Telangana High Court
Sri.K Narsimha Rao vs Sri.V Mallesham Died on 9 June, 2023
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE Dr. JUSTICE G. RADHA RANI
C.C.C.A. No.352 OF 2018
JUDGMENT:
This appeal is filed by the appellant-plaintiff aggrieved by the judgment and decree dated 04.06.2018 passed in O.S. No.737 of 2009 on the file of the X Additional Chief Judge, City Civil Court, Hyderabad in dismissing the suit filed by the plaintiff for recovery of money.
2. The parties are hereinafter referred as arrayed before the trial court.
3. The case of the plaintiff in brief was that he entered into an agreement with the defendants and two others for getting sale deeds from the purchasers. As per the agreement, the plaintiff had procured and delivered all the sale deeds to the defendants. After settling the accounts, the defendants issued a cheque bearing No.622368 dated 29.09.2004 for Rs.11,93,750/- drawn on State Bank of India, Cheeryal branch, Keesara Mandal, Ranga Reddy District to clear the balance amount as per the agreement. When the said cheque was presented for payment, the same was returned unpaid by the defendants' banker on 2 Dr.GRR,J CCCA. No.352 of 2018 27.01.2005 for the reason "referred to drawer". The same was intimated to the plaintiff by his banker on 31.01.2005. A notice dated 01.03.2005 was issued. The same was acknowledged by the defendant No.1 on 03.03.2005. The defendant No.2 refused to receive the notice as per the postal endorsement. The defendants also issued a reply notice dated 14.03.2005 through their counsel admitting the fact of issuing the cheque, but taking a stand that some documents were not given to the defendants by the plaintiff and on returning the cheque and the documents, they were ready to pay the cheque amount. For the said reply notice, the plaintiff also issued a reply dated 23.03.2005 addressed to the defendants' counsel asking him to advise the defendants to come to the office of the plaintiff's counsel on any working day to give the cheque amount and to collect the cheque from the plaintiff. Later on, the plaintiff filed a cheque return case on the file of IV Additional Chief Metropolitan Magistrate, Nampally vide CC No.484 of 2005. The defendants had taken a stand in the said case that they paid the cheque amount in cash. The receipt filed before the court was dated 29.09.2004, but there was no cash receipt dated 03.05.2004 or 02.05.2004. As such, filed the suit claiming an amount 3 Dr.GRR,J CCCA. No.352 of 2018 of Rs.11,93,750/- along with interest at 2% per month which would amount to Rs.8,59,750/- i.e. for a total amount of Rs.20,53,250/-.
4. After receipt of summons, defendant Nos.1 and 2 entered appearance and filed a joint written statement contending that they were not due any amount under the cheque mentioned in the plaint. The plaintiff had not fulfilled the conditions as promised in the real estate business. They admitted to have issued a cheque bearing No.622368 dated 29.09.2004 for Rs.11,93,750/- drawn on SBI, Cheryal branch, Keesara Mandal, R.R.District, but stated that it was issued at the residence of defendant No.1 at Uppal, but not at the residence of the plaintiff. They further stated that they had several transactions with the plaintiff and gave several post dated cheques and promissory notes as security and that they were making payment by cash on fulfilling the part obligation and were taking return of the cheques and promissory notes one after another. The cheque in issue was dishonoured as the amount was not arranged due to an obligation left on the part of the plaintiff to procure the original documents of land. As such, they got issued a legal notice dated 14.03.2005 on receiving the notice of the plaintiff dated 01.03.2005, stating that on 4 Dr.GRR,J CCCA. No.352 of 2018 return of document and dishonoured cheque, they would pay the amount of cheque. The plaintiff gave a rejoinder notice asking to collect the cheque by paying the amount. The defendants paid the cheque amount and obtained receipt with specific mention that it was in satisfaction of amount under cheque No.622368. The plaintiff refused to put the date of payment as 03.04.2005 but put the date of cheque as 29.09.2004 and evaded to return the cheque stating that it was with the Advocate and that the defendants discharged the amount due in full satisfaction. They further contended that CC No.484 of 2005 filed by the plaintiff for dishonour of cheque ended in acquittal of the defendants on 08.07.2008. They further contended that there was no territorial jurisdiction as the suit was filed on the basis of cheque issued for transactions of land at Cheeryal village, Keesara Mandal, Ranga Reddy District. The cheque was drawn from the bank of Cheeryal village. The defendants also resided in Uppal, Ranga Reddy District. They further contended that the suit was bad for non- joinder of necessary parties as the agreement was entered into by the plaintiff with the defendants and two others and the said two others were not made as parties to the suit and further contended that the suit was barred by limitation.
5 Dr.GRR,J CCCA. No.352 of 2018
5. Basing on the above pleadings, the trial court framed the issues for consideration as:
i) Whether the plaintiff is entitled to recover from the defendant the suit amount or any part thereof, And, if so, what amount and what is the liability of the defendant?
ii) whether the plaintiff is entitled to claim any interest? And if so, at what rate and for what periods?
lii) Whether the discharge pleaded by the defendants in the written statement is true?
iv) Whether this court is not having territorial jurisdiction to entertain the suit and grant the relief in view of the circumstances stated in the written statement?
v) Whether the suit is barred by law of limitation?
vi) To what relief?
6. The defendant No.1 died during the pendency of the suit and his wife and two sons were brought on record as defendant Nos.3, 4 and 5 by order dated 09.08.2017. The defendant Nos.3 to 5 had not filed any separate written statement after they were brought on record in the suit.
6 Dr.GRR,J CCCA. No.352 of 2018
7. The plaintiff examined himself as PW.1 and got marked Exs.A1 to A7 on his behalf. The defendant No.2 was examined as DW.1 and the father of defendant No.2 was examined as DW.2. Exs.B1 to B3 were marked on behalf of the defendants.
8. On considering the oral and documentary evidence on record, the trial court dismissed the suit holding that the plaintiff was not entitled to recover any amount and interest from the defendants.
9. Aggrieved by the said dismissal of the suit, the plaintiff preferred this appeal contending that as per the defendants, they stated to have paid money on 03.04.2005, but the document under which they contended to have paid was dated 29.09.2004. Thus, prima facie the said defence was incorrect. The judgment of the court below was illegal. The judgment of the court below was not based on proper appreciation of facts of the case and the material on record and more particularly, the documentary evidence. The court below completely over looked and ignored the documents filed by the plaintiff and got carried away with the submission of the defendants. The court below proceeded with the matter with a pre-determined mind to dismiss the suit. Though the court below had given findings on the issues relating 7 Dr.GRR,J CCCA. No.352 of 2018 to territorial jurisdiction and limitation in favour of the plaintiff by discarding the pleadings and evidence led by the defendants in the suit, committed grave illegality in accepting the version of the defendants with regard to discharge of the debt.
10. The court below ought to have appreciated that but for issuance of Ex.B1 receipt in lieu of Ex.A1 cheque, there could not be any reason why there was mention of Ex.A1 cheque in Ex.B1 receipt. If really cash was paid under Ex.B1 receipt, there could not be any reason for mentioning of Ex.A1 cheque or even for issuance of cheque to the plaintiff by the defendants. The court below failed to appreciate that Ex.B1 receipt was in a printed format and not drafted or written by any of the parties to the document and hence, intention of the parties has to be taken into consideration. The court below failed to appreciate the demands made by DWs.1 and 2 during their cross- examination which would disprove the defence taken by them in the case. As per the defence of the defendants, they alleged to have made payments on 03.04.2005, but there was no document to that effect. DW.1 also admitted in his cross-examination that they had not filed any proof to show that they made any payment to the plaintiff on 8 Dr.GRR,J CCCA. No.352 of 2018 03.04.2005 in discharge of the admitted debt. DW.2 also admitted in his cross-examination that Ex.A1 was issued by the defendant Nos.1 and 2 to the plaintiff on 29.09.2004. The oral and documentary evidence filed by the plaintiff and the records of the defendants and also the admissions on their part would clinchingly prove and establish that the defendants owed money to the plaintiff and they were liable to make payment due to the plaintiff and prayed to allow the appeal by setting aside the judgment and decree dated 04.06.2018 in O.S No.737 of 2009 passed by the X Additional Chief Judge, City Civil Court, Hyderabad.
11. Now the points for consideration in this appeal are:
1. Whether the plaintiff is entitled to recover the suit amount along with interest from the defendants?
2. Whether the discharge pleaded by the defendants is true?
3. Whether the judgment and decree of the court below is sustainable?
4. To what result?
9 Dr.GRR,J CCCA. No.352 of 2018
12. POINT No.2:
As per the pleadings, the plaintiff filed the suit for recovery of amount basing on a cheque. He also filed the criminal case for dishonour of cheque vide CC No.484 of 2005 which was dismissed by the IV Additional Chief Metropolitan Magistrate, Nampally, Hyderabad. An appeal was filed by him against the said judgment and the same was pending as seen from the cross-examination of PW.1. The defendants pleaded discharge. They contended that they paid the suit amount to the plaintiff on 03.04.2005 and filed a receipt marked as Ex.B1 in proof of the same. The said document was also filed before the criminal court in CC No.484 of 2005 and as the complainant therein i.e. plaintiff herein denied his signature on it, the same was sent to the forensic lab to compare it along with his signatures on the criminal complaint and the vakalat in CC No.484 of 2005. A report was given by the forensic expert that there were no fundamental differences in the said signatures. The similarities in the writing characteristics were significant and sufficient to form a definite opinion that both the questioned and standard signatures were signed by the same person. The said report was marked as Ex.B3 in this case.
10 Dr.GRR,J CCCA. No.352 of 2018
13. The plaintiff was examined as PW.1 and Exs.A1 to A7 documents were marked through him. Ex.A1 was the cheque bearing No.622368 dated 29.09.2004 for an amount of Rs.11,93,750/-. Ex.A2 was the office copy of the legal notice dated 01.03.2005 issued by the counsel for the plaintiff to the defendant Nos.1 and 2 calling upon the defendants to pay the cheque amount within (15) days of the receipt of the notice. Ex.A3 was the reply notice dated 14.03.2005 issued by the counsel for the defendant Nos.1 and 2 wherein the learned counsel for the defendants contended that the plaintiff had not returned the original document especially the document bearing No.9397 of 1988 in respect of plot Nos.10 to 14 covered by Sy.No.147 situated at Cheeryal Village, Keesara Mandal, Ranga Reddy District and to return the original promissory note and all other documents and to take back the cheque amount. Ex.A4 was the office copy of the rejoinder notice dated 23.03.2005 wherein the learned counsel for the plaintiff gave a reply asking the defendants to collect the cheque and promissory note by paying the cheque amount at his office by taking prior appointment. Ex.A5 was the certified copy of the judgment in CC No.4184 of 2005 wherein the accused were acquitted for the offence under Section 138 of the Negotiable Instruments Act. Ex.A6 was the 11 Dr.GRR,J CCCA. No.352 of 2018 certified copy of the sale deed with plan dated 24.12.1988, wherein an endorsement was made by the defendant No.1 that he had received the original copy of the sale deed. Ex.A7 was the cheque return memo dated 27.01.2005.
14. The defendant No.2 was examined as DW.1. The certified copy of the receipt dated 29.09.2004 for cheque No.622368 was marked as Ex.B1. The certified copy of the cash receipt dated 29.04.2004 was marked as Ex.B2 and the certified copy of FSL report dated 29.03.2004 was marked as Ex.B3. DW.1 filed his evidence affidavit stating that they had paid the amount and the plaintiff also gave stamped cash receipt in discharge of the cheque amount by mentioning the particulars on the receipt. Thus, he along with defendant No.1 had discharged the entire amount of the cheque of the suit in full satisfaction. But, the plaintiff with an evil motive had filed a false suit to have wrongful gain suppressing the real facts. In his cross examination he admitted that they had issued Ex.B1 on 29.09.2004 by putting the date of Exs.A1 and B1 and B2 were dated 29.09.2004 and 29.04.2004, respectively. Ex.B1 was in a printed format. The scribe of Ex.B1 was one Srihari brought by defendant 12 Dr.GRR,J CCCA. No.352 of 2018 No.1. He also admitted that there was no mention of payment of cash in Ex.B1 and in Ex.B1 after writing the amount, the cheque number was mentioned and there was no mention in Ex.B1 that it was issued against Ex.A1. He also admitted that he had not shown to have made payment under Ex.B1 to the plaintiff, in his income tax returns. He admitted that they had not filed any proof to show that they made any payment to the plaintiff on 03.04.2005.
15. Admittedly, Ex.A1-cheque and Ex.B1-receipt were of the same date of 29.09.2004 and Ex.B1 would read that a sum of Rs.11,93,750/- was paid with cheque No.622368 and there was no mention therein that the amount was paid in cash. A plain reading of the contents of Ex.B1 coupled with Ex.A1 would make out a clear case that Ex.B1 was issued in receipt of Ex.A1 cheque. If the defendants had made payment and the plaintiff had promised to return Ex.A1, the defendants would have definitely demanded for its return and would not have kept quiet, till the plaintiff got issued the legal notice. The defendants had not made payments even as on the date of the legal notices exchanged in the month of March, 2005. Admittedly, in Ex.A4, the counsel for the plaintiff requested the counsel for the 13 Dr.GRR,J CCCA. No.352 of 2018 defendants to advise the defendants to visit his office and collect the cheque and promissory note by paying the cheque amount thereof. Admittedly, the defendants did not visit the counsel for the plaintiff nor paid the amount as directed therein. If really, the defendants had intention to make payment of Ex.A1 cheque, they would have visited the office of the counsel for the plaintiff where the cheque was lying at that time and collected the same by paying the amount to the Advocate and would not have paid to the plaintiff as alleged. Taking advantage of the word 'cash receipt' as heading of Ex.B1, the defendants pleaded discharge, though it was not so.
16. The defendants got examined the father of DW.1 as DW.2. DW.2 stated that the plaintiff, the defendant Nos.1 and 2 and others used to meet in his house at Cheeryal village for business dealings. On 03.04.2005, his son and others settled the amount of Rs.12,00,000/- in cash. The plaintiff obtained cash receipt in discharge of the amount of cheque given earlier and they had heated discussion as the plaintiff did not bring the original cheque and promissory note to return. However, the plaintiff pacified saying that the cheque details were mentioned on the cash receipt.
14 Dr.GRR,J CCCA. No.352 of 2018
17. However, in his cross-examination, DW.2 stated that there was only one transaction between the plaintiff and the defendant Nos.1 and 2 and the entire transaction amount between the plaintiff and the defendant Nos.1 and 2 was about Rs.11 to 12 lakhs. He stated that Ex.A1 was issued by defendant No.1 and 2 to plaintiff on 29.09.2004. He stated that he did not remember the survey number of the land transacted by the plaintiff and the defendants and that he was not aware whether the plaintiff was to give any sale deed to defendant Nos.1 and 2. He also admitted that there was no other receipt signed between the parties in his presence and the settlement between the parties was not concluded as on the date of Ex.B2 i.e. 29.04.2004.
18. Admittedly, the defendants filed two receipts which were in a similar printed format, one dated 29.04.2004 and the other dated 29.09.2004, marked as Exs.B1 and B2 with two cheque numbers mentioned therein in receipt of the same. The contention of the learned counsel for the appellant-plaintiff was that the defendants issued two cheques for Rs.11,93,750/- each after receipt of the original sale deed and an endorsement was made by defendant No.1 on Ex.A6 that he had received the original sale deed document. One cheque 15 Dr.GRR,J CCCA. No.352 of 2018 dated 29.04.2004 was cleared but the other cheque dated 29.09.2004 was returned, no cash payment was made by the defendants, but taking advantage of the title of the receipt marked under Ex.B1 as cash receipt contending that they paid the amount in cash for the cheque marked under Ex.A1, which was not true. Exs.B1 and B2 were issued in receipt of the cheques, as such, they were dated 29.09.2004, the date of issuing the cheque. The said contention appears to be plausible.
19. The evidence of DW.2 proved that he did not know about the transaction between the parties or anything relating to it. The defendants failed to prove that any settlement had taken place as alleged between them on 03.04.2005 and any amount was paid on the said date as contended by them.
20. The trial court considering that the plaintiff had not filed any rejoinder to the written statement of the defendant Nos.1 and 2 refuting the payment of cash of Rs.11,93,750/- on 03.05.2005 as contended by the defendants and that the heading of Ex.B1 was recorded as "Cash Receipt" and DW.1 admitted that in Ex.B1, after writing of amount, the cheque number was mentioned which was 16 Dr.GRR,J CCCA. No.352 of 2018 Ex.A1, considered that the recitals in Ex.B1 would speak receipt of a sum of Rs.11,93,750/-. The trial court observed that if really Ex.B1 cash receipt was passed for receiving Ex.A1 cheque, the words "received a sum of Rupees" ought to have been struck off. But, the said words remaining as it is, would prove that the plaintiff has passed Ex.B1 acknowledging a receipt of a sum of Rs.11,93,750/- as pleaded by the defendants.
21. However, the same cannot be considered as proof of payment when admittedly, Ex.B1 was dated 29.09.2004 but not 03.04.2005 and when admittedly legal notices were exchanged between the parties and the counsel for the plaintiff also requested the counsel for the defendants to advise the defendants to visit their office and to collect Ex.A1 cheque by paying the amount. It could not be believed that defendant Nos.1 and 2 paid the amount in cash at the house of the father of defendant No.2 without receiving the cheque marked under Ex.A1 and without issuing any notice to the plaintiff demanding to return Ex.A1 cheque even subsequently. DW.1 also admitted that they had not filed any proof to show that they made any payment to the plaintiff on 03.04.2005 or that he had shown the 17 Dr.GRR,J CCCA. No.352 of 2018 payments made under Ex.B1 to the plaintiff in his income tax returns. In view of these admissions made by DWs.1 and 2 in their cross- examination, this Court does not believe that DWs.1 and 2 had discharged the amount due to the plaintiff under Ex.A1 cheque. As such, this point is answered against the defendants and in favour of the plaintiff.
22. POINT No.1:
In view of answering point No.2 in favour of the plaintiff, the plaintiff is entitled to recover the suit amount as prayed for. As the plaintiff had proved that the defendants were due the amount of Rs.11,93,750/- due to him and DW.1 also admitted in his cross- examination that the transaction between the parties was purely a business and commercial transaction, the plaintiff is entitled for interest on due amount. As such, point No.1 is answered in favour of the plaintiff holding that the plaintiff is entitled to recover the suit amount along with interest.
23. POINT Nos.3 and 4:
In the result, the appeal is allowed setting aside the judgment and decree dated 04.06.2018 passed in O.S. No.737 of 2009 by 18 Dr.GRR,J CCCA. No.352 of 2018 the X Additional Chief Judge, City Civil Court, Hyderabad.
Consequently, the suit in O.S. No.737 of 2009 is decreed for Rs.20,53,250/- with costs and interest at 7.5% per annum from the date of suit till the date of this judgment and at 6% per annum till realization.
Miscellaneous Applications, if any pending, shall stand closed.
_____________________ Dr. G. RADHA RANI, J June 09, 2023 KTL