Bangalore District Court
Sri.L.Muniyappa vs Sri.D.Ravi on 23 September, 2016
IN THE COURT OF THE IV ADDL.CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL UNIT, BENGALURU. (CCH-21)
Dated: This, the 23rd day of September 2016.
Present: Sri.Bannikatti Hanumanthappa.R.
B.A.,LL.B(Spl)
IV Addl.CC & SJ, Mayohall Unit,
Bengaluru.
O.S. No.25260/2011
Plaintiff: Sri.L.Muniyappa,
S/o.Sri.Lakshmanappa, aged
about 40 yrs, "Sree Lakshmi
Venkateswara Enterprises",
No.404, Motappanapalya,
Indiranagar, Bengaluru-560038.
(By Sri.N.S.Shiva Prasad, Advocate)
V/S
Defendant: Sri.D.Ravi,
S/o.Dhakshinamurthy, Major,
R/at.No.429, 6th Main Road,
Yellamma Temple Back Side,
Motappanapalya, Indiranagar,
Bengaluru-560038.
(By Sri.S.Rajashekar, Advocate)
Date of institution of the suit 08.02.2011
Nature of the suit (Suit for Pro-note, Suit for Recovery of
Suit for Declaration and Possession, Money.
Suit for Injunction, etc.)
2 O.S. No.25260/2011
Date of commencement of recording 17.08.2012
of the evidence
Date on which the Judgment was 23.09.2016
pronounced
Total duration Year/s Month/s Day/s
05 07 15
JUDGMENT
Present suit has been filed under Order VII, Rule 1 of CPC by the plaintiff against the defendant for recovery of a sum of Rs.1,05,332/- together with future interest at the rate of Rs.16% p.a., from the date of suit till its realization and for costs.
2. Case of the plaintiff, in brief, is as below:-
The plaintiff is running money lending business in the name and style of "Sree Lakshmi Venkateswara Enterprises". The defendant approached the plaintiff seeking a loan of Rs.1,00,000/- for domestic use. Upon request of the defendant, the plaintiff paid a sum of Rs.1,00,000/- by way of cash on 29.09.2010 at Rs.16% interest p.a., repayable in two months or on demand. The defendant has executed On Demand Promissory Note with consideration receipt before the witnesses in favour of the plaintiff. Despite of demand made by plaintiff with the defendant in the 1st 3 O.S. No.25260/2011 week of December 2010, he did not pay the due amount. Hence, the plaintiff issued the legal notice on 15/12/2010, as there was no response for it. The defendant was due a total sum of Rs.1,05,332/- as on today as follows:-
a) Principal loan amount Rs.1,00,000/-
b) Interest at the rate of 16% per annum from
29.09.2010 to 29.01.2011 Rs. 5,332/-
TOTAL Rs.1,05,332/-
Hence, this suit arose.
3. The case of the defendant, in brief, is as below:-
The defendant contended in his WS that suit of the plaintiff is not maintainable either on law or on facts and it is fundamentally defective. Further it is contended that after service of suit summons, this defendant made enquiry in his locality and learnt that the plaintiff is a close friend of this defendant's neighbours Ananda and Lakshmana and there is a pending litigation between this defendant and the said Ananda and Lakshmana in RFA No.1441/2006 arising out of judgment and decree passed in O.S. No.3506/1995 and it is the said Ananda and Lakshmana, with an intention to harass this defendant and his family members, have colluded and set up the present plaintiff to 4 O.S. No.25260/2011 come forward with such false and frivolous claims by creating and manipulating documents by forging the signature of this defendant and his mother in the documents referred above. Further it is also contended that the filing of this suit, is one such ploy by the aforesaid Ananda and Lakshmana, to pressurize this defendant and his family members to lead to this unjustifiable demands; i.e, to give up the rights of the defendant and his family member is the five feet passage situated on the Western side of defendant's property. Further it is contended that the plaintiff is a person who indulges in filing false cases with ulterior motives and the speculative acts of the plaintiff with the active connivance and support of the aforesaid Ananda and Lakshmana, as caused mental tension, agony and despair, which has affected this defendant and his family members, and for which the defendants are to be compensated by awarding damages in a sum of Rs.1,00,000/-. On the said grounds defendant prays to dismiss the suit of the plaintiff with having exemplary costs.
4. On the basis of the pleading of the both side parties, my learned Predecessor has framed the following issues:- 5 O.S. No.25260/2011
1. Whether plaintiff proves that on 29.09.2010 defendant borrowed the loan of Rs.1,00,000.00 by executing DP note?
2. Whether plaintiff proves that he has got money lending license from the date of advance of the loan & from the date filing of the suit?
3. Whether plaintiff is entitled for interest as sought for?
4. Whether plaintiff is entitled for relief sought for?
5. What order or decree?
5. On behalf of the plaintiff, affidavit evidence of plaintiff himself has been filed and he has been examined as PW-1 and also the affidavit evidence of plaintiff witness by name Sri.T.M.Balasubramani to the On Demand Pronote as a PW-2 and Exs.P-1 to P-5 documents have been marked.
6. On the other hand, on behalf of the defendant also, affidavit evidence of defendant has been filed and he has been 6 O.S. No.25260/2011 examined as DW-1 and Exs.D.1 to D.4 documents have been marked.
7. Heard the arguments on behalf of the plaintiff and defendant.
8. After considering the evidence on record, findings on the above issues are:
Issue No.1: Negative, Issue No.2: Affirmative, Issue No.3: Negative, Issue No.4: Negative, Issue No.5: As per final order, for the following:-
REASONS.
9. ISSUE No.1 & 3: Both these issues are interlinked each other; hence, for avoiding repetition I have taken up both these issues for discussion at one stretch. All the pleading of the both parties, the contents of plaint and WS which are reproduced by the 7 O.S. No.25260/2011 plaintiff and defendant in their chief-examination, I would not like to re-discuss.
10. P.W.1 answered in his cross-examination that he is a income tax assessee and every month he is intimating to the income tax office regarding he is getting Rs.40,000/- income per month. It is denied that there is no any loan transaction taken place in between the defendant and himself. It is also stated that when he was going to pay the loan to his customers as a money lender he used to get the signature of borrower on DP note and also used to collect the blank cheque from them. Except the above said DP note and blank cheque he does not go to collect any documents for security of loan. It is P.W.1 stated that in his office he has maintained the accounts particulars of the loan in ledger extract and also a relevant documents and also he go to obtain the signature of the borrower in ledger extract in front of his account and a balance loan mentioned in it and he will intimate his loan transactions transacted with the customers to the concerned register office. It is denied that since he has not paid any loan to the defendant he has not produced the copy of the ledger extract and other documents 8 O.S. No.25260/2011 maintained in respect of the loan amount. He admits that the money transactions of above Rs.20,000/- shall be transacted through the cheque only. It is also stated that he has not intimated to the income tax office regarding he had given a loan to the defendant and the defendant is due for repayment of the loan to him.
11. P.W.1 further answered that he does not know the Anand, S/o.Ramaiah and he is a close friend to him. It is also he does not know that there was a civil litigations taken place in between one Anand and this defendant; i.e., the Original Suit No.3506/95 and RFA No.1441/2006 respectively. P.W.1 it is denied that on the instigation of the Anand he issued a notice to the defendant and filed a false suit for recovery of the money. P.W.1 it is also stated that Ex.P.1 and P.2 are written in his office by one Shankar. He admits that the person who will write the DP note generally his name will be written on DP note as a Scribe and his signature also will be taken on it and peculiarly answered that only on two DP notes the signature of the Scribe will be taken not on all such documents. It is further sated that the witness one 9 O.S. No.25260/2011 Balasubramanya whose name is mentioned on DP note, no such any person was present at the time of loan and taken his signature.
12. In further cross-examination of P.W.1 dated 17.12.2013 he answered that P.W.2 is his friend and he is doing a real estate business, he himself and P.W.2 are the workers of Congress Party.
P.W.2 was present when he has paid the loan to defendant, then the time was at about 7 p.m. He denied that P.W.2 was not present and he has not paid any loan to the defendant. In the cross-examination of P.W.2 he stated that he knows the plaintiff since last 18 to 20 years and both are friends in their business. P.W.2 it is also stated that when his friend plaintiff paid a suit loan to the defendant, he was present in his office, except him nobody were present there. Further P.W.2 stated that only he put his signature as a witness to the transaction relating to the defendant not in any other transactions of other persons taken place in between plaintiff and others. It is also he admits that he himself and plaintiff are politically friends also. It is also P.W.2 stated that the said loan transaction was taken place in between 2 p.m. to 2.30 p.m. and 10 O.S. No.25260/2011 defendant came to his contact through the plaintiff and he knows the defendant since last 7 years.
13. Upon perusal of the above discussed cross-examination it is material to note that the plaintiff, who has deposed as a P.W.1 in this case stated in his cross-examination that he had paid the suit loan amount of Rs.1,00,000/- at Rs.16% interest p.a., to the defendant at about 7 p.m. on 29.09.2010 in front of his friend P.W.2. On the other hand the attesting witness to DP note; i.e., P.W.2 stated that the said amount was given by plaintiff to the defendant in between 2 to 2.30 p.m. There is appearing a suspectable discrepancies in between the P.W.1 and P.W.2 regarding the above said loan amount.
14. Upon perusal of the cross-examination of D.W.1 it is stated that he has studied upto SSLC in Domlur Govt. High School and name of his mother and father are Padma and Dakshinamurthy. They are residing in Bengaluru; since very long back his father was working as a Labour on Truck and his mother was housewife and he is doing the painting work. His father had purchased the one property about 40 years back, wherein there was a old house. It is 11 O.S. No.25260/2011 also stated that near about 15 years back therein constructed a 2 floor building by obtaining sanctioned plan from the BBMP.
15. D.W.1 further stated that plaintiff is not acquainted with him, after filing this suit only he knows about him. It is further stated he identified the signature appearing on vakalath of his advocate and stated that the same is signed by him only. It is also stated that signature appearing on his WS also belonging to him and further admitted that in the address mentioned in the plaint only he is residing. It is denied that plaintiff has give a Rs.1/- hand loan with 16% interest to him. He denied that he has put a signature upon Ex.P.1 and P.2 and his mother Padma has put signature as a witness. It is further denied that he obtained a loan from the plaintiff on condition that it should be returned within one year and accordingly plaintiff demanded the said loan to return back. It is further denied that since not returned the loan amount he had issued a notice through RPAD and Certificate of Posting and it is also denied that a legal notice Ex.P.3 is served upon him and it is also stated that he had not given any reply notice to Ex.P.3 and denied that his signature is appearing on postal acknowledgement 12 O.S. No.25260/2011 at the time of service of Ex.P.3 upon him. It is also denied that on the instigation of one Anand the plaintiff has filed a false suit with a false suit claim.
16. Upon perusal of the above discussed cross-examination of D.W.1 he has answered that neither himself nor his mother Smt.Padma put a signature on Ex.P.1, 2 & 4; i.e., DP note, Receipt and Acknowledgement of Legal Notice. It is pertinent to note that when the defendant is denying the very case of the plaintiff, which is based on Ex.P.1 and P.2 by stating that he himself and his mother not put the signature and they have not obtained the any loan from the plaintiff, it was a duty of the plaintiff to send the above said documents by obtaining a signature of defendant and his mother in a open court as a admitted signature, for getting a opinion about the disputed signature appearing on Ex.P.1 and P.2. But, the plaintiff did not made any efforts for the same. At the time of argument of the counsel for defendant he drawn attention of this court towards Section 73 of the Indian Evidence Act when the signature in the disputed on any document in dispute the court can compare the signature appearing on the vakalath and pleading 13 O.S. No.25260/2011 of the parties with the disputed signature and the said court can give its opinion upon the same and it is also drawn the attention of this court towards Section 15 of the Karnataka Money Lenders Act, 1965, according to which, it is a mandate that a Form No.16 is necessary to be maintained, which discloses statement showing the details of conditions of the loan, which is also not complied by the defendant. For the said defect the suit of the plaintiff is deserved to be dismissed with heavy costs. When the argument of the defendant is as above stated that his client defendant has not put the signature on Ex.P.1 and P.2 with a contention taken in WS that the said signature are a forged and Ex.P.1 and P.2 are created by the plaintiff and his argument in force is that under Section 73 of the Indian Evidence Act, this court is necessary to inspect the signatures, which are alleged as made upon Ex.P.1 and P.2 shall be compared with the signature of defendant appearing on his vakalath, WS and deposition. Upon perusal of the signature appearing on Ex.P.1 and P.2 appearing in small letter as a D.Ravi and signature of defendant appearing on his vakalath and WS and also deposition signed by defendant with a small letter as a D.Ravi 14 O.S. No.25260/2011 are different one against another; because the style used by the alleged signature of defendant/D.W.1 on Ex.P.1 and P.2 are not tallying with the signature of defendant which are on the vakalath, WS and chief-examination. Thus being the situation, it was a duty of the plaintiff to take the steps for sending the said documents to the handwriting experts to prove the signature of defendant for the purpose of proving the document Ex.P.1 and P.2; i.e., a DP note and Receipt and it is also pertinent to note that the plaintiff has not complied the Section 15 of the Karnataka Money Lenders Act by following the Form No.16, which is to be followed a statement showing the details of condition of loan, wherein the name of debtor, address, amount of loan, date of loan, date of maturity of loan if any, rate of interest per annum, nature of security, particulars of documents if any, any special condition on which the loan has been made and other connected informations shall be filled in Form No.16 by the money lender with his signature and date, month and year of loan. The said Section 15 of the Karnataka Money Lenders Act, is not complied. No such any Form-16 is produced by the plaintiff in this case. In this case not only the 15 O.S. No.25260/2011 discrepancy is appearing about the style of signature of defendant as above discussed there is appearing a inconsistency regarding a timing of the loan transaction the money lender P.W.1 stated that a suit loan was paid to the defendant at 7 O'clock. On the other hand, the witness P.W.2 by namely Balasubramanya, who is a own friend of the plaintiff/P.W.1, he stated that the suit loan amount was given to the defendant in between 2 to 2.30 p.m. The above said difference appearing regarding the handing over the loan amount to the defendant by the plaintiff about which spoken by the P.W.1 and P.W.2 are also creating a doubt about the Ex.P.1 and P.2. It is also important to note that the plaintiff has stated in his cross-examination that one Shankar has written the Ex.P.1 and P.2; but, his name and signatures are not appearing in column wherein in Ex.P.1 and P.2 appearing as a written by ........... So, for all the above discussed reasons, I would like to say that the plaintiff has failed to prove the fact of issue No.1 and 2. It is also I would like to say that when the document Ex.P.1 and P.2 are held as not proved by the plaintiff/money lender, then this court cannot come to conclusion that there is a agreement taken place in between the 16 O.S. No.25260/2011 money lender and borrower; i.e., plaintiff and defendant about the suit interest. So, for the said reasons, I would like to answer issue No.1 and 3 against the plaintiff as a Negative.
17. ISSUE No.2: That the burden of proving this issue also lies upon the plaintiff, when the defendant disputed about the license of plaintiff in WS of defendant and cross-examination of P.W.1 the plaintiff has produced the notarized copy of his money lending license No.MLA/MLL.New/301/2009-10, Bengaluru Urban District, Bengaluru Taluk, place of office of the money lenders No.404, 6th Main Road, Indiranagar, Motappanapalya, Bengaluru-38. The period of the validity of the license is mentioned from 22.10.2009 to 31.3.2014. It indicates that on the date of filing of the suit including the alleged transaction of loan was in force. Therefore, I would like to answer this issue in favour of the plaintiff as a Affirmative.
18. ISSUE No.4: It is pertinent to note that though the issue No.2 is answered in favour of the plaintiff as he was having a money lending license for doing the money lending business with his customers. But, in this case the plaintiff has not successfully 17 O.S. No.25260/2011 proved the Ex.P.1 to P.4 on which the plaintiff is claiming the suit claim amount and interest against the defendant; regarding this a detail discussed in issue No.1 and 3 on account of failure of the plaintiff to prove the said documents and his case, the said issues are answered against the plaintiff as a Negative. Therefore, he is not entitled for suit reliefs as prayed for. Hence, I would like to answer issue No.4 also against the plaintiff as a Negative.
19. ISSUE No.5: For the above said reasons, I proceed to pass the following:-
ORDER Suit of the plaintiff is hereby dismissed without costs.
Draw the decree accordingly.
(Dictated to the Stenographer, thereof corrected and then pronounced by me in the open court on this the 23rd day of September, 2016).
(Bannikatti Hanumanthappa.R.) IV Addl.City Civil & Sessions Judge, Mayohall Unit, Bengaluru.18 O.S. No.25260/2011
ANNEXURES List of witnesses examined for the plaintiff:
P.W.1 - Sri.L.Muniyappa
P.W.2 - Sri.T.M.Balasubramani
List of documents exhibited for the plaintiff:
Ex.P.1 - DP Note
Ex.P.2 - Receipt
Ex.P.1(a) - Signature in Ex.P.1
Ex.P.3 - Notice
Ex.P.4 - Postal acknowledgement
Ex.P.5 - Money lending license
List of witness examined for the defendant:
D.W.1 - Sri.D.Ravi.
List of documents exhibited for the defendant:
Ex.D.1 - C/C of plaint in O.S. No.3506/1995
Ex.D.2 - C/C of order sheet in RFA 1441/2006
Ex.D.3 - Endorsement dated 03.02.2014
Ex.D.4 - C/C of WS and Addl.WS in O.S.3506/95
(Bannikatti Hanumanthappa.R.)
IV Addl.City Civil & Sessions Judge,
Mayohall Unit, Bengaluru.
19 O.S. No.25260/2011