Bangalore District Court
Sangayya V Hiremath vs Melegowda H on 20 November, 2024
Judgment 1 O.S.No.4657/2021
KABC010181542021
BEFORE THE COURT OF XXXIX
ADDITIONAL CITY CIVIL & SESSIONS
JUDGE BENGALURU CITY (COURT HALL
NO.40)
PRESENT: K. Vidya B.Sc., M.A., LL.M.,
XXXIX Additional City Civil &
Sessions Judge, Bengaluru City.
O.S.No.4657/2021
Dated this the 20th day of November, 2024
BETWEEN:
Plaintiff:-
Sri. Sangayya V. Hiremath,
S/o Veerabhadrayya Hiremath.
Aged about 54 years,
Proprietor Shree Renuka
Enterprises
No.189, 2nd Main Road,
Judgment 2 O.S.No.4657/2021
Pai Layout, Old Madras Road,
Bengaluru- 560 016
(By Sri. Dayananda Advocate)
Defendant:
Sri. Melegowda H.
Major in age
Propritor
Sri Maruthi Ready Mix
Lakshmisagar, M.N. Halli Post,
Bedadi Hobli, Ramanagar.
( By Sri.B.V.Krishnappa Advocate)
Date of Institution of 31/08/2021
Suit
Nature of Suit Money Suit
Date of Commencement 25/10/2023
of Recording of evidence
Date of which Judgment 20/11/2024
was pronounced
Total Duration Year/s Month/s Day/s
03 02 19
(K.VIDYA)
XXXIX Additional City Civil &
Sessions Judge, Bengaluru City.
Judgment 3 O.S.No.4657/2021
JUDGMENT
That, the Plaintiff has filed instant suit for recovery of suit sum of ₹.02,91,200/- as against the Defendant along with the interest at the rate of 1% per mensem as current interest from the date of suit till date of realization and such other reliefs as this court deems fit in facts and circumstances of case.
2. The Factual Matrix circumventing Plaint averments is as follows:-
i.That, the Plaintiff is running proprietorship concern in the Judgment 4 O.S.No.4657/2021 the name and style of "Shree Renuka Enterprises" situated in the address mentioned in the cause title and supplying the construction material such as Cement Bulks to the clientele who are in dire need, and in the said behold Defendant who is carrying trade in the name and style of "Maruthi Ready Mix" had made request and representations for supply of cement bulks from the Plaintiff and in furtherance to this akin to the request and Judgment 5 O.S.No.4657/2021 representations of Defendant, Plaintiff had agreed to supply cement bulks to the Defendant R.M.C. Unit on credit basis worth ₹06,45,048/- (Rupees Six lakhs forty five thousand forty eight rupees only) and in furtherance to this the Defendant had approached Plaintiff on 2nd July 2020 had had issued a cheque bearing No.468102 vide dated 3rd July 2020 drawn on Vijaya Bank, Bidadi Branch towards payment of sum of ₹04,30,000/- (Rupees Four Judgment 6 O.S.No.4657/2021 Lakhs Thirty Thousand Only) and had requested the Plaintiff to present the same for encashment on 3rd July 2020, accordingly, the Plaintiff had presented the said cheque with details stated supra for encashment on very day through his banker Axis Bank, Old Madras Road Branch Bengaluru, but to the utter shock, surprise and dismay of the Plaintiff, it had returned with endorsement "Funds Insufficient" under the extenuating circumstances the Judgment 7 O.S.No.4657/2021 Plaintiff was constrained to intimate same to the Defendant, for which the Defendant had requested him to extend three months time towards payment on account of his financial constraints, wherein which the Plaintiff on long standing acquaintance with the Defendant had heeded to the request.
ii.That, on insistence of the staff working under Plaintiff reminding the outstanding balance amount payable by the Judgment 8 O.S.No.4657/2021 Defendant towards purchase of Cement Bulk, when he had appraised same before the Defendant, howsoever he had made part payment of ₹1,50,000/- (Rupees One Lakh Fifty Thousand Only) and retained outstanding balance of ₹2,80,000/- and in furtherance to this kept on dodging repayment of said sum despite due reminders and request which tantamount to unfair trade practice.
Judgment 9 O.S.No.4657/2021
iii.That, during the month of
October 2020 when the
Plaintiff had demanded the
Defendant outstanding dues
payable to him, the Defendant had postponed same on one or the other pretext and further with a malicious intention of cheating Plaintiff with dubious and diabolic mode had kept silent and intentionally had issued a cheque which came to be bounced for insufficient funds and further had kept outstanding balance of Judgment 10 O.S.No.4657/2021 ₹02,80,000/- (Rupees two Lakhs eighty Thousand Only) iv.That, despite lapse of agreed period, the Defendant neither repaid the balance amount nor made any earnest attempt to repay same even after persistent demand of the Plaintiff, on account of which the Plaintiff was constrained to cause legal notice as against the Defendant on 24/03/2021 through Registered Post Acknowledgment Due, but to the distress of Plaintiff it had Judgment 11 O.S.No.4657/2021 returned with an Acknowledgment "intimation delivered". As such, the Plaintiff finding no other alternate was constrained to file the instant suit seeking redress before this court.
v.That, the cause of action for
filing the suit arose on
04/05/2020 at Bengaluru as on the date of supply of cement bulk and on subsequent dates of demands within the jurisdictional limits of this court.
Judgment 12 O.S.No.4657/2021
3.That, pursuant to due service of suit summons, Defendant had appeared before the court through his Counsel and resisted the suit by filing detailed written statement and at the onset urged that the suit filed by the Plaintiff is liable to be dismissed in limine, as he is guilty of "suppresio veri and suggestio falsi" as he is trying to plead falsehood before court and in furtherance to this whilst negating the Plaint averments in categorical terms explicated that the Plaintiff has suppressed the material facts and has suggested falsity of facts so as to cause wrongful loss to this Defendant and in Judgment 13 O.S.No.4657/2021 furtherance to said denials and negations in written statement, Defendant urged that except blind and bald averments of Plaintiff in respect of running the alleged Proprietorship concern, the Plaintiff has not produced any vital documents such as Value Added Certificate and Goods Services Tax Certificate, as it is incumbent upon a person who is desirous of running trade or business owes mandatory duty to maintain such pivotal documents as a prudent tradesmen and inabsentia of said documents it can be inferred that the business carried out by the Plaintiff is spurious and illegal. Judgment 14 O.S.No.4657/2021
4.That, the averments of Plaint in respect of alleged balance is made by Plaintiff according to his whims and fancies as there are no entries or extract maintained in Ledger or books of Account, moreso the instant Defendant at no point of time had neither requested nor demanded for supply of cement as pleaded in plaint averments, wherein the Defendant is carrying ready mix concrete with an aim and intention to supply to his customers as and when he receives order and otherwise preparation of concrete would not arise, further the Judgment 15 O.S.No.4657/2021 persons who are dealing in supply of cement supplicate before Defendant to avail their cement and it is mode of practice of tradesmen to receive and issue signed blank cheques ensuring their business continuation for certain period, when factual situation stood so, the Plaintiff taking undue advantage of situation and abusing the alleged cheque had come up with fictitious suit with figment of imagination without their being any cause of action, wherein which if there were to be any transaction as alleged by Plaintiff, the Plaintiff as a prudent tradesmen would have corroborated with periodical proof Judgment 16 O.S.No.4657/2021 of records such as placement orders copy, invoices, delivery challans et all.
5.That, at no point of time the Defendant had issued the subject matter so called cheque for clearance of any antecedent debt or liabilities and further averments made in Paragraph No.6 of the plaint is created and fabricated to extort money in illegal manner, wherein which neither this Defendant was due to the Plaintiff nor had purchased any concrete material from Plaintiff as alleged and any payments made under business transactions there is legal embargo for making payment beyond ₹.20,000/-, in cash, Judgment 17 O.S.No.4657/2021 mere oral statement without documentary proof sans merit, and in absentia of documentary proof of evidence the Plaintiff cannot enure any relief in the hands of this court, above all the purported claim being usurious and the nature of claim reveals the usurpation mentality of Plaintiff, which is highly deprecated in the spirit of trade and at not point of time he was in receipt of any such notice and not aware of the contents of same. Hence, on these amongst other grounds prayed for dismissal of the suit with exemplary costs.
Judgment 18 O.S.No.4657/2021
6.That based on the material assertions made by the Plaintiffs and Denials set up by the Defendant, Learned Predecessor in Office had framed the Issues cited infra:-
:ISSUES:
1. Whether the Plaintiff proves that, the Defendant had issued cheque dated 03/07/2020 for ₹.4,30,000/-
for the discharge of out standing balance amount towards supply of cement bulks ?
2. Whether the Plaintiff further proves that, the Judgment 19 O.S.No.4657/2021 Defendant paid ₹.1,50,000/- and kept balance of ₹.2,80,000/- till the date ?
3. Whether the Plaintiff is entitled to the recovery of ₹.2,91,200/- with interest at the rate of 12% PA from the date of the suit till the date of realization of the entire amount ?
4. To What decree or order ?
7.That, during trial, the Plaintiff in support of suit claim, examined perse Judgment 20 O.S.No.4657/2021 as PW.1 whilst leading oral evidence had deposed in consonance with the plaint averments, interalia during ocular evidence got exhibited documents at Ex.P1 to Ex.P11 and closed his side evidence.
8.On Contra, during rebuttal though the Defendant had got examined himself as DW.1 during oral evidence and had deposed in consonance with Written Statement averments, but had not offered to exhibit any documents on his behalf during ocular evidence and in furtherance to this when the matter was posted for cross-examination of Judgment 21 O.S.No.4657/2021 DW1, though DW1 had offered himself for cross-examination in partly and thereafter had not offered for further cross-examination despite due and sufficient opportunities, hence further cross-examination of DW1 was taken nil and matter was posted for arguments.
9.That, during arguments, Heard verbal arguments of Plaintiff Counsel Sri.Dayanand, on contra, despite due and reasonable opportunities Defendant had not placed his arguments, hence having due regards to facts and circumstances of case, Judgment 22 O.S.No.4657/2021 arguments from Defendant side was taken nil and posted for Judgment.
10.That, after perusal of pleadings, materials on records and appreciating the oral and documentary evidence, the findings on the above issues are as follows:-
Issue No.1: In the Affirmative Issue No.2: In the Affirmative Issue No.3: Partly in the Affirmative (in light of discussions with interest @ 8% p.a. Issue No.4: As per the final order for the following:-
Judgment 23 O.S.No.4657/2021 :R E A S O N S:
11.Issues No.1 to 3 :- As the aforementioned Issues coined by this court are intricated with each other, moreso the initial burden of proving same rests with Plaintiff independently without relying on the weakness of Defendant's Defence, they are taken together for consideration in order to avoid repetition of facts and evidence in the instant fora.
12.It is evident from records that, the Plaintiff has filed suit against Defendant for recovery of suit claim of ₹.02,91,200/- inclusive of interest at the rate of 1% per mensem from the date Judgment 24 O.S.No.4657/2021 of suit till date of realization on the count that the Defendant in pursuit of purchase of concrete material such as cement bulk had issued a cheque for sum ₹4,30,000/- in the name of Plaintiff which came to be dishonoured with acknowledgment "funds insufficient"
and after dishonour of said cheque dated 03/07/2020 on intimation to him had made part payment of ₹1,50,000/- and had kept balance to the tune of ₹.2,80,000/- wherein which the Defendant on the premise of purchase of Cement Bulks and knowingfully well the legal pros and cons had issued cheque in the name of Plaintiff and willfully Judgment 25 O.S.No.4657/2021 defaulted in payment and in the said context despite due issuance of legal notice the Defendant had defied from discharging his legal liabilities.
13.On contra, the Defendant whilst negating the execution of purported Cheque, has assailed that, the he had no such financial commitments with Plaintiff as such, wherein the Plaintiff has landed in filing vituperative and vexatious suit and has based his claim without their being any pivotal documents pertaining to carrying of trade.
Judgment 26 O.S.No.4657/2021
14.That, the Plaintiff during trial in order to bring home the transpiration of suit transaction, got examined perse as PW.1 by filing affidavit in lieu of examination and reiterated the facts asserted in the plaint. In addition to this, during ocular evidence got exhibited documents at Ex.P1 to Ex.P11 and closed his side, wherein Ex.P1 comprise cheque drawn for sum of ₹ 4,30,000/- vide dated 03/07/2020 in the name of Renuka Enterprises, which the Plaintiff claims to be his Proprietorship Concern, Ex.P2 comprise cheque returning memo dated 04/07/2024 issued by the Banker of Plaintiff "Axis Bank" which had returned Judgment 27 O.S.No.4657/2021 with acknowledgment "Funds Insufficient", Ex.P3 comprise office copy of Legal Notice dated 24/03/2021 issued by Plaintiff through his Counsel calling upon the Defendant to repay the suit sum, Ex.P4 comprise Postal receipt evidencing due issuance of Ex.P3 Legal Notice through Registered Post Acknowledgment Due, Ex.P4 comprise Unserved Postal Cover (which had remained unopened by Learned Predecessor in office inadvertently while marking same in order to ensure the correctness of the contents found in it), Ex.P6 comprises Goods Services Tax registration certificate (G.S.T.) issued in Judgment 28 O.S.No.4657/2021 the name of Plaintiff Sri. Sangaiah Veerabadraiah Hiremutt for carrying trade in the name and style of "Shree Renuka Enterprises", Ex.P7 is Ledger Account Extract maintained by Plaintiff revealing the suit transaction transpired between Plaintiff and Defendant who was running Maruthi Ready Mix Cement, Ex.P8 to Ex.P10 are the Tax Invoices dated 04/05/2020 raised by Defendant in the name of Maruthi Read Mix for having purchased cement bulk, Ex.P11 to Ex.P13 comprises three E way Bills which reveals delivery of cement bulk to Defendant "Maruthi Ready Mix Campus"
which was ordered by him. Judgment 29 O.S.No.4657/2021
15.Per contra, during rebuttal in order bring home the bone of defense assailed in written statement, though the Defendant got examined perse as DW.1, who had filed affidavit in lieu of oral evidence and deposed in consonance to the facts asserted in the written statement and in order to substantiate his defence, has not offered to exhibit any documents during ocular evidence and in furtherance to this as stated in superior paragraphs, when the matter was posted for cross-examination of DW1, though DW1 had offered himself for cross- examination in part and had not offered for further cross-examination despite Judgment 30 O.S.No.4657/2021 due and sufficient opportunities, hence further cross-examination of DW.1 was taken nil.
16.At the outset it is pertinent to note that the Plaintiff has approached the court for recovery of the alleged sum in connection to the suit transaction and on contra the Defendant has denied the purported transaction, when factual matrix stood so, the initial burden rests on the Plaintiff to prove same by placing cogent and concrete materials with utmost satisfaction which would inspire confidence in the minds of court akin to the legal fiction "burden of Proof"
Judgment 31 O.S.No.4657/2021 assailed under section 102 to 104 of Bharatiya Sakshya Adhiniyam and corresponding section 101 to 103 of Indian Evidence Act, in this context a bare perusal of Ex.P1 Cheque reveals that it was issued by Defendant on 03/07/2020 in the name of Plaintiff for sum of ₹ 04,30,000/- towards payment of cement bulk purchased by him in colour of his business and in furtherance to this the Plaintiff has specifically pleaded in plaint and deposed by explicating about part payment of ₹.1,50,000/- made by Defendant after issuance of Ex.P1 Cheque for sum cited supra and keeping balance to the tune Judgment 32 O.S.No.4657/2021 of ₹ 02,80,000/- and on account of which he was constrained to cause Ex.P3 Legal Notice on 24/03/2021 calling upon to pay the balance sum and on the the said foothold when the Plaintiff has asserted that said Ex.P1 cheque was issued by Defendant towards supply of Cement Bulk in colour of business and trade a presumption is drawn in favour of the issuance of instrument in favour of payee so as the Plaintiff herein under section 118 of Negotiable Instruments Act unless and until said bone of contention remains unrebutted, at this juncture it is germane to catch glimpse of the Judgment 33 O.S.No.4657/2021 underlying section of allied act which reads thus:-
Presumptions as to negotiable instruments. --
Until the contrary is
proved, the following
presumptions shall be
made:-
(a) of consideration --
that every negotiable
instrument was made or
drawn for consideration,
and that every such
instrument, when it has
been accepted, indorsed,
Judgment 34 O.S.No.4657/2021
negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
(b) as to date --that
every negotiable
instrument bearing a date was made or drawn on such date
(c) as to time of acceptance --that every accepted bill of exchange was accepted within a reasonable time after its Judgment 35 O.S.No.4657/2021 date and before its maturity;
(d) as to time of transfer
--that every transfer of a negotiable instrument was made before its maturity;
(e) as to order of
indorsements --that the
indorsements appearing
upon a negotiable
instrument were made in
the order in which they
appear thereon;
Judgment 36 O.S.No.4657/2021
(f) as to stamps --that a
lost Promissory Note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course --that the holder of a negotiable instrument is a holder in due course:
Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or Judgment 37 O.S.No.4657/2021 fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
17.that on the back drop of well settled legal principles accentuating Negotiable Instruments court in respect of drawing of Instruments such as Cheque, Bill of Exchange and On Demand Promissory Note, Court has to decipher the given set Judgment 38 O.S.No.4657/2021 of circumstances taking into consideration ocular and oral evidence coupled with materials on records place by parties to lis.
18.That, to rebut the claim of Plaintiff, though Defendant has setup specific defense that he is not bound by any financial commitment with that of Plaintiff, but during trial has assailed that the Plaintiff used to receive blank cheques from Defendant as a matter of security during course of business, and without returning same had landed in filing frivolous and vexatious suit. Judgment 39 O.S.No.4657/2021
19.That, at this juncture it is vital to state that except the remote defence setup by the Defendant nothing material is outcoming from the evidence lead by Defendant which would fortify his defence, in this context it is vital to state that mere setting up of defence without any substantive piece of material evidence will not come to the rescue of the Defendant for the reasons that DW1 in categorical terms has admitted surreptitiously the alleged suit transaction that had transpired between Plaintiff and Defendant, on the said backdrop a vigilant perusal of paltry cross-examination of Defendant Judgment 40 O.S.No.4657/2021 reverberates the fact that at one stretch he has asserted that Plaintiff is stranger to him and is not well acquainted with the Plaintiff, and at another stretch of cross-examination he has derailed from his earlier stand and has admitted in categorical terms that Ex.P1 cheque was issued by his officials in the office where he is carrying cement concrete ready mix, and further has admitted vividly that issuance of cheque was towards the material such as Cement Bulk purchased by him, and the relevant portion is extracted infra for profitable and useful reading:-
Judgment 41 O.S.No.4657/2021 ".......ವಾದಿ ಸಂಗಯ್ಯ ಹಿರೇಮಠ್ ಇವರ ಪರಿಚಯ ನನಗೆ ಇಲ್ಲ . ಯಾವುದೇ ಕಾಲಕ್ಕೂ ನಾನು ಅವರ ಜೊತೆ ಮಾತನಾಡಿದ್ದಾಗಲೀ, ನೋಡಿದ್ದಾಗಲೀ ಅಥವಾ ವ್ಯ ವಹಾರ ಮಾಡಿದ್ದಾಗಲೀ ಇಲ್ಲ .
ಸದರಿ ವಾದಿ ಸಂಗಯ್ಯ ಹಿರೇಮಠ್ ರವರ
ವ್ಯಾಪಾರ ಮತ್ತು ವ್ಯ ವಹಾರ ಸಿಮೆಂಟನ್ನು
ಸಗಟು ರೂಪದಲ್ಲಿ ಸರಬರಾಜು
ಮಾಡುವುದು ಹಾಗೂ ಮಾರಾಟ
ಮಾಡುವುದು ಇರುತ್ತದೆ ಎಂದರೆ ನನಗೆ
ಗೊತ್ತಿಲ್ಲ . ವಾದಿಯವರಿಂದ ಸಿಮೆಂಟನ್ನು
ಸಗಟು ರೂಪದಲ್ಲಿ ಖರೀದಿ ಮಾಡಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ . ವಾದಿಯು ನನಗೆ ಅವಶ್ಯ ಕತೆ ಒದಗಿದ ಸಮಯದಲ್ಲಿ ಬೇಕಾದಂತಹ ಸಿಮೆಂಟನ್ನು ಸಾಲದ ರೂಪದಲ್ಲಿ ಒದಗಿಸುತ್ತಿದ್ದ ರು ಎಂದರೆ ಸುಳ್ಳು .
ನಾನು ಹಲವಾರು ಬಾರಿ ಸಿಮೆಂಟನ್ನು
ಸಗಟು ವ್ಯಾಪಾರದ ಮೂಲಕ ಸಾಲದ
ರೂಪದಲ್ಲಿ ಖರೀದಿಸಿ ವಾದಿಗೆ ಮರುಪಾವತಿ ಮಾಡುತ್ತಿದ್ದೆನು ಎಂದರೆ ಸರಿಯಲ್ಲ . ನನಗೆ ಸಿಮೆಂಟ್ ಅವಶ್ಯ ಕತೆ ಒದಗಿ ಬಂದಾಗಲೆಲ್ಲಾ Judgment 42 O.S.No.4657/2021 ವಾದಿಗೆ ಸಿಮೆಂಟ್ ಖರೀದಿಗಾಗಿ ಆದೇಶವನ್ನು ದೂರವಾಣಿ ಮೂಲಕ ನೀಡುತ್ತಿದ್ದೆನು ಎಂದರೆ ಸರಿಯಲ್ಲ .
ನಾನು ವಾದಿ ಸಂಸ್ಥೆ ಯಿಂದ ಸುಮಾರು ರೂ.6,45,048/- ಮೌಲ್ಯ ದ ಸಿಮೆಂಟನ್ನು ಸಗಟು ರೂಪದಲ್ಲಿ ಖರೀದಿ ಮಾಡಿದ್ದು ಬಳಿಕ ನಾನು ಅವರಿಗೆ ಬಾಕಿ 4,30,000/-
ರೂಪಾಯಿಯನ್ನು ಮರುಪಾವತಿ
ಮಾಡದೇ ಬೇಬಾಕಿ
ಉಳಿಸಿಕೊಂಡಿದ್ದೆನು ಎಂದರೆ
ಸರಿಯಲ್ಲ . ನಾನು ಸಿಮೆಂಟ್
ಖರೀದಿಯ ನಿಮಿತ್ತ ಬಾಕಿ ಹಣದ
ತೀರುವಳಿಗಾಗಿ ವಾದಿಗೆ ಒಂದು
ಚೆಕ್ಕ ನ್ನು ನೀಡಿರುತ್ತೇನೆ ಎಂದರೆ
ಸಾಕ್ಷಿಯು ನಾನು ಚೆಕ್ಕ ನ್ನು ಕೊಟ್ಟಿಲ್ಲ
ನಮ್ಮ ಕಛೇರಿಯಲ್ಲಿ ಕೆಲಸ
Judgment 43 O.S.No.4657/2021
ಮಾಡುತ್ತಿದ್ದ ವರು ನನ್ನ ಹೆಸರಿನಲ್ಲಿರುವ
ಚೆಕ್ಕ ನ್ನು ನೀಡಿದ್ದು ಅದು ನನ್ನ ದೇ ಚೆಕ್ಕು
ಆಗಿರುತ್ತದೆ. ನಾನು ಸದರಿ 4,30,000/-
ರೂಪಾಯಿ ಬಾಕಿ ಹಣಕ್ಕಾಗಿ ಚೆಕ್ಕ ನ್ನು ನೀಡಿ ಅದರ ಪೈಕಿ 1,50,000/- ರೂ ಹಣವನ್ನು ಮರುಪಾವತಿ ಮಾಡಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ .
ಸಾಕ್ಷಿಯು ಮುಂದುವರಿದು ನನಗೆ
ಅವಶ್ಯ ಕತೆ ಬಿದ್ದಾಗ ನನ್ನ ಸಂಸ್ಥೆ ಯ
ರೈಟರ್ ರವರು ಹಣವನ್ನು
ತೆಗೆದುಕೊಂಡಿದ್ದು ಇತ್ತು ಅದನ್ನು
ನಾನು ತೀರುವಳಿ ಮಾಡಿರುತ್ತೇನೆ
ಎಂದು ಹೇಳುತ್ತಾರೆ. ''
in furtherance to the said candid admissions given by DWI during cross- examination, it is impeccable to state as to why the Defendant has not Judgment 44 O.S.No.4657/2021 offered for further cross-examination and has shirked away from subjecting himself to further cross-examination without assigning plausible reasons, hence a genuine doubt lurks in the minds of court as to why the Defendant had fiddled away during fag any of trial. In the said context howsoever it is needless to assail the legal fiction of "Admissions" ennunciated under Bharathiya Sakshya Adhiniyam and Corresponding old Indian Evidence Act which states that admissions given during cross-examination cannot be withdrawn and such admissions given by maker goes against him, on the Judgment 45 O.S.No.4657/2021 said foothold when the given set of circumstances are deciphered it becomes crystal that Defendant knowingfully well the legal consequences had entered into suit transaction and had issued Ex.P1 Cheque in furtherance supply of materials and thereafter had kept silent in not challenging his signature found in Ex.P1 Cheque and also failed to disprove the transaction with the Plaintiff and kept on aprobating and reprobating giving different version in defence and trial. Hence, having due regards to the facts and circumstances of case it is opined that the Defendant Judgment 46 O.S.No.4657/2021 has miserably failed to prove the defence setup by him in written statement.
20.That, while touching the aspect of Interest, the Plaintiff has claimed interest @ 1 % per mensem. It is trite that payment of interest at the agreed rate is a rule. Nevertheless, in the instant case, even according to Plaintiff the loan was towards trade irrespective of the fact that the Defendant agreed to repay the same as agreed upon had become defaulter. In so far as rate of interest is concerned, the parties are bound by contractual rate which may Judgment 47 O.S.No.4657/2021 be notionally fixed at 8% Per Annum, wherefore, by exercising the discretionary powers vested under section 34 of Civil Procedure code, on the principal amount there upon by looking into the nature of transaction and based on the guidelines laid down by the Hon'ble Supreme Court of India titled as Central Of India vs Ravindra And another Reported in AIR 2001 SC page 3095 salubrious dictum of Constitutional Bench of Hon'ble Apex Court, which has intellectually deliberated the he scope and significance of section 34 of Civil Procedure Code and laid the Judgment 48 O.S.No.4657/2021 grundnorms with respect to the nature of loan.
21.In light of the foregoing discussions and under attending circumstances, this court answers Issue No.1 & 2 are answered in 'Affirmative' and Issue No.3 'Partly in the Affirmative' with interest @ 8% per annum.
22.Issue No.4:- For the reasons assigned, in Issue No.1 to 3, this court proceeds to pass following :-
:ORDER:
That, the suit
filed by the Plaintiff as
against the Defendant
Judgment 49 O.S.No.4657/2021
for recovery of suit sum
is partly decreed with
costs.
Consequently, it is
held that Plaintiff is
entitled to recover sum of ₹.02,91,200/- (Rupees two lakhs ninety one thousand two hundred only) along with interest at the rate of 8% per annum, from the date of suit till realization of said amount from Defendant.
Judgment 50 O.S.No.4657/2021 Office to draw decree accordingly.
(Directly dictated to the Grade III stenographer over computer system, the computer script generated by her is corrected, rectified and revised by me, and then pronounced in open court on this the 20th day of November 2024) (K.VIDYA) XXXIX Additional City Civil & Sessions Judge, Bengaluru City.
ANNEXURES WITNESSES EXAMINED FOR THE PLAINTIFF:
PW-1 Sri. Sangayya V Hiremath. DOCUMENTS MARKED FOR PLAINTIFF:
Ex.P1 Original cheque drawn for Rs.4,30,000/-
Judgment 51 O.S.No.4657/2021
Ex.P2 Bankers memo
Ex.P3 Office copy of legal notice
dated 24/03/2021
Ex.P4 Postal receipt
Ex.P5 Returned postal cover
Ex.P6 GST registration certificate
Ex.P7 Statement of account
Ex.P8 to Three Tax invoices
P10
Ex.P11 to Three E-Way bills P13 WITNESSES EXAMINED FOR DEFENDANT :
DW-1 Sri. H. Melegowda
DOCUMENTS MARKED FOR
DEFENDANT:
---NIL---
XXXIX Additional City Civil & Sessions Judge, Bengaluru City.
Digitally signed by KALASHETTY KALASHETTY VIDYA VIDYA Date: 2024.11.20 16:07:53 +0530