Bangalore District Court
Mahesha vs N.Praksah on 18 November, 2016
C.R.P. 67] Government of Karnataka
Form No. 9
(Civil) TITLE SHEET FOR JUDGEMENTS IN SUITS
Title Sheet for IN THE COURT OF THE SMALL CAUSES AT BANGALORE
Judgment in
Suits PRESENT: Basavaraj Chengti., B.Com.,LL.B.,(spl)
XVI ADDL. JUDGE,
Court of Small Causes,
BANGALORE.
Dated this the 18th day of November 2016
S.C.No.450/2015
PLAINTIFF: MAHESHA
S/o Late.Siddaiah,
Aged about 32 years,
R/at No.105, 5th Cross, 7th main,
Srinivasa Nagar,
Banashankari 3rd stage,
Bangalore.
(By pleader Sri LS)
Vs.
DEFENDANT : N.PRAKSAH,
Peon, Advocate General Office,
High Court of Karnatka Building,
Dr.Ambedkar Veedhi,
Bangalore-560001.
(By pleader Sri JM)
SCCH-14 2 SC No.450/2015
Date of institution of the suit: 27.04.2015
Nature of the suit (suit on pronote,
suit for declaration and possession Money suit
suit for injunction, etc.,):
Date of the commencement of 13.08.2015
recording of the evidence:
Date on which the Judgment 18.11.2016
was pronounced:
Year/s Month/s Days
Total duration: 01 06 22
Additional Judge
SCCH-14 3 SC No.450/2015
JUDGMENT
This is a small cause suit for recovery of money.
2. Brief averments of the plaint are as under:
The defendant is known to the plaintiff and he approached the plaintiff in the first week of January 2013 for a hand loan of Rs.1,00,000/- to clear some urgent debts and for legal and family necessity. The plaintiff has paid Rs.1,00,000/- to the defendant by way of cash on 13.1.2013. The defendant has executed an on demand promissory note and consideration receipt on the same day for having received the amount and agreed to repay the amount within one year with interest @21% p.a., The defendant has not repaid the amount and interest. In spite of repeated requests and reminders, the defendant has failed to make the payment. Hence, the plaintiff got issued legal notice on 28.1.2015 calling upon the defendant to pay the said amount with interest. The defendant is in due of Rs.1,00,000/- towards principal, Rs.20,000/- towards interest and Rs.1,000/- towards notice charges. The defendant is in due of Rs.1,21,000/- to the plaintiff. However, the plaintiff has restricted his claim to Rs.1,00,000/- and valued the suit accordingly. Hence, the plaintiff has filed this suit for Judgment and decree against the defendant for Rs.1,00,000/- with interest @21% p.a., from the date of suit till realization.
3. In pursuance of summons, the defendant has appeared before the Court through his counsel and filed his written SCCH-14 4 SC No.450/2015 statement. He has denied the case of the plaintiff as false and contended that he has no acquaintence with the plaintiff, that he never borrowed any amount from the plaintiff and not executed any promissory note and consideration receipt in his favour, that he has not received any notice from the plaintiff and he is not liable to pay the amount and interest as claimed in the suit, that the plaintiff has filed the suit with malafide intention to create problem and to harass him, that there was no cause of action to file the suit and proper court fee is not paid. Hence, he has sought for dismissal of the suit with exemplary cost.
4. Heard both sides. The counsel for the plaintiff has relied upon ruling reported in ILR 1995 KAR 968 (Rangappa Vs Krishnamurthy). The counsel for the defendant has cited ruling reported in 2015 (3) KCCR 2113 (Smt.Kamala & Ors Vs Smt.Rajoovi Padmappa since dead by Lrs). During the proceedings, the defendant has filed I.A. U/s 340 R/w 195 of Cr.P.C. for taking action against PW-2 with documents. PW-2 has appeared before the Court through his counsel and filed objections to I.A. Then, Misc.No.264/16 was registered and relevant records were kept in the said file. It was heard and separate order is passed. I have gone through the said rulings and perused the records.
5. The points arise for my consideration are:
SCCH-14 5 SC No.450/20151. Whether the plaintiff has proved that the defendant has borrowed Rs.1,00,000/-
from him on or about 13.1.2013 and promised to repay it with interest @21% p.a., within one year ?
2. Whether the plaintiff has proved that the defendant has failed to repay the borrowed amount and its interest in spite of demand ?
3. Whether the plaintiff is entitled for the suit claim ?
4. What order or decree ?
6. My findings are as under:
POINT NO.1 AND 2 : IN AFFIRMATIVE
POINT NO.3 : PARTLY IN AFFIRMATIVE
POINT NO.4 : AS PER FINAL ORDER
REASONS
7. POINT NO.1 TO 3: These points are interlinked and hence, I have taken them together for common discussion.
This is a suit for recovery of money based on promissory note. The defendant has denied entire case of the plaintiff. Even, he has denied his acquaintance with the plaintiff, borrowing of amount, execution of pro-note cum consideration receipt, his promise to repay the amount with interest, demand made by the SCCH-14 6 SC No.450/2015 plaintiff, service of notice and his liability to pay the amount and interest to the plaintiff as prayed.
8. PW-1: Mahesha is the plaintiff and PW-2: Ramachandra is a friend of the plaintiff. They have deposed in proof of the averments of the plaint. Ex.P-1 to 3 are got marked for the plaintiff, whereas DW-1: Prakash is the defendant and DW-2: Uma Reddy is franchisee of Profession Courier. They have deposed in support of defence taken in written statement. Ex.D-1 to 3 are got marked for the defendant.
9. PW-1: Mahesha and DW-1: Prakash have deposed as per their respective pleadings. PW-2:Ramachandra has supported the version of PW-1 and stated that the defendant has borrowed Rs.1,00,000/- from the plaintiff on 13.1.2013 and executed an on demand promissory note and consideration receipt in his presence agreeing to repay the amount within one year with interest @21% p.a., DW-2: Uma Reddy has stated that article sent under receipt at Ex.P-3 was delivered to the office of Karnataka Rural Infrastructure Development Ltd., situated at Anandrao Circle, Bangalore.
PW-1 has stated as under during cross examination:
"I have not seen his house. I don't know the family details of the defendant.
At that time Ramalinga has also came with the defendant, but he was not present when the amount was lent to the defendant.SCCH-14 7 SC No.450/2015
I don't lend the amount to any person in general, but I lend to the persons to whom I know very well. I have advanced amount to 4- 5 persons. It is false to suggest that I am doing money lending business. It is true to suggest that I advanced amount on interest. I have charged interest @ 1.75% per month to the defendant. I have not obtained any licence to lend money. I don't know that in order to do money lending business one has to get licence.
On demand promissory note was got typed and the defendant has signed the same. There was no difficulty to get the promissory note handwritten.
I have filed suits for recovery of money against 4-5 persons. It is false to suggest that all those persons are working in courts. I have not obtained residential address of the defendant while lending money. I have sent notice to the residential address of the defendant. Witness again says that notice was sent to him on his office address or residential address. I don't know exactly. I don't remember that I have not sent notice to his residential address.
I borrowed Rs.1,00,000/- from my friend Keerthi to lend it to the defendant. I collected the said amount on the previous day".
PW-2 has stated as under in his cross examination:
"He has lent money in my presence to a person by name N. Prakash. I had been to house the plaintiff casually on that day. He has not lent any amount to any other person in my presence. I have not given evidence as witness of plaintiff in any case other than this case. I don't know that I have given evidence before this court in SC no. 449/2015 as witness of plaintiff.SCCH-14 8 SC No.450/2015
I have attested only one promissory note as witness which is pertaining to this case and I have not attested any other promissory note as witness".
DW-1 has stated as under in his cross examination:
"The document now shown to me does not bear my signature. (written statement was shown to the witness). The document now shown to me also does not bear my signature. (vakalathnama of the defendant was shown to the witness). It is false to suggest that on demand promissory note cum receipt now shown to me bears my signatures".
10. The counsel for the defendant has argued that as per the plaintiff one Ramalinga has introduced the defendant to him who came to his house when the defendant approached him for seeking financial assistance, but amount is stated to be paid in the absence of Ramalinga, that the plaintiff has not chosen to examine the said Ramalinga who is a material witness. He has further argued that the plaintiff has not seen the house of the defendant and he has not taken his residential address, but he says that he sent notice to residential address of the defendant, that evidence of DW-2 and contents of Ex.D-1 establish that the notice sent by the plaintiff was delivered to the office of Karnataka Rural Infrastructure Development Ltd., situated at Anandrao Circle, Bangalore. He has further argued that the plaintiff admits that he lent amount to 4-5 persons on interest and filed suits against 4-5 persons, but he has not obtained money lending licence and as such, the suit is not maintainable, that PW-2 has stated that in his presence, the plaintiff lent amount to the defendant only, that he SCCH-14 9 SC No.450/2015 has attested as witness to the promissory note pertaining to this case and he has not given evidence as witness of the plaintiff in any case other than this case, but Ex.D-2 and 3 falsify the evidence of PW-2 and reveal that PW-2 is a habitual witness and he has attested the promissory pertaining to H.T. Krishnappa and has given evidence before this Court in a suit filed by the plaintiff against said Krishnappa, that this makes the evidence of PW-2 untrustworthy and it is liable to be rejected. He has further argued that promissory note is type written and there was no difficulty for getting it hand written, that manner in which it is prepared, creates doubt. He has further argued that the plaintiff has failed to prove the execution of Ex.P-1 by the defendant, that there is no evidence to believe that the signatures on the said documents are of the defendant, that evidence of PW-2 can not be considered for proving of signatures of Ex.P-1, that the plaintiff has not taken the assistance of handwriting expert in that regard and thus, there is no corroboration to the evidence of PW-1 and his uncorroborated evidence is liable to be rejected, that as per ruling, the Court can not take the risk of comparing the signatures on its own. He has further argued that the plaintiff has not issued demand notice to the defendant, that notice at Ex.P-2 was sent to a different address and it was delivered to the office of Karnataka Rural Infrastructure Development Ltd., situated at Anandrao Circle, Bangalore and not to the defendant, that there was no cause of action to file the suit. He has further argued that the plaintiff has admitted that he was not having Rs.1,00,000/- with him on 13.1.2013, but has stated that he borrowed it from his friend Keerthi, that he has not SCCH-14 10 SC No.450/2015 examined said Keerthi as his witness and as such, there is no evidence to believe that the plaintiff was having amount to lend it to the defendant on or about 13.1.2013. He has further argued that the defendant has deposed as per his defence. Nothing is elicited from him in cross examination, that DW-2 has supported the case of the defendant and her evidence is believable, that the defendant has succeeded to prove his defence and to disprove the case of the plaintiff. Hence, he has sought for dismissal of the suit with exemplary cost.
11. The counsel for the plaintiff has argued that our Hon'ble High Court has held that promissory note outweighs other evidence on record, that the defendant has failed to prove that the signatures on the promissory note are not his signature, that the defendant has received amount from the plaintiff and executed Ex.P-1 in presence of PW-2 who has identified the signatures, that there is nothing on record to disbelieve the evidence of PW-1 and 2 and contents of Ex.P-1, that name of the defendant is mentioned in courier receipt and the notice was served on the defendant, that the defendant has denied his signatures on written statement and vakalatnama which clearly indicates that he is telling a lie regarding signatures on Ex.P-1, that in order to avoid the payment of amount, the defendant is deposing falsely, that the defendant has failed to prove his defence and on the contrary, the plaintiff has proved his case through oral and documentary evidence. Hence, he has sought for decreeing the suit with cost.
SCCH-14 11 SC No.450/201512. The plaintiff has adduced oral and documentary evidence to prove his case. The defendant has also adduced oral and documentary evidence to prove his defence and to disprove the case of the plaintiff. The defendant has categorically denied the case of the plaintiff. His defence is of total denial. He has denied even acquaintence with the plaintiff. But, he has gone against his own denial during cross examination of PW-1 and has impliedly admitted his acquaintence with the plaintiff. Portion of cross examination of PW-1 is as under:
"It is true to suggest that after introduction by the Ramalinga, a close relationship is developed between me and the defendant".
13. The above suggestion is nothing but an admission that the plaintiff and defendant are known to each other. In view of Sec.58 of Evidence Act, no further proof is required to prove the acquaintance between the plaintiff and the defendant.
14. PW-1 has stated about payment of Rs.1,00,000/- to the defendant on 13.1.2013 in presence of PW-2, about execution of promissory note and consideration receipt by the defendant in his favour agreeing to repay the amount within one year with interest @21% p.a., PW-2 has supported the version of PW-1 as to payment of Rs.1,00,000/- by the plaintiff to the defendant and execution of promissory note cum consideration receipt by the defendant in favour of the plaintiff. Promissory note cum consideration receipt is produced and it is marked as Ex.P-1 which corroborates the evidence of PW-1 and 2 who have identified the signatures on it as SCCH-14 12 SC No.450/2015 the signatures of the defendant. Execution of promissory note cum consideration receipt is denied by the defendant. He has disputed the signatures on Ex.P-1. Promissory note is not a compulsorily attestable document. Sec.72 of Evidence Act governs the proof of such document which says that documents which are not compulsorily attestable shall be prove as if they are unattested.
15. Sec.61 of Evidence Act is about proof of contents of a document. It says that contents of a document shall be proved either by primary evidence or by secondary evidence. Ex.P-1 is original promissory note. It is a primary evidence. It is executed in favour of the plaintiff on 13.1.2013. PW-1 and 2 have stated that the defendant has executed Ex.P-1 by receiving the amount. They have identified the signatures on it as signatures of the defendant. Ex.P-1 contains a promise by the maker to pay Rs.1,00,000/- to the plaintiff on demand with interest @21% p.a., The defendant has denied the signatures on Ex.P-1, but he has not produced any evidence either oral or documentary to prove that the signatures on Ex.P-1 are not his signatures. As per Sec.103 of Evidence Act, the burden of proof in respect of signatures on Ex.P-1 was upon the defendant. He has not discharged his burden. He ought to have got the document referred to an expert, but he did not do so. Production of Promissory note and giving evidence is sufficient for the plaintiff. He has discharged his primary burden. There was no need for him to get the commissioner appointed for comparison of signatures. Uncorroborated testimony of DW-1 regarding signatures is unbelievable. The signatures on Ex.P-1 are similar to SCCH-14 13 SC No.450/2015 the signatures on written statement and vakalatnama. DW-1 has denied his signatures on written statement and vakalatnama. His conduct is not of a prudent man and it induces the Court to draw an adverse inference. It is made out by the defendant that PW-2 lied that he has attested the promissory note of this case only and he has not given evidence for the plaintiff in any case other than this case. Ex.D-2 and 3 reveal that PW-2 has attested as witness in other promissory note and has deposed for the plaintiff in other suit also, but that itself is not sufficient to disbelieve his evidence as to lending of amount by the plaintiff and execution of promissory note by the defendant. 'Falsus in uno is Falsus in omni bus' rule is not applicable to India. There is signature of PW-2 on Ex.P-1. He has stated about execution of pronote by the defendant. Uncorroborated evidence of DW-1 does not outweigh the oral evidence of PW-1 and 2 and contents of Ex.P-1. Hence, I hold that the plaintiff has succeeded to prove the execution of Ex.P-1 by the defendant.
16. Ex.P-1 is a negotiable instrument. Presumptions U/s 118 of Negotiable Instruments Act are applicable to Ex.P-1. Therefore, the Court shall have to presume that Ex.P-1 is executed for consideration on 13.1.2013 in favour of the plaintiff. There is no rule to fill up the contents of promissory note by hand. Type written contents do not take away its worthiness. However, the presumption U/s 118 of the said Act is rebuttable presumption. The burden of proof was on the defendant to rebut the presumption. Evidence of DW-1 and 2 is not sufficient to rebut the SCCH-14 14 SC No.450/2015 presumption. Thus, legal presumption U/s 118 of the said Act remained unrebutted. In view of such presumption, admission of PW-1 that he borrowed said amount from some other person to lend it to the defendant is not helpful to the defendant to disprove the case of the plaintiff. Hence, I hold that the plaintiff has succeeded to prove the passing of consideration under Ex.P-1 to the defendant.
17. Lending of amount to 4-5 persons on interest and filing of suits against said persons do not become money lending as defined under the provisions of Karnataka Money Lenders Act. If a person carries business of lending money as a matter of course, then it requires licence under the said Act. Admissions of PW-1 reveal that he is not engaged in the business of money lending. There is no evidence from the defendant that the plaintiff is lending amount to persons as matter of course. Hence, argument of the counsel for the defendant holds no water. Similarly, Ramalinga and Keerthi were not present at the time of transaction. They have not signed Ex.P-1 as witnesses. Hence, non examination of Ramalinga and Keerthi is not fatal to the case of the plaintiff.
18. Evidence of DW-1 and 2 and contents of Ex.D-1 reveal that the notice at Ex.P-2 was not served on the defendant, but it was delivered to the office of Karnataka Rural Infrastructure Development Ltd., situated at Anandrao Circle, Bangalore. There is no evidence to establish that the notice at Ex.P-2 was issued to the defendant on the address shown in the plaint and it was duly SCCH-14 15 SC No.450/2015 served upon him. Hence, I hold that the legal notice at Ex.P-2 was not duly served on the defendant. But, issuance of notice in writing is not compulsory in case of pronote suits. There must be demand for accrual of cause of action. Such demand may be oral or in writing. PW-1 has stated as under during cross examination:
"The defendant has promised to repay the amount within one year. I have demanded him to repay the amount after due day on several occasion, but I don't remember the dates. I went to the office of the defendant to demand the repayment. I don't remember the timings. He went on postponing the payment".
The above evidence reveals that the plaintiff has made oral demand to the defendant to repay the borrowed amount with interest. His evidence is not denied in cross examination. Unchallenged evidence of PW-1 establishes the case of the plaintiff that he has demanded the defendant to repay the amount. Evidence of PW-1 is corroborated by the evidence of PW-2 and contents of Ex.P-1 which collectively establish the averments of the plaint. Evidence of DW-1 is corroborated by the evidence of DW-2 and contents of Ex.D-1 as to non service of notice. His evidence is supported by contents of Ex.D-2 and 3 as to false evidence of PW-2 in respect of his attestation to other promissory note and his evidence in other suit for the plaintiff. Evidence of DW-1 as to non execution of promissory note and consideration receipt, non passing of consideration under said promissory note remained uncorroborated. Such self serving testimony of DW-1 does not outweigh the negotiable instrument at Ex.P-1. The defendant has SCCH-14 16 SC No.450/2015 failed to rebut the legal presumption attached to Ex.P-1. He has failed to disprove the signatures on Ex.P-1. I am of the opinion that the plaintiff has succeeded to prove that the defendant has borrowed Rs.1,00,000/- from him on 13.1.2013 and executed Ex.P-1 in his favour agreeing to repay the amount within one year with interest @21% p.a.,
19. PW-1 has stated that the defendant has not paid the amount due under Ex.P-1. There is nothing on record to believe that the defendant has repaid the amount to the plaintiff. Moreover, it is not the defence of the defendant that he has discharged the debt. Hence, I hold that the defendant has failed to repay the borrowed amount and interest. Since, the transaction between the plaintiff and the defendant is not a commercial transaction, I am inclined to award interest @ 12% pa., The plaintiff has waived off interest till the date of suit. Hence, the defendant is liable to pay Rs.1,00,000/- to the plaintiff with interest @12% p.a., from the date of suit till realization. Consequently, I answer the points as above.
20. POINT NO.4 : In view of above discussion and findings, I pass the following :
ORDER The suit of the plaintiff is partly decreed with cost.SCCH-14 17 SC No.450/2015
The defendant is liable to pay to the plaintiff Rs.1,00,000/- with interest @ 12% p.a., from the date of order till realization.
Draw decree accordingly.
(Dictated to the Stenographer, directly on computer and then corrected by me and pronounced in the open court, on this the 18th day of November2016.) (Basavaraj Chengti) XVI ADDL.JUDGE, Court of Small Causes, BANGALORE.SCCH-14 18 SC No.450/2015
ANNEXURE Witnesses examined on behalf of the plaintiff :
PW-1 Mahesha PW-2 Ramachandra
Documents exhibited on behalf of the plaintiff:
Ex.P1 - Promissory note cum receipt Ex.P1(a and Ex.P1(b) - Signature of the defendant Ex.P2 - Copy of Legal notice Ex.P3 - Courier receipt Witnesses examined on behalf of the defendant:
Defendant's DW.1 N.Prakash DW.2 Uma Reddy
Documents exhibited on behalf of the plaintiffs:
Ex.D1 - Certified copy of status receipt Ex.D2 - Certified copy promissory note cum consideration receipt. Ex.D3 - Certified copy of Affidavit of Ramachandra in SC No. 449/15 XVI ADDL.JUDGE, Court of Small Causes, BANGALORE.SCCH-14 19 SC No.450/2015
Dt.18.11.2016 P-LS D-JM For Judgment Judgment pronounced in open court vide separate judgment.
ORDER The suit of the plaintiff is partly decreed with cost.
The defendant is liable to pay to the plaintiff Rs.1,00,000/- with interest @ 12% p.a., from the date of order till realization.
Draw decree accordingly.
XVI ADDL.JUDGE, Court of Small Causes, BANGALORE.SCCH-14 20 SC No.450/2015
DECREE S.C.C.H.NO.14 IN THE COURT OF SMALL CAUSES COURT, AT BANGALORE.
S.C.No.450/2015
PLAINTIFF: MAHESHA
S/o Late.Siddaiah,
Aged about 32 years,
R/at No.105, 5th Cross, 7th main,
Srinivasa Nagar,
Banashankari 3rd stage,
Bangalore.
(By pleader Sri LS)
Vs.
DEFENDANT : N.PRAKSAH,
Peon, Advocate General Office,
High Court of Karnatka Building,
Dr.Ambedkar Veedhi,
Bangalore-560001.
(By pleader Sri JM)
CLAIM: Suit filed on prays for directing defendant
to pay a sum of Rs. with interest % , costs
and such other reliefs.
This suit coming on for final disposal before
Sri.Basavaraj Chengti., XVI ADDL.JUDGE, CSC, Bangalore, in the presence of Sri/Smt Advocate, for the plaintiff and Sri/Smt Advocate, for the defendant.SCCH-14 21 SC No.450/2015
ORDER The suit of the plaintiff is partly decreed with cost.
The defendant is liable to pay to the plaintiff Rs.1,00,000/- with interest @ 12% p.a., from the date of order till realization.
And it is further ordered and decreed that defendant do pay to the plaintiff sum of Rupees being the amount of costs incurred in this suit, as by memorandum annexed with interest thereon at per cent per annum from this date unto the date of realization.
Given under my hand and the seal of the Court this Day of 2016.
REGISTRAR, COURT OF SMALL CAUSES, Bangalore.SCCH-14 22 SC No.450/2015
MEMORANDUM OF COST INCURRED IN THIS SUIT By the Plaintiff Defendant Court fee on plaint Court fee on power Court fee on exhibits Service of process + Postal charges Commissioner's fees Pleaders fee __________________________ Total of Rs. __________________________ Amount payable by the defendant to the plaintiff is Rs.
Decree Drafted Scrutinised by REGISTRAR, COURT OF SMALL CAUSES, BANGALORE.
Decree Clerk SHERISTEDAR