Bangalore District Court
M.C.Javaregowda S/O Chikke Gowda vs B.R.Bheemaraj S/O Late ... on 11 November, 2015
IN THE COURT OF THE III ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (C.C.H.No.25).
Dated: This the 11th day of November 2015
Present: Sri.Ron Vasudev, B.Com. LL.B, (Spl),
III Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.No:2728/2003
Plaintiff M.C.Javaregowda S/o Chikke Gowda, Aged
about 55 years, R/at No.44/A, 6th Main,
11th Cross, III Phase, J.P.Nagar,
Bangalore-560 078.
(By Sri.GRH, Advocate)
Vs
Defendant B.R.Bheemaraj S/o Late Sri.B.R.Rajanna,
Aged about 56 years, Senior Assistant,
K.S.C.A. & R.D. Bank Ltd., Tippu Sultan
Palace Road, Chamarajpet, Bangalore-560
018.
(By Sri.G.R., Advocate)
Date of Institution 17.4.2003
Nature of suit Money suit
Date of commencement of 27.9.2006
evidence
Date on which the judgment was 11.11.2015
pronounced.
Total Duration: Years Month Days
12 6 24
(RON VASUDEV),
III Addl.City Civil & Sessions Judge,
Bengaluru.
2 O.S.No:2728/2003
JUDGMENT
This is a suit on pronote.
2. The averments of the plaint in brief are that; the defendant was doing chit business and was running a printing press at M.R. Lane, Maavararthepet, Bangalore with the assistance of his son. That the defendant was in need of money, so he approached the plaintiff and requested him to extend financial help in the month of May 2000. Considering the said request and also the fact that the plaintiff as well as the defendant are working in the same bank, the plaintiff extended hand loan of Rs.87,500/-, and having received the same the defendant executed pronote on 1.5.2000, agreeing to repay the same with 18% interest p.a., as and when the plaintiff demands. Having borrowed the amount the defendant did not repay it inspite of several requests and demands. Therefore the plaintiff issued legal notice on 3.5.2003 and called upon him to repay that amount with interest. Though the said notice was duly served the defendant has not replied it nor complied it. That as on the date of suit, the defendant is liable to pay the principal sum of Rs.87,500/- and interest on it, from 1.5.2002 to 15.4.2003 at 18% p.a., which comes to Rs.46,550/- ie, in all Rs.1,34,050/- with present and further interest, wherefore the plaintiff prays for judgment and decree for the above sum.
3. On the other hand the defendant denies the entire plaint averments, except that plaintiff issued legal notice and he replied 3 O.S.No:2728/2003 it suitably. He also disputes the maintainability of the suit on the ground of limitation as well as on jurisdiction. He further submits that the plaintiff and his family members are engaged in money lending business and even plaintiff is lending money in the name of others also, without having license to do such business under the provisions of The Karnataka Money Lenders Act. It is stoutly denied that on 1.5.2000 the defendant approached the plaintiff, requested him to extend loan and having received Rs.87,500/- executed pronote agreeing to repay it with 18% interest p.a. That the alleged pronote is an outcome of forgery committed by the plaintiff. That the plaintiff is a notorious person with questionable character and he has already filed a false criminal case against this defendant. Infact the plaintiff was contesting in K.S.C.A. & R.D. Bank Ltd., Employees Co-operative union election and he requested the defendant to canvas and vote for him since the defendant did not oblige him, with vengeance this suit is filed. That many altercations have taken place between the plaintiff and the defendant for the aforesaid reason, as such with malafide intention and in order to harass this defendant, this false suit is foisted. There is no cause of action for the suit and the alleged one is false and invented, wherefore the defendant prays to dismiss the suit with costs.
4. Based on the said pleadings my predecessor in office has framed the issues in the order sheet itself on 31.8.2005.
4 O.S.No:2728/2003ISSUES
1. Does plaintiff prove that on 1.5.2000 defendant executed suit pronote after borrowing Rs.87,500/-, agreeing to pay suit amount with interest at rate of 18% p.a.?
2. Is the suit document a concocted one as alleged by defendant?
3. Does defendant prove that plaintiff is money lender as defined under Karnataka Money Lenders Act?
4. If so is the present suit hit by Section 11 of the said Act?
5. What decree or order?
5. In support of his case plaintiff examined himself as PW1 and witness by name S.V.Veerabhadrappa, attestor to the alleged pronote, as PW2 and Ex.P1 to P3 are marked by them. In their cross-examination Ex.D1 to D7 are marked and in addition to it defendant examined himself as DW1 and got exhibited Ex.D8 to D23. Heard the arguments of defendant's counsel, perused the written arguments and the decisions relied by the defendant.
5 O.S.No:2728/2003There was no representation for the plaintiff, hence arguments of plaintiff are taken as nil.
6. My findings on the above issues are as under:
Issue No.1 - In the negative
Issue No.2 to 4 - In the affirmative
Issue No.5 - As per final order, for the following:
[
REASONS
Issue No.1 to 4:
7. Since all these issues are closely interwoven, I have taken them simultaneously.
8. Simply on the reason that this is a suit based on pronote and the plaintiff will have the benefit of legal presumption u/s 118 of the N.I. Act, court is not required to examine his evidence with a pre-occupied notion that case set up by him is nearer to the truth and defendant is intentionally avoiding his liability. In other words what I mean to say that, every suit is to be decided based on the facts and law it presents. This is a peculiar case where court is required to read the pleadings and evidence of the parties bit keenly.
9. In his examination chief reiterating the plaint averments PW1 filed his affidavit stating that defendant borrowed hand loan from him and executed a pronote and consideration receipt as 6 O.S.No:2728/2003 per Ex.P1 agreeing to repay the amount with interest and since he did not repay that amount he issued legal notice as per Ex.P2 on 3.4.2003 and it was duly served on 7.4.2003, as evidenced by potal acknowledgement produced at ExP3, but in spite of it he has not received that amount. To corroborate his said oral and documentary evidence he examined PW, who was allegedly present at the time of this loan transaction. Even this latter witness also stated that he witnessed the lending and borrowing between PW1 and DW1 and he has attested the consideration receipt. However the close scrutiny of their evidence shows that there is no pinch of truth in their evidence.
10. As elicited in the cross-examination of PW1 he was working as a driver in the K.S.C.A. & R.D. Bank, whereas the DW1 was working in Tumkur Branch of the said bank and this PW1 is having wife by name Smt.Jayamma and son by name Nagaraj. He admitted that his said wife and son have filed suits against this very DW1 for recovery of money under pronotes. To corroborate the said admissions the defendant has produced Ex.D11, D12, D6/13 and D7. They show that the said Jayamma has filed suit against this DW1 at O.S.No:2729/2003 as per Ex.D11, which is the certified copy of the plaint, and in that suit this very PW1 taking power of attorney from his said wife examined himself as PW1 the certified copy of the said deposition is at Ex.D12. Likewise Ex.D6/D13 viz; the pronote dt.15.7.2000 and consideration receipt of even dated produced at Ex.D7 show that son of PW1 viz; Nagaraj also took a pronote from the 7 O.S.No:2728/2003 defendant for a sum of Rs.87,500/- and the said consideration receipt was also signed by this very PW2 as attestor. Though the PW1 denied that he is not having knowledge of loan transactions between DW1 on one hand and his wife and son on the other hand, the very deposition of this PW1 in the suit filed by his wife against this defendant shows that, this PW1 is not a man of truth and he will go to any extent i.e. even to the extent of telling falsehood on oath.
11. As admitted by PW1 on Page no.8 of his cross- examination he has no source of income other than his salary and he also stated that himself and family members used to borrow amount and lend. He did not disclose his salary that he was receiving in the year 1999-2000 nor produced document to show that how much amount he was possessing at the time of alleged loan transaction between him and DW1. At one stage PW1 stated that he had his own savings and out of that savings as well as the money received from his son he extended loan to DW1, but he did not like to examine his son to prove that aspect. Even he did not whisper how much money he borrowed or received from his son Nagaraj so as to lend it to DW1. It is difficult to believe that a person, who is having only salary income, that too as a driver could have so much of amount to lend it to the other person. The non-production of document to prove possession of Rs.87,500/- as on 1.5.2000 proves beyond all shadow of doubt that there was no loan transaction as alleged.
8 O.S.No:2728/200312. On Page No.9 of cross-examination of PW1 it is elicited that this PW1 had contested the union election during the year 1999-2000, but he denied that then DW1 did not support him. Strangely having denied the commission of any forgery of signatures of DW1 on the suit pronote as well as consideration receipt, when interim applications were filed by DW1 at I.A.No.1 and 5 to send Ex.P1 for scientific comparison of his disputed signatures with the admitted one, on both occasions PW1 resisted the I.As by filing detailed objections. Looking to the evidence that was available in the file, by order dt.26.9.2015 this court dismissed I.A.No.5, whereas I.A.No.1 was disposed of by my predecessor. This is a crucial piece of evidence to show how PW1 has cooked up the suit document.
13. As per PW1 when he lent money to DW1 nobody was present except themselves, whereas he himself examined PW2 stating that he was present and he witnessed the transaction. Thus the cross-examination of PW1 runs contrary to the evidence of PW2. Regarding the writing of information in the printed form of pronote and consideration receipt PW1 stated that he is not aware who filled the required information as it was got prepared by DW1 himself. In this background if Ex.P1 is compared with the other promotes produced by DW1 at Ex.D4, D6, D7, D13 and D14 it can be seen that in all these promotes very same form of typing is made and all these promotes are for sum of Rs.87,500/- and in every consideration receipt there is one attestor. In the 9 O.S.No:2728/2003 suit pronote, PW2 is the attestor whereas in Ex.D4, which is said to have been executed in favour of PW2 by this DW1 on 24.6.2000 one Balajisingh is the attestor and in Ex.D14 dt.2.8.2000, said to have been executed by DW1 in favour of said Balajisingh this PW1 is the attestor. In Ex.D7/13, as I said earlier this PW2 is the attestor and the said promote is also for Rs.87,500/- and it is dt.15.7.2000 and it is in favour of Nagaraj, the son of PW1. Thus it can be seen that PW1, PW2, Balajisingh and wife of PW1 and their son filed series of cases against this DW1 for very same amount, said to have been lent on different dates with acting among themselves as attestors for one another.
14. Regarding these fake transactions the evidence of PW2 shows that, as rightly alleged in the plaint averments this DW1 was running a chit business with PW1, PW2, Balajisingh, Nagaraj and two more sons of PW1 viz; Suresh and Ramesh and others as members of the said chit and when he failed to repay the said chit amount they fabricated the promotes and filed suits like this. Even the mahazar prepared at Ex.D1, copy of complaint filed by PW1 produced at Ex.D2 show that this PW1 had filed criminal case u/s 420 and 506(b) r/w Sec.34 of IPC against DW1 and his son and regarding which FIR was also issued as per Ex.D8 and after investigation when the charge sheet came to be filed at C.C.No:4393/2001 by J.P.Nagar Police in 5th A.C.M.M. Court, Bangalore, after hearing this DW1, who was an accused in that case, the said court discharged him. The said order of discharge is at Ex.D20 and affidavit of DW1 filed in that case is at Ex.D21.
10 O.S.No:2728/2003The representations given by PW1 and other person referred above to the Executive Director of their bank at Ex.D5/D22 and Ex.D23 show that when this DW1 could not repay chit amount, the said persons requested the Executive Director of the bank to withheld the retirement benefits of DW1 and to disburse that amount towards their outstanding chit amount.
15. It appears that being fed up with the internal fightings between DW1 on one hand and members of his chit fund, who were their employees, on the other hand, the management of the KSCA & RD Bank initiated enquiry proceedings against this DW1 and before the said enquiry officer PW2 gave his evidence as per Ex.D3 stating that he has filed suit against the DGO for non- payment of chit fund. This shows that there was no loan transaction between DW1 on one hand and others on the other hand. In the criminal case to which I made reference the said Nagaraj, son of PW1 and his two more sons Ramesh and Suresh gave statements before the I.O. as per Ex.D9 stating that they were the members of chit fund conducted by DW1.
16. The copy of reply notice produced by DW1 at Ex.D10 and postal receipt annexed to it show that on 15.4.2003 DW1 got issued legal notice to PW1's advocate but it is deliberately hidden by PW1, therefore, his submission that DW1 did not reply his notice cannot be accepted.
11 O.S.No:2728/200317. Having made elaborate discussion on the oral and documentary evidence adduced by the parties, now I will advert to the decisions relied by DW1. In the decision reported at ILR 1986 KAR. 186 (Katte Shivappa v Kori Eranna) Hon'ble High Court held that though U/Sec.118(a) of the N.I. Act plaintiff is entitled for an initial presumption, if course of trial imports factors and circumstances sufficient to destroy the presumption, plaintiff cannot succeed without establishing by cogent and positive evidence that document was supported by consideration. In the instant case nevertheless PW1 examined PW2 to corroborate his version, there is no piece of document to show that this PW1 possessed Rs.87,500/- on 1.5.2000 and further there is no document to show that he paid that much amount to DW1 except the disputed pronote and consideration receipt. The cross- examination of PW1 and PW2 has unraveled the truth behind cooking up of pronote and consideration receipt and also filing of the suit, therefore the benefit of presumption that PW1 could have availed in the case is destroyed by DW1 by placing robust documentary evidence. Hence, PW1 cannot think of presumption of due execution of suit pronote.
18. In another decision reported at AIR 1987 AP 139 in the case of (G.Vasu v Syed Yaseen Sifuddin Quadri) referring to the words 'unless contrary is proved' as appearing in Sec.118 of the N.I. Act Honable court held that for the purpose of said words, it is permissible to look into the preponderance of probabilities and the entire circumstances of a particular case. It is further held 12 O.S.No:2728/2003 that once the defendant shows either by direct evidence or by circumstantial evidence or by use of other presumptions of law or fact that the promissory note is not supported by consideration in the manner stated in it, the burden shifts to the plaintiff and it is for him to prove the passing of consideration. In the instant case DW1 is successful in rebutting the presumption that too when PW1 himself is not able to discharge his initial burden of due execution of the suit pronote.
19. In another decision reported at AIR 1961 SC 1316 (Kundal Lal Rallaram v Custodian, Evacuee Property, Bombay) referring to similar circumstances Hon'ble Court held that it is very well open to the defendant to rebut the presumption. In one more decision reported at {2006 (37) AIC 334 (A.P., H.C.)} in the case of (P.Venkatamma and another and Dontham Sulochana) again with reference to Sec.118 of N.I. Act it was held that burden lies on the plaintiff to prove the pronote as required by law, in all respects and the legal presumption under the said provision would apply only when the instrument is proved or admitted. It is also held that if an important witness is not examined, an adverse inference has to be drawn against such party. In the case in hand PW1 stated that by collecting money from his son he lent to PW1, however he has not examined his said son, therefore court has to drawn an adverse inference against him.
20. In his cross-exam PW1 unambiguously admitted that he is lending money to others also. It shows that he is a regular 13 O.S.No:2728/2003 money lender. It is also elicited that he has not obtained license under The Karnataka Money Lenders Act, therefore as contained in Sec.11 of the said Act, he cannot maintain the suit. Thus for all these reasons holding that there is no case for PW1 and he has miserably failed to prove the pronote much less the passing of consideration and undertaking of DW1 to return that money with interest at 18% p.a. and on the contrary that the suit pronote and consideration receipt are concocted and that DW1 has proved that plaintiff is a money lender without license and suit is hit by Sec.11 of The Karnataka Money Lenders Act, I answer issue no.1 in the negative, whereas issue no.2 to 4 in the affirmative.
Issue No.5:
21. In the result, I proceed to make the following:
ORDER Suit is dismissed.
In the peculiar facts of the case the parties shall bear their own costs.
Draw decree accordingly. (Dictated to the Judgment Writer, transcription computerized, then corrected and pronounced by me in open court, this the 11th day of November 2015) (RON VASUDEV), III Addl. City Civil & Sessions Judge, Bengaluru.14 O.S.No:2728/2003
ANNEXURE List of witness examined for the plaintiff side:
PW1 M.C.Javaregowda PW2 S.V.Veerabhadrappa
List of documents exhibited for the plaintiff side:
Ex.P1 On demand pronote & Consideration receipt Ex.P1(a) Signature of defendant Ex.P1(b) Signature of Veerabhadrappa Ex.P2 Office copy of legal notice Ex.P3 Postal acknowledgement Ex.P3(a) Signature of defendant List of witness examined for the defendant/s side:
DW1 B.R.Bheemraj List of documents exhibited for the defendant/s side:
Ex.D1 Certified copy of the panchanama
Ex.D2 Certified copy of the complaint
Ex.D3 Copy of union
Ex.D4 Xerox copy of promissory note
Ex.D5 Certified copy of the order
Ex.D6 Certified copy of the promissory note
Ex.D7 Certified copy of the consideration receipt
Ex.D8 FIR
Ex.D9 Statement of plaintiff's son
Ex.D10 Reply notice
Ex.D11 Certified copy of the plaint in O.S.2729/03
Ex.D12 Deposition
Ex.D13 Certified copy of the DPN dt.15.7.00
Ex.D14 Certified copy of the DPN
Ex.D15 Certified copy of the evidence of PW2
Ex.D16 Certified copy of the police complaint
Ex.D17 Certified copy of the complaint
Ex.D18 Certified copy of the memo dt.26.9.00
15 O.S.No:2728/2003
Ex.D19 Certified copy of the notice dt.27.11.2000 Ex.D20 Certified copy of the evidence in C.C.No:4393/01 Ex.D21 Certified copy of the affidavit Ex.D22 Certified copy of the complaint Ex.D23 Certified copy of the complaint dtr.28.11.05 (RON VASUDEV), III Addl. City Civil & Sessions Judge, Bengaluru.