff through I.A. filed under Order 11 rule 14 of C.P.C., praying before this court to direct the defendants to produce the documents covered under order dated 18.01.2008, but the defendants contended that such documents are misplaced and not in their possession which are vital to prove the case of the plaintiff, under the circumstances, the plaintiff is constrained to adduce secondary evidence of the said documents which are permissible u/s.63 of Evidence Act. The learned counsel in support of the argument has placed reliance on the ruling 41 O.S.No. 3026/2005 cited supra reported in AIR 1989 Patna 96, in the case of Harijiwan Sahu Vs. Jairam Sahu and others.
.17. Per contra, Sri. VBS the learned counsel for the defendants submits that burden of proof is casted on the plaintiff in issue Nos.1 to 4, under the circumstances, an adverse inference cannot be drawn against the defendants, much less as pleaded by the plaintiff and as submitted by the learned counsel for the plaintiff. The learned counsel in support of the argument placed reliance on the rulings reported in
1) AIR 1968 SC 1413 in the case of Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and others;
2) AIR 1964 SC 464 in the case of Sajan Singh V/s. The State of Punjab;
3) AIR 1966 Orissa 66 in the case of Sri. Ram Dayalu Das Babaji Vs. Dukha Jena (copies of judgments taken from inter-net provided) As already discussed above, this court in the order dated 18.01.2008 passed on I.A. filed under Order 11 rule 14 C.P.C., among others, observed that the defendants are not 42 O.S.No. 3026/2005 denying the statement of account No.11965, TDS and form No.16A, passbooks of Canara bank and Lakshmi bank held by the defendants as the defendants in the objections filed to the said I.A. has categorically contended that same are misplaced while shifting the premises, as such, same are not in their custody. Admittedly these documents sought by the plaintiff through I.A. filed under order 11 rule 14 of C.P.C., to direct the defendants to produce the said documents, are very much relevant, but till this day, they have not been produced. The plaintiff in view of the order passed by this court on I.A. filed under order 11 rule 14 of C.P.C., and also the submission made before the Hon'ble High Court of Karnataka in the aforesaid WPs Nos.9207-09/2012, having adduced secondary evidence has rightly submitted before this court, to draw an adverse inference against the defendants for non- production of these documents. The evidence of PW.1 and documentary evidence marked at Exs.P.5 to 9 evidences that Exs.P.5 to 9 are the copies taken from the original form No.16A furnished by the defendants under signature of defendant No.3. This apart, the bank officials have produced certified copies of the bank account statements marked at 43 O.S.No. 3026/2005 Exs.P.11 to 28, pursuant to the order passed by this court and same is also supported by documentary evidence marked at Ex.P.29, which is memo written by the Sub-Manager of Lakshmi Bank discussed above. Therefore, the oral evidence of DW.1 deposed during his cross-examination discussed above, coupled with the oral evidence of PW.1 and documentary evidence marked at Exs.P.1 to 29, proves the case of the plaintiff and also proves the jural relationship of creditor and debtors between plaintiff and the defendants. Though the burden of proof under issue Nos.1 to 4 is casted on the plaintiff, but the defendants knowing very well that the documents which the plaintiff prayed to direct the defendants to produce before the court, are relevant but have not been produced and same are withheld by the defendants, under the circumstances, considering nature of the suit, the defendants ought to have produced the said documents, failure to which, an adverse inference is liable to be drawn against the defendants. In this connection, it is worth to quote the observation of the Lordships in the ruling reported in AIR 1968 S.C. 1413 Vol. No.55, C-276, in the case of Gopal 44 O.S.No. 3026/2005 Krishnaji Ketkar Vs. Mohammed Haji Latif and others. The relevant portion runs as under:
"(A) Evidence Act (1872) Secs,114 (g) and 103 -
a party in possession of ---best evidence which would throw light on the issue in controversy withholding it-court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him-party cannot rely on abstract doctrine of onus of proof or on the fact that he was not called upon to produce it. AIR 1917 PC 6(8) and civil Appeal No.941 of 1965, D/- 15-4-1968(SC) and AIR 1915 PC 96(98), re1 on."
The plaintiff for the reasons discussed above, has adduced secondary evidence of form No.16A furnished by the defendants to the plaintiff with regard to deducting TDS copies which are marked at Exs.P.5 to 9 and deduction of TDS, out of interest payable by the defendants to the plaintiff is also evidence through Ex.P.5 to Ex.P.9 which is also supported by Ex.P.10 issued by income tax officials discussed above, under the circumstances, there is no force in the contention of the defendants that copies of Exs.P.5 to 9 marked on behalf of the plaintiff cannot be read in evidence. The ratio and the principles laid down by their Lordships in the ruling reported in ILR 2011 KAR 1, relied upon by the 45 O.S.No. 3026/2005 learned counsel for the defendants are undisputed, but same will be of no help to the defendants in this case as facts of the said ruling and facts of the present case on hand are quite different. The evidence on record demonstrates that the defendants withhold the documents which can throw light on the issues in question and the defendants are knowing that such documents are very much required to resolve the dispute between the parties, under the circumstances, irrespective of burden of proof ought to have produced, but same have not been produced. Under the circumstances, an adverse inference is drawn against the defendants for non- production of the same. The ratio and the principles laid down by their Lordships in the rulings cited supra, reported in (1) AIR 1968 SC 1413, (2) AIR 1964 and (3) AIR 1966 Orissa 66 (copies of the judgment taken from inter-net provided) relied by the learned counsel for the defendants are undisputed, but same will be no help to the defendants as facts of the present case on hand and facts of the said rulings are quite different.
46 O.S.No. 3026/2005
.18. DW.1 during his cross-examination categorically deposed that they did file the objections in I.C. No.38/2003. DW.1 also admits that they did request Sri. Paras Jain, advocate, who had appeared on their behalf in I.C. No.38/2003 requesting the said counsel to retire in the said case on their behalf, which is also evidenced through Ex.D.2. The pleadings of the respondent Nos.1 and 2 in I.C. No.38/2003 in para No.9 of the said I.C., evidences through Ex.P.4 evidences that the defendants 2 and 3 herein who are respondent Nos.1 and 2 in I.C. No.38/2003 categorically pleaded that the amount referred in the petition to the tune of Rs.6,00,000/- is loan borrowed by them and they have deducted income tax as TDS as the interest was payable once in a year. This apart, in para No.7 of Ex.P.4, the respondent Nos.1 and 2 therein, categorically pleaded that the loan cannot be turned as deposit, according to the convenience of the petitioner. These pleadings in Ex.P.4 coupled with oral evidence of DW.1 and Ex.D.2 leads only probability that there is jural relationship of creditor and debtors between plaintiff and the defendants. The recitals in Ex.P.4, Ex.P.10, oral evidence of PW.1 and DW.1 leads to unmistakable facts that 47 O.S.No. 3026/2005 the defendants deducted TDS out of the interest payable to the plaintiff on the principal amount of Rs.6,00,000/- deposit described in this suit. It is in the evidence of DW.1 that the transactions referred in the suit are relevant to some other transactions between plaintiff and the defendants, but falsely the plaintiff is attempting to co-relate the same with the plaint transactions. Ex.D.1 are credit bills dated 06.03.1993, 09.03.1993, 18.03.1993, 01.11.1995, 01.12.1995, 01.01.1996, 10.01.1996 and 13.01.1996 in the letter head of Vee Pee Silk Mills, issued in the name of defendant No.1 firm with regard to the sale of some clothes on credit mentioned therein. These credit bills marked at Ex.D.1 and oral evidence of DW.1 is not proving the fact that the amount mentioned in the instant plaint are related with these credit bills marked at Ex.D.1. At the same time, the defendants have not adduced cogent evidence to prove as to in connection with which business transaction, the deposited amount of Rs.6,00,000/- referred in the suit is related. Ex.P30 evidences that the defendants 2 and 3 herein in I.C. No.38/2003 have produced the documents as mentioned therein discussed above, but whenever called to produce in 48 O.S.No. 3026/2005 this suit, the defendants are contending that some are misplaced, under the circumstances, it is just to draw an adverse inference against the defendants and accordingly, an adverse inference has been drawn, much less, as submitted by the learned counsel for the plaintiff. The above discussed oral and documentary evidence proves that the plaintiff has discharged the burden of proof casted on him, under ossie Nos.1 to 4, as such, onus of disproving the same shifted on the defendants, but the evidence let on behalf of the defendants is not sufficient to discharge onus of proof shifted on them, particularly to disprove the evidence let on behalf of the plaintiff to prove issue Nos.1 to 4. The ratio and principles laid down by their Lordships in the rulings cited supra, relied upon by the learned counsel for the defendants are undisputed, but the same will be no help to the defendants as facts of the present case on hand and facts of the said rulings are quite different. Unmistakable fact that emerges from appreciation of the oral and documentary evidence let in by the parties, is that the suit is well within the limitation and the plaintiff proves that he has deposited a sum of Rs.6,00,000/- with the defendants. The evidence on 49 O.S.No. 3026/2005 record also prove that the defendants initially agreed to pay interest @ 21% p.a., subsequently, at the rate of 18% p.a., much less, as pleaded by the plaintiff. Under the circumstances, there is no hesitation to hold that the plaintiff is entitle to recover the suit claim amount of Rs.10,80,667/- from the defendants with future interest @ 6% p.a. on Rs.6,00,000/- from the date of suit till realization. Hence, I hold issue Nos.1 to 4 in the affirmative and Addl. Issue No.1 in the Negative for consideration.
.19. Issue No.5: In view of my findings on the aforesaid mentioned issues 1 to 4 and Addl. Issue No.1, I proceed to pass the following:
ORDER Suit of the plaintiff is decreed against the defendants with cost.
The plaintiff is entitle to receive the suit claim amount of Rs.10,80,667/- (Rupees ten lakhs eighty thousand six hundred and sixty seven only) with future interest @ 6% p.a. from the date of suit till realization on Rs.6,00,000/- from defendants.50 O.S.No. 3026/2005
The defendants are directed to pay the aforesaid suit claim amount with future interest to the plaintiff as ordered.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by him, revised by me and after corrections, pronounced in open Court on this the 28th day of August, 2017.) (I.F. Bidari) II Additional City Civil and Sessions Judge, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED FOR THE PLAINTIFF :
P.W.1 : Premraj Chopra
2. DOCUMENTS MARKED FOR THE PLAINTIFF:
Ex.P.1 : Confirmation letter
Ex.P.2 : Copy of Application dated
17.10.2005
Ex.P.3 : Xerox copy of statement of a/c
Ex.P.4 : Copy of I.C. No.38/2003
Ex.P.5-9 : Xerox copies of Form No.16A
Ex.P.10 : Letter dated 20.11.2009
Ex.P.11-20 : Statements of accounts (plaintiff) Ex.P.21-29 : Statements of accounts (defendants) Ex.P.30 : List of documents filed in I/C. No.38/2003.51 O.S.No. 3026/2005
3. WITNESSES EXAMINED FOR THE DEFENDANTS:
D.W.1 : Tejraj H. Jain
4. DOCUMENTS MARKED FOR THE DEFENDANTS:
Ex.D.1 : Credit bills
Ex.D.2 : Copy of Office notice
(I.F. Bidari),
II Additional City Civil and Sessions Judge, Bangalore.52 O.S.No. 3026/2005
Order (vide separate order) pronounced in open court.
ORDER Suit of the plaintiff is decreed against the defendants with cost.
The plaintiff is entitle to receive the suit claim amount of Rs.10,80,667/- (Rupees ten lakhs eighty thousand six hundred and sixty seven only) 53 O.S.No. 3026/2005 with future interest @ 6% p.a. from the date of suit till realization on Rs.6,00,000/-.
The defendants are directed to pay the aforesaid suit claim amount with future interest to the plaintiff as ordered.
Draw decree accordingly.
II ADDL.CITY CIVIL & SESSIONS JUDGE BANGALORE.
54 O.S.No. 3026/2005
1) AIR 1968 SC 1413 in the case of Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and others;
2) AIR 1964 SC 464 in the case of Sajan Singh V/s. The State of Punjab;
3) AIR 1966 Orissa 66 in the case of Sri. Ram Dayalu Das Babaji Vs. Dukha Jena Judgment by the Larger Bench of Orissa.
55 O.S.No. 3026/2005
The learned counsel for the plaintiff placed a reliance on AIR 1968 S.C. 1413 Vol. No.55, C-276, in a case of Gopal Krishnaji Ketkar Vs. Mohammed Haji Latif and others, which reads thus:
"(A) Evidence Act (1872) Secs,114 (g) and 103 - a party in possession of ---
best evidence which would throw light on the issue in controversy withholding it-court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him-party cannot rely on abstract doctrine of onus of proof or on the fact that he was not called upon to produce it. AIR 1917 PC 6(8) and civil Appeal No.941 of 1965, D/- 15-4-1968(SC) and AIR 1915 PC 96(98), re1 on.