Bangalore District Court
Kanish Jain vs Anantharaju K V on 11 January, 2024
KABC020320092023
IN THE COURT OF THE SMALL CAUSES AT
BENGALURU
PRESENT: SRI. KANCHI MAYANNA GOUTAM B.A.L., LL.M.,
XIX ADDL. JUDGE,
Court of Small Causes & ACMM,
BENGALURU.
Dated this the 11th day of January, 2024
S.C.No.841/2023
PLAINTIFF: M/s. Kanish Jain,
S/o. Kapoor Chand B.,
Aged about 36 years,
R/at No.84, Sampige Road,
Malleshwaram,
Bengaluru- 560 003
(By Sri.M. Shivappa., Adv)
V/s.
DEFENDANT: K.V. Anantharaju,
S/o. Late K.R. Venkataraya,
R/at # 266th main,
Beerangi Palya,
Behind Nandini Hotel,
Shivajinagar, Rajajinagar,
Bengaluru North,
Karnataka - 560 010
(Exparte)
Date of institution of the suit: 11.10.2023
SCCH-17 2 SC No.841/2023
Nature of suit: Money suit
Date of commencement of
recording of evidence: 12.12.2023
Date of pronouncement of judgment: 11.01.2024
Duration: Year/s Month/s Day/s
00 03 00
*******
: J U D G M E NT :
The plaintiff has filed this suit against the defendant for recovery of a sum of Rs.1,91,000/- together with interest @ 18% p.a. from the date of suit till its realization.
2. The plaint averments in brief is as under:
The plaintiff stated that the defendant is a friend of the plaintiff and due to financial difficulties, approached the plaintiff to lend Rs.15,00,000/- at interest @ 1% and agreed to pay the same on execution of promissory notes by the defendant. Accordingly the defendant executed 2 promissory notes one for Rs.10,00,000/- dated 11.2.2022 and another for Rs.5,00,000/- dated 24.2.2022 after the receipt of consideration. It is further alleged by the plaintiff that, even SCCH-17 3 SC No.841/2023 though, the defendant returned the amount of Rs.15,00,000/- has failed to pay the interest @ 1% p.a. amounting to Rs.1,80,000/- as agreed in spite of repeated demands. Finally on repeated persistence by the plaintiff, the defendant issued cheque bearing No. 577284 dated 28.2.2023 for Rs.1,80,000/- drawn on Canara Bank, AT PAR branch, Rajajinagar 1 st block, Bangalore. The plaintiff presented the said cheque through his account at State Bank of India, Malleshwaram, Bangalore, and the cheque was dishonoured with an bank endorsement dated 29.3.2022 as 'Funds Insufficient". The same was bought to the notice of the defendant. The plaintiff further insisted the defendant to make the payment but the defendant requested for a week's time to make payment but failed to pay the amount within the specified time. As such, within 30 days of receipt of the endorsement from the bank regarding return of cheque, the plaintiff issued legal notice n 27.4.2023 to make payment of the amount within 15 days. Further the plaintiff once again presented the cheque on 23.5.2023 but the same was again returned as " insufficient funds " with an SCCH-17 4 SC No.841/2023 endorsement dated 24.5.2023. The plaintiff tried to contact the defendant to get back the amount, but the defendant was out of reach, waiting for some time the plaintiff once again presented the cheque for realisation on 30.6.2023 through his account at " Yes Bank", BVK Iyengar Road, Bengaluru, which was returned with shara " Cheque outdated" with an endorsement dated 30.6.2023. The cause of action for the suit arose on 11.2.2022 and 24.2.2022. Hence, the suit.
3. In spite of service of summons, the defendant remained absent hence, he was placed exparte.
4. To prove the case of plaintiff examined himself as PW.1 and got marked the documents at Ex.P.1 to P.9.
5. Heard the arguments. The following points arise for my consideration.-
1. Whether the plaintiff proves that defendant issued cheque bearing No. 577284 dated 28.2.2023 for Rs.1,80,000/- drawn on Canara Bank, AT PAR branch, Rajajinagar 1 st block, Bangalore towards the interest due by him ?
SCCH-17 5 SC No.841/2023
2. Whether the plaintiff is entitle for the relief as sought?
3. What order or decree?
6. My findings on the above points are as follows:
Point No.1 : In the affirmative;
Point No.2 : Partly affirmative
Point No.3: As per the final
orders
:REA S ON S :
7. Point No.1
That by reiterating all the averments made in the plaint, the PW.1 has filed his affidavit in lieu of chief-examination. In support of his claim, PW.1 produced two on demand promissory note with consideration receipt as Ex.P-1 and 2 and the signature of the defendant in Ex.P-1 and 2 is marked as Ex.P-1(a) and 2(a). The plaintiff also produced, cheque, bank endorsement, legal notice, postal receipt, returned postal cover and two returned memos. All these documents have been marked as Ex.P.1 to P.9.SCCH-17 6 SC No.841/2023
8. The plaintiff to prove the borrowing of the loan by the plaintiff PW.1 produced two on demand promissory note2 with consideration receipt as Ex.P-1 and 2 and the signature of the defendant in Ex.P-1 and 2 is marked as Ex.P-1(a) and 2(a).
These documents marked at Ex.P-1 and 2 states that the defendant being the friend of the plaintiff and due to financial difficulties, approached the plaintiff to lend Rs.15,00,000/- at interest @ 1% and accordingly the defendant executed 2 promissory notes one for Rs.10,00,000/- dated 11.2.2022 and another for Rs.5,00,000/- dated 24.2.2022 after the receipt of consideration. The said document is not denied by the defendant. Further the plaintiff also produced Ex.P3- cheque which bears the signature of defendant and also evidentiates that the said cheque is issued by the defendant for the payment of the interest. Ex.P1 to 3 being an on demand promissory notes and cheque which is an Negotiable Instrument has the favourable presumption U/s. 118 of Negotiable Instrument Act. On the basis of presumption available to the Ex.P1 to 3 being an on demand promissory SCCH-17 7 SC No.841/2023 notes and cheque it can be held that the consideration mentioned in the Ex.P1 and 2 on demand promissory note is passed to the defendant and it is the burden on the defendant to rebut the presumption. But the defendant placed exparte and does not chosen to deny the signature or the allegations and the transaction as alleged by the plaintiff. Such being the case, it can be held that the presumption available in favour of Ex.P1 to 3 on demand promissory notes and cheque is stands unrebutted and the plaintiff case is established.
9. The defendant no.2 even after service of summons neither appeared nor denied the case of the plaintiff thereby, the allegation made by the plaintiff against defendant also stands unchallenged. The Ex.P1 and 2 on demand promissory notes evidentiates that the defendant agreed to pay the interest @ 1% p.m. Even though sufficient opportunity was there, the defendant neither appeared nor made out any grounds to challenge the contentions of the plaintiff. The defendant not made any effort to deny his signature on the SCCH-17 8 SC No.841/2023 documents produced by the plaintiff. Hence, they remained unchallenged.
10. Further, on considering all these facts in background, the Ex.P1 to 9 being the documentary evidence, after the service of summons in this case, the defendant not come up with any documents or oral testimony to challenge the contentions of plaintiff. The defendant not made minimum effort to deny the transaction. In this situation, the adverse inference can be drawn against the defendant U/s. 114 (g) of Indian Evidence Act. In the Ruling reported in AIR 1999 SC 1441 (Vidyadar V/s. Mankikao and another), wherein the Hon'ble Supreme Court was pleased to observe as follows;
"Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct"
11. If at all the defendant did not borrow any loan from the plaintiff, he could have contest the case by putting forth SCCH-17 9 SC No.841/2023 his defence. Whereas, the defendant kept quite without contesting the suit, an inference could be drawn that the defendant borrowed the loan amount. The oral and documentary evidence of plaintiff has not been challenged by defendant either by adducing evidence or by cross examining the P.W.1. Hence there is no reason to discard the evidence of plaintiff. The evidence specifically reveals that, the defendant borrowed the loan and issued the Ex.P 3 cheque towards interest. When the defendant borrowed the loan from the plaintiff there is an obligation on the part of the defendant to repay the loan amount along with interest as agreed. Accordingly, I answered point No.1 in the affirmative.
POINT NO.2:
12. Even though the defendant placed exparte and not contested the case it will not reduce the burden of this court to verify the question of law involved in every case.
13. The next point need to verify that whether the plaintiff filed the suit within the limitation period stipulated under the law. The plaintiff has pleaded that the above suit is filed within limitation. This is a simple suit for recovery of SCCH-17 10 SC No.841/2023 money wherein section 3 of Limitation Act is attracts wherein for the recovery of amount the limitation period is 3 years. The defendants borrowed the loan on 11.02.2022 and 24.02.2022 as per Ex.P1 and 2- on demand promissory notes, and Ex.P3 cheque is dated 28.02.2023. The suit is filed on 11.10.2023, which is within the period of limitation.
14. In ILR 1998 Karnataka 2665, the Hon'ble High Court of Karnataka held that:
"When the defendant has not appeared before the court and the court is satisfied with the serving of summons as duly served, the court shall pass a decree so prayed by the plaintiff unless relief itself is prima facie barred by limitation or unknown to law."
Hence, the benefit under this ruling of the Hon'ble High Court of Karnataka can also be extended to the plaintiff.
15. As per section 34 of C.P.C. provides the interest rate for domestic transaction for the period after the institution of the suit. The Court can order for the interest which deems fit SCCH-17 11 SC No.841/2023 reasonable under the facts and circumstances of the each case. Sec. 34 of C.P.C. Provides the interest rate for domestic transactions at 6% p.a. As per contents of plaint the present loan is borrowed for to meet the financial diffficulties of the defendant. Hence, this court is under the opinion that the interest for the period of pendency of suit and interest rate after decree till the realisation shall be as per Sec. 34 of CPC i.e., 6% p.a. on the principal sum adjudged.
16. When the defendant has not made out any case or defense favourable to him, on the basis of documents and oral testimony through affidavit produced by the plaintiff, it can be presumed that the plaintiff has established his right to seek for recovery of the amount due by the defendant along with the rate of interest as per final order. Accordingly point No. 2 is answered in the partly affirmative.
17. Point No. 3 :- In view of my findings on points, I proceed to pass the following.-
SCCH-17 12 SC No.841/2023
O RDE R The suit of the plaintiff is hereby partly decreed with cost.
The plaintiff is entitled to recover a sum of Rs.1,91,000/- from the defendant.
Further the plaintiff is entitled for interest @ 6% p.a. on the principal sum adjudged till the filing of the present case and interest @ 6% p.a. on the principal sum adjudged from the date of suit till the realization of entire amount from the defendant.
The defendant is liable to pay the decreetal amount within two months from the date of decree.
Draw decree accordingly.
[Dictated to the stenographer directly on computer, typed by her, then corrected by me and pronounced in open court on this the 11 th day of January, 2024.] (KANCHI MAYANNA GOUTAM) XIX ADDL.JUDGE, Court of Small Causes & ACMM, BENGALURU.
SCCH-17 13 SC No.841/2023ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFFS:
PW.1 : Sri. Kanish Jain LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENDANT:
NONE LIST OF THE DOCUMENTS MARKED ON BEHALF OF THE PLAINTIFFS:
Ex.P.1, 2 P1(a) and 2(a): Two on demand promissory note with consideration receipt along with signature of defendant Ex.P3 and3(a) : Cheque and signature of the accused Ex.P.4 : Bank endorsement Ex.P5 : Legal notice Ex.P6 : Postal receipt Ex.P7 : Returned postal cover Ex.P8 & 9 : Two returned memos LIST OF THE DOCUMENTS MARKED ON BEHALF OF THE DEFENDANT:
NONE (KANCHI MAYANNA GOUTAM) XIX ADDL.JUDGE, Court of Small Causes & ACMM, BENGALURU.