Bangalore District Court
Mr.Sunilkumar S/O. Surenderlal vs Mrs. D.R.Shashikala on 20 April, 2015
Govt. of Karnataka
C.R.P 67
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGEMENTS IN SUITS.
IN THE COURT OF THE XXVI ADDL. CITY CIVIL JUDGE
AT MAYOHALL BANGALORE.
(CCH-20)
Present:
Sri. Mallareppa Veerappa Jadar, B.Sc., LL.B., (Spl.)
XXVI Addl. City Civil and Sessions Judge
Dated this the 20th day of April, 2015
O.S.No.26783/2007
Plaintiff: Mr.Sunilkumar S/o. Surenderlal,
Aged about 39 years,
R/o. No.4, Wood Street,
Ashoknagar,
Bangalore - 560025.
(By Mr.P.V.Ramesh Kumar, Advocate )
.Vs.
Defendant : Mrs. D.R.Shashikala
W/o. Mr.Sunderraj,
Aged about 39 years
No.551, 17th 'A' Main road,
Koramangala Layout,
Bangalore - 560 095.
(By Sri.H.A.Chitrashekaraiah, Advocate)
Date of Institution of suit: 05/10/2007
2 O.S.26783/2007
Nature of the Suit (Suit Mortgage suit
for Pronote, Suit for
Declaration and
Possession, Suit for
Injunction, etc.):
Date of Commencement 24/02/2010
of recording of evidence:
Date on which the 20/04/2015
Judgment was
pronounced:
Total Duration:
Years Months Days
07 06 15
( MALLAREPPA VEERAPPA JADAR)
XXVI Addl. City Civil and Sessions Judge
Mayo Hall, Bangalore.
3 O.S.26783/2007
JUDGMENT
1. This suit is filed by the plaintiff against the defendant for the relief of foreclosure of mortgage of title deed stated to be executed by the defendant by way of equitable mortgage by way of memorandum of deposit of title deeds in favour of the plaintiff and for sale of the schedule property for money decree to the extent of Rs.6,86,000/- in favour of the plaintiff out of sale proceeds and to pass such other reliefs deems fit to grant under the circumstances of the suit with court costs. etc.,
2. The brief contents of the plaint are that :-> The defendant had been in acquaintance and friend of the plaintiff requested the plaintiff for financial accommodation of Rs.5,00,000/- during February 2004. After several rounds of deliberation, plaintiff agreed to pay sum of Rs.5,00,000/- on the condition that there is an equitable mortgage and accordingly the defendant executed a registered document titled as "Equitable Memorandum of Deposit of Title deed" and handed over the original documents of title to the plaintiff. The other terms and conditions as agreed was that -> the amount will be discharged within a period of 10 months with an interest at 16% p.a. Accordingly, equitable memorandum of deposit of title deed was registered in the 4 O.S.26783/2007 office of the Sub-registrar, Bangalore South. Further pleaded that - > the defendant has paid interest for a period of one year. Thereafter defendant has not paid the interest. hence, notice was issued on 4/6/2007 demanding the repayment of Rs.6,72,800/- and get the mortgage discharged immediately. After receipt of the notice the defendant called upon the plaintiff and agreed to sell the property in favour of the plaintiff by executing the sale agreement and also absolute sale deed. the price of the property was orally agreed was for Rs.15,00,000/-. The plaintiff agreed to purchase the property subject to the property being registered immediately. But the defendant in presence of the witnesses got the agreement of sale drafted and handed over to the plaintiff's company. The defendant took the draft agreement of sale and promised to come back within ten days and agreed to execute the agreement of sale in favour of the plaintiff and get the sale deed executed and registered and claim the balance money. But the defendant has been avoiding to execute the sale on one pretext or other. Hence, final notice is issued on 20/8/2007. Defendant received the said notice. But not chosen to reply. Hence this suit is filed for the above said relief. With these main averments along with the other averments stated in detail in the plaint, plaintiff prays for the above relief. 5 O.S.26783/2007
3. The schedule property is as follows :-
All that piece and parcel of immovable property bearing commercial complex constructed in Sy.No.135/2 New Bommanahalli, Municipal Office property No.310/9, situated at Koramangala Layout, Begur Hobli, Bangalore South Taluk, Bangalore, measuring East to West -> 72 feet, North to South -> 50 feet, bounded on :-
East by : Common drain and thereafter land
of Sri.K.M.Munireddy
West by : 26 feet common road
North by : 7 feet passage and thereafter RCC
shed of Sri.Balakrishna
South by : 7 feet passage and thereafter RCC
shed of Sri.K.V.Padmanabaiah
4. After service of suit summons, the defendant appeared through his counsel and has filed detailed written statement denying the plaint averments which are against her interest stating that -> At the outset, suit is not maintainable either in law or on facts and as such, it is liable to be dismissed in limine. The averments made in the plaint stating that -> The defendant has been in acquaintance and friend of the plaintiff, requested for financial assistance of Rs.5,00,000/-, after several rounds of 6 O.S.26783/2007 deliberation plaintiff agreed to pay sum of Rs.5,00,000/- on the condition etc., are all false. In the further para of the written statement the defendant has denied the plaint allegations specifically. Further in para No.8 of the written statement has pleaded that -> plaintiff approached the court with unclean hands, suppression of facts barred by limitation. Court fee paid is deficit.
ON this ground alone the suit is liable to be dismissed. There is no cause of action. The contents of legal notice are all false. In para No.11 of the written statement pleaded that -> Plaintiff is entirely stranger. During the year 2004 the plaintiff introduced himself as a real estate agent with the defendant's husband and during the cordial between her husband and plaintiff, the defendant requested him to provide hand loan of Rs.2,00,000/- from any nationalized bank for her urgent family need. Thereafter, due to the defendant's request and also taking undue advantage of their urgency in the finance, the plaintiff gave assurance to provide hand loan by pledging her property documents in the bank and on his assurance the defendant had handed over the original title deeds with trust on him. But, unfortunately the plaintiff himself come forward to pay hand loan of Rs.2,00,000/- without any interest, agreed to repay within six months, on the condition the plaintiff paid Rs.2,00,000/- 7 O.S.26783/2007 by cash and only for nominal sake the plaintiff got memorandum of deposit of title deed from the defendant. Further pleaded in para No.12 of the written statement -> as assured by the plaintiff to provide loan from the nationalized bank in favour of the defendant, but miserably failed to provide hand loan from the bank as assured by him and he also did not maintained cordial relationship with the defendant and her husband for which during the month of September 2004 the defendant repaid the said loan of Rs.2,00,000/- to the plaintiff and at the time of repayment of the hand loan, the plaintiff demanded another Rs.3,00,000/- and showed the alleged mortgage title deed. Then only the defendant surprise the fraud played by the plaintiff. Thereafter the defendant informed the elders of the family and come down for final settlement i.e., plaintiff demanded for Rs.50,000/- to return the title deed. Thereafter the defendant requested on several occasions to return the original documents and cancellation of the deposit of title deeds. But the plaintiff on one or the other reason avoided to return the documents and to cancel the memorandum of title deeds. Ultimately, instead of returning the original document, only with a malafide intention and to make wrongful gain to grab the huge amount and also taking undue advantage as defendant is an 8 O.S.26783/2007 orthodox lady hail from respectable family, knowing fully well about the status of defendant and her family, the plaintiff filed a false case and claimed alleged recovery of money and sale process over the suit schedule property which is not substantiated either in law or on facts and even in the above circumstances the suit is bad in law. Hence defendant neither to pay of due Rs.6,86,000/- nor execution of mortgage title deed does not arises. Further court fee paid is insufficient and suit is barred by limitation, liable to be dismissed. Accordingly filed the written statement denying the plaint averments which are against the interest of the defendant.
5. On the basis of pleadings of both parties, following Issue No.1 to 4 are framed. The said Issues are as follows :-
ISSUES
1. Whether plaintiff proves that defendant had borrowed Rs.5 lakhs by creating equitable mortgage by deposit of title deed?
2. Whether defendant proves that he has borrowed only Rs.2 lakh and plaintiff played fraud on him?
3. Whether plaintiff is entitled for the relief's sought for?9 O.S.26783/2007
4. What decree or order?
6. To prove their case, plaintiff got examined himself as P.W.1. In all 12 documents are marked as Ex.P.1 to Ex.P.12. In the order sheet dated 29/3/2011 it is mentioned that -> the exhibit P.5 to P.8 are not available in the file. Hence the record be placed before the D.A.R, is the contents of the order passed 0on 29/3/2011. Entry is made stating that -> There is no original legal notice and acknowledgments. It is further mentioned that -> At the time of filing of suit documents filed by the plaintiff are all Xerox copies. But in the deposition, postal acknowledgments are marked. This is the entry regarding missing document which are marked as Ex.P.5 to Ex.P.8. hence the said documents are available for appreciation by the court. On the side of the defendant the P.A. holder of the defendant got examined himself as D.W.1 and one document is marked as Ex.D.1. After closure of evidence, posted for arguments. The counsel for the plaintiff filed the synopsis of the argument. Inspite of sufficient opportunity, defendant has not canvassed the arguments. I have perused the synopsis of argument and as well as the documentary evidence, posted for judgment.
7. My answer to the above issues are as follows :-
10 O.S.26783/2007
ISSUE NO.1 :- In the partly affirmative,
ISSUE NO.2 :- In the affirmative,
ISSUE NO.3 :- In the partly affirmative,
ISSUE NO.4 :- As per final order
for the following
REASONS
8. ISSUE NO.1 :-This Issue is on the plaintiff. In this Issue, plaintiff has to prove that -> defendant has borrowed sum of Rs.5,00,000/- by creating equitable mortgage by deposit of title deed. In the plaint para No.2 plaintiff has pleaded that -> defendant has been in acquaintance and friend and has requested for financial accommodation of Rs.5,00,000/- some time during February 2004, after several rounds of deliberation, the plaintiff agreed to pay Rs.5,00,000/- on the condition that there is an equitable mortgage and accordingly the defendant executed an registered document titled as "Equitable Memorandum of Deposit of Title Deed" and handed over the original documents of title to the plaintiff. Agreeing to the terms and conditions to repay the amount within ten months with interest at 16% per annum. This plea raised in para No.2 is denied by the defendant in para No.2 of the written statement. The said averments of para No.2 of the 11 O.S.26783/2007 written statement are that ;-> the averments made in para No.2 of the plaint regarding the loan transaction are denied as false and not within the knowledge of the defendant and the plaintiff has to be put to strict proof of the same. In the light of these assertion of fact by the plaintiff and the denial of the said fact by the defendant, this Issue No.1 is raised. In the affidavit filed by way of examination-in-chief as P.W.1, the P.A. holder of the plaintiff has reiterated the above averments of plaint para No.2 regarding the alleged advancement of loan of Rs.5,00,000/- in the para No.2 of the affidavit stating that -> defendant had been in acquaintance and friend and has requested for financial accommodation of Rs.5,00,000/-, some time during the month of February 2004 after several rounds of deliberation "I" agreed to pay Rs.5,00,000/- on the condition that "there is an equitable mortgage" and accordingly defendant executed a registered document titled as "Equitable Memorandum of Deposit of Title Deed" 25/2/2004 and handed over the original documents of title to me. The other terms and conditions as agreed was that -> The amount will be discharged within period of ten months with an interest at 16% per annum. In the further examination-in-chief he produced in all 12 documents marked as Ex.P.1 to Ex.P.12. In the cross-examination has deposed that :-> 12 O.S.26783/2007 £Á£ÀÄ zÁR¯ÁwUÀ¼À£ÀÄß ¨ÀszÀævÉUÁV ¥ÀqÉzÀÄPÉƼÀÄîªÀÅzÀQÌAvÀ ªÉÆzÀ®Ä CªÀÅUÀ¼À£ÀÄß ¥Àj²Ã°¹gÀÄvÉÛãÉ. £Á£ÀÄ ¥ÀæwªÁ¢UÉ gÀÆ.2,50,000/- ®PÀëzÀ JgÀqÀÄ ZÉPÀÄÌUÀ¼À£ÀÄß ¤ÃrzÉÝãÉ. £Á£ÀÄ J¸ï.©.L. gɹqÉ¤ì ±ÁSÉAiÀÄ ZÉPÀÄÌUÀ¼À£ÀÄß ¤ÃrzÉÝãÉ. £Á£ÀÄ ¥ÀæwªÁ¢UÉ gÀÆ.2,50,000/- ®PÀëzÀ 2 ZÉPÀÄÌUÀ¼À£ÀÄß ¤Ãr®è JAzÀgÉ ¸ÀjAiÀÄ®è. F ªÀåªÀºÁgÀzÀ DzÀ 10 wAUÀ¼ÀªÀgÉUÉ ¥ÀæwªÁ¢ £À£ÀUÉ §rØ PÉÆnÖzÁÝgÉ. - - - - - - £À£ÀUÉ ¥ÀæwªÁ¢AiÀÄ UÀAqÀ£À ¥ÀjZÀAiÀÄ EzÉ. 2004 gÀ°è ¸ÀÄAzÀgï CªÀjUÉ ºÀt ¨ÉÃPÀÄ JAzÀÄ PÉýzÀÝgÀÄ JAzÀgÉ ¸Àj. £Á£ÀÄ zÁR¯ÁwUÀ¼À£ÀÄß vÀAzÀÄ PÉÆr ¨ÁåAQ£À°è ¸Á® PÉÆr¸ÀÄvÉÛãÉAzÀÄ w½¹gÀÄvÉÛãÉAzÀgÉ ¸ÀjAiÀÄ®è. ¥ÀæwªÁ¢ ¸ÀÄAzÀgï CªÀgÀÄ vÀªÀÄä ºÉAqÀw ¥ÀæwªÁ¢AiÀÄ£ÀÄß PÀgÉzÀÄPÉÆAqÀÄ §AzÀÄ zÁR¯Áw ¤Ãr gÀÆ.2,50,000/- ®PÀë ºÀtªÀ£ÀÄß PÉýzÀÝgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. £Á£ÀÄ D ¸ÀªÀÄAiÀÄzÀ°è zÁR¯ÁwUÀ¼À£ÀÄß ElÄÖPÉÆAqÀÄ ¥ÀæwªÁ¢UÉ PÉêÀ® gÀÆ.2,50,000/- ®PÀë ºÀt ¤ÃrgÀÄvÉÛãÉAzÀgÉ ¸ÀjAiÀÄ®è. ¥ÀæwªÁ¢ gÀÆ. 2 ®PÀë PÉÆqÀĪÀÅzÁV ªÀÄvÀÄÛ zÁR¯ÉUÀ¼À£ÀÄß ªÁ¥À¸ÀÄì PÉÆqÀ®Ä PÉýzÀÝgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. ¥ÀæwªÁ¢ FUÀ®Æ gÀÆ.2 ®PÀë PÉÆqÀ®Ä w½¹zÁÝgÉAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. £Á£ÀÄ zÁªÁzÀ°è PÉÆÃjzÀ ¥ÀjºÁgÀªÀ£ÀÄß ¥ÀæwªÁ¢ PÉÆqÀ®Ä dªÁ¨ÁÝgÀ£À®è JAzÀgÉ ¸ÀjAiÀÄ®è. This is the evidence of P.W.1 deposed in the cross-examination. The above referred evidence of P.w.1 goes to show that -> the defendant has not denied the transaction between the plaintiff and the defendant. The dispute is regarding the quantum of the money stated to be advanced by the plaintiff to the 13 O.S.26783/2007 defendant. According to the plaintiff he has issued two cheques each for value of Rs.2,50,000/-. According to the defendant, the defendant asked the loan of Rs.2,50,000/- and plaintiff has advanced the said sum of Rs.2,50,000/- by receiving the documents of title from the defendant. This oral evidence goes to show that -> There is a transaction between the plaintiff and the defendant regarding the advancement of money by the plaintiff to the defendant. The only dispute is regarding the quantum of money advanced. According to plaintiff, he advanced sum of Rs.5,00,000/- through two cheques each of Rs.2,50,000/-. According to the defendant he received only sum of Rs.2,50,000/- from the plaintiff "as loan" by depositing the title deeds. This evidence shows that -> defendant has admitted that he received the sum of Rs.2,50,000/- as loan from the plaintiff. Hence, to this extent of loan, no proof is required as it is admitted by the party in making suggestion to the plaintiff. The D.W.1 is the P.A. holder of the defendant. In the affidavit filed by way of examination-in-chief has sworn in para No.2 stating that -> The plaintiff is a stranger to "me" and during the year 2004 the plaintiff introduce himself as a real estate agent with "me" and during cordial friendship I asked the plaintiff to provide hand loan of Rs.2,00,000/- from any nationalized bank for our 14 O.S.26783/2007 urgent family need, thereafter due to our urgency the plaintiff gave assurance to provide hand loan by pledging my "wife's (i.e., defendant's) property documents in the bank" and on his assurance "I" handed over the original title deed documents for loan in bank with trust on him. But, later the plaintiff himself came forward to pay hand loan of Rs.2,00,000/- without interest and on his assurance "I" agreed to repay the said money within six months, in turn the plaintiff paid Rs.2,00,000/- by cash and only for nominal sake the plaintiff got memorandum of deposit of title deed from me - - - - -. This portion of the affidavit filed by way of examination-in-chief by the P.A. holder of the defendant goes to show that -> the P.A. holder of the defendant has admitted the transaction between the plaintiff and the defendant and also admitted that -> defendant has received sum of Rs.2,50,000/- by cash. In the cross-examination this D.W.1 has deposed that -> ¤.¦.1£ÀÄß M¥ÀÅàvÉÛãÉ. CzÀgÀ°è £Á£ÀÄ ¸ÁQë ¸À» ªÀiÁrgÀÄvÉÛãÉ. ¤.¦.-2 jAzÀ 9£ÀÄß £ÁªÀÅ ªÁ¢AiÀÄ ¸Áé¢üãÀPÉÌ ¤ÃrgÀÄvÉÛêÉAzÀgÉ ¸Àj. £Á£ÀÄ ¥ÀæwªÁ¢ £À£Àß ºÉAqÀwAiÀiÁVzÀÄÝ CªÀ¼À ¥ÀgÀªÁV ¸ÁQë ¤ÃqÀÄwÛzÉÝãÉ. ªÁ¢ £À£ÀUÉ gÀÆ.5,00,000/- ®PÀë ¤Ãr D¹ÛAiÀÄ£ÀÄß ªÀiÁmïðUÉÃeï ªÀiÁrPÉÆArzÁÝgÉAzÀgÉ ¸ÀjAiÀÄ®è. ªÁ¢ 5,00,000/- ®PÀë ¤Ãr®è, £ÀªÀÄUÉ PÉêÀ® gÀÆ.2,00,000.00 ®PÀëPÉÌ ªÀåªÀºÁgÀ DVvÀÄÛ JAzÀgÉ ¸ÀjAiÀÄ®è. £ÁªÀÅ ªÁ¢UÉ gÀÆ.2,00,000.00 ®PÀë ¤ÃrzÉÝêÉAzÀÄ ¸ÀļÀÄî £ÀÄr¢gÀÄvÉÛãÉAzÀgÉ 15 O.S.26783/2007 ¸ÀjAiÀÄ®è. ªÁ¢ £ÀªÀÄUÉ ªÉÆøÀ ªÀiÁrzÁÝgÉAzÀÄ AiÀiÁªÀÅzÉà zÀÆgÀ£ÀÄß ¥ÉÇðøÀjUÉ ¤Ãr®è. ªÁ¢ ¢£ÁAPÀ 26/2/2004 gÀ°è gÀÆ.3,20,000.00 ZÉPï ªÀÄÆ®PÀ ºÁUÀÆ ¢£ÁAPÀ 6/3/2004 gÀ°è gÀÆ.1,80,000/- ZÉPï ªÀÄÆ®PÀ £À£Àß ¥ÀwßUÉ ¤ÃrzÁÝ£ÉAzÀgÉ ¸ÀjAiÀÄ®è. £Á£ÀÄ ¸ÀļÀÄî ¸ÁQë £ÀÄr¢gÀÄvÉÛãÉAzÀgÉ ¸ÀjAiÀÄ®è.
9. These are the evidence of the D.W.1 deposed in the examination-in-chief as well as in the cross-examination. On perusal of the above referred evidence of P.W.1 and the D.W.1 it is seen that -> The P.W.1 in the cross-examination dated 16/7/2012 has deposed that -> £Á£ÀÄ ¥ÀæwªÁ¢UÉ gÀÆ.2,50,000/- ®PÀëzÀ 2 ZÉPÀÄÌUÀ¼À£ÀÄß ¤ÃrzÉÝãÉ. £Á£ÀÄ J¸ï©L gɹqÉ¤ì ±ÁSÉAiÀÄ ZÉPÀÄÌUÀ¼À£ÀÄß ¤ÃrzÉÝãÉ. £Á£ÀÄ ¥ÀæwªÁ¢UÉ gÀÆ.2,50,000/- ®PÀëzÀ 2 ZÉPÀÄÌUÀ¼À£ÀÄß ¤Ãr®è JAzÀgÉ ¸ÀjAiÀÄ®è.- -- - - - This evidence of P.W.1 deposed in the cross-examination goes to show that -> he has ascertained that he has issued two cheques each of value of Rs.2,50,000/-. But, whereas in the cross-examination of the D.W.1 on dated 26/9/2012 suggestion is made to the D.W.1 stating that -> ªÁ¢ ¢£ÁAPÀ 26/2/2014 gÀ°è gÀÆ¥Á¬Ä 3,20,000/- ZÉPï ªÀÄÆ®PÀ ºÁUÀÆ ¢£ÁAPÀ 1,80,000/- ZÉPï ªÀÄÆ®PÀ £À£Àß ¥ÀwßUÉ ¤ÃrzÁÝ£ÉAzÀgÉ ¸ÀjAiÀÄ®è. £Á£ÀÄ ¸ÀļÀÄî ¸ÁQë £ÀÄr¢gÀÄvÉÛãÉAzÀgÉ ¸ÀjAiÀÄ®è. These are the evidence of the P.W.1 16 O.S.26783/2007 and the D.W.1 deposed in the examination-in-chief as well as in the cross-examination. On perusal of the above referred evidence of P.W.1 and the D.W.1 it is seen that -> The P.W.1 in the cross- examination dated 16/7/2012 has deposed that -> £Á£ÀÄ ¥ÀæwªÁ¢UÉ gÀÆ¥Á¬Ä 2,50,000/- 2 ZÉPÀÄÌUÀ¼À£ÀÄß ¤ÃrzÉÝãÉ. £Á£ÀÄ J¸ï©L gɹqÉ¤ì ±ÁSÉAiÀÄ ZÉPÀÄÌUÀ¼À£ÀÄß ¤ÃrzÉÝãÉ. £Á£ÀÄ ¥ÀæwªÁ¢UÉ gÀÆ.2,50,000/- ®PÀëzÀ JgÀqÀÄ ZÉPÀÄÌUÀ¼À£ÀÄß ¤Ãr®è JAzÀgÉ ¸ÀjAiÀÄ®è. This evidence of the P.W.1 deposed in the cross- examination goes to show that -> he is ascerting that-> he has issued two cheques each of value Rs.2,50,000/-. But whereas in the cross-examination of the D.W.1 dated 26/9/2012 suggestion is made to the D.W.1 stating that -> ªÁ¢ ¢£ÁAPÀ 26/2/2004 gÀ°è gÀÆ.3,20,000/- ZÉPï ªÀÄÆ®PÀ ºÁUÀÆ ¢£ÁAPÀ 6/3/2004 gÀ°è gÀÆ.1,80,000/- ZÉPï ªÀÄÆ®PÀ £À£Àß ¥ÀwßUÉ ¤ÃrzÁÝ£ÉAzÀgÉ ¸ÀjAiÀÄ®è.- - - - - - - This suggestion made to the D.W.1 by the counsel for the plaintiff goes to show that -> On the said date i.e., on 26/2/2004 one cheque for value of Rs.3,20,000/- is issued and another cheque on dated 6/3/2004 for value of Rs.1,80,000/- is issued. This suggestion is contradictory to the evidence of the P.W.1 deposed in the cross-examination dated 16/7/2012 in which he has specifically deposed that -> he had 17 O.S.26783/2007 issued two cheques each of value of Rs.2,50,000/-. When there is a contradiction in the oral evidence, the party is expected to prove among the two contradictory evidence which one is to be accepted by the court by placing the cogent, corroborative documentary evidence. On perusal of Ex.P.1 in page No.2 in the middle it is mentioned that -> Rs.3,20,000/- by way of cheque bearing No.590094 dated 25/2/2004 drawn on State Bank of India and Rs.1,80,000/- drawn on S.B.I. "in the presence of following witnesses"- - - - - - . This recital of Ex.P.1 shows that -> the plaintiff has stated to issue two cheques of different face value on different date. One on 25/2/2004 for Rs.3,20,000/- and another on 3/3/2004 for face value of Rs.1,80,000/-. But the evidence of the P.W.1 deposed in the cross-examination is that -> he has issued the two cheques of face value of Rs.2,50,000/- each and the suggestion is made to the D.W.1 stating that -> On 26/2/2004 cheque for face value of Rs.3,20,000/- and on 6/3/2004 cheque for face value of Rs.1,80,000/- are paid to the wife of the D.W.1. The said wife of D.W.1 is none other than the defendant of this suit. But, this suggestion made to D.W.1 is denied by the D.W.1. When the suggestion is made to a witness and denial of the same by the witness is of no evidence. In view of the citation given in AIR 1981, 18 O.S.26783/2007 Karnataka 40 in a case between Smt.Parameshwari Bai V/s. Mr.Muthojirao Scindhia. In Head Note No.(E) Evidence Act (1 of 1872), S.3 - Mere denial of suggestion, if evidence. A mere suggestion made in cross-examination and denied is not evidence at all. Under such circumstances it is the duty of the plaintiff to prove by placing the positive evidence to show that -> he has issued the two cheques, among them one is of each one of value of Rs.3,20,000/- and another of value of Rs.1,80,000/-. So as to prove this aspect, no acceptable documentary evidence is produced by the plaintiff such as the copy of the account extract pertaining to the bank transaction in connection with the presentation of the said cheque and withdrawal of the money by the defendant basing on the said cheque etc., Under the circumstances, there is no acceptable evidence on record to show that-> the plaintiff has issued two cheques one of face value of Rs.3,20,000/- and another one of face value of Rs.1,80,000/-. though in Ex.P.1 there is a recital to that effect, but the said recital show that the said amount is stated to be paid in presence of the witnesses named in the Ex.P.1. They are :-> 1) Mr.K.V.Sridhar and 2) Smt.Manjula.P. Among the said two witnesses, none of the witnesses is examined by the plaintiff to prove the contents of Ex.P.1 equitable mortgage 19 O.S.26783/2007 regarding the payment of amount through cheque of the value of Rs.3,20,000/- dated 22/5/2004 and another cheque of value of Rs.1,80,000/- dated 3/3/2004. Hence, there is no acceptable evidence on record to show that -> plaintiff has advanced the sum of Rs.5,00,000/- under the Ex.P.1 document through the cheque. On the other hand, the defendant in the written statement as well as in the affidavit filed by way of examination-in-chief has admitted that they have received sum of Rs.2,00,000/- from the plaintiff. Further the allegation of the defendant is that -> they have repaid the said sum to the plaintiff in the month of September 2004 accordingly mentioned in the para No.3 of the affidavit filed by way of examination-in-chief as the D.W.1. But to prove the repayment, no acceptable evidence is adduced by the defendant. The only document produced by the defendant marked as Ex.D.1 is the power of attorney given by the original defendant to the D.W.1 who is the husband of defendant. Under the circumstances defendant has failed to prove that -> he has repaid the amount received by him which is admitted by him as Rs.2,00,000/-. Further the suggestion made to the P.W.1 in the cross-examination is that -> P.W.1 has advanced sum of Rs.2,50,000/- to the defendant. But the said suggestion is denied by the P.W.1. It is in page No.2 of the 20 O.S.26783/2007 cross-examination dated 16/7/2012 in the last two lines. It is as follows :-> £Á£ÀÄ D ¸ÀªÀÄAiÀÄzÀ°è zÁR¯ÁwUÀ¼À£ÀÄß ElÄÖPÉÆAqÀÄ ¥ÀæwªÁ¢UÉ PÉêÀ® gÀÆ.2,50,000/- ®PÀë ºÀt ¤ÃrgÀÄvÉÛãÉAzÀgÉ ¸ÀjAiÀÄ®è. This portion of the suggestion made to the P.W.1 by the counsel for the defendant goes to show that -> defendant company has admitted the transaction by making said suggestion to the P.W.1 stating that only the sum of Rs.2,50,000/- is given by plaintiff to the defendant. But it is denied by the P.W.1. No doubt, the suggestion to a witness and denial of the said suggestion by the witness is no evidence in favour of the party who made the suggestion, in view of the principles laid down in the citation given in AIR 1980 page 40 referred above. But, it is pertinent to note that -> by making such suggestion defendant has admitted his liability to the sum of Rs.2,50,000/-. No doubt, it is an admission by the agent of the party. The admission made by the agent of the party binds the party cannot be acceptable one as the defendant has admitted in the pleading as well as in the evidence that they have received only sum of Rs.2,00,000/-. When there are conflict between the case pleaded in the written statement and the suggestion made to the witness during cross-examination of the wtiness by the advocate of the party. The admission made in the pleadings are having higher footing than the admission made 21 O.S.26783/2007 orally. As the admission made during evidence can be shown as erroneous under section 30 of Evidence Act. As in the Sarkar Evidence Act, 14th Edition 1993 at page 712. It is stated that -> Admission in pleading is judicial admission and it is waiver of all controversies. Further in the Section 30 of the Evidence Act The admission can be shown as erroneous. When such being the case, In the suit on hand, the admission made in pleading i.e., in the written statement stating that -> defendant have received sum of Rs.2,00,000/- from the plaintiff is a judicial admission. It waives of the controversy. Hence, the suggestion made by the counsel for the defendant to the plaintiff in the cross-examination stating that -> the defendant have received Rs.2,50,000/- is to be hold as erroneous admission. In the light of the admission made in the pleading i.e., in the written statement stating that -> defendant has received sum of Rs.2,00,000/- from the plaintiff. Hence the admission made by the agent of the party while cross-examining the P.W.1 stating that -> defendants have received sum of Rs.2,50,000/- is to be held as erroneous admission in the light of the fact that -> it is against the contents of the admission made in the written statement and in the affidavit filed by way of execution in chief as D.W.2 so far as regarding the quantum. Hence, on all 22 O.S.26783/2007 these grounds, it is proved that -> defendant has received sum of Rs.2,00,000/- from the plaintiff by mortgaging the suit documents by way of equitable mortgage. Instead of Rs.5,00,000/- Accordingly, I answered Issue No.1 in the partly affirmative.
10. ISSUE NO.2 :- In this Issue, defendant has to prove that -> he has borrowed only Rs.2,00,000/- and the plaintiff played fraud on him. In the written statement as well as in the affidavit filed by way of examination-in-chief and also in the cross- examination of D.W.1 it is evident that defendant has admitted the liability of Rs.2,00,000/- from the plaintiff. Though plaintiff has pleaded that -> he has advanced loan of Rs.5,00,000/- to the defendant by creating equitable mortgage by depositing of title deeds, but he has failed to prove the said aspect. It is discussed in detail in the reasons given to the Issue No.1. When such being the case, this Issue No.2 casted on the defendant stating that -> whether the defendant proved that he has borrowed only sum of Rs.2,00,000/- is to be held in the affirmative so far as regarding the plea of fraud no acceptable evidence is adduced by the defendant. Accordingly, Issue No.2 is answered in the partly affirmative so far as regarding the borrowing of loan of Rs.2,00,000/-. Excluding the 23 O.S.26783/2007 other allegation such as fraud as the said plea of fraud is not proved by the defendant.
11. ISSUE NO.3 :- In this Issue, it is to be determined whether the plaintiff is entitled for relief sought for. In the plaint, plaintiff has sought for judgment and decree against the defendant for foreclosure of mortgage title deeds stated to be executed by the defendant by way of equitable mortgage in favour of the plaintiff by sale of schedule property and money decree to the extent of Rs.6,86,000/- in favour of the plaintiff out of sale proceeds, for court cost, interest and for such other relief deems fit to be granted under the circumstances of the case. Though in para No.2 of the plaint, plaintiff has pleaded regarding interest at 16% p.a. but there is no positive evidence to hold that there was an agreement to pay interest at 16%. Under such circumstances, plaintiff is entitled for reasonable rate of interest, prevailing in the nationalized bank during the relevant period of this transaction and also in view of principles laid down in the Interest Act as plaintiff has established his claim to the tune of Rs.2,00,000/-. Hence the plaintiff is entitled for recovery of the said sum of Rs.2,00,000/- along with reasonable rate of interest at 10% on the said sum from the date of 24 O.S.26783/2007 advancement of loan of Rs.2,00,000/- till realization. Accordingly, I answered Issue No.3 in the partly affirmative.
12. The P.W.1 in the further examination dated 1/4/2010 has deposed that -> draft sale deed furnished by the defendant to him is produced and marked as Ex.P.12. But, no such document is in the file. Even though the said document is in the file as it being the draft sale deed, it will not be helpful to adjudicate any of the issue raised in this suit. As the prayer made in this suit is regarding foreclosure of the mortgage and for recovery of the money etc., and not for specific performance of contract. If the suit is for specific performance of contract, then the draft sale deed would have some material bearing on the question to be adjudicated. Further mere marking of a document is of no use to any of the party. If the said document is not required to the court for adjudication of the controversy arosed between the parties. In the suit on hand, the alleged draft sale deed is not required to adjudicate the controversy raised between the parties regarding foreclosure to mortgage and recovery of the money. Accordingly observation is made regarding the evidentiary value of the Ex.P.12 which is not in the file.
25 O.S.26783/2007
13. ISSUE NO.4 :- For the reasons stated to Issue No.1 to 3, I proceed to pass the following :-
ORDER In the result, suit of the plaintiff is partly decreed.
In the consequences it is held that defendant is liable to pay sum of Rs.2,00,000/- (Rupees two lakhs) with interest at 10% p.a. from the date of advancement of loan till the date of realization. Defendant is directed to pay the said sum within six months from the date of judgment and decree.
In the event if the defendant paid the said sum along with upto date interest then plaintiff has to return all the documents deposited by the defendant by way of equitable mortgage. The plaintiff has to reconvey the mortgage property to the defendant by redeeming it from mortgage or free from Mortgage at the cost of the defendant.
In the event of failure of the defendant to pay the said sum with interest within the 26 O.S.26783/2007 period of six months, from the date of this judgment and decree plaintiff is, at liberty to proceed against the property mortgaged by the defendant by way of equitable mortgage for the sale of Mortgaged property to the extent of the property which is subject to recover the decretal amount. In the event if sale proceeds of entire property falls deficit, then the plaintiff is at liberty to recover the remaining amount by proceeding against the moveables owned and possessed by defendant. Plaintiff is not entitled to proceed against the person of the defendant to recover the amount as money decree cannot be executed against the person of the defendant if defendant is a female.
Under the circumstances, parties are directed to bear their respective cost of this proceedings.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcript thereof, is corrected and then pronounced by me in the open court on this the 20th day of April, 2015) ( Mallareppa Veerappa Jadar ) XXVI Addl. City Civil and Sessions Judge Mayo Hall, Bangalore.27 O.S.26783/2007
SCHEDULE PROPERTY All that piece and parcel of immovable property bearing commercial complex constructed in Sy.No.135/2 New Bommanahalli, Municipal Office property No.310/9, situated at Koramangala Layout, Begur Hobli, Bangalore South Taluk, Bangalore, measuring East to West -> 72 feet, North to South -> 50 feet, bounded on :-
East by : Common drain and thereafter land
of Sri.K.M.Munireddy
West by : 26 feet common road
North by : 7 feet passage and thereafter RCC
shed of Sri.Balakrishna
South by : 7 feet passage and thereafter RCC
shed of Sri.K.V.Padmanabaiah
ANNEXURE
1. List of witnesses examined for the plaintiff/s:
P.W.1 Mr.Sunilkumar
2. List of witnesses examined for defendant/s:
D.W.1 Sri.K.V.Sundar
3. List of documents exhibited for the plaintiff/s:28 O.S.26783/2007
Ex.P.1 Equitable Memorandum of Deposit
of title deed
Ex.P.2 Gift deed
Ex.P.3 Certificate
Ex.P.4 Tax paid receipt
Ex.P.5 to 8 In the order sheet dt. 29/3/2011 it
is mentioned that these documents
are missing. Further in the order
sheet dated 28/5/2011 it is
mentioned that they are the Xerox
copies and not secured.
Ex.P.9 Plan
Ex.P.10 Encumbrance certificate
Ex.P.11 Deed of lease
4. List of documents exhibited for defendant/s:
Ex.D.1 Power of Attorney
( MALLAREPPA VEERAPPA JADAR)
XXVI Addl. City Civil & Sessions Judge
Mayo Hall, Bangalore.