Bangalore District Court
Sri.C.Parameshan vs Sri. Kiran @ Thirumurthy on 24 August, 2015
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY : (CCH.18)
Dated this 24th day of August, 2015.
Present
SMT.K.B.GEETHA, M.A., LL.B.,
XIX ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.NO.499/2014
PLAINTIFF : Sri.C.Parameshan,
s/o Chuncha Maistry,
aged about 38 years,
r/at No.1052,
Peenya 2nd Stage,
Rajagopal Nagar Main Road,
Bangalore-560 058.
(By Sri S.Rajashekar, Advocate)
-VS-
DEFENDANTS : Sri. Kiran @ Thirumurthy,
s/o Mariyappa,
aged about 32 years,
r/at No.9/10,
Mathur Saya,
3rd Main Road,
Shambhavi Nagar,
G.K.W.Layout, Peenya 2nd Stage,
Bangalore-560 058.
Working at:
M/s. Lakshmi Packing Industries,
No.91,11th Cross,
Doddanna Industrial Area,
Vishwaneedam Post,
Near Peneya 2nd Stage,
Bangalore-560 091.
( By Sri.JV, Advocate)
2 O.S.No.499/2014
Date of Institution of the suit : 17/1/2014
Nature of the Suit : Recovery of money.
Date of commencement of recording
of evidence : 4/2/2015
Date on which the Judgment was
pronounced : 24/8/2015
Year/s Month/s Day/s
Total Duration : 01 07 07
JUDGMENT
The plaintiff has filed this suit for recovery of Rs.3,00,000/- with future interest from the date of suit till realization; for court costs and such other reliefs.
2. The case of plaintiff in nutshell is that the plaintiff and defendant are known to each other since several years and in that connection, defendant approached plaintiff for financial assistance of Rs.3,00,000/- for development of his business and also for family necessities and accordingly, plaintiff lent Rs.3,00,000/- on 19/1/2011 and in that regard, loan agreement was executed in between parties on the same day wherein defendant 3 O.S.No.499/2014 agreed to pay interest at 1% p.m. on the loan amount and agreed to repay the loan amount within two years from the date of agreement. After borrowing loan, defendant neither paid the interest nor principal amount inspite of repeated requests and demands. When plaintiff persisted his demands, defendant issued 3 cheques dtd:28/1/2013, 10/7/2013 and 11/7/2013 respectively i.e., one cheque for Rs.1,00,000/- and 2 cheques for Rs.50,000/- each drawn on Corporation Bank, Peenya Industrial Estate Branch, Bangalore, towards part payment of principal amount and assured that he would pay the balance amount of Rs.One Lakh in near future. When plaintiff presented these cheques for encashment, they were returned with endorsement 'funds insufficient' and Instrument outdated. Plaintiff intimated the same to defendant and demanded for payment. But defendant went on postponing the same on one pretext or the other. Due to friendship between plaintiff and defendant, plaintiff has not taken criminal action against defendant. Plaintiff got issued legal notice dated: 2/12/2013 calling upon the defendant to pay the 4 O.S.No.499/2014 amount within 15 days from the date of receipt of notice. The notice was sent to defendant through RPAD, but defendant evaded receiving the same. Hence, the suit for appropriate reliefs.
3. After service of suit summons, defendant appeared through his counsel and filed his written statement wherein he denied the loan transaction with plaintiff, execution of loan agreement and issuance of cheques by him to plaintiff. However, he admits that plaintiff and defendant are known to each other since several years. He contended that he borrowed loan of Rs.2,00,000/- from plaintiff and it was returned to plaintiff with interest as agreed between parties. However, plaintiff has not returned the cheques to defendant and told defendant that cheques were kept in the house and they will be returned subsequently. But, subsequently, they were not returned. He contended that he has not received any notice from plaintiff. He further contended that plaintiff is in the habit of filing suits against persons who borrowed 5 O.S.No.499/2014 money from him in order to have wrongful gain and put the other persons in hardship and inconvenience. Hence, prayed for dismissal of the suit with exemplary costs.
4. From the above facts, the following issues were framed:-
ISSUES
1. Whether plaintiff proves that the defendant is under due of Rs.3,00,000/- towards plaintiff?
2. Whether plaintiff proves that the defendant is liable to pay interest at the rate of Rs.1% per month from the date of suit till realization of entire amount?
3. Whether defendant proves that he had received loan of Rs.2,00,000/- only from the plaintiff and repaid the entire amount with interest thereon?
4. Whether plaintiff is entitled for the reliefs sought for?
5. What order or decree?
5. On behalf of plaintiff, the plaintiff is examined as PW-1 and got marked Ex.P.1 to Ex.P.7 and closed his side. Even after giving sufficient opportunities, defendant has not let-in any evidence.
6 O.S.No.499/2014
6. Heard arguments of plaintiff's counsel. Even after giving sufficient opportunities, defendant and his counsel absent and not submitted arguments. Hence, arguments of defendant were taken as heard.
7. Findings of this court on the above issues are :-
Issue No.1:- In Affirmative;
Issue No.2:- In Affirmative;
Issue No.3:- In Negative;
Issue No.4:- In Affirmative;
Issue No.5:- As per the final order for the following:-
REASONS ISSUE No.1
8. The contention of plaintiff is that defendant borrowed loan of Rs.3,00,000/- on 19/1/2011 from plaintiff agreeing to repay the same with interest at 1% p.m. by executing loan agreement as per Ex.P.1.
7 O.S.No.499/2014
9. The plaintiff has produced this loan agreement as per Ex.P.1 and according to it, defendant borrowed Rs.3,00,000/- on 19/1/2011 from plaintiff.
10. The plaintiff further contended that towards repayment of part of the loan amount, defendant issued 3 cheques as per Ex.P.2 to Ex.P.4 dtd: 28/1/2013, 10/7/2013 and 11/7/2013 for Rs.1,00,000/-, Rs.50,000/- and Rs.50,000/- respectively. When plaintiff presented these cheques for encashment, they were returned with endorsement 'funds insufficient' for 1st 2 cheques and 'instrument outdated' for the 3rd cheque as it was presented on 21/10/2013.
11. Plaintiff got issued legal notice dtd:2/12/2013 to defendant demanding repayment of the amount and it was returned with endorsement that 'no such person in the said address.' But to another address, another notice was served. The plaintiff has produced office copy of the legal notice, postal acknowledgment and unserved postal cover as per Ex.P.5 to Ex.P.7. Even after service of legal 8 O.S.No.499/2014 notice, defendant has not made any efforts to repay the amount.
12. The only contention taken by defendant in his written statement is that he has borrowed Rs.2 Lakhs and not Rs.3 Lakhs and it was repaid. However, to substantiate his said contention, defendant has not stepped in to the witness box and not made any efforts to cross-examine PW-1. The documents produced by plaintiff are not disputed by defendant by cross-examining PW-1. Furthermore, loan agreement bears the signature of defendant and cheques as per Ex.P.2 to Ex.P.4 also bears his signature. Under these circumstances, there is no reason to disbelieve these documents. Ex.P.1 was insufficiently stamped and plaintiff has paid duty and penalty after impounding it. Hence, these documents coupled with oral evidence of plaintiff clearly establish the case of plaintiff which is not disputed by defendant. Hence, this court holds that plaintiff has proved issue 9 O.S.No.499/2014 No.1. Accordingly, issue No.1 is answered in affirmative.
ISSUE No.2
13. In the loan agreement as per plaintiff, it is recited that defendant agreed to repay the loan amount within 2 years with interest at 1% p.m. Hence, plaintiff has proved that defendant is liable to pay interest at 1% p.m. Accordingly, issue No.2 is answered affirmative.
ISSUE No.3
14. Though defendant has taken specific contention in the written statement that he has obtained loan of Rs.2 Lakhs and repaid the same, he has not produced any evidence to prove the same and not elicited anything on that point by cross-examining PW-1. It is the burden on the defendant to prove that he has repaid Rs.2 Lakhs. But defendant failed to prove the same. Accordingly, issue No.3 is answered in negative.
10 O.S.No.499/2014
ISSUE No.4
15. In view of findings on issue Nos.1 to 3, this court holds that plaintiff is entitled for a judgment and decree for the suit claim amount. Accordingly, issue No.4 is answered in affirmative.
ISSUE No.5
16. In view of findings on issue Nos.1 to 4, this court proceeds to pass the following:-
ORDER Suit is decreed with costs for a sum of Rs.3,00,000/-
with interest at 12% p.a. from the date of suit till realization of amount.
(Dictated to the Judgment Writer, transcribed and computerized by her, corrected and then pronounced by me in the open Court on this the 24th day of August, 2015).
(K.B.GEETHA) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.11 O.S.No.499/2014
ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - C.Parameshan
b) Defendant's side :
- NIL -
II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Loan agreement
Ex.P.1(a) Signature of defendant
Ex.P.2 to 3 original cheques for Rs.1 Lakh,
Ex.P.4 Rs.50,000/- and Rs.50,000/-
dtd:28/1/2013, 10/7/2013 and
11/7/2013.
Ex.P.2(a) to Signatures
Ex.P.4(a)
Ex.P.5 Office copy of legal notice dtd:
2/12/2013
Ex.P.6 Postal acknowledgment
Ex.P.7 Unserved postal cover
Ex.P.7(a) Notice contained in Ex.P.7 cover
(b) Defendant's side : - NIL -
(K.B.GEETHA)
XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
GVU/-