Bangalore District Court
Sri B Prashanth vs M.Ranjit @ Ranjit Makkal on 31 March, 2018
IN THE COURT OF THE LXI CITY CIVIL &
SESSIONS JUDGE: BENGALURU CITY (CCH-62)
Dated this the 31st day of March, 2018
SRI.SUNILDUTT ANNAPPA CHIKKORDE, M.A. L.L.M
LXI Addl. City Civil & Sessions Judge,
Bangalore, (CCH-62)
O.S. No.3339/2016
PLAINTIFF/S : 1. Sri B Prashanth
S/o.Late N.Bhaskaran
Aged about 46 years
R/a.No.15, 3rd Cross, Krishnamma
Garden, J.C. Nagar,Bangalore-6.
(By Sri.D.N.M., Advocate)
V/s.
Defendant/s : 1. M.Ranjit @ Ranjit Makkal
S/o.Late M.Appukuttan
Aged about 52 years
R/a. No.4, 2nd Main Road,
Ganganagar, Bangalore-32.
(By Sri.R.S., Advocate)
Date of Institution of the Suit: 27.4.2016
Nature of the suit
(Suit on Pronote, suit for Money Suit
declaration & possession, suit
for injunction)
Date of commencement of 13.01.2017
recording of evidence:
Date on which the Judgment 20.03.2018
was pronounced:
Total Duration: Year/s Month/s Day/s
01 11 14
JUDGMENT
The plaintiff has filed this suit for the recovery of Rs.5,00,000/- from the defendant with interest at 2% per 2 O.S. No.3339/2016 annum, for further interest from 7.4.16 to 22.4.16 on Rs.50,00,000/- amounting to Rs.50,000/- together with Rs.10,000/- legal charges, for future interest from the date of the suit till realization, to permit the plaintiff to bring the suit schedule property to sale as it is offered as security for the loan borrowed to the extent of the suit claimed in a public auction, to award costs of the suit and for such other relief's.
2. The plaint averments in brief are that the plaintiff is the mortgagee by way of deposit of the title deed dt.1.8.14 and the defendant is the mortgager and absolute owner in respect of the schedule property. The defendant having derived the property by virtue of registered gift deed dt.27.7.2005 executed by Smt.Rukmini W/o.Appukuttan being registered in the office of the Sub-Registrar, Bangalore North Taluk, as document NO.BLN-1-09136-2005-06 dt.27.7.2005. Prior to entering into a deed of mortgage besides seeking for the document of title relating to the suit schedule property, it was learnt that originally the property belonged to Sri.A.Ramakrishnappa who had purchased the property under a registered sale deed dt.5.8.1983. Sri.A.Ramakrishanappa conveyed the property under registered sale deed dt.8.3.1995 infavour of Smt Rukumini. Smt.Rukumini executed registered gift deed dt.27.7.05 whereby all the right, title and interest was conveyed by way of gift deed infavour of Donee i.e., Sri Ranjit @ Ranjit Makkal and consequently the revenue records were also made out in the name of the mortgagee. Hence, the mortgagee had a valid subsisting and marketable title to convey the title in respect of property. The mortgage was introduced to the mortgager through common acquaintance 3 O.S. No.3339/2016 and apprised the mortgagee that as the mortgager was in need of funds to meet his urgent domestic needs and to discharge certain loan which he had discharged sought for loan facility of Rs.50,00,000/- with a definite promise and undertaking that the mortgager would abide by the terms of the mortgage and repay the amount within the stipulated period. The mortgager and mortgagee having agreed to enter into a deed of simple mortgage by way of deposit of title deeds it was reduced into writing duly incorporating the terms and conditions of the mortgage. The deed of simple mortgage was entered into on 11.8.14 between the defendant and the plaintiff the said document having been registered in the office of the Sub- Registrar, Gandhinagar, Bangalore. As per the deed of mortgage the defendant has availed a sum of Rs.50,00,000/- as per the deed of mortgage which sum the mortgager has received and acknowledged as under;
A. A sum of Rs.7,00,000/- paid by the mortgagee in favour of the mortgagors banker s namely M/s.Canara Bank Vasanthanagar Branch, Bangalore to the loan account bearing No.1370101015539 by UTR No.SBNRJ2014080701910495 on 7.8.14 as per the request of the mortgagor so as to discharged the loan outstanding.
B. A sum of Rs.10,00,000/- tendered by way of a account payee cheque bearing No.059723 dt.11.8.14 drawn on M/s. State Bank of India, Jayamahal Branch, Bengaluru.
C. A sum of Rs.10,00,000/- tendered by way of a account payee cheque bearing No.059724 dt.11.8.14 drawn on M/s.State Bank of India, Jayamahal Branch, Bangalore.
D. A sum of Rs.10,00,000/- tendered by way of a account payee cheque bearing No.059726 4 O.S. No.3339/2016 dt.11.8.14 drawn M/s. State Bank of India, Jayamahal Branch, Bangalore.
E. A sum of Rs.8,00,000/- tendered by way of a account payee cheque bearing No.059726 dt.11.8.14 drawn on M/s. State Bank of India, Jayamahal Branch, Bangalore.
F. A sum of Rs.5,00,000/- by way of cash As per the deed of mortgage a period of 18 months was agreed to concluded to repay the mortgage amount from the date of execution of the deed of mortgage i.e., 11.8.2014 together with interest @ 2% p.m., on Rs.50,00,000/- amounting to a sum of Rs.1,00,000/- payable every month without committing any default on or before the 5th day f each month. As per clause 13 it is agreed that if the mortgager fails or neglects the interest accrued on the principle consecutively for a period of three months the mortgagee/plaintiff is entitled to seek for repayment of the principle together with interest as on that date and further the mortgagee is entitled to seek for sale of the schedule property offered as security for the loan borrowed by way of a public auction and recover the entire amount namely the principle and the interest payable and due till the date of recovery of the entire amount due and payable under the deed of simple mortgage. Pursuant to deed of mortgage and as per the terms and conditions all the original documents of the title to the suit property has been delivered to the plaintiff as per the list and is the custody of the plaintiff. Even though it was specifically agreed and understood and the deed of mortgage was duly reduced into writing incorporating the terms and conditions the mortgager having agreed and undertaken to pay the interest on the principal amount, the defendant did not abide by the terms and conditions of the 5 O.S. No.3339/2016 deed of mortgage but on the other hand has not paid any sum payable towards the interest from the date of execution of the mortgage till date @ Rs.1,00,000/- per month as agreed to under clause - 12 nor has he repaid any amount towards the principle due and payable to the plaintiff despite repeated requests and demands. After repeated requests and demands the defendant tendered a cheque bearing No.127388 for a sum of Rs.49,00,000/- dt.14.3.16 drawn on M/s. Federal Bank, R.T. Nagar Branch, Bangalore towards the principle and another cheque bearing no.127384 for a sum of Rs.1,00,000/- dt.4.4.16 drawn on M/s. Federal bank, R.T. Nagar Branch, Bangalore. The defendant had also tendered a cheque bearing No.127385 dt.4.4.16 for a sum of Rs.20,00,000/- drawn on M/s.Federal bank, R.T. Nagar Branch, Bangalore towards interest due and payable from 12.8.14 to 4.4.16 in favour of the plaintiff with a promise and undertaking that the defendant would make arrangements with his bankers on or before 5.4.16 and that the plaintiff could present the cheque through his banker for encashment and thereafter put an end to the mortgage subject to the amount covered under the cheque being honored and encashed payable both towards principle and towards interest and thereafter the mortgage entered into be put an end having the deed of mortgage duly discharged. The plaintiff presented the cheque through his bankers on 5.4.16 M/s. State Bank of India, as per the instructions of the defendant and to the shock and surprise of the plaintiff the said cheque came to be dishonored on presentation with the bankers endorsement 'Insufficient Funds' on 6.4.16. The original of the said cheques had to be presented before the jurisdictional Magistrate by way of 6 O.S. No.3339/2016 complaint under Section 138 of N.I. Act the plaintiff reserves his liberty to produce the same at the appropriate stage. The defendant has failed and neglected and willfully did no make arrangements with his banker to have the cheques honoured with his bankers payable towards the debt due namely the deed of mortgage by way of deposit of title deeds the plaintiff got issued a notice dt.7.4.2016 through his advocate which was forwarded to the defendant by way of RPAD speed post and courier which has been duly served on the defendant on 12.4.16. Legal notice dt.7.4.16 along with postal acknowledgments. As per the said notice the defendant was called upon to repay the entire amount of Rs.50,00,000/- together with interest on Rs.50,00,000/- totally amounting to Rs.70,00,000/-. Notice having been served on the defendant on 12.4.16 and he has got issued a false and untenable reply dt.20.4.16. Despite receipt of notice and a period of 7 days has elapsed the defendant has not paid an amount and moreover the period of mortgage i.e., a period of 18 months from 11.8.14 having come to an end as on 11.2.16 and more so as the defendant has willfully and with an intention to delay defeat and defraud the plaintiff of his right to recover the mortgage amount namely the plaintiff being left without any alternative and efficacious remedy has filed this suit for recovery of the mortgage amount payable by the defendant as on the defendant. The amounts due and payable by the defendant is as under;
Sl. Particulars Amount
No.
1. Principle amount Rs.50,00,000/-
2. Interest on Rs.50,00,000/- from Rs.20,00,000/-
11.8.14 to 7.4.16
3. Further interest due from 7.4.16 Rs.50,000/-
7 O.S. No.3339/2016
to 22.4.16 on Rs.50,00,000/-
4. Notice charges Rs.10,000/-
Total amount payable by the Rs.70,60,000/- defendant to the plaintiff Hence, the defendant is liable to pay a sum of Rs.70,60,000/- being the suit claim as on the date of filing of the suit and further the defendant is liable to pay interest @ 2% p.a. from the date of the suit till the date of realization together with costs of the suit. Hence, prays to decree the suit.
3. Upon service of summons, the defendant appeared through his counsel before the court and failed written statement contending that the suit filed by the plaintiff is frivolous, vexatious and is not maintainable either in law or on facts and the same is liable to be dismissed in limine. The defendant admitted that he is the owner of the suit schedule property and the other averments made in para No.1 to 5 are denied in toto. Further the defendant contended that he had regularly paid the interest amount to the plaintiff and he has also discharged the part principle amount of Rs.20,00,000/-. Further the defendant contended that the plaintiff has received Rs.10,00,000/- by way of bank transfer from the sister of the defendant and he received Rs.10,00,000/- from the defendant on 28.7.15 and the plaintiff without disclosing the true facts filed this suit, at the time of registration of simple mortgage the plaintiff has also taken signed blank cheques as a matter of security and on these grounds, the defendant prayed to dismiss the suit.
4. On the basis of the above pleadings of both the parties, this Court framed the following issues;
8 O.S. No.3339/20161. Whether the plaintiff proves that the defendant executed registered mortgage deed for a period of 18 months which will come to an end on 11.2.2016 in his favour dt.11.8.14 for a sum of Rs.50,00,000/- by agreeing to repay the said amount as per the terms and conditions as stated therein?
2. Whether the plaintiff further proves that the defendant agreed to pay interest on the principle amount of Rs.50,00,000/- as per clause 12 of the mortgage deed?
3. Whether the plaintiff further proves that inspite of repeated requests and demands and notice dt.17.4.16 failed to repay the above said mortgage amount with agreed rate of interest?
4. Whether the defendant proves that plaintiff has received Rs.10,00,000/- by way f bank transfer from his sister and further he has received Rs.10,00,000/- from him on 28.7.15?
5. Whether the plaintiff is entitled for recovery of the suit claim amount along with future interest from the defendant as prayed?
6. What order or decree?
5. Heard, perused the written arguments filed by counsel for both the parties and also the citations.
The citations relied by the learned Advocate for plaintiff is as under;
1. 2009 Law Suit (SC) 1102 between SH Vishnu Dutt Sharma V/s. Smt. Daya Sapra Finding in Criminal court in proceedings under Sec.138 would not operate as 'res judicata' in Civil Suit for recovery of money as nature of proceeding in 9 O.S. No.3339/2016 both cases was different - Judgment of Criminal Court in civil proceeding will only have limited application - Order of High Court is set aside - appeal allowed.
(16) In a criminal Proceedings, although upon discharge of initial burden by the complainant, the burden of proof may shift on an accused, the court must apply the principles of presumption of innocence as a human right. The statutory provisions containing the doctrine of reverse burden must therefore be construed strictly. Whereas a provision containing reverse burden on an accused would be construed strictly and subject to the strict proof of the foundational fact by he complainant in a civil proceeding no such restriction can be imposed.
2. 2003 Law Suit (SC) 414 Roop Kumar V/s. Mohan Thedani (2) When parties have deliberately put their agreements in to writing, it is conclusively presumed, between themselves and their privies that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.
Written agreement - Disowning as a sham Document
- Only hen the said party himself had not acted upon that document - Where the party who wanted to disown the agreement had acted upon the agreement by himself - Submitting the statement given the account of tailoring and ale of materials as well as payment of commission on the basis of statement as per the terms of an agreement.
3. 2003(3) ALD 307 (A.Satish Kumar V/s.Subbineni Chinnaiah Defendant did not raise any pela disputing the said fact - No on the said question - Suit decree - In revision the defendant cannot be permitted to raise the said plea.
10 O.S. No.3339/20164. 2003(2) ALD Criminal 956 AP (Ratakonda Raghu Naidu V/s. Kolla Sivaram Prasad and Another A causal lending of money by a person does not constitute him as a money by a person does not constitute him as a money lender within Section 2(7) of the Act.
5. 1985 LS (KAR) 366 Katte Shivappa V/s.Kori Eranna In order to make a person money lender within the meaning of the money lenders Act, the defendant must show that the plaintiff has beers advancing a series of loans in continuity. No such evidence has been adduced by the defendant in this case.
6. 2006 Law Suit SC 1143 (A.Jendraprasad Ji N Pande V/s. Swami Keshavprakeshdasji N) Civil Procedure Code, 1908-Sec. 141 - Order 6 Rule 17 - Amendment of written statement -
Impermissibility-Appelalnts seeks to amendment in written statement - Rejected by trial court as well as High Court - Held, Appellants failed to give the particulars which would satisfy the requirements of law-As examination of witnesses have also been completed-Both the Courts below rightly rejected.- Appeal Dismissed.
The citations relied by the learned Advocate for defendant is as under;
1. Section 28 of Karnataka Money Lenders Act 1961
2. Section 2(b) of the Karnataka Prohibition of Charging Exorbitant Interest Act 2004
6. The plaintiff has examined himself as P.W.1 and got marked sixteen documents at Exs.P.1 to Ex.P.16. On the other hand the defendant got himself examined as DW-1 and also adduced the evidence of one Rathi Makal D/o.M.Appukuttan and no documents are marked on their behalf.
11 O.S. No.3339/20167. My findings to the above issues are as under:
ISSUE No.1 to 3 - In the Affirmative, Issue No.4 - In the negative Issue No.5 - Plaintiff is entitled ISSUE No.6 - As per the final order, for the following:
REASONS
8. ISSUE No.1 to 5:- All these issues have been taken together for consideration so far as the burden of proving the issue No.1 to 3 is on the plaintiff and where as on the hand the burden of proving issue No.4 is on the defendant and also issue No.5 is base don the findings of issue No.1to 3 and also issue No.4. Hence, all these issues are inter connected with each other with regard to the disputed mortgage transaction between the plaintiff and defendant is concerned and also to avoid repetition.
9. On perusal of the entire records of this case it reveals that plaintiff filed this suit against defendant seeking judgment and decree for directing the defendant or any person or persons claiming through or under him to pay a sum of Rs.50,00,000/- being the principle amount together with interest at 2% p.m. on Rs.50,00,000/- being the interest due and payable in respect of the registered deed of mortgage (without possession) dt.11.8.2014 amounting to Rs.70,00,000/- and also sought for decree against the defendant and future interest from 7.4.2016 to 22.4.16 on Rs.50,00,000/- amounting to Rs.50,000/- together with 12 O.S. No.3339/2016 Rs.10,000/- being the legal notice charges and also sought for future interest from the date of the suit till the date of realization and as well as plaintiff sought for the relief against the defendant permitting him to bring the suit schedule property to sale as it is offered as security for the loan borrowed to the extent of the suit claim in a public auction and also for costs and such other relief's as deems fit and proper by this court.
10. Inorder to prove his case plaintiff by name B.Prashanth S/o.Late N.Bhaskaran got examined himself as PW-1 by filing his affidavit under Order 18 Rule 4 of CPC by reiterating all material plaint averments and got marked 16 documents at Ex.P.1 to Ex.P.16 i.e., Ex.P.1 - Certified copy of registered sale deed dt.5.8.1983, Ex.P.2-Certified copy of registered sale deed dt.8.3.1995, Ex.P.3 - Certified copy of registered gift deed dt.27.7.05, Ex.P.4-Original Equitable Mortgage deed dt.11.8.14, Ex.P.5 - Legal notice dt.7.4.15, Ex.P.6 and 7 - Two postal receipts, Ex.P.8-Postal acknowledgments, Ex.P.9 - Reply notice dt.20.4.16, Ex.P.10- Unserved postal cover, Ex.P.11 - Certified copy of of cheque, Ex.P.12-Certified copy of return memo, Ex.P.13-Certified copy of cheque, Ex.P.14 - Certified copy of return memo, Ex.P.15- Certified copy of cheque, Ex.P.16 - Certified copy of return memo.
11. On the other hand the defendant by name M.Ranjith @ Ranjit Makkal S/o.Late M.Appukuttan filed his affidavit under Order 18 Rule 4 of CPC by reiterating all his material contentions in the written statement as DW-1 and also got 13 O.S. No.3339/2016 examined his sister by name Rathi Makkal D/o.Late M.Appukuttan by filing her affidavit under Order 18 Rule 4 of CPC as DW-2 and DW-1 and have not got marked any documents in support of their case.
12. On going through the entire evidence of PW-1 in his examination in chief he has deposed in his examination in chief that he being the mortgagee by way of deposit of title deeds (without possession) dt.11.8.14 and the defendant is the mortgager and absolute owner in respect of the property bearing new corporation No.99, Khatha No.PID 96-106-99 (Old House list No.18), V.P.Khatha No.786, situated at Cholanayakanahalli, Village, Kasaba Hobli, Bangalore North Taluk, presently situated at 1st main road, Bhuvaneshwarinagara, Ward No.96, Bangalore-32, measuring east to west 60 feet and north to south 30 feet consisting of shop in the ground floor and residential premises in the 1st floor having a super built up area of 3,000/- sq. ft. as more fully described in the plaint schedule which will be referred herein after as suit schedule property. He also deposed that defendant having derived property by virtue of registered gift deed dt.27.7.2005 executed by Smt.Rukmini W/o.Appukuttan and prior to entering into the deed of mortgage besides seeking for document of title relating to the suit schedule property, it was learned that originally the property belongs to Sri.A.Ramakrishnappa who had purchased the property under registered sale deed dt. 5.8.1983. He also deposed that he learned that said Ramakrishnappa conveyed the property under registered sale deed dt.8.3.1995 infavour of Smt.Rukumini and the said 14 O.S. No.3339/2016 Rukumini has executed the registered gift deed dt.27.7.2005 whereby all the right, title and interest was conveyed by way of gift infavour of the donor i.e., Sri.Ranjit @ Sri.Ranjit Makkal and consequently the revenue records were made out in the name of Mortgager. Hence, the Mortgager had valid subsisting and marketable title to convey the said property. He also deposed in his examination in chief that he was introduced to the mortgager through common acquaintance and the mortgager appraised him that he was in needs of funds to meet his urgent domestic needs and to discharge certain loans which he had discharged sought for loan facility of Rs.50,00,000/- with a definite promise and undertaking that the mortgager/defendant would abide by the terms of the mortgage and repay the amount within a stipulated period. He also deposed that himself and mortgager having agreed to entire into a deed of simple mortgage by way of deposit of title deeds it was reduced into writing duly incorporating the terms and conditions of the mortgage and the said mortgage deed was entered on 11.8.14 between the defendant and himself and the said document having been registered in the office of the Sub-Registrar, Gandhinagara, Bangalore dt.11.8.14 as per the deed of mortgage defendant has availed loan of Rs.50,00,000/- only in the following manner as per clause nine of the deed of mortgage.
A. A sum of Rs.7,00,000/- paid by the mortgagee in favour of the mortgagors banker s namely M/s.Canara Bank Vasanthanagar Branch, Bangalore to the loan account bearing No.1370101015539 by UTR No.SBNRJ2014080701910495 on 7.8.14 as per the request of the mortgagor so as to discharged the loan outstanding.
B. A sum of Rs.10,00,000/- tendered by way of a account payee cheque bearing No.059723 dt.11.8.14 15 O.S. No.3339/2016 drawn on M/s. State Bank of India, Jayamahal Branch, Bengaluru.
C. A sum of Rs.10,00,000/- tendered by way of a account payee cheque bearing No.059724 dt.11.8.14 drawn on M/s.State Bank of India, Jayamahal Branch, Bangalore.
D. A sum of Rs.10,00,000/- tendered by way of a account payee cheque bearing No.059726 dt.11.8.14 drawn M/s. State Bank of India, Jayamahal Branch, Bangalore.
E. A sum of Rs.8,00,000/- tendered by way of a account payee cheque bearing No.059726 dt.11.8.14 drawn on M/s. State Bank of India, Jayamahal Branch, Bangalore.
F. A sum of Rs.5,00,000/- by way of cash
13. PW-1 also deposed in examination in chief that as per the deed of mortgage a period of 18 months was agreed to repay the mortgage amount from the date of execution of the deed of mortgage i.e., 11.8.2014 together with interest at 2% p.m. i.e., on Rs.50,00,000/- amounting to a sum of Rs.1,00,000/- payable every month without committing any default on or before 5th day of each month. He also deposed that as per Clause 13, it is agreed that if the mortgager fails or neglects to pay the interest accrued on the principle amount consequently for a period of three months mortgagee is entitled to seek for repayment of the principle amount with interest as on that date mortgagee is entitled to seek for the sale of schedule property offered as security for the said loan borrowed, by way of public auction and recover the entire amount due till the date of recovery of the entire amount on the deed of simple mortgage. He further deposed that it was specifically agreed and understood and the deed of mortgage was reduced into writing the terms and conditions the mortgager having agreed and undertaken to pay interest on 16 O.S. No.3339/2016 the principle amount, defendant did not abide by the terms and conditions of the deed of mortgage but on the other hand has not paid any sum payable towards interest from the date of execution of mortgage till date @ Rs.1,00,000/- p.m., as agreed under Clause 12 nor has he repaid any amount towards principle due despite repeated requests and demands. He also deposed that after repeated requests and demands defendant tendered cheque bearing No.127388 for Rs.49,00,000/- dt.14.3.2016 towards the principle and another cheque bearing No.127384 for a sum of Rs.1,00,000/- dt.4.4.2016 drawn on Federal Bank, RT Nagara, Bangalore and also deposed that defendant had also tendered a cheque bearing No.127384 dt.4.4.2016 for Rs.20,00,000/- drawn on the said bank towards interest due payable from 12.8.2014 to 4.4.2016 in favour of the plaintiff with a promise and undertaking that defendant would make arrangements with his bankers on or before 5.4.2016 and that plaintiff can present the cheque through his bankers for encashment and thereafter put an end to the mortgage subject to the amount covered under the above cheques but he presented above cheques through his bankers on 5.4.2016 i.e., State Bank of Inida, Jaymahal Extension, Bangalore as per the instructions of the defendant and for his utter surprise and shock the said cheques came to be dishonoured on presentation with bankers endorsement "Insufficient Funds" dt.6.4.2016. He also deposed with regard to the remaining part of the material plaint averments by reiterating the same and thereby plaintiff claims totally amount of Rs.70,60,000/- as per the details given in para No.23 of his affidavit evidence in chief.
17 O.S. No.3339/201614. As far as the credibility of the evidence of PW-1 is taken into consideration in the light of suggestions made by the learned counsel for the defendant it is clear that the mortgage transaction between defendant and plaintiff as per Ex.P.4 is remained undisputed but the dispute between them is only in respect of the quantum of interest claimed on the basis of the mortgage deed at Ex.P.4 @ of 2% p.m. on the ground that the alleged quantum of interest claimed by the plaintiff is exorbitant and unreasonable under the Karnataka Money Lenders Acts and Rules and as well as notification issued by Government of Karnataka 2013 that annual interest should not exceed 14% but in case of unsecured payments it should not exceed 16% and also on the ground that plaintiff already filed criminal case against the defendant in respect of bouncing of three cheques in C.C. No.14317/2016, in the said case Magistrate Court ordered for payment of compensation of Rs.40,00,000/- even though in the said case Rs.50,00,000/- towards Principal amount and Rs.20,00,000/- towards interest totally Rs.70,00,000/- was sought for order of the said court but appeal has been preferred by him as against judgment of his conviction in the said criminal case and also on the ground that the above cheques which were given by the defendant towards security of the mortgage transactions as per Ex.P.4 i.e., four signed blank cheques were given by the defendant to the plaintiff and not towards discharge of claim of the plaintiff and also on the ground that plaintiff being a money lender having no license to do the money lending business and as well as on the ground that Rs.10,00,000/- was paid by the defendant through his sister by name Rathi Makkal through RTGS to 18 O.S. No.3339/2016 the plaintiff and also defendant had paid Rs.10,00,000/- to the plaintiff in cash and suggestions made with regard to all these grounds or contentions during the cross-examination of PW-1 have been categorically denied by PW-1 in toto.
15. Where as on the other hand defendant got examined himself by filing affidavit evidence U/O.8 Rule 14 CPC by reiterating his material contentions with regard to the maintainability of the suit on facts and as well as under the law by denying the entire case of the plaintiff in toto except those are admitted on the ground that the plaintiff by charging exorbitant interest has acted illegally and at the time of taking financial assistance plaintiff had demanded blank signed cheques from as a matter of security and had given the same to him, later plaintiff had filled up the cheques and had filed false case against him and also on the ground that he had regularly paid interest by way of cash and he had also discharged the part of the principle amount of Rs.20,00,000/- and also he deposed that plaintiff has received Rs.10,00,000/- by way of bank transfer from his sister by name Rathi Makkal on 14.3.2016 and further he has received Rs.10,00,000/ from him on 28.7.2015 by way of cash. Hence, plaintiff without disclosing true facts has filed this false suit, therefore plaintiff is not entitled to claim the relief's as prayed for.
16. Where as defendant got examined his witness DW-2 Rathi Makkal D/o.Late M.Apputkuttan wherein she deposed that plaintiff has filed this suit for recovery against the defendant and she do not know the plaintiff and she has not 19 O.S. No.3339/2016 done any transaction with plaintiff. Her brother (Defendant) had borrowed Rs.50,00,000/0 from the plaintiff for interest @ 2% p.m., With respect to this transaction she has paid Rs.10,00,000/- through bank transfer dt.14.3.2016 hence, plaintiff without disclosing the true facts has filed this suit and her brother had paid interest regularly therefore plaintiff is not entitled for the relief's as sought for.
17. So far as the credibility of the evidence of DW-1 is taken into consideration in the light of the suggestions made by the counsel for the plaintiff during his cross-examination wherein he has categorically admitted mortgage transaction at Ex.P.4 and as well as there is a Clause in Ex.P.4 as per clause No.12 that he agreed to pay interest at 2% to the plaintiff and also admitted that he has pay every month interest of Rs.1,00,000/- to the plaintiff. He further admitted that there is no mention in his reply notice as well as in the return statement that @ of interest in exorbitant one. He also admitted that he has not produced documents before this court for having paid interest to the plaintiff up to date and in this regard he volunteers that receipts are not issued to him by the plaintiff in respect of payment of up to date interest. He further admitted that he has not mentioned in his reply notice, written statement as well as in his affidavit in chief about the facts what he stated above before this court. But he denied the suggestion that he is deposing falsely before this court as to he paid up to date interest to the plaintiff. It is also elicited in his cross-examination that he is an income tax assessee and he has not shown for having paid the interest to the plaintiff by way of cash in his income tax returns and he 20 O.S. No.3339/2016 has not produced any documents before this court paying about Rs.10,00,000/- by his sister to the plaintiff. He further admitted that his sister is known to the plaintiff from 2014 but denied that his sister was facing financial difficulties, she availed the amount of Rs.10,00,000/- from plaintiff. It is also elicited in his cross-examination that he knows one Jawahar S Nagpal and he also admitted that his sister taken Rs.8,00,000/- loan from said Nagpal but he has not denied the suggestion that his sister had discharged the said loan on 10.3.2016 but he stated that he do not know the same. He also admitted that on the same day his sister discharged the loan of Rs.10,00,000/- to the plaintiff through RTGS and he further admitted that he has not produced any receipt for having paid another Rs.10,00,000/- to the plaintiff. He also admitted that he is having two SB Accounts at Federal Bank at RN Nagar Branch, Bangalore. He also admitted that his sister had sent amount of Rs.10,00,000/- to his SB account on 10.3.2016 through RTGS. He further admitted that he was convicted by the court in C.C. No.14317/2016. It is also clear from remaining suggestions made by the counsel for the plaintiff with regard to plaintiffs case are concerned and as well as with regard to the aspect that inorder to escape from his liability to pay the suit claim for the plaintiff he is deposing falsely before the court, have been categorically denied by DW-1 in toto.
18. The version of DW-2 elicited during her cross- examination by the learned counsel for plaintiff is taken into consideration wherein she has not denied the suggestion as to exactly on which date her brother i.e., defendant availed 21 O.S. No.3339/2016 loan from plaintiff. She admitted that defendant availed the loan form plaintiff by mortgaging his own property. She also admitted that she is staying in the property of the defendant as on today. She also admitted that she was not witness to the mortgage transaction between plaintiff and defendant. She also admitted that she had taken loan of Rs.50,00,000/- from Punjab National Bank, but she denied the suggestion that she had taken assistance from the cousin of the plaintiff i.e., Vipin for getting said loan from Punjab National Bank and she never seen the said plaintiff cousin by name Vipin. It is also elicited in her cross-examination that she has not denied as to whether she had called Vipin's mobile number 9845455880. But she stated that she do not remember the same. She also admitted that she has not mentioned in respect of Rs.10,00,000/- paid by her to the plaintiff was principle amount or interest amount. But she denied that she had taken loan of Rs.10,00,000/- from the plaintiff. She also admitted that she had not taken any loan from S.Nagpal. It is also admitted by DW-2 that she had transferred the amount of Rs.10,00,000/- on 10.3.2016 to S.Nagpal from her current account of Union bank of India, RT Nagar, Bangalore through RTGS and also admitted that on the same date she has transferred the amount of Rs.10,00,000/- to the plaintiff and the defendant through RTGS. It is also elicited that she is not aware as to whether defendant has produced any documents before this court relating to loan transaction between him and the plaintiff. It is also elicited that in her cross-examination on page No.3 at para No.3 from 3rd line that "It is true to suggest that, I am not produced any documents before this 22 O.S. No.3339/2016 Court that my brother had paid interest regularly."
19. It also reveals from the remaining suggestions made by the counsel for the plaintiff that in respect of the case of the plaintiff are concerned have been categorically denied by DW-2 in toto.
20. As could be seen from entire version of DW-1 and 2 elicited by the learned counsel for the plaintiff in the light of undisputed facts in respect of the mortgage transaction between the plaintiff and defendant as per Ex.P.4 is concerned, undisputedly there is no single documents produced either by DW-1 or DW-2 before this court particularly with regard to the aspect that the amount of Rs.10,00,000/- which was sent to the defendant's bank account by his sister Ratti Makkal through her current account of Union Bank of India, RT Nagar Branch, Bangalore on 10.3.2016 through RTGS and also on the same day she has transferred Rs.10,00,000/- to the plaintiff through RTGS but in this regard except the oral evidence of DW-1 and 2 there is no cogent proof, nor defendant No.1 nor DW-2 have chosen to produce either their respective bank pass books or the statement of accounts of their respective banks, but on the contrary DW-1 who categorically admitted that there is no mention regarding the payment of interest by them to the plaintiff as he being an income tax assessee in his income tax returns submitted to the income tax department. It is also pertinent to note that if the contention of the defendant for the sake of discussion in respect of having paid Rs.10,00,000/- to the plaintiff through his sister i.e., DW-2 to 23 O.S. No.3339/2016 the plaintiff, whether the said payment on particular date is having any relevance to the transaction between plaintiff and defendant as far as Ex.P.4 is concerned the evidence of DW-1 and 2 is remained silent. It is pertinent to note that as per the evidence of DW-2 she has sent amount of Rs.10,00,000/- through RTGS to his brother i.e., defendant in this context no documents produced either by defendant or by DW-2 as the case may be to show that the amount of Rs.10,00,000/- which was sent to the account of defendant by DW-2 through RTGS subsequently the said amount had been either paid by the defendant to the plaintiff either in cash by its withdrawal from his banker or by RTGS to the account of the plaintiff, no cogent proof have been placed before this court therefore in the absence of cogent proof by the defendant, not only in respect of the principle amount of Rs.50,00,000/- or interest on the said principle amount from the date of Ex.P.4 i.e., from 11.8.2014 to 7.4.2016 (20 months) interest of Rs.20,00,000/- and further interest due from defendant from 7.4.2016 to 22.4.2016 on Rs.50,00,000/-, Rs.50,000/- totally Rs.70,50,000/- and as well as Rs.10,000/- claimed by the plaintiff towards notice charges in all totally Rs.70,60,000/-. Hence, considering several admissions elicited during the cross-examination of DW-1 and 2 the contention taken by the defendant would not probabalize his defence by on the contrary above several admissions which goes against the defendant as well as witness DW-2 and at the same time material admissions elicited particularly with regard to mortgage transactions as per Ex.P.4, the period of redemption of the mortgage by the defendant was for a period of 18 months by way of deposit of title deeds produced at Ex.P.1 to 24 O.S. No.3339/2016 Ex.P.3 and subsequently as per Clause 12 in the document at Ex.P.4, there is an agreement between parties to the said document in respect of payment of interest every month @ 2% p.m. i.e. on Rs.50,00,000/- which amount to a sum of Rs.1,00,000/- by way of interest to the mortgagee every month without committing any default on or before 5th day of each month. Since the document at Ex.P.4 and its execution by defendant in favour of the plaintiff and passing of the consideration from the plaintiff to the defendant by virtue of deposit of title deeds which have remained undisputed, under these circumstances the contention taken by the learned counsel for defendant at the belated stage while this case set down from arguments for the side of the counsel for the defendant, mean while I.A. No.VII filed on 22.3.2018 under Order 6 Rule 17 of CPC along with an affidavit seeking amendment to the written statement for adding legal contention with regard to the aspect of exorbitant interest charged by the plaintiff on the mortgage transaction as far as Ex.P.4 is concerned in view of the reasons sworn to the accompanying affidavit filed in support of the said application to which the learned counsel for the plaintiff also filed objections and in this regard the learned counsel for the plaintiff has relied on case law reported in 2006 Law Suit SC 1143 (A.Jendraprasad Ji N Pande V/s. Swami Keshavprakeshdasji N). Considering the prayer of the applicant/defendant under I.A.No.VII, in the light of the undisputed fact that the said I.A. came to be filed after adducing evidence by both the parties and as well as after hearing the arguments on merits of this case by the counsel for plaintiff, in this regard law itself is clear so far as the 25 O.S. No.3339/2016 provision of order 6 Rule 17 (2) of CPC regarding maintainability of such interim applications and as well as having regard to the view taken by the Hon'ble Apex Court in the above case law relied by the learned counsel for the plaintiff, I.A. No.VII is not maintainable under the Law and the same is liable to be dismissed. It is also pertinent to note that the point in which the learned counsel for the defendant wants to argue before this court with regard to the legal aspect, this court has sensitized to the learned counsel for the applicant/defendant that the scope of the defense in Civil matter is more wider than any other case and more particularly the legal point which required to be urged before the court the same can be argued by putforthing the legal aspect so far as the disputed aspects of the exorbitant interest alleged to have been charged by the plaintiff by view of Ex.P.4 is concerned. In this context the learned counsel for the defendant not only referred section 23 of the Indian Contract Act but also referred Section 28 of the Karnataka Money Lenders Act 1961 along with reference of Section 2(b) of the Karnataka Prohibition of Charging Exorbitant Interest Act 2004 and as well as Section 114 of the Indian Evidence Act, and also made reference to the notification dated 28.8.2013 passed by the Government of Karnataka and argued that the transaction at Ex.P.4 is wide transaction and such contract is illegal and plaintiff cannot enforce the same against defendant on the ground that plaintiff is a money lender dealing monetary transactions with persons and charging exorbitant interest. If these contentions are examined in the light of undisputed fact by the defendant with regard to Ex.P.4 and more particularly Clause 12 of 26 O.S. No.3339/2016 Ex.P.4 as referred above supra it is crystal clear that since there is no specific contention raised by the defendant in his written statement nor he deposed anything in his evidence with regard to the aspect that defendant having money lending business in sarees and therefore in view of Section 2 (10) of the Karnataka Money Lenders Act, the alleged transaction is wide and the rate of interest charged @ 2% p.m. is illegal, it appears that the first time the said contention put forth before this court and that too at belated stage. When such being the situation, the defendant who being a party having agreed to the terms and conditions of Ex.P.4 is bound by the contract. It is also pertinent to note that when there is a specific term of agreement in Ex.P.4, its retraction subsequently by the defendant which would amounts to retraction of the admission by the defendant which is already made in Ex.P.4, hence inview of Section 91 and 92 of the Indian Evidence Act, oral evidence of DW-1 itself would not vary the nature of the transaction at Ex.P.4. It is also pertinent to note that as no sufficient material or proof produced by the DW-1 before this court to substantiate his contention that plaintiff is doing money lending business therefore under such circumstances the above legal contentions are having no merits. It is also pertinent to note that as per the view taken by the Hon'ble Apex Court which is relied by the learned counsel for the plaintiff in respect of binding effect of the judgment in Criminal Case in a subsequent Civil Suit, Supreme Court of India (D.B.) as referred above supra is taken into consideration in the light of present facts and circumstances of this case, this court is of considered view that the view taken in the said Criminal Case 27 O.S. No.3339/2016 is not binding on this court in the present suit hence, the view taken in the above case law which is aptly applicable to the case in hand. It is also pertinent to note that having regard to the view taken in other two cases relied by the learned counsel for the plaintiff with reference to Section 91 and 92 of the Indian Evidence Act in case law reported in the authority Supreme Court of Indian from Delhi, Division Bench in Roop Kumar V/s. Mohan Thedani's case as referred above supra and also the view taken in 2003 (3) ALD page 307 as referred above supra, it is clear that the view taken in these case laws which are aptly applicable to the case on hand. Hence, having regard to all these cases this court is of considered view that in the light of several admissions elicited during the cross-examination of DW-1 and 2 which would probabalize the case of the plaintiff with regard to the suit claim and whereas on the other hand the contention taken by defendant that plaintiff has received Rs.10,00,000/- by way of bank transfer from his sister and further he has received Rs.10,00,000/- from him on 28.7.2015 by way of cash, is not substantiate and proved by the defendant. Under these circumstances this court is of considered view that plaintiff is able to prove issue No.1 to 3 and defendant has failed to prove issue No.4, when such being the situation the plaintiff is entitled for the recovery of the suit claim amount alogn with furtuer interest from the defendant as prayed for. Accordingly issue No.1 to 3 answered in the Affirmative and issue No.4 is answered the negative and issue No.5 is answered accordingly.
21. ISSUE No.6: In view of my finding on Point No.1 in the Affirmative, the suit filed by the plaintiff has to be 28 O.S. No.3339/2016 decreed with costs. In the result, I proceed to pass the following :
ORDER The suit of the plaintiff is decreed with costs. The defendant or any person or persons claiming through or under him to pay sum of Rs.50,00,000/- being the principle amount together with interest @ 2% p.m., in respect of registered mortgage dated 11.8.2014 amounting to Rs.70,00,000/-.
The defendant or any person or persons claiming through or under him is directed to pay further interest from 7.4.2016 to 22.4.2016 on the principle amount of Rs.50,00,000/- amounting to Rs.50,000/- and as well as future interest from the date of suit till the date of realization @ 2% as agreed by defendant under Ex.P.4.
It is also ordered that the defendant shall pay the above said amount to the plaintiff within a period of three months from the date of this order failing which the plaintiff can recover the same through due process of law.
I.A. No.VII filed by the applicant/defendant under Order 6 Rule 17 of CPC stands dismissed.
Draw the decree accordingly.
(Dictated to the Stenographer directly on the computer, thereof, is corrected and then pronounced by me in the open court, on this the 31st day of March 2018).
(Sunildutt Annappa Chikkorde) LXI Addl. City Civil & Sessions Judge Bangalore City.
29 O.S. No.3339/2016ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 B.Prashanth 13.01.17
b) Defendant's side: NIL.
II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 Certified copy of Register Sale Deed
dtd:05.08.1983
Ex.P.2 Certified copy of Register Sale Deed
dtd:08.03.1995
Ex.P.3 Certified copy of Register Gift Deed
dtd:27.07.2005
Ex.P.4 Original Equitable Mortgage deed
dtd:11.08.2014
Ex.P.5 Legal Notice dtd: 07.04.2015
Ex.P.6 & Two Postal Receipts
P. 7
Ex.P.8 Postal Acknowledgment
Ex.P.9 Reply Notice dtd:20.04.2016
Ex.P.10 Un-served Postal Cover
Ex.P.11 Certified copy of Cheque
Ex.P.12 Certified copy of return Memo
Ex.P.13 Certified copy of Cheque
Ex.P.14 Certified copy of return Memo
Ex.P.15 Certified copy of Cheque
Ex.P.16 Certified copy of return Memo
b) defendants side : NIL
(Sunildutt Annappa Chikkorde)
LXI Addl. City Civil & Sessions Judge
Bangalore City.
30 O.S. No.3339/2016
31.03.2018
P-DNM
D-RS
Judgment pronounced in the open court
vide separate order.
ORDER
The suit of the plaintiff is
decreed with costs.
The defendant or any person or
persons claiming through or under him
31 O.S. No.3339/2016
to pay sum of Rs.50,00,000/- being the
principle amount together with interest @ 2% p.m., in respect of registered mortgage dated 11.8.2014 amounting to Rs.70,00,000/-.
The defendant or any person or persons claiming through or under him is directed to pay further interest from 7.4.2016 to 22.4.2016 on the principle amount of Rs.50,00,000/- amounting to Rs.50,000/- and as well as future interest from the date of suit till the date of realization @ 2% as agreed by defendant under Ex.P.4.
It is also ordered that the
defendant shall pay the above said
amount to the plaintiff within a period
of three months from the date of this
order failing which the plaintiff can
recover the same through due process
of law.
I.A. No.VII filed by the
applicant/defendant under Order 6
Rule 17 of CPC stands dismissed.
Draw the decree accordingly.
LXI Addl. City Civil & Sessions Judge
Bangalore City.
32 O.S. No.3339/2016
33 O.S. No.3339/2016