Karnataka High Court
Sri Sannegowda vs Smt Ashwathamma on 13 September, 2023
RSA No.299/2015
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER 2023
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
REGULAR SECOND APPEAL NO.299 OF 2015 (MON)
BETWEEN
SRI. SANNEGOWDA
S/O THIMMEGOWDA,
AGED ABOUT 60 YEARS,
R/AT HINDUGUDALU VILLAGE,
HANAGODU HOBLI, HUNSUR TALUK,
MYSORE DISTRICT-571105.
...APPELLANT
(BY SRI. SRINIVASA D C, ADVOCATE)
AND:
SMT ASHWATHAMMA
W/O H D ERAPPA,
AGED ABOUT 50 YEARS,
R/AT MARUTHI EXTENSION,
HUNSUR TONW,
MYSORE DISTRICT-571105.
....RESPONDENT
(BY SRI. N. SHANKARANARAYANA BHAT, ADVOCATE)
RSA No.299/2015
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THIS RSA IS FILED UNDER SECTION 100 OF THE
CPC AGAINST THE JUDGEMENT & DECREE DATED
27.11.2014 PASSED IN R.A.NO.598/2014 (OLD
NO.32/2011) ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT, HUNSUR, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGEMENT AND DECREE DATED
25.1.2011 PASSED IN OS.NO.1/2010 ON THE FILE OF THE
CILVIL JUDGE & JMFC., HUNSUR.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 18.08.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This second appeal is filed by the appellant challenging the judgment and decree dated 27.11.2014, passed in R.A.No.598/2014 (Old No.32/2011) by the Fast Track Court, Hunsur and the judgment and decree dated 25.01.2011, passed in O.S.No.01/2010 by the Civil Judge & JMFC, Hunsur.
2. Parties are referred to as per their ranking before the trial Court. The appellant is the defendant and respondent is the plaintiff.
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3. The brief facts leading rise to filing of this appeal are as under:
Plaintiff filed a suit for recovery of money against the defendant. The defendant approached the plaintiff for financial assistance. The plaintiff, considering the need of the defendant, agreed to advance a sum of Rs.60,000/- and the defendant agreed to pay minimum rate of interest at the rate of 18% p.a. The defendant executed a demand promissory note and receipt for having received the amount. It is contended that the defendant neither paid the principle amount nor the interest. The plaintiff got issued legal notice calling upon the defendant to repay the loan amount with interest. The said notice was served on the defendant. Inspite of service of notice, the defendant did not repay the said loan amount.
Hence cause of action arose for the plaintiff to file the suit for recovery of money.RSA No.299/2015 -4-
4. Defendant filed written statement contending that the plaintiff and her husband are notorious for concocting documents for filing suits for recovery of money. It is contended that the defendant has not borrowed any amount from the plaintiff as alleged in the plaint. It is further contended that the plaintiff and her husband have indulged in illegal acts with the villagers and they have filed a complaint against the plaintiff and her husband. Rest of the allegations made in the plaint are denied by the defendant and sought for dismissal of the suit.
5. The Trial Court, on the basis of the above said pleadings, framed the following issues:
1) Whether the plaintiff proves that the defendant has borrowed a sum of Rs.60,000/- @ 18% interest per annum for his legal necessities and executed alleged On demand pronote & consideration receipt on 01.12.2008?
2) Whether the plaintiff further proves that despite of several request and demands RSA No.299/2015 -5- the defendant has not repaid the said amount?
3) Whether the plaintiff is entitled to relief as sought for?
4) What order or decree ?
6. In order to prove the case of the plaintiff, plaintiff examined herself as PW-1 and two witnesses as PW-2 & PW-3 and got marked 6 documents as Exs.P1 to P6. Defendant examined himself as DW-1 and got examined one witness as DW-2 and got marked 3 documents as Exs.D1 to D3. The trial Court after considering the oral and documentary evidence of the parties, answered issue Nos.1 to 3 in the affirmative and issue No.4 as per the final order. The trial Court decreed the suit of the plaintiff with costs. It is ordered and decreed that the plaintiff is entitled for claim amount of Rs.70,000/- along with interest at the rate of 15% p.a. from the date of the suit till its RSA No.299/2015 -6- realization and directed the defendant to pay the decreetal amount to the plaintiff.
7. The defendant aggrieved by the judgment and decree passed in the above said suit, filed an appeal in R.A.No.598/2014 (old No.32/2011). The First Appellate Court, after hearing the parties, has framed the following points for consideration:
1) Whether the judgment and decree passed by the trial Court is erroneous, illegal, perverse and not sustainable in law and called for interference of this Court?
2) What order or decree ?
8. The First Appellate Court, on re-appreciating the oral and documentary evidence, answered point No.1 in negative and point No.2 as per the final order and consequently dismissed the appeal confirming the judgment and decree passed by the trial Court. The defendant, aggrieved by the judgment and decree RSA No.299/2015 -7- passed by the courts below, has filed this second appeal.
9. This court admitted the appeal on the following substantial question of law :
"Whether the courts could have decreed the suit for recovery of a sum of Rs.80,000/- on the basis of a pronote dated 01.12.2008, when the plaintiff had admitted during the course of cross- examination that she had paid the money to the defendant in the year 2002?"
10. Heard learned counsel for the parties.
11. Learned counsel for the defendant submits that in view of the admission of PW-1 in the course of cross-examination that the alleged transaction was 8 years prior to the filing of the suit, the suit filed by the plaintiff is barred by limitation. He submits that the courts below could have framed an issue as per Section 3 of the Limitation Act, even though the defendant has not taken a defence in the written RSA No.299/2015 -8- statement. He submits that the trial Court has committed an error in decreeing the time barred suit and in order to buttress his arguments, he has placed reliance on the judgment of the Hon'ble Apex Court in the case of BOGIDHOLA TEA AND TRADING CO. LTD. & ANR. VS. HIRA LAL SOMANI REPORTED IN AIR 2008 SC 911 and the judgment of the Co-ordinate Bench of this Court in the case of SRI. H. D. HANUMANTHAPPA VS. SRI. MOHAMMED SAB & ORS., REPORTED IN ILR 2010 KAR 5487. Hence on these grounds he submits that the courts below have committed an error in passing the impugned judgments and decrees and prays to allow the appeal.
12. Per contra, learned counsel for the plaintiff submits that learned counsel for the defendant merely placing reliance on the stray sentence in the course of cross-examination of PW-1 has submitted that the suit filed by the plaintiff is barred by limitation. He RSA No.299/2015 -9- submits that the said admission is a stray admission and that the Court is required to consider the entire evidence of PW-1. He submits that both the courts below after considering the entire evidence of PW-1 and 2, passed the impugned judgment. He further submits that the defendant has not raised the ground of limitation neither before the trial Court nor the First Appellate Court. The defendant is raising the point of limitation for the first time before this Court. He submits that the defendant has no right to raise a new point in the second appeal. On these grounds, he prays to dismiss the appeal.
13. Perused the records and considered the submissions of learned counsel for the parties.
14. It is the case of the plaintiff that the defendant approached the plaintiff and requested to advance hand loan of Rs.60,000/-. The plaintiff RSA No.299/2015
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considering the need of the defendant, agreed to advance hand loan of Rs.60,000/- and defendant agreed to repay the amount together with interest at the rate of 18% p.a. and the defendant executed on- demand promissory note on 01.12.2008. Plaintiff requested the defendant to repay the said amount. Defendant did not repay the said amount. Plaintiff got issued a legal notice calling upon the defendant to repay the loan amount. Inspite of service of notice, defendant failed to repay the loan amount. Hence plaintiff filed the suit.
15. The plaintiff in order to prove her case, examined herself as PW-1. She has reiterated the plaint averments in her examination-in-chief and produced documents i.e., Ex.P1 is the on-demand promissory note executed by the defendant in favour of the plaintiff for having received a sum of Rs.60,000/- towards hand loan, Ex.P2 is the RSA No.299/2015
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consideration receipt executed by the defendant in favour of the plaintiff for having received the amount of Rs.60,000/-, Ex.P3 is the copy of legal notice issued by the plaintiff to the defendant calling upon the defendant to repay the loan amount with interest. The said notice was served on the defendant. Ex.P5 is the written statement filed by the defendant in the same suit and his signature is marked as Ex.P5(a) &
(b). In the course of cross-examination, it was suggested to PW-1 that the said amount was paid about 8 years back and PW-1 admitted the said suggestion. PW-1 has further admitted in the cross- examination that she got executed a demand promissory note and it is also admitted that since last 8 years there was no loan transaction between the plaintiff and the defendant.
16. In order to prove the execution of Ex.P1 i.e., on-demand promissory note, the plaintiff RSA No.299/2015
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examined the attesting witness as PW-2 who has deposed that on 01.12.2008, the plaintiff has advanced an amount of Rs.60,000/- to the defendant and the defendant agreed to pay interest at the rate of 18% p.a. and Ex.P1 was executed in his presence and he has deposed that defendant has executed Ex.P1 and also issued an acknowledgment for having received the loan amount of Rs.60,000/-. He identified his signature on Ex.P1 and same is marked as Ex.P1(b). He also identified his signature on Ex.P2 marked as Ex.P2(b) and he also identified the signature of the defendant on Ex.P1 marked as Ex.P1(a) and on Ex.P2 marked as Ex.P2(a). It is suggested to PW-2 that except PW-1 to PW-3 and the defendant, no other persons were present at the time of execution of Ex.P1 and P2. PW-2 admits that except the aforesaid persons, no other person was present at the time of execution of Ex.P1 and P2. RSA No.299/2015
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17. PW-3 is the scribe who has written Ex.P1. He has deposed that Ex.P1 was written at the instance of the defendant and the defendant has availed loan of Rs.60,000/- from the plaintiff and agreed to pay interest. He identified his signature and that of the defendant on Ex.P1 and P2. His signature is marked as Ex.P1(d) and Ex.P2(d). Nothing has been elicited from the mouth of PW-2 and PW-3.
18. Defendant examined himself as DW-1 and he denied the entire plaint averments and further contended that the defendant has never borrowed any amount from the plaintiff and plaintiff is in the habit of creating documents and filing suit against the villagers. In the course of cross-examination, Ex.P1 and P2 was confronted to DW-1. He denied his signature on Ex.P1 and P2.
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19. Defendant examined one witness as DW-2. He has reiterated the examination-in-chief of DW-1. Defendant has produced Ex.D1 to establish that plaintiff is in the habit of creating documents and a criminal case was registered against the plaintiff and her husband. DW-2 in the course of cross- examination admitted that plaintiff and her daughter lodged the complaint against DW-2. DW-2 is not cordial with the plaintiff. Hence, DW-2 out of vengeance has deposed against the plaintiff. DW-2 is an interested witness. His evidence cannot be looked into.
20. Perused the evidence of PW-1 to PW-3 and DW-1 and DW-2. Plaintiff has produced Ex.P1 and P2 for having lent loan amount to the defendant. The defendant has denied the execution of Ex.P1 and P2 and denied the signatures on Ex.P1 and P2. It is not the case of the defendant that the defendant has RSA No.299/2015
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taken loan about 8 years prior to filing of the suit. In the written statement, the entire written statement is bare denial of plaint averments. Further, PW-1 in a stray sentence has admitted that the said amount was lent about 8 years back and got executed a pronote and admitted that since past 8 years, there was no loan transaction. Hence on this ground it is contended that the alleged loan transaction was in the year 2002 and the suit is filed in the year 2008. Hence the suit filed by the plaintiff is barred by limitation. Though the suit is filed by the plaintiff based on Ex.P1 and P2, from the perusal of said Ex.P1 and P2, the said documents were executed on 01.12.2008. Prior to the filing of the suit, plaintiff got issued legal notice to the defendant as per Ex.P3 wherein the plaintiff has specifically stated in the legal notice that the defendant executed a demand promissory note on 01.12.2008, after receiving loan amount of RSA No.299/2015
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Rs.60,000/- from the plaintiff. The said fact has not been denied by the defendant by replying to the legal notice, Ex.P3. Not sending reply to the legal notice asserting execution of Ex.P1 and P2, an adverse inference has to be drawn against the defendant under Section 114(g) of the Indian Evidence Act. The Co-ordinate Bench of this Court in the case of N.M.RAMACHANDRAIAH & ANR. VS. STATE OF KARNATAKA & ORS., reported in 2007(3) KCCR 2049 held that "not sending reply to legal notice asserting execution of document and calling upon to get it registered leads to adverse inference." Further, the defendant has not taken the defence in the written statement that the said transaction was of the year 2002 and not of the year 2008. Even in the examination-in-chief of DW-1, the defendant has not deposed that the alleged transaction is of the year 2002 and not of the year 2008.
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21. As per Section 3 of the Limitation Act, even if the defendant has failed to take a defence in the written statement, it is the duty of the Court to consider whether the suit instituted by the plaintiff is within time. As observed above, though the defendant has not taken a defence in the written statement, the defendant merely placing reliance on the stray sentence in the course of cross-examination of PW-1 submits that the suit filed by the plaintiff is barred by limitation. Section 17 of the Indian Evidence Act defines what an admission is. It deals with admissions which are both oral or written. An admission, particularly in civil matters dealing with properties, has to be clear and it has to be read in the light of the pleadings and the other evidence available on record. One stray sentence cannot be picked up for holding against the plaintiff. It is well settled that the Court is required to consider the entire material on RSA No.299/2015
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record, but cannot consider the stray sentence, in view of the law laid down by the Co-ordinate Bench of this Court in the case of K.S.VENKATESH VS. N.G.LAKSHMINARAYAN & ORS., reported in 2007(3) KCCR 1881 and the Division Bench of this Court in the case of PUTTANNA SHETTY (D) BY LRS. & ORS. VS. PADMA SHETTY (D) BY LRS. & ORS., reported in 2007(3) KCCR 2107, wherein at paragraph-9 it is held as under:
"9. In AIR 1968 SC 1413 (Gopal Krishnaji Ketkar V. Mohammed Haji Latif) the Supreme Court would notice the consideration of evidence. In fact, a party in possession of best evidence has not chosen to place best evidence by way of examination of grahasta or by way of filing memo. In that situation, the Court ruled against that party who has not chosen to place the best evidence. These two judgments support the plaintiff. Even otherwise, an admission particularly in civil matter dealing with properties has to be clear and it has to be read in the light of the pleadings and the other evidence available on record. One stray sentence cannot be picked up for holding against the RSA No.299/2015
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plaintiff in property matter as has been done in the case on hand."
22. From the perusal of records and the evidence of the parties, plaintiff has proved that the plaintiff had advanced loan of Rs.60,000/- to the defendant on 01.12.2008 and the defendant executed a demand promissory note as per Ex.P1 and receipt as per Ex.P2.
23. The learned counsel for the defendant has placed reliance on the judgment of the Hon'ble Apex Court in the case of M/S. SHANTI CONDUCTORS (P) LTD. VS. ASSAM STATE ELECTRICITY BOARD & ORS., passed in Review Petition (C) Nos.786-787/2019 & Connected matters, disposed of on 18.12.2019. There is no dispute in regard to the proposition of the law laid down by the Hon'ble Apex Court that in case if the defendant has not taken a defence in regard to the limitation, it is the duty of the Court to consider RSA No.299/2015
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whether the suit filed by the plaintiff is within time. The judgments placed on record by the learned counsel for the defendant are not applicable to the present case on hand.
24. In view of the above discussion, I answer substantial question of law in the affirmative and proceed to pass the following:
ORDER The appeal is dismissed.
The judgments and decrees passed by the courts below are confirmed.
Registry is directed to transfer the amount deposited by the appellant to the trial Court.
No order as to the costs.
SD/-
JUDGE RD