Karnataka High Court
Sri R Selvaraj vs Sri Gunashekaran on 24 September, 2019
Author: H.B.Prabhakara Sastry
Bench: H.B. Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY
R.F.A.No.80 OF 2012
BETWEEN:
Sri. R. Selvaraj,
Son of Late Rangaswamy,
Since deceased by his legal
Representative Wife
Smt. Yeahsoda,
W/o. Late Selvaraj
Aged about 62 years
R/a No.184, KBAR Road,
Austin Town, Bangalore - 560 047.
...Appellant
(By Sri. P.M. Siddamallappa for
Mylaraiah Associates)
AND:
1. Sri. Gunashekaran,
Son of Kuppuswamy
Aged about 64 years.
2. Smt. Pramila Kumari,
Wife of Sri. Gunashekaran,
Both are residing at No.162,
KBAR Road, Austin Town,
Bangalore. 560 047.
...Respondents
(By Sri. K. Narayana, Advocate)
R.F.A.No.80/2012
2
****
This Regular First Appeal is filed under Section 96 of
the Code of Civil Procedure, 1908, against the judgment and
decree dated:28.09.2011 passed in O.S.No.6566/2005 on
the file of the II Additional City Civil & Sessions Judge at
Bangalore (C.C.H.No.17), dismissing the suit of the plaintiffs.
This Regular First Appeal coming on for Hearing this
day, the Court delivered the following:
JUDGMENT
This is a plaintiff's appeal. The suit of the present appellant against the present respondents in the Court of II Additional City Civil & Sessions Judge at Bangalore (C.C.H.No.17) (hereinafter for brevity referred to as the "Trial Court") in O.S.No.6566/2005 for recovery of a sum of `6,70,000/- together with interest there upon came to be dismissed by the judgment and decree of the Trial Court dated 28-09-2011. It is against the said judgment and decree, the plaintiff has preferred this appeal.
R.F.A.No.80/20123
2. The suit originally was filed by one Sri.R. Selvaraj who died during the pendency of the Original Suit. As such, his wife - Smt. Yashoda came on record as the Legal Representative of the deceased plaintiff.
3. The summary of the case of the plaintiff in the Trial Court was that, the defendants were running a chit business wherein the plaintiff and his family members were members. The defendants being the residents in the neighbour-hood of the plaintiff were acquainted with the plaintiff, as such, at the force of the defendants, the plaintiff became a member in the chit business that was commenced by the defendants in the year 1995-96 and which was running till the year 2002. There were forty members in the said chit transaction. The plaintiff subscribed for four memberships, one in his name, one in the name of his wife and other two in the names of R.F.A.No.80/2012 4 his children. Excepting him, the remaining members of his family were only the name lenders to the chit. As such, it was the original plaintiff who was paying the monthly subscription amount of a sum of `30,000/- per month for four chits of `7,500/- each. The total chit amount was a sum of `3,00,000/-.
The plaintiff has further contended that the defendants who are the husband and wife abruptly and clandestinely closed the business and attempted to vacate the premises where they were residing. They shifted their residence and failed to disclose their whereabouts. Thus, the chit which was commenced on 07-07-2002 was closed on 07-09-2004. According to the plaintiff, they were entitled for a sum of `3,00,000/- per membership from the defendants. However, a Panchayat was held in the presence of the panchayatdars on 25-11-2004 where the defendants R.F.A.No.80/2012 5 agreed to an agreement with the plaintiff and also issued five Promissory Notes. Out of their liability, a sum of `1,00,000/- was paid. However, they did not pay the remaining amount.
The plaintiff has further stated that the defendants had also agreed to repay the chit amount either by raising of a loan where the defendant No.2 was employed or in the alternative they had also agreed to sell the schedule property bearing City Municipal Corporation No.162, K.B.A.R Road, Austin Town, Bangalore. It was valued at `20,00,000/-. Accordingly, an agreement was entered into in the presence of the witnesses, viz. Sri.G.D. Desigan and Sri. E. Janarthan. However, later, it was turned out that the defendants had played fraud on the plaintiff. Since the defendants did not pay the amount which they were due to the plaintiff, the plaintiff was constrained to institute a suit. R.F.A.No.80/2012 6
4. In response to the Court notice served upon them, the defendants appeared through their counsel and defendant No.1 filed his Written Statement. In the Written Statement, the defendant No.1 has denied specifically every statement made in the plaint. He has denied that he was running any chit business much less a chit business joined by his wife, i.e. defendant No.2. He also specifically denied that he was collecting a sum of `30,000/- per month from the plaintiff towards subscription fee in respect of four chits at any point of time. He also denied that he abruptly closed the alleged chit and ran away from the place. He specifically denied that he was liable to the plaintiff to any sum much less a sum of `12,00,000/- which is claimed in the plaint. The said defendant also denied that he had executed any agreement or Promissory Note in favour of the plaintiff. He further denied that he had agreed to raise bank loan R.F.A.No.80/2012 7 or sell the immovable schedule property and that he would clear the chit amount towards the plaintiff.
5. Based on the pleadings of the parties, the Trial Court framed the following issues for its consideration:-
"1] Whether the plaintiff proves that the Defendant had agreed to pay the chit amount under agreement 24.11.2004 and had executed pro-notes for `2,00,000/- dated 5.12.2004 for `2,00,000/- dated 5.2.2005, for `1,00,000/- dated 5.5.2005 and for `1,70,000/- dated 5.7.2005?
2] Whether the plaintiff proves that the Defendants are liable to pay `6,75,000/- with interest and cost?
3] To what order or decree?"
On behalf of the plaintiff, the plaintiff himself got examined as PW-1. After his death, his wife -
Smt. Yashoda came on record as the Legal Representative of the deceased original plaintiff and she R.F.A.No.80/2012 8 got herself examined as PW-4. Apart from that, from the plaintiff's side, two more witnesses as PW-2 and PW-3 were examined. Documents from Exhibits P-1 to P-8 were produced and got marked.
On behalf of the defendants, defendant No.1 got himself examined as DW-1 and got examined three more witnesses as DW-2 to DW-4 and got marked a certified copy of a Written Statement in O.S.No.9592/2004 on the file of the City Civil Court, Bangalore as Ex.D-1.
6. The Trial Court, after hearing both side, by its impugned judgment and decree dated 28-09-2011 answered issues No.1 and 2 in the negative and proceeded to dismiss the suit of the plaintiff. It is against the said judgment and decree, the plaintiff has preferred this appeal.R.F.A.No.80/2012
9
7. The Lower Court records were called for and the same are placed before this Court.
8. Heard the arguments of the learned counsel for appellant/plaintiff, learned counsel for respondents/ defendants and perused the material placed before this Court including the memorandum of appeal and the impugned judgment.
9. For the sake of convenience, the parties would be henceforth referred to with the ranks they were holding before the Trial Court respectively.
10. The learned counsel for the appellant/plaintiff in his arguments submitted that the suit is based on an agreement which is also supported by Demand Promissory Notes. The signatures of the defendant No.1 either on the agreement or on the Promissory Notes have not been denied. Therefore, when the defendant No.1 has admitted his signature on the agreement and the Demand Promissory Notes, the Trial Court has R.F.A.No.80/2012 10 committed an error by disbelieving those documents and dismissing the suit.
He further stated that the defendants have not taken any defence in the Written Statement at the first instance, however, it was for the first time in the evidence of DW-1 that, they came up with a defence that the alleged Promissory Notes and the agreement were forcibly got signed by them in the Police Station. As such, the said defence taken up by the defendants does not only stand proved, but also they have failed to produce any cogent evidence to corroborate their contention.
Learned counsel further submitted that the practice prevailing as known to everybody in any alleged chit business is that, a person who runs a chit business, does not issue any documents of subscriptions to its members. As such in the instant case also, the plaintiff could not produce any documents to show that the defendants R.F.A.No.80/2012 11 were running any chit business. However, Ex.P-1 is a document which clearly shows the liability of the defendants towards the plaintiff.
11. Learned counsel for Respondents/defendants in his arguments submitted that the pleadings and the documents marked as exhibits are totally contrary to each other. In the entire pleading, it is stated that the defendants were running a chit business wherein the plaintiff is said to have subscribed for four chits. Contrary to this, the document at Ex.P-1 no where whispers about the said chit business, but it only depicts the alleged transaction as a hand loan said to have been given to the defendants by the plaintiff, that too, for a smaller sum of `7,70,000/- but not to the suit claim.
Learned counsel also submitted that PW-2 and PW-3 have also not clearly supported the case of the plaintiff and have stated that they are not aware as to R.F.A.No.80/2012 12 the alleged chit business said to have been carried on by the defendants.
Drawing the attention of the Court to Ex.D-1(a), learned counsel, however, submitted that the plaintiff himself as a defendant in another Civil Suit in O.S.No.9592/2004 has stated that five On-Demand Promissory Notes were obtained by him in a Police Station.
Finally, stating that the documents relied upon by the plaintiff himself are unclear and unbelievable, which the Trial Court has rightly appreciated and rejected the suit of the plaintiff, the learned counsel for the respondents/defendants prayed for dismissal of the appeal.
12. In the light of the above, the points that arise for my consideration in this appeal are: R.F.A.No.80/2012 13
"1] Whether the plaintiffs have proved that the defendants owe them a sum of `6,70,000/- with interest as claimed?
2]Whether the judgment and decree under appeal warrants any interference at the hands of this Court ?"
13. PW-1 - R. Selvaraj in his Examination-in- chief has reiterated the contentions taken up by him in his plaint. He has stated that the defendants being residents in his immediate neighbour-hood, he was constrained to subscribe to the membership of four chits which was being run by them. Accordingly, by subscribing for four chits, each for a sum of `7,500/-, he was contributing a sum of `30,000/- (i.e.`7,500/- x 4) per month towards those four chits. However, the defendants abruptly closing their chit business, shifted their residence also and the repeated requests and demands to repay their amount and to pay them the chit R.F.A.No.80/2012 14 amount went futile. It is in that regard, a panchayat was held wherein the defendants in the presence of witnesses on 24-11-2004 executed an agreement and assured that they would handover necessary documents after discharging the liability in the said agreement. Since the defendants failed to pay the amount though agreed, the plaintiff was constrained to institute the suit.
PW-1 has also stated that apart from executing an agreement, the defendants have also executed five On- Demand Promissory Notes in his favour, two of which were for a sum of `2,00,000/- each and another two for a sum of `1,00,000/- each and the fifth one was for a sum of `1,70,000/-. Stating so, the witness has got marked the agreement at Ex.P-1 and five On-Demand Promissory Notes at Exs.P-2 to P-6.
14. PW-4 - Smt. Yeshoda admittedly is the wife of PW-1 - the original plaintiff. She has given her evidence R.F.A.No.80/2012 15 after the death of her husband - Sri. Selvaraj i.e. PW-1 and after coming on record as the Legal Representative of her deceased husband. She apart from reiterating in her Examination-in-chief in the form of affidavit evidence has also got produced the copy of the Certificate of death of her husband at Ex.P-7 and a Will said to have been left by her husband in her favour at Ex.P-8. Both PW-1 and PW-4 were cross examined by the defendants' side wherein they adhered to their original versions.
15. PW-2 - Sri. G.D. Desigan and PW-3 -
Sri. E. Janarthan were examined by the plaintiffs who have stated that they know both Plaintiffs and defendants and that the defendant No.1 was running a chit fund in his house wherein the plaintiff, his family members and several other people were the members to the said chit fund. They have also stated that due to the R.F.A.No.80/2012 16 failure by the defendants to pay back the chit amount, Panchayats were held on 13-11-2004 and 15-11-2004 and the defendant No.1 had agreed to pay the amount and executed an agreement. The witnesses have also stated that the defendant No.1 executed the said Pro- Notes to the extent of a sum of `5,00,000/- and in instalments. These two witnesses have also stated that the defendant has on 24-11-2004 executed an agreement agreeing to pay in instalments a sum of `7,70,000/-. Both these witnesses were cross-examined from the defendants' side.
16. DW-1 -K. Gunasegaran in his Examination-in- chief in the form of affidavit evidence has reiterated the contentions taken up by him in his Written Statement. He has totally denied every plaint averment and denied that he was ever doing chit business and that the plaintiff and his family members were the members in R.F.A.No.80/2012 17 the said chit fund. On the other hand, he has stated that at Ashok Nagar Police Station, he was forced to sign on blank stamp papers and Pro-Notes. The same is evidenced in the plaintiff's own admission in the Written Statement filed by him as a defendant in O.S.No.9592/2004. He has got produced a certified copy of the said Written Statement and got it marked at Ex.D-1. He has also got produced the certified copy of the issues framed in the said O.S.No.9592/2004 at Ex.D-2. He was subjected to a detailed cross- examination from the plaintiff's side wherein he adhered to his original version.
17. One Sri.R. Paramesh and one Sri.Ganesh P. were examined as DW-2 and DW-3 respectively by the defendants. Both of them in their Examination-in-chief in the form of affidavit evidence have supported the case of the defendants by stating that the defendant R.F.A.No.80/2012 18 No.1 or his wife never conducted any chit business at any point of time. They have also stated that the Promissory Notes and the agreement relied upon by the plaintiff were obtained in Ashok Nagar Police Station under coercion and threat. They further stated that they being the residents in the same locality, they know both the parties to the suit. Both the witnesses in their cross-examination, however, stated that they are not aware about the defendants running any chit business.
18. It is the plaintiff's specific case in his plaint that the defendants were running a chit business from the year 1995-96 and were running it successfully. The plaintiff at the force of the defendants became a member in the said chit in the year 2002 wherein value of each chit was `3,00,000/- and the monthly amount payable by the members was `7,500/- per chit. R.F.A.No.80/2012 19
It is also the plaintiff's specific case that apart from getting membership for him, he had also subscribed for his wife and two children, thus in total, he had subscribed for four memberships in the said chit. He has also stated that he himself was paying the monthly subscription for all the four chits which was amounting to `30,000/- per month since his wife and children were only name lenders.
19. Firstly, even though the plaintiff has stated that the defendants were running a chit business wherein he was a member, admittedly, he has not produced any documents to show that the defendants were running any chit business or that he had subscribed for four memberships in the chit fund and was paying a monthly amount of `30,000/- towards the chit transaction. The plaintiff as PW-1 in his cross- examination has himself admitted that he has got no R.F.A.No.80/2012 20 documents to show that the defendants were running any chit business. Therefore, at the first stage and prima facie it can be inferred that the plaintiff could not able to produce any documents to show that the defendant No.1 was running any chit business and that the plaintiff had subscribed for four chits for himself and for his family members.
20. Secondly, even though the original plaintiff has stated that he had taken four memberships in the chit and was paying monthly contribution towards the said chit and has claimed a sum of `6,70,000/- from the defendants, but neither in the plaint nor in his evidence either by himself as PW-1 or through PW-2 to PW-4, he has stated as to how many months' subscription he has paid and what was the total amount that was paid by him towards the chit value to the defendants. The entire plaint as well the evidence of the plaintiffs is R.F.A.No.80/2012 21 bereft of the said necessary required details, because, to arrive at the suit claim of `6,70,000/-, it is required as to how much of the alleged membership instalments the plaintiff had paid. As such, the said necessary details are not forthcoming, both in the pleading as well in the evidence of the plaintiffs.
21. Thirdly, the plaintiff has got examined PW-2 and PW-3 as the persons who know about the chit transaction. Those two witnesses though have stated that defendant No.1 was running a chit fund in his house, but admittedly, neither of them were members to the said chit. Except stating that defendant No.1 was running a chit fund in his house, neither of them have given any details as to the source of their knowledge as to how and in what manner the defendant No.1 was said to have been conducting the chit business. No doubt they have stated that they know both the parties to the R.F.A.No.80/2012 22 suit and they are residing in the same vicinity, but by that itself, it cannot be believed that they were acquainted with or that they were aware of the defendants alleged to have been running a chit business. This is for the reason that according to the plaintiff, it is not just the defendant No.1 who was running a chit business, but it was both the defendants. Had PW-2 and PW-3 were aware of the chit business being the residents in the same locality, they should have in their evidence clearly mentioned that both the defendants were running the chit business. But both of them have specifically stated that it was defendant No.1 who was running a chit fund in his house, which means they have not stated anything about defendant No.2. Whereas the case of the plaintiff was that defendant No.2 was also running the chit business joining her husband, i.e. DW-1.
R.F.A.No.80/201223
Further, PW-3 in his cross-examination has stated that he does not know as to how many members were there in the chit said to have been run by the defendants. He also stated that he does not know whether the plaintiff has instituted any case against any other members of the said chit. That means, the witness has shown that he does not know the details of the alleged chit business said to have been run by the defendants.
22. Fourthly, according to the plaintiff, he had subscribed for four memberships in the chit each for a sum of `7,500/-, in total amounting to a sum of `30,000/- per month. He has also stated both in his plaint as well in his evidence as PW-1 that, the remaining three members of his family i.e. wife and two children were only name lenders and that the entire amount was being paid by him towards the chit. The R.F.A.No.80/2012 24 very same plaintiff as PW-1 in his cross-examination has stated that he was working in Air Force Command Hospital and retired from the services in the year 2006. By that time, his salary was around `10,000/- per month. He says in his family, he has his wife, two children and grand children, all together, there are nine members. He has also stated that his wife is working in Health Department, daughter is working and son is working in a Software Company since seven to eight years. This would clearly go to show that as in the year 2002, when he claims to have subscribed to the alleged four memberships in the chit fund alleged to have been run by the defendants, he was a salaried person whose salary was at the maximum a sum of `10,000/- per month. When a person getting only a sum of `10,000/- per month as his total salary, how could he subscribe for a sum of `30,000/- per month towards a chit, also creates a serious doubt in the case R.F.A.No.80/2012 25 of the plaintiff. It was for him to clarify regarding the contributions, if any, made by other members of his family. Since the plaintiff himself has stated that it was him who was paying the entire amount of `30,000/- per month, then, it was for him to show that he had the capacity to pay the said `30,000/- also leads to a suspicion as to his contention that the defendants were running any chit business and that the plaintiff had subscribed for four chits in it each for a sum of `7,500/-.
23. Fifthly, the plaintiff through a document has produced an agreement at Ex.P-1 shown to have been executed on 24-11-2004 by the defendant No.1 in his favour and five On-Demand Promissory Notes from Exs.P-2 to P-6. The plaintiff both in his plaint as well in his evidence as PW-1 has stated that since the defendant No.1 failed to pay the chit amount, a panchayat was held and in the presence of the R.F.A.No.80/2012 26 panchayatdars, he agreed to pay the amount, as such, the agreement dated 24-11-2004 was made. He has also stated that the defendant No.1 also executed and delivered five Pro-Notes totaling to `7,70,000/-. The same is evidenced by PW-2 and PW-3 also. However, the evidence of PW-2 and PW-3 on the said point is not clear because neither of them have stated that they were present when the defendant No.1 executed an agreement at Ex.P-1. Though both the witnesses have stated that the defendant No.1 executed an agreement for a sum of `7,70,000/-, but they have not stated that they were present when the said agreement was executed by defendant No.1. They have only stated that they were present when panchayat was held in that regard. According to them, after panchayat was over, and again after much persuasion only on 24-11-2004 the defendant No.1 executed an agreement. Had the said execution of Ex.P-1 - the agreement was in R.F.A.No.80/2012 27 panchayat and in the presence of panchayatdars and the witnesses - PW-2 and PW-3, then PW-2 and PW-3 should have necessarily stated in their evidence that the said agreement was executed in the panchayat and in their presence. Whereas PW-1 has stated that it was in the presence of panchayathdars and witnesses, the defendant No.1 made an agreement dated 24-11-2004. Therefore, the evidence of PW-2 and PW-3 does not support the case of the plaintiff fully to the extent of defendant No.1 alleged to have executed the agreement at Ex.P-1.
24. Sixthly, assuming for a moment that the defendant No.1 had executed an agreement, then, according to the plaintiff, the said agreement was in continuation of and with respect to the alleged chit business which the defendant No.1 was said to have been conducting. But interestingly, a reading of Ex.P-1 - R.F.A.No.80/2012 28 the agreement goes to show that no where any whisper is made about the defendant No.1 running any chit business and the plaintiff being a member for it subscribing to four chits. The entire agreement is totally and absolutely silent about the alleged chit business said to have been run by defendant No.1.
The said agreement at Ex.P-1 mentions that defendant No.1 is said to have availed a hand loan from the plaintiff which was for a sum of `7,70,000/- and it is in that regard, the defendant No.1 is shown to have executed the said agreement. Here also, once again the very execution of the said agreement creates a doubt for the very same reason that, admittedly, the plaintiff as on the said date was working in the Air Force Command Hospital at Bengaluru, drawing at maximum a monthly salary of a sum of `10,000/-. When such being the case, the said person giving a hand loan of a sum of R.F.A.No.80/2012 29 `7,70,000/- to the defendants and obtaining such an agreement is also hard to believe. Had really there being a chit business conducted by defendant No.1 and it was in that connection a panchayat was held, where the defendant No.1 was made to execute the agreement, then, nothing had prevented the plaintiff from getting the same mentioned in the agreement at Ex.P-1, so that the case would have been completely and clearly on record. But for the reasons best known to them, the plaintiffs have not got those details entered in the agreement at Ex.P-1.
25. Seventhly, according to the plaintiff, the said chit business was being run by not defendant No.1 alone single handedly but joined by defendant No.2 - wife of defendant No.1 also. Further, according to plaintiff, the agreement at Ex-P-1 came in connection with the alleged default committed by the defendants in not R.F.A.No.80/2012 30 repaying the chit amount said to have been subscribed by the plaintiff. If that were to be the case, then, necessarily and naturally the parties who participated in the panchayats should have included defendant No.2 also and could not have confined to defendant No.1 alone. Admittedly there is no whisper about defendant No.2 in the agreement at Ex.P-1. This also leads to a serious doubt about the alleged agreement at Ex.P-1.
26. Eighthly, a perusal of the alleged agreement at Ex.P-1 would go to show that the agreement appears to have been entered into in the month of December of the year 2004. However, the said month 'December' has been later on struck-off and re-written as 'November'. There is nothing to say that the said correction in the month of execution of the agreement has been authenticated by the parties to the agreement. Though there are few more corrections in the schedule R.F.A.No.80/2012 31 of the repayment in page 2 of the very same agreement, but those corrections in the year, from the year '2004' to '2005' appear to have been authenticated with the correction signature. The said correction signature does not appear in so far as the correction of the name of the month in the first page of the agreement is concerned. Therefore, the absence of any such authentication for correction of the material aspect of the agreement also creates a doubt regarding the execution of the said agreement.
27. Ninthly, as per agreement at Ex.P-1, the transaction is not of alleged chit business or the plaintiff subscribing to the chit alleged to have been run by defendant No.1. As already observed above, Ex.P-1 - agreement does not whisper anything about the chit business, but it says that the defendant No.1 had availed a hand loan of a sum of `7,70,000/- from the R.F.A.No.80/2012 32 plaintiff. However, PW-4, the wife of the deceased plaintiff in her cross-examination has stated that, no amount of `7,70,000/- was given at any time to defendant No.1 as a hand loan. Thus, the evidence of none else than the wife of the deceased original plaintiff itself goes to show that no such hand loan of a sum of `7,70,000/- was given by the plaintiff to the defendant No.1. As such also, the agreement at Ex.P-1 proves to be not safe to believe or act upon it.
With respect to the On-demand Promissory Notes, it is the contention of the plaintiffs both in their plaint as well in the evidence of PW-1 and PW-4 that, the defendant No.1 had also executed five On-Demand Promissory Notes when panchayat was held on 24-11-2004. However, the very same plaintiff in his Written Statement in O.S.No.9592/2004 which suit was instituted against him by the present defendant No.1 R.F.A.No.80/2012 33 has contended that those Promissory Notes were given to him by the plaintiff therein (defendant No.1 herein) before the Ashok Nagar Police Station. The contention of the defendants in the instant case is also that both the agreement as well the On-Demand Promissory Notes were forcibly got signed by him in the presence of Police in Ashok Nagar Police Station. The said Written Statement and more particularly the said portion 'when the police were called the plaintiff, the plaintiff agreed to pay the amount and gave a letter of undertaking as well as five On Demand Promissory Notes in favour of the defendant' have been marked from the defendants' side at Exs.D-1 and D1(a) respectively. This at the very threshold creates a strong doubt about the Promissory Notes said to have been executed by defendant No.1 in favour of the plaintiff and the reliability upon it.
Those Promissory Notes which are at Exs.P-2 to P- 6 when perused, it clearly goes to show that the name R.F.A.No.80/2012 34 of the promisee in those Promissory Notes have been struck off and re-written in the blank portion of the printed format of the Promissory Notes. Thus, the original name appears to have been totally substituted with a different name as the promisee in all those Promissory Notes. In none of those Promissory Notes those cancellation of the original name and writing up of another name has been authenticated with any signature of authentication or signature of correction. As such also, those Promissory Notes do not inspire any confidence to believe upon them.
28. Lastly, the consideration receipts which appear to have been shown as a part and parcel of those On- Demand Promissory Notes are also not in consonance with the promises that have been made in the On- Demand Promissory Notes at Exs.P-2 to P-6. When all those Promissory Notes are shown to have been dated R.F.A.No.80/2012 35 24-11-2004 as the date of execution of the Promissory Notes, but none of the consideration receipts show the same date as the date of execution of the said Promissory Notes in them. Each of those consideration receipts gives different dates as 05-12-2004, 05-02- 2005, 05-03-2005, 05-05-2004, and 05-07-2005 as the dates of execution of the Promissory Notes. On this aspect also, the On-Demand Promissory Notes at Exs.P-2 to P-6 do not inspire confidence to believe in them.
29. As such, the case of the plaintiff that the defendants were running a chit in which the plaintiff on behalf of himself and on behalf of his wife and two children subscribing for four chits and was contributing a sum of `30,000/- as the monthly membership amount, is primarily and basically bereft of any corroborative evidence.
R.F.A.No.80/201236
30. Further, the agreement at Ex.P-1, as already observed above, no where whispers about the alleged chit business and the said document is in its existence as though it is an independent transaction. Still, the plaintiff could not able to prove the said document, since the said document has several doubts with it regarding its execution as well the contents which are analysed above.
31. Added to these, the On-Demand Promissory Notes at Exs.P-2 to P-6 also do not inspire any confidence to believe upon them for the reasons mentioned above. Thus, the plaintiff could not able to prove that the defendants are due to him to the suit claim as on the date of institution of the suit.
32. The Trial Court after analysing these aspects and the materials placed before it in its proper perspective has rightly dismissed the suit of the plaintiff. R.F.A.No.80/2012 37 I do not find any reasons to interfere in the said finding given by the Trial Court.
Accordingly, I proceed to pass the following:-
ORDER [i] The appeal is dismissed;
[ii] The judgment and decree dated 28-09-2011 passed in O.S.No.6566/2005 by the learned II Additional City Civil & Sessions Judge at Bangalore (C.C.H.No.17), is hereby confirmed;
Registry to transmit a copy of this judgment along with the Lower Court records to the concerned Trial Court, without delay.
Sd/-
JUDGE BMV*