Bangalore District Court
Sri.Thimmarayappa vs Smt.B.K.Renuka on 31 March, 2022
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH-67)
DATED: This the 31 st day of March, 2022
PRESENT
Smt.K.KATHYAYANI, B.Com., L.L.M.,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
OS.No.4083/2016
PLAINTIFF/S: Sri.Thimmarayappa, C.,
S/o Sri.Chikkamuniyappa,
Aged about 48 years,
R/o No.26/1, Hosur Main Road,
Singasandra Village, Begur Hobli,
Bengaluru South Taluk,
Bengaluur - 560 068.
(By Sri.N.D.Omkarappa, Advocate.)
-VERSUS-
DEFENDANT/S: Smt.B.K.Renuka,
W/o Sri.Chandrasekahar,
Aged about years,
R/o No.296, Renaisance, Prospero.
No.D 008 D- D002, Byatarayanapura,
Bellary Road, Bengaluru - 560 092.
(By Sri.M.A.Poovaiah, Advocate.)
Date of institution of the suit: 07.06.2016
Nature of the suit (suit on Recovery of Money.
pronote, suit for declaration
and possession suit for
injunction,etc) :
Date of the commencement of 24.06.2017
recording of the evidence:
O.S.No.4083/2016
2
Date on which the Judgment 31.03.2022
was pronounced:
Total duration Year/s Month/s Day/s
05 09 24
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(Smt.K.KATHYAYINI),
LXVI Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
The plaintiff has filed this suit against the defendant for recovery of money.
2. The brief facts of the plaintiff's case are that;
a) He knows the defendant for the past 3 years as,
(i) She had contacted him with regard to settlement in respect of the sale transaction of one Sri.Chikkamuniyappa who had entered into sale agreement with him to alienate the property bearing old Sy.No.21, Block No.17, New Sy.No.103, measuring an extent of 4 acres 38 guntas of land situated at Dyvarahalli Village, Kundana Hobli, Devanahalli Taluk, Bengaluru Rural District as per the sale agreement dated 13.12.2001 for valuable consideration amount of Rs.4,50,000/- and received a sum of Rs.1,00,000/- as advance amount and O.S.No.4083/2016 3 the balance sale consideration amount was to be paid as per the terms of agreement and obligatory duty on the said Sri.Chikkamuniyappa.
(ii) Since the said Sri.Chikkamuniyappa did not come forward to complete the sale transaction and the defendant has come forward to settle the matter and requested him to cancel the agreement so that she will pay a sum of Rs.25,00,000/- as she had acted as attorney holder to sell the said property to some other person.
(iii) Accordingly, he had agreed to settle the matter in terms of settlement arrived at and promised to compensate him in terms of money. In that connection, the defendant is known to him.
b) The defendant, a respectable woman in the society and wife of a police officer and being known to him requested him to settle amicably the dispute and promised to pay Rs.25,00,000/- in full and final settlement to cancel the agreement. As per her request, he agreed to receive Rs.25,00,000/- and to cancel the sale agreement as well as to hand over the original sale agreement to avoid unnecessary litigation.
O.S.No.4083/2016 4
c) As per the settlement, at the time of handing over the sale agreement, the defendant paid a sum of Rs.15,00,000/- by cash and agreed to pay of Rs.10,00,000/- as soon as the sale transaction is completed i.e., on said Sri.Chikkamuniyappa executing the sale deed in favour of the person to whom she directs after obtaining necessary permission from the government.
d) During the month of April-2013, he came to know through some reliable sources that the defendant managed to get the sale deed executed from the owner of the above said land in favour one Sri.Ramakrishnaiah and the said fact was not made known to him.
e) Immediately, he contacted the defendant and demanded to pay the balance amount of Rs.10,00,000/- as per the terms of the settlement. On his demand and requests, the defendant issued post dated cheque bearing No.614002 dated 05.12.2013 drawn on ING Vysya Bank Limited, Sadashivanagar Branch, Bengaluru.
f) As per the promise and assurance made by the defendant, he presented the cheque on 05.12.2013 through his banker the Karnataka Bank Limited, O.S.No.4083/2016 5 Bengaluru, but for his shock and surprise, the said cheque was returned with an endorsement that the account is closed.
g) On receipt of the bank endorsement, he approached the defendant and informed her about the dishonour of cheuqe, but she did not give proper answer instead told him to do whatever he wants. Hence, he got issued legal notice on 15.12.2013 demanding her to pay the cheque amount, otherwise steps will be taken as per law since she has cheated him by issuing cheque, which was served on her on 18.12.2013.
h) On receipt of notice, the defendant contacted him and requested to extend time by 6 months so that she will arrange money as she had not received amount from the said Sri.Chikkamuniyappa who had not paid her the amount payable to her in agreed terms and as soon as she receives the amount, she will inform him.
i) Agreeing to the promise and assurance made by the defendant, he did not proceed to take any legal action against her and waited till first week of March-2016 under the impression that she will pay the amount as agreed by O.S.No.4083/2016 6 her and issued another notice demanding her to pay the cheque amount as per the legal notice dated 10.03.2016 which was served on her on 11.03.2016 and the defendant has issued taking all possible grounds to deny the transaction.
j) The defendant having dishonest intention to cheat, has postponed the payment of cheque amount for one or the other reasons and to avoid him to take legal action even after his repeated demands, requested him to extend time on the ground that the Sri.Chikkamuniyappa has not yet paid the amount and even after getting extended the time for more than two years, did not pay the amount.
k) Since the time is expired to take legal action against the defendant on the dishonour of cheque, having no other option, except to file this suit for recovery of cheque amount which is legally payable to him by the defendant in terms of the settlement for which liability, the cheque has been issued by her, he has come with this suit.
l) The cause of action for the suit arose,
(i) On 04.12.2013, when the cheque was issued;
O.S.No.4083/2016 7
(ii) On 05.12.2013, when the cheque was presented to the bank for realization;
(iii) On 15.12.2013, when for the first time the legal notice was issued to the defendant;
(iv) On 10.03.2016, when the second notice was issued which was served on the defendant on 11.03.2016; and subsequently thereon, within the jurisdiction of this Court wherein the transaction took place. Hence, prayed to decree the suit as sought for.
3. In response to the due service of summons, the defendant appeared through her counsel and filed her written statement denying the case of the plaintiff and contending that;
a) The suit is not maintainable either in law or on facts.
b) The suit is filed without any cause of action.
c) She has filed complaint before Kodigehalli police station for misplacing her bag and cheque books belong to ING Vysya Bank of Sadashivanagar Branch, HDFC Bank of Yelahanka Branch dated 16.02.2013 at about 2:30 p.m. in the BMTC bus traveling from Majestic to Byatarayanapura O.S.No.4083/2016 8 on new Airport road. After misplaced her bag and cheque books, she has filed complaint before the police on 18.02.2013 with regard to misplacement of her bag and cheque books.
d) The plaintiff has taken the valuable cheque book and bag which were misplaced on 16.02.2012, when traveling from Majestic to Byatarayanapura. Despite he has liability to handover the cheque and bag to her or to police station, without discharging his such liability, the plaintiff has misused the cheque and set up onset of false claim against her.
e) She has no any business relations with the plaintiff. She has not issued the disputed cheque in his favour for any consideration. The facts and the documents placed by the plaintiff in this Court are all false and concocted.
f) The property of Sri.Chikkamuniyappa in Sy.No.103 measuring 4 acres 38 guntas of Dyavarahalli Village, Kundana Hobli, Devanahalli Taluk is not purchased by her. She has not entered into any agreement with Sri.Chikkamuniyappa who is the original owner of the O.S.No.4083/2016 9 property. The question of full and final settlement of Rs.25,00,000/- with the plaintiff does not arise at all Therefore, the suit is liable to be dismissed on the ground that the suit does not disclose cause of action.
g) It is the case of the plaintiff that he had entered into the sale agreement dated 13.12.2001 with Sri.Chikkamuniyappa, Smt.Gangamma, Sri.Venkatesh and Smt.Anusuyamma who received Rs.1,00,000/- as advance sale consideration amount out of Rs.4,50,000/- are necessary parties to this suit. Hence, this suit is suffering from non joinder of necessary parties.
h) The above property of the sale agreement situates in Devanahalli Taluk limits and the vendors of the plaintiff are in Devanahalli Taluk. Hence, this suit is filed without jurisdiction.
i) The plaintiff has not paid the proper Court fee. Accordingly, prayed to dismiss the suit with costs.
4. On the above said pleadings of the parties, this Court has framed the following issues on 04.10.2016.
1. Whether the plaintiff proves that he had settled the matter with the defendant to cancel agreement to sell O.S.No.4083/2016 10 and the defendant will be agreed to pay Rs.25,00,000/- as the defendant has acted as power of attorney holder to sell the said property to some other person?
2. Whether the plaintiff further proves that the defendant had paid Rs.15,00,000/- by way of cash and agreed to pay Rs.10,00,000/- after completion of sale transaction between Chikkamuniyappa and third party after getting permission from Government to sell the same as alleged in the plaint?
3. Whether the plaintiff is entitled for relief claimed?
4.What decree or order?
5. To prove the above noted issues and to substantiate their respective cases, the plaintiff got himself examined as PW-1. Got exhibited 8 documents and closed his side.
6. On the other hand, the defendant herself got examined as DW-1. Got exhibited 1 document and closed her side.
7. Heard both the sides on merits of the case.
a) In support of his oral arguments, the counsel for plaintiff has relied on the decisions reported in;
(i) AIR 2003 Kant, 213.
(ii) 2019(4) AKR 635, O.S.No.4083/2016 11
(iii) 2019(4) AKR 721 and the Judgment in,
(iv) Civil Appeal No.7750-7751/2021 on the file of the Hon'ble Apex Court.
b) This Court has carefully gone through the above noted decisions and perused the record.
8. The findings of this Court on the above noted issues are;
1. Issues Nos.1 to 3 : In Negative.
2. Issue No.4 : As per the final order for the following reasons.
REASONS
9. ISSUES Nos.1 TO 3:- As the 1st two issues are interlinked and require common discussions and the 3 rd issue is the result of the findings on the 1 st two issues, to avoid repetitions and for the sake of convenience, they are taken together for consideration.
10. The above noted pleadings of the parties clearly demonstrate that the defence raised by the defendant is total denial of the case of the plaintiff in addition to the allegation of misuse of the disputed cheque.
11. The above noted plaint averments clearly demonstrate that it is the specific case of the plaintiff that;
O.S.No.4083/2016 12
a) One Sri.Chikkamuniyappa was the owner of the land in Sy.No.103 of Dyavarahalli Village, Kundana Hobli, Devanahahalli Taluk, measuring 4 acres 38 guntas;
b) He has entered into the sale agreement dated 13.12.2001 with the said Sri.Chikkamuniyappa to purchase the above land for Rs.4,50,000/- and paid an advance amount of Rs.1,00,000/-;
c) The said Sri.Chikkamuniyappa did not come forward to execute the sale deed in terms of the above sale agreement;
d) Instead, the defendant as the power of attorney holder of the said Sri.Chikkamuniyappa approached and agreed to pay Rs.25,00,000/- to him as per the settlement arrived at to cancel the said sale agreement;
e) Accordingly, at the time of returning the said sale agreement, the defendant paid Rs.15,00,000/- and assured to pay the remaining Rs.10,00,000/- after she receives the amount from the said Sri.Chikkamuniyappa on his executing the sale deed in respect of the above property in favour of the person to whom she directs and receives the sale consideration.
O.S.No.4083/2016 13
f) But, later he learnt that the defendant got executed the sale deed from the said Sri.Chikkamuniyappa in favour of one Sri.Ramakrishnaiah without intimation to him. As such, he approached the defendant who issued the post dated cheque for Rs.10,00,000/- dated 05.12.2013, which on presentation returned dishonoured.
g) When he intimated about the dishonour of the cheque, the defendant asked him to do whatever he wants. Hence, he issued legal notice dated 15.12.2013 demanding to pay the cheque amount, which was served on the defendant on 18.12.2013.
h) On service of the said notice, the defendant has sought time, to make the payment on receipt of the amount from Sri.Chikkamuniyappa who had not yet paid amount to her as agreed.
i) Hence, he waited till March-2016 and thereafter, again issued the 2nd notice on 10.03.2016 which was served on her on 11.03.2016, for which, the defendant issued an untenable reply by taking all the grounds available to deny his claim. Hence, he has come up with this suit.
O.S.No.4083/2016 14
12. So, the plaintiff has to prove,
a) Firstly - the alleged sale agreement dated 13.12.2001;
b) Secondly - the alleged settlement arrived at between him and the defendant to cancel the alleged sale agreement on the defendant compensating him by paying Rs.25,00,000/-;
c) Thirdly - the payment of Rs.15,00,000/- by the defendant towards the partial payment of the amount settled between him and the defendant and his returning of the alleged sale agreement to the defendant;
d) Fourthly - the assurance of the defendant to pay the remaining balance of Rs.10,00,000/- on receiving the sale consideration on the said Sri.Chikkamuniyappa executing the sale deed in favour of the person to whom she directs.
e) Fifthly - the defendant got executed the sale deed from the said Sri.Chikkamuniyappa in favour of one Sri.Ramakrishnaiah and he came to know about the said fact in April-2013; approached the defendant and on his demand, towards the payment of the balance amount of O.S.No.4083/2016 15 Rs.10,00,000/- i.e., the partial amount of the compensation to cancel the sale agreement dated 13.12.2001, the defendant issued the post dated cheque by mentioning the date 15.12.2013.
f) Sixthly - The said cheque on presentation returned dishonoured; he intimated the same to the defendant; she told him to do whatever he wants; so, he issued legal notice on 15.12.2013 which was served on the defendant on 18.12.2013; on receipt of the said notice, the defendant requested him 6 months time; hence, he waited till March- 2016; again issued the 2 nd notice on 10.03.2016 which was served on her on 11.03.2016; to the said notice, the defendant issued an untenable reply by taking all the grounds available to deny his claim.
13. To prove his case, the plaintiff has filed his chief affidavit evidence reiterating the above noted plaint averments and in support of his oral testimony, he has produced the documents at;
a) Ex.P-1, the cheque in dispute. It is dated 05.12.2013 for Rs.10,00,000/- drawn on ING Vysya Bank, Sadashivanagar Branch, Bengaluru issued in his favour.
O.S.No.4083/2016 16
b) Ex.P-2 is the return memo dated 07.12.2013 intimating the dishonour of the cheque at Ex.P-1 with a reason that "account closed".
c) Ex.P-3 is the office copy of the legal notice dated 15.12.2013 issued by the plaintiff to the defendant intimating about the dishonour of the cheque at Ex.P-1 for the reason of "account closed" and demanding to pay the cheque amount within 15 days from the date of receipt of the said notice. The recitals therein at Ex.P-3 are nothing but replica in respect of the suit transactions.
d) Ex.P-4 is the postal acknowledgment in proof of service of the original notice of Ex.P-3 on the defendant.
e) Ex.P-5 is the 2nd legal notice dated 10.03.2016 issued by the plaintiff to the defendant demanding the suit claim amount to pay within 15 days from the date of service of the said notice, wherein also the plaint averments in respect of the suit transactions are mentioned.
f) Ex.P-6 is the postal acknowledgement in proof of service of the original notice of Ex.P-5 on the defendant.
O.S.No.4083/2016 17
g) Ex.P-7 is the reply notice dated 19.03.2016 issued by the defendant to the plaintiff which demonstrates that denying the claim of the plaintiff and asking him to return the disputed cheque either to the police station or to her, otherwise legal action would be initiated against him. The defence of lost of her bag in BMTC bus while traveling from Majestic to Byatarayanapura on 16.02.2013 and lodging of the complaint in that regard on 18.02.2013 is also mentioned.
h) Ex.P-8 is the certified copies of the depositions, exhibits and the judgment in CC.No.19872/2013 on the file of XVIII ACMM., Bengaluru and they demonstrate that;
(i) The complainant therein by name Sri.M.B.Basavaraju on the allegations that;
(1) He is a land developer and builder; entered into a sale agreement with Sri.Chikkamuniyappa in respect of the Sy.No.103 of Dyavarahalli Village measuring 4 acres 38 guntas for a valuable consideration of Rs.21,00,000/-.
(2) Rs.3,00,000/- was paid as advance amount out of the sale consideration of Rs.21,00,000/- and the remaining O.S.No.4083/2016 18 balance amount was agreed to be payable at the time of registration.
(3) Sri.Chikkamuniyappa had received another Rs.2,00,000/- on 14.06.2006 by cheque and Rs.5,00,000/- by cash on 16.06.2016 to meet his immediate requirements. Thus, he has paid totally a sum of Rs.10,00,000/- as advance amount towards part payment of sale consideration.
(4) During the subsistence of the said sale agreement, the accused (whose husband is working as Inspector of Police at Soladevanahalli) made an attempt to purchase the above property from Sri.Chikkamuniyappa in the name of her benami.
(5) The accused arbitrarily purchased the said property to deceive him and he objected the said transaction on the ground that he has already entered into the sale agreement.
(6) The accused had requested him for an amicable settlement and during the course of negotiations, it was settled that, a sum of Rs.48,00,000/- shall be payable to him as compensation to withdraw his sale agreement.
O.S.No.4083/2016 19 (7) The said settlement was reduced into writing as per document dated 07.10.2009 and on the same day, the accused had paid a sum of Rs.2,00,000/- to him by way of cash and also issued two post dated cheques dated 16.01.2013 and 15.02.2013 for Rs.23,00,000/- each.
(8) Sri.Chikkamuniyappa and the accused conspired together and Sri.Chikkamuniyappa has sold the property measuring 2 acres in Sy.No.103 in favour of Sri.M.Ramakrishnaiah for a consideration of Rs.25,00,000/- vide registered sale deed dated 05.02.2013.
(9) After execution of the sale deed, Sri.Chikkamuniyappa had failed to make payment to him and he has brought this fact to the knowledge of the accused.
(10) The accused was aware of the sale transaction between Sri.Chikkamuniyappa and Sri.Ramakrishnaiah. Thus, the accused is liable to make payment of Rs.46,00,000/- the cheque amount in discharge of her liability.
(ii) The said case, after trail ended in conviction imposing fine of Rs.60,25,000/-, out of which, O.S.No.4083/2016 20 Rs.60,00,000/- was awarded compensation to the complainant together with interest at 9% p.a. from the date of judgment till payment and Rs.25,000/- was defrayed to the State for the expenses incurred in the prosecution.
14. So for the above documentary evidence produced by the plaintiff, in view of the defence that the plaintiff has misused the cheque instead of discharging his duty to return the same either to her or the police station, there is no dispute with regard to the fact that the cheque at Ex.P- 1 belongs to the defendant.
15. Moreover, in her cross examination, the defendant has stated that the cheque at Ex.P-1 is her cheque and its bears her signature, but the handwriting in the said cheque are not of her. Of course, she has voluntarily stated that the person who filed the present suit himself filled up the said cheque which was lost and she has denied that Ex.P-1 is in her handwritings.
16. So far the contention of the defendant that the contents of Ex.P-1 are not in her handwritings, the O.S.No.4083/2016 21 presumption under Section 118 of the Negotiable Instruments Act of 1881 is in support of the plaintiff. Thus, it is clear that the cheque at Ex.P-1 belongs to the account of the defendant and it bears her signature.
17. There is no defence raised by the defendant in respect of Ex.P-2, the return memo dated 07.12.2013 intimating the dishonour of the cheque at Ex.P-1 with a reason that "account closed".
18. In respect of the demand notice at Ex.P-3, in her cross examination, the defendant has admitted that the plaintiff sent a legal notice on 15.12.2013 and she received the said notice and the postal acknowledgment in proof of service of the original notice of Ex.P-3 on the defendant is also at Ex.P-4.
19. The defendant has not disputed the 2 nd legal notice dated 10.03.2016 at Ex.P-5 and her reply dated 19.03.2016 at Ex.P-7 to the said notice at Ex.P-5. The postal acknowledgement in proof of service of the original notice of Ex.P-5 on the defendant is also on record at O.S.No.4083/2016 22 Ex.P-6. So, the plaintiff is successful in establishing the documents at Ex.P-1 to 7.
20. In respect of the case papers in CC.No.19872/2013 on the file of XVIII ACMM., Bengaluru at Ex.P-8, it is in the cross examination of the defendant that;
a) She knows Sri.Chikkamuniyappa and had talk to purchase the land in Sy.No.103 and as Sri.Chikkamuniyappa belongs to SC ST community, without the permission of the Government, Sri.Chikkamuniyappa could not transact in respect of the said land.
b) Sri.Chikkamuniyappa entered into the sale agreement with Sri.M.B.Basavaraju in respect of Sy.No.103.
c) After coming to know about the sale agreement with Sri.M.B.Basavaraju, she contacted him and asked him to get canceled the sale agreement as she intended to purchase the said land and accordingly, she entered O.S.No.4083/2016 23 into a settlement with Sri.M.B.Basavaraju and agreed to pay Rs.46,00,000/- on behalf of Sri.Chikkamuniyappa, if he fails to pay the amount.
d) Accordingly, the sale agreement between Sri.Chikkamuniyappa and Sri.M.B.Basavaraju came to be canceled and as she agreed, she paid Rs.2,00,000/- by cash and Rs.23,00,000/- each by two cheques to Sri.M.B.Basavaraju.
e) Since, Sri.Chikkamuniyappa played fraud on her as well, she asked Sri.M.B.Basavaraju to get the money from Sri.Chikkamuniyappa.
f) Sri.M.B.Basavaraju filed cheque bounce cases against her and the same ended in favour of Sri.M.B.Basavaraju and she preferred the appeals and they are pending.
21. So, the case papers at Ex.P-8 in respect of the proceedings in the above criminal case are not disputed. But, it is important to note that the facts of the said case are not related to the suit transaction.
O.S.No.4083/2016 24 Of course, from the case papers at Ex.P-8 and the above oral evidence of the defendant, it can be safely concluded that;
a) In the year 2006, Sri.Chikkamuniyappa entered into a sale agreement with Sri.M.B.Basavaraju in respect of Sy.No.103;
b) As the defendant was intended to purchase the said land, she entered into an understanding/agreement with Sri.M.B.Basavaraju to cancel his sale agreement on receipt of compensation of Rs.46,00,000/-;
c) The defendant has agreed to pay the said amount, if Sri.Chikkamuniyappa fails to pay the said amount to Sri.M.B.Basavaraju;
d) Accordingly, she paid Rs.2,00,000/- by cash and issued two cheuqes for Rs.23,00,000/- each;
e) Thereafter, Sri.Chikkamuniyappa executed the sale deed in respect of Sy.No.103 in favour of Sri.Ramakrishnaiah.
O.S.No.4083/2016 25
22. But, so for the case of the plaintiff that he entered into the sale agreement dated 13.12.2001 with Sri.Chikkamuniyappa, to purchase Sy.No.103 for Rs.4,50,000/- and paid advance of Rs.1,00,000/- and agreed to pay the remaining amount on Sri.Chikkamuniyappa completing his obligations, there is nothing in any of the documents produced by the plaintiff at Ex.P-1 to P-8 particularly at Ex.P-8.
23. In support of the case of the plaintiff with regard to the above facts in respect of the sale agreement dated 13.12.2001, the suggestions put forth on his behalf to the defendant in her cross examination are denied by her in categorical terms.
24. The plaintiff has not produced either the said sale agreement dated 13.12.2001, not let in any corroborative evidence either orally or documentary in support of his oral testimony with regard to the said sale agreement dated 13.12.2001 and the recitals therein. Of course it is the aversion of the plaintiff that O.S.No.4083/2016 26 he has returned the said sale agreement to the defendant, but, he has not taken any steps to get summoned the said sale agreement from the possession of the defendant.
25. On the other hand, in this regard, it is in the cross examination of the plaintiff that;
a) He has not produced original sale agreement dated 13.12.2001 before this Court and admitted that the defendant is not a party to the said sale agreement.
b) He has not produced any document/endorsement/ acknowledgement, etc., to show that he gave the original sale agreement to the defendant.
c) The land owner Sri.Chickmuniyappa has not instructed him to handover the original sale agreement to the defendant.
d) He has no document to show that he has paid Rs.1,00,000/- to Sri.Chikkamuniyappa. Of course, he has voluntarily stated that he paid Rs.1,00,000/- to Sri.Chikkamuniyappa by way of cash, but, to substantiate O.S.No.4083/2016 27 the same, he has not let in any corroborative oral evidence atleast.
26. The plaintiff has also stated in his cross examination that;
a) He gave the original agreement to the defendant on 04.12.2013.
b) Within the said period of 12 years, he has not issued any notice to Sri.Chikkamuniyappa in respect of cancellation of sale agreement dated 13.12.2001.
c) He has not produced any document to show the cancellation of sale agreement dated 13.12.2001 from Sri.Chikkamuniyappa or the defendant.
d) He has not produced any document to show that he has attempted to get registered sale deed from Sri.Chikkamuniyappa till 04.12.2013 in pursuance of sale agreement dated 13.12.2001.
e) Either himself or Sri.Chikkamuniyappa have not executed any sale agreement in favour of the defendant.
f) In the year 2013, when he came to know that Sri.Chikkamuniyappa executed the registered sale deed in O.S.No.4083/2016 28 favour of Sri.Ramakrishnaiah, he has not issued any notice to the said Sri.Ramakrishnaiah.
g) After coming to know about execution of sale deed by Sri.Chikkamuniyappa in favour of one Sri.Ramakrishnaiah, he has not caused notice to Sri.Chikkamuniyappa to refund the advance amount paid by him along with interest.
27. So, prima facie the above evidence of the plaintiff with regard to his act in respect of the sale agreement dated 30.12.2001 i.e., either to get it executed or to get settled the matter either with Sri.Chikkamuniyappa or with the defendant in respect of receipt of payment of the alleged compensation settled between him and the defendant appears to the mind of a reasonably prudent man that it is not a normal act of a prudent person.
28. That apart, the plaintiff in his cross examination has also admitted that there is no relationship between the defendant and one Sri.Ramakrishnaiah and also deposed that;
a) He does not have any financial transaction with the defendant and he has not produced any document to O.S.No.4083/2016 29 show that he has received Rs.15,00,000/- from the defendant.
b) He is an income tax assessee. He has not disclosed the amount of Rs.15,00,000/- received from the defendant in the income tax return for the financial year 2013-14.
c) He has not disclosed any transaction with the defendant at the time of submitting income tax return and also admitted that except the disputed cheque in this case, there is no other financial or property transaction with the defendant.
29. So, it appears to the mind of a reasonably prudent man that if really the plaintiff has received Rs.15,00,000/- from the defendant, which is not a small amount that too in the year 2013-14 and being an income tax assessee, it was the duty of the plaintiff to disclose the said amount in his income tax returns, that too being a professional advocate.
30. Hence, though in his cross examination, the plaintiff has denied the suggestions put forth on behalf of the defendant denying his case that;
O.S.No.4083/2016 30
a) Whatever instructed in legal notices at Ex.P-3 and 5 are all false and only to create cause of action for this suit, he has issued the 2nd legal notice as per Ex.P-5.
b) He has not received Rs.15,00,000/- from the defendant and she has not issued any post dated cheque for Rs.10,00,000/-; the defendant has not assured to compensate the sale agreement dated 13.12.2001 by paying Rs.25,00,000/-.
c) He has concocted false story in his legal notice and there was no sale agreement dated 13.12.2001 between himself and Sri.Chikkamuniyappa and he has foisted false suit against the defendant, the facts in the said denials cannot be thrown outrightly, since admittedly,
(i) The plaintiff has not let in any supportive and corroborative piece of evidence either oral or documentary in support of his aversions in respect of the alleged sale agreement dated 13.12.2001;
(ii) The alleged settlement entered into between him and the defendant to cancel the said sale agreement;
(iii) The receipt of the partial compensation amount of Rs.15,00,000/- from the defendant; and O.S.No.4083/2016 31
(iv) The alleged issuance of cheque at Ex.P-1 towards the payment of compensation amount of Rs.10,00,000/-.
31. On the other hand, in support of her defence, the defendant entered into the witness box as DW-1 and filed her chief affidavit evidence reiterating her defence averments.
32. The only document she got exhibited in support of her defence is Ex.D-1 i.e., the NCR dated 18.02.2013 which shows that she has filed a complaint stating that on 16.02.2013 around 2:30 p.m., when she was traveling in a BMTC bus from Mejestic to Byatarayanapura, she lost her bag in which she kept cheque book of ING Vyshya Bank, Sadashiva Nagar Branch A/c No.153010025196 and HDFC Bank, Yelahanka Branch A/c No.03711000001585.
33. With regard to her defence of lost of bag having cheque book and lodging the complaint at Ex.D-1, it is in her cross examination that;
a) She does not remember how many cheque leaves were in the cheque book. She kept the cheque book in her bag.
O.S.No.4083/2016 32
b) Sometimes she kept the cheques signed.
c) She signed only one cheque and the remaining cheques in the book were not signed.
d) She has also voluntarily stated that she kept the signed cheque to issue in favour of somebody, but has deposed that she did not write the name of the person in whose favour she intended to issue the cheque.
34. It is elicited in the cross examination of defendant that she did her 1 st year BA and she is a land developer by profession and doing real estate business. Therefore, even for the sake of arguments, her above evidence that sometimes, she used to keep the cheque signed, in view of her voluntary statement that she kept the signed cheque to issue in favour of somebody and she did not write the name of said person that too when her evidence is that out of the cheque leaves in the book she signed only one cheque, O.S.No.4083/2016 33 creates doubt in the mind of a reasonably prudent man in respect of her keeping signed cheque.
35. That apart, she has also stated that she has not furnished any documents to substantiate her allegations in Ex.D-1 that on the particular day, she was traveling in BMTC bus from Mejestic to Byatarayanapura.
36. Moreover, she has also stated that there was assurance to investigate on her complaint at Ex.D-1,, but they did not.
37. In the cross examination of the defendant, it is elicited that her husband is a retired ACP and at the relevant point of time, he was working as Police Inspector in Kodigehalli police station.
38. So, it appears to the mind of a prudent man that if really the defendant has lost her bag in which she kept the cheque books that too of her two bank accounts having many a cheque leaves and lodged the complaint seriously, then definitely she would have O.S.No.4083/2016 34 persuaded for investigation in respect of her complaint and in view of the admitted fact that her husband was a police official of the rank of Police Inspector, the jurisdictional police also would have taken the complaint of the defendant seriously and thus, a doubt arises in the mind of a reasonably prudent man in respect of the contention of the defendant that she lost her bag having two cheque books containing many a cheque leaves.
39. Thus, though the defendant has denied that to defeat the right of the plaintiff under cheque at Ex.P-1, by misusing the influence of her husband, she got filed the complaint at Ex.D-1, though, on 16.02.2013, she did not travel in any BMTC bus and she did not lost any cheque book, the fact in the suggestions put forth on behalf of the plaintiff cannot be thrown out rightly.
40. In addition, it is also in her cross examination that on receipt of the legal notice on 15.12.2013, she O.S.No.4083/2016 35 gave the statement before the police. But, admittedly, she has not produced any such statement or the copy thereof before this Court.
41. Of course, she has stated that she will search as she has no idea, since at the relevant point of time, her brother in law was suffering from cancer, but, she has also deposed that she does not remember the date, the month, on which, she gave the above statement before the police.
42. It is also in her cross examination that she will try to get the copy of the said further statement from Kodigehalli police station, but, she has not even produced any such certified copy of the statement subsequently.
43. That apart she has also deposed that she did not follow up the investigation on her alleged further statement.
44. Thus, even she has denied that she did not give any further statement before the police and O.S.No.4083/2016 36 despite of that, convenient to the case, she gave false evidence; in the circumstances observed above, that too in view of the admitted fact that she is worldly wise lady being the wife of a police officer, the fact in the above suggestion put forth on behalf of the plaintiff cannot be thrown out rightly.
45. Moreover, in her cross examination, the defendant has admitted that for the 1st time in her reply at Ex.P-7, she took the defence that she lost the cheque book while she was traveling in BMTC bus, till then she did not disclose the said defence.
46. At this stage, it is important to note that;
a) As per her contention, the defendant lost her bag on 16.02.2013 and she gave the complaint at Ex.D-1 on 18.02.2013;
b) She has admitted that she received the notice given by the defendant dated 15.12.2013 i.e., Ex.P-3. Of course she has given the justification that because O.S.No.4083/2016 37 of the stress due to the cancer of her father in law and brother in law, she could not reply the said notice.
c) But, it is important to note that the contents of Ex.P-3 as noted above, is nothing but the replica of the plaint averments in respect of the alleged transaction/settlement between the plaintiff and the defendant.
d) When such being the case, the defendant who is admittedly, a land developer by profession and doing real estate business and as per her version only, Sri.Chikkamuniyappa played fraud on her and it resulted in criminal proceedings against her in CC.No.19872/2013 noted above which was initiated in the year 2013 only.
e) Thus, as a prudent woman, she was expected to give the reply, if really she has lost her cheque books that too before around 10 months back and when she took up the defence that the plaintiff had misused the disputed cheque.
O.S.No.4083/2016 38
47. Therefore, the non reply to the notice at Ex.P- 3 and the disclosure of her defence that she lost her bag having the cheque books in her reply notice at Ex.P-7 which is admittedly, dated 19.03.2016 that is after around 3 years, definitely creates a doubt in the mind of prudent man in respect of the act of the defendant and thereby supports the aversion of the plaintiff that for the sake of this suit, she has took up the false defence that she lost the cheque books in the bus while traveling from Majestic to Byatarayanapura.
48. In support of his arguments, the counsel for the plaintiff has relied on the citations i.e.,
a) AIR 2003 Kant 213 (between P.Mohan vs Basavaraju decided on 9th January, 2003 before his Lordship Sri.K.Sreedhar Rao, wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Karnataka that;
".....
3. The respondent in appeal as a plaintiff filed the suit for ...... The cheques came to be dishonoured, proceedings were instituted under O.S.No.4083/2016 39 Section 138 of the Negotiable Instruments Act in CC.Nos.4835 to 4837 of 1992 on the file of II Additional Chief Metropolitan Magistrate, Bengaluru. In the criminal case, the appellant/defendant was acquitted by the order of this Court. However, it was observed that the observations made in the judgment would not affect the rights of the plaintiff to pursue his remedies before a civil Court where the present civil suit was pending and the civil Court was given liberty to decide the case based on the material adduced independently without being influenced by the observations made in the criminal appeal. The plaintiff has claimed interest at the rate of 18% from the date of dishonour of cheque till the date of filing of the suit and also claimed interest at the same rate from the date of suit till realization.
...
8. In support of the contentions, ... it is held thus:
"5. Mrs.Banaji on behalf of the ...
...
It is true that when a cheque is delivered to a payee in whole or part satisfaction of liability and it is accepted the delivery of the cheque and acceptance thereof would be regarded normally as conditional satisfaction of the liability, and if the cheque is dishonoured, the original debt which was conditionally satisfied would be deemed to be revived.
O.S.No.4083/2016 40 .....
10. Per contract, the ... it is held thus;
"8. Here in this case, ... The present case, Article 19 will not be applicable to this case and Article 19 having not been applicable and, as no other Article has been pointed out to be applicable, in my opinion the suit which is governed by Article 113 of the Schedule to Limitation Act which provides that in suit, for which no limitation is provided elsewhere in the Schedule, 3 years period from the date when the right to sue accrued and right to sue in such a case, will arise only after the cheque is dishonoured and will accrue only after the date of the cheque is dishonoured by the Bank. That calculating limitation from 8th and 9th of September, 1992, suit was filed on 29.05.1995, has been well within time from the date of cheque being dishonoured;.
....."
(i) It is well settled proposition of law that the judgment passed in a criminal case would not affect the rights of the plaintiff to pursue his remedies before a civil Court and the civil Court is given liberty to decide the case based on the material adduced independently without being influenced by the observations made in the criminal case.
O.S.No.4083/2016 41
(ii) In the present case on hand, admittedly, no criminal case was filed in respect of the dishonour of the disputed cheque at Ex.P-1. Hence, the above principle is not relevant to the case on hand.
(iii) There is no dispute that the limitation to file a suit for recovery of money is 3 years and the limitation in a suit for recovery of money based on the cheque will commence from the date of dishonour of cheque is also not in dispute.
(iv) But, in the present case on hand, it is the case of the plaintiff that the defendant has issued the cheque towards the compensation amount she has agreed to pay and thus, unless the plaintiff establishes that the cheque at Ex.P-1 was issued for discharge of such a legal liability of the defendant, he cannot file a suit for recovery based on Ex.P-1. Hence, the dictum laid down in the above decision is not helpful to the plaintiff.
b) The judgment in Anita Rani versus Ashok Kumar & Ors in Civil Appeal Nos.7750 - 7751 of 2021 arising out of Special Leave Petition (C) Nos.12558 - 12559 of 2018 decided on December 16, 2021 before their Lordships O.S.No.4083/2016 42 Hemanth Gupta and V.Ramasubramanian JJ., wherein he has drawn the attention of this Court to the observations of the Hon'ble Apex Court that;
"....
6. The case of the respondents in the first suit for recovery of Rs.10,48,000/- was; (i) that they never borrowed any money from the appellant; (ii) that the amount received by them under the cheque dated 18.11.2003 was for the purpose of investment in a property, which was part of the real estate business; (iii) ....
(iv) that since there was no borrowing, the question of payment of interest does not arise and that the suit was liable to be dismissed.
...
10. By a separate Judgment and decree dated 22.07.2013, the trial Court dismissed the second suit on the ground that the parties were in real estate business and that the payment of Rs.5,00,000/- in full and final settlement on 07.08.2006, stood proved by the version of third party mediators examined as DW-2 and DW-
3. The Court also held that the appellant failed to establish fraud on the part of the respondents.
....
18. In simple terms, the case of the appellant-plaintiff in the first suit was done of lending and non-payment. The defence set up by the respondents was one of payment of a lesser amount O.S.No.4083/2016 43 (than the original amount), in full and final settlement. A party who admits receipt of certain amount of money on a particular date and pleads .....
...
22. In a suit for recovery of money, ... reads as follows:
"It is added that from the aforesaid amount, a sum of Rs.30.00 lacs was given by the plaintiff to the defendants out of love and affection being near relation and there was no transaction between plaintiff and defendants to that effect. Suit for recovery of amount against the defendants by the plaintiffs is not maintainable as the defendants are under no legal obligations to pay back the amount to the plaintiff. The defendants never borrowed the amount nor under any obligation to pay back the amount to the plaintiff.
Copy of the affidavit is attached herewith. Subsequently, the defendants had settled their account pertaining to sale/purchase of properties jointly as well as other properties purchased in order to run property dealer business and a sum of Rs.5.00 lacs was paid to the plaintiff on 7.8.2006 in full and final settlement of her claim through cheque dated 7.8.2006 and the said cheque has been encashed by the plaintiff.
...."
O.S.No.4083/2016 44
(i) In the present case on hand, as observed above, the plaintiff has not let in any evidence to establish the alleged settlement entered into between him and the defendant; the partial payment of the compensation amount of Rs.15,00,000/- and issuance of the cheque at Ex.P-1 towards the payment of the balance compensation amount of Rs.10,00,000/-. Hence, the observations in the above noted decision are also not helpful to the plaintiff.
c) 2019(4) AKR 635 (between B.A.Bheemraj v N.Subramani in RFA.No.698 of 2012 decided on 02.07.2019 before his Lordship Dr.H.B.Prabhakar Sastry, J.), wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Karnataka that;
"Civil P.C. (5 of 1908), O.7, R.2 - Suit for recovery of money - Plaintiff paid Rs.10 lakhs to defendants, towards conversion charges of his agricultural land - Failure of defendant to deposit same with Revenue department - When plaintiff asked for refund, defendant issued two cheques and both got dishonoured - Defendant later claimed that cheques issued towards purchase of lands from plaintiff and not as repayment of money - Failure of defendant to produce any document pertaining to property intended to be O.S.No.4083/2016 45 purchased - No steps taken by defendant for recovery of cheques, even after alleged land deal did not materialized - Plaintiff entitled to recover money from defendants.
...
18, Admittedly, there is no agreement or any other document in writing, to show that the plaintiff has paid cash of Rs.7,50,000/- and another for a sum of Rs.2,50,000/-.
Even though the defendant contends that those two cheques were issued in favour of one Sri.V.Nagarajappa, who is said to be the father of the plaintiff, towards purchase of sites from him, but undisputedly, both the cheques bear the name of the plaintiff as payee. Once the issuance of cheque is established, the presumptions both under Section 118 of N.I.Act with respect to consideration for issuance of the said cheques and presumption under Section 139 of the same Act that the holder of the cheque received the cheque for the discharge, in whole or in part, of any debt or other liability will be automatically formed in favour of the plaintiff herein. Though the said presumptions are rebuttable, but rebutting the said presumption is upon the shoulder of the defendants.
19. The defendant except taking such contentions that he had issued those two cheques to Sri.V.Nagarajappa towards purchase of sites, has not produced any O.S.No.4083/2016 46 documents in that regard. Admittedly, the defendant is a Government Official, who according to the plaintiff, at the relevant point of time, working in Antharika Arathika Salahegara Shake, "B" Inner Administration and Transport, IFAB Section, M.S. Building Part III, Bengaluru. Therefore, the defendant himself being working in the section of Internal Financial Advisory in the Administration Wing of Transport Department is expected to have the minimum knowledge that when a huge sum of Rs.10,00,000/- is given in the form of two cheques, then he has to necessarily collect some documents in that regard from the person to whom those cheques were issued, this the appellant has not done. Admittedly, there are no documents to show that those two cheques including Ex.P-1 was given not to the plaintiff but to his father Sri.V.Nagarajappa and also towards purchase of sites.
Secondly, no documents or copies of documents pertain to the property/site, which the defendant was intended to purchase from said Sri.V.Nagarappa has been produced by the defendant.
Thirdly, and most interestingly, except stating that he had agreed to buy some sites from said Sri.V.Nagarappa, nowhere the defendant has given any details about the said sites including the numbers, measurements, location and total consideration agreed, etc. O.S.No.4083/2016 47 Fourthly, admittedly, the defendant has not taken any steps either against the plaintiff or against his father Sri.V.Nagarappa for recovery of those two cheques from them. Had really the defendant issued those cheques towards advance amount of his alleged purchase of sites from Sri.V.Nagarajappa, then once the said deal could not materialize, the defendant ought to have asked for return of the cheques and in case of any failure by said Sri.V.Nagarajappa to return the same, then it was expected of the defendant to take appropriate action in accordance with law for recovery of those two cheques. Admittedly, the defendant has not taken any such steps, he has not even bothered to issue any notice to said Sri.V.Nagarajappa asking him to return those two cheques or filed a police complaint against him.
Fifthly the defendant even after coming to know that those two cheques were dishonoured from his account or atleast after receiving the legal notice sent by the plaintiff, he could have taken any action even against the plaintiff for recovery of those two cheques. Had really the defendant given those two cheques to Sri.V.Nagarajappa towards purchase of sites from him, then he would have definitely taken action for recovery of those two cheques from Sri.V.Nagarajappa or from the plaintiff. Therefore being literate, educated, official working in a Government O.S.No.4083/2016 48 department, that too, in financial advisory section, dealing with a stranger and giving him a cheque worth of Rs.10,00,000/- and with no documentation and thereafter also keeping quite without taking any action for its recovery, clearly go to show that the defence taken by him against the contention of the plaintiff is not worth believable and does not even makes one to believe that his defence is probable to have taken place in the matter. ....
..."
(i) In the present case on hand also, this is a suit for recovery of money;
(ii) It is the case of the plaintiff that the defendant paid Rs.15,00,000/- towards partial payment of the compensation amount for cancellation of the sale agreement dated 13.12.2001 on receiving the said sale agreement and issued the cheque at Ex.P-1 for payment of the balance compensation amount of Rs.10,00,000/-.
(iii) It is the case of the plaintiff that when he demanded for payment of balance amount, the defendant issued the cheque at Ex.P-1 and it was dishonoured.
O.S.No.4083/2016 49
(iv) The defendant has contended that the cheque book was lost and the plaintiff instead of returning the cheque, misused it.
(v) As observed above, the defendant did not let in any corroborative evidence in support of her defence and also any cogent evidence to believe the complaint/NCR at Ex.D-1.
(vi) No steps were taken by the defendant to get investigated on her complaint at Ex.D-1 as well as her alleged statement. For that matter, admittedly, she failed at least to follow up her complaint at Ex.D-1.
(vii) But, as noted above, the plaintiff has also failed to let in the cogent and corroborative evidence to establish his case, as admittedly, he has not produced, (1) The alleged sale agreement dated 13.12.2001; (2) Any evidence to show the payment of advance amount of Rs.1,00,000/- under the said agreement.
(3) Admittedly, the plaintiff has not executed any agreement in favour of the defendant;
O.S.No.4083/2016 50 (4) Admittedly, the plaintiff has not produced any evidence in respect of alleged handing over the sale agreement to the defendant;
(5) Admittedly, the landlord Sri.Chikkamuniyappa not instructed the plaintiff to hand over the sale agreement to the defendant;
(6) Admittedly, Sri.Chikkamuniayappa also has not executed any sale agreement in favour of the defendant;
(7) Admittedly, the plaintiff has not taken any steps against Sri.Chikkamuniyappa either to get executed the sale deed or to settle the dispute;
(8) Admittedly, no evidence is let in by the plaintiff in respect of the alleged payment of Rs.15,00,000/- by the defendant towards the alleged compensation amount agreed by her to pay to him for cancellation of the sale agreement dated 13.12.2001;
(9) Admittedly, no evidence is let in to show the alleged cancellation of sale agreement dated 13.12.2001.
(viii) As the plaintiff has failed to let in the cogent, corroborative and supportive evidence in respect of his O.S.No.4083/2016 51 case, the presumption under Section 139 of the Negotiable Instruments Act of 1881 is not helpful to the plaintiff.
(ix) In this case also, the plaintiff is an advocate by profession and the defendant is a land developer doing real estate business and thus, both of them are worldly wise persons, but, as noted above, failed to establish that their acts in respect of their respective cases are of a prudent person.
(x) In this case also the amount alleged to be involved is a heavy amount, but the above noted evidence of both parties in particular the oral evidence that too by way of admissions, in the back ground of their respective profession clearly say that they did not act prudently, as admittedly, the plaintiff did nothing against Sri.Chikkamuniyappa to establish his right under the alleged sale agreement dated 13.12.2001 and has no document in respect of the alleged settlement with the defendant involving Rs.25,00,000/-;
On the other hand, the contention of the defendant that she lost her bag having cheque books of her two bank accounts with many a cheque leaves; in which only one O.S.No.4083/2016 52 cheque was signed; that too while traveling in BMTC bus; though lodged complaint, did not follow up; though gave further statement before the police on receipt of 1 st notice, did not give reply and not followed such further statement as well; disclosed the fact of lost of her bag in BMTC bus first time only in the reply to the 2 nd notice at Ex.P-7 that too after around 3 yeas shows that it is nothing but cock and bull story.
(xi) So, the facts observed in the above case are aptly applicable to the case on hand, not only to the defendant, but also to the plaintiff. However, since it is the plaintiff who has come up before the Court seeking reliefs, he has to establish his case first. Thus, the observations in the above case are much applicable to the acts of the plaintiff than the defendant.
d) 2019(4) AKR 721 (between Nabhiraj v. State Bank of India, Mangalore in Criminal Petition No.6816 of 2015 decided on 29.08.2019 before his lordship John Michael Cunha, J.), wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Karnataka that;
O.S.No.4083/2016 53 "(A) Negotiable Instruments Act (26 of 1881), S.9 - Dishonour of cheque - "Holder in due course" - As per S.9 person claiming right over instrument/cheque requires to establish either that he became possessor of cheque for some consideration or that said cheque was endorsed in his favour by payee or endorsee - though cheque in question contains no endorsement in favour of complainant/Bank, it received same towards discharge of debt due by Company of which accused was Director - Existing debt is valid consideration - Complainant falls within description of 'holder in due course'.
....
10. Section 9 of the N.I. Act defines the expression 'holder in due course'. As per this definition 'holder in due course' means, any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorsee thereof. This definition does not require that in order to claim a right to an instrument as "holder in due course", the same should have been drawn in the name of the person who is in possession of the instrument. In order to satisfy the requirements of section 9, a person who claims right to the instrument must essentially establish that he became the possessor of the cheque or promissory toe for some consideration or that the said cheque was indorsed in his favour O.S.No.4083/2016 54 by the payee or indorsee. It is sufficient for the purpose of this definition if any one of the above requirements or preconditions is satisfied. The section uses the disjuncture "or" making it evident that, even without an endorsement, if it is shown that the instrument came in possession of the holder, for valuable consideration, the requirement of Section 9 of N.I.Act is to be held as satisfied.
...."
49. In the present case on hand, it is not the case of the plaintiff that he is holder in due course. On the other hand, it is his case that the cheque was issued by the defendant in his favour only. Thus, the dictum laid down in the above case is not applicable to the case on hand.
50. Hence, from the above discussions, it is clear that the plaintiff has failed to establish issues Nos.1 and 2 i.e., he had settled the matter with the defendant to cancel the sale agreement dated 13.12.2001 and the defendant as the power of attorney holder of the landlord Sri.Chikkamuniyappa agreed to pay Rs.25,00,000/- to him as compensation and accordingly, paid Rs.15,00,000/- by way of cash and agreed to pay Rs.10,00,000/- after completion of sale transaction between O.S.No.4083/2016 55 Sri.Chikkamuniyappa and third party, thus, later issued the cheque at Ex.P-1 towards the payment of the balance amount of Rs.10,00,000/-. Therefore, issues Nos.1 and 2 are answered in negative. Thus, the plaintiff is not entitled for the suit relief. Accordingly, issue No.3 is also answered in negative.
51. ISSUE No.4:- From the above observations, this Court proceeds to pass the following order.
ORDER The suit of the plaintiff is hereby dismissed.
In the circumstances of the case, the parties are directed to bear the costs of the suit on their own.
Draw a decree accordingly.
(Typed directly on computer, corrected and then pronounced in the open Court on this the 31 st day of March, 2022).
(K. KATHYAYANI), LXVI Addl.CC & SJ, Bengaluru.
ANNEXURE
1. List of witnesses examined for plaintiff:
PW-1 : Sri.Thimmarayappa.C.
O.S.No.4083/2016
56
2. List of documents marked for Plaintiff:
Ex.P-1 : Original Cheque dated 05.12.2013 for Rs.10,00,000/- issued by the defendant in favour of the plaintiff.
Ex.P-2 : Return Memo dated 09.12.2013 intimating dishonour of cheque at Ex.P-1 for the reason account closed.
Ex.P-3 : Postal Receipt.
Ex.P-4 : Postal Acknowledgment.
Ex.P-5 : Legal Notice dated 15.12.2013
issued by the plaintiff to the
defendant.
Ex.P-6 : Postal acknowledgment
Ex.P-7 : Reply Notice dated 19.03.2016
issued by the defendant to the
plaintiff.
Ex.P-8 : Certified copies of Deposition,
exhibited documents and judgment dated 13.04.2017 passed in CC.No.19872/2003.
3. List of witnesses examined for Defendants:
DW-1 : Smt.Renuka.
4. List of documents marked for Defendants:
Ex.D-1 : NCR dated 18.12.2013.
(K. KATHYAYANI),
LXVI Addl.CC & SJ,Bengaluru.
O.S.No.4083/2016
57
Both the parties and their
respective counsels are
absent.
The Judgment is
pronounced in the open Court
(vide separate Judgment).
ORDER
The suit of the plaintiff is
hereby dismissed.
In the circumstances of
the case, the parties are
directed to bear the costs of
the suit on their own.
Draw a decree
accordingly.
LXVI Addl.CC & SJ,
Bengaluru.