Bangalore District Court
M/S. Pooja (India) & Co vs M/S Indira Chemical & on 21 August, 2019
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.28]
Present: Sri. MALLIKARJUNA., B.Com., LL.M.,
XIV ADDL. CITY CIVIL JUDGE
Dated this the 21st day of August, 2019
O.S.No.489/2012
Plaintiff/s : M/s. Pooja (India) & Co,
Office at No.23/2, 1st Floor,
N.S. Iyengar Street,
Sheshdripuram,
Bangalore-20,
By its Proprietor
Sri.Sukan Raj S. Jain.
(By Sri.B.L.N., Advocate)
- Vs -
Defendant/s : 1. M/s Indira Chemical &
Pharmaceutical Works,
No.12/13B, next to RTO office,
Sedam, Gulberga-585105
R/by its Proprietor
Sri.Amit Srivastav,
2. Sri.Amit Srivastav,
S/o Ashok Srivastav,
Proprietor M/s Indira Chemicals
& Pharmaceutical Works,
No.12/13B, Next to RTO Office,
Sedam, Gulberga-585105
2 O.S.No.489/2012
3. Dr.Ashok Srivastav,
M/s Indira Chemicals
& Pharmaceutical Works,
No.12/13B, next to RTO Office,
Sedam, Gulberga-585105
(By Sri.S.K.,Advocate for Defts,)
Date of institution
of the suit : 12-01-2012
Nature of the suit
[suit on pronote, suit : Recovery of money
for declaration and
possession, suit
for injunction]
Date of the commencement 08-07-2014
of recording of the evidence:
Date on which the
Judgment was pronounced : 21-08-2019
Year/s Month/s Day/s
Total Duration 7 07 09
JUDGMENT
This suit is filed by the plaintiff against the defendants for recovery of money.
3 O.S.No.489/2012
2. The brief facts of the plaintiffs' case are as under:
That the plaintiff is a pharmaceutical distributor carrying on the business under the name and style Pooja (India) & Company, and running the said concern at the address shown in the cause title of the plaint. The defendants are also doing same trade, thus developed acquaintance and friendship with the plaintiff. The defendants taking advantage of the plaintiff acquaintance and requesting to lend a loan of Rs.25,00,000/- towards improvement of business of defendant No.1 concern.
The plaintiff considering the said friendship lent the loan amount. The defendant No.2 has issued cheque towards repayment of the said loan bearing cheque No.495379 for a sum of Rs.25,00,000/- dated 4.5.2010 drawn on Syndicate Bank, Bangalore, in favour of the plaintiff and promised that same will be honoured on due presentation. The plaintiff has presented the aforesaid cheque for encashment through his bank Punjab National Bank, Sadashivanagar Branch, Bangalore, but for the 4 O.S.No.489/2012 plaintiff utter surprise the same was returned with shara "Insufficient Funds" on 5-5-2010. The plaintiff brought to the notice of the defendants about fate of the aforesaid. Thereafter plaintiff issued a legal notice, on 19-4-2011 calling upon the defendant to pay a sum of Rs.25,00,000/- within 15 days from the date of receipt of the notice. The notice has been served on the defendants, defendants issued reply to furnish ledger account, mode of transaction and date of transaction and subsequently the plaintiff telephonically furnished all the particulars of the said transaction, despite the defendants failed to settle the amount. Subsequent to the said transaction the defendant has issued cheque for sum of Rs.5,00,000/- on 21-10-2010 for part payment and promised that said cheque will be honoured on its presentation, but when the plaintiff presented the same for encashment it is dishonoured as funds insufficient. The plaintiff has brought to the notice of the defendant and he has requested some time to clear the same. Further the defendant has written a letter on 31-10-2010 5 O.S.No.489/2012 to the plaintiff and gave another cheque for a sum of Rs.7,00,000/- as a part payment and promised that the said cheque will be honoured on its presentation. He has also promised and assured that entire amount will be cleared in 3 installments in the month of January to March 2011. Believing the words of the defendants, the plaintiff with an intimation to defendants presented the cheque for encashment. But once again for plaintiff's utter surprise and dismay the same was dishonoured as payment stopped by the drawer. The defendant has failed to honour the commitment and failed to pay loan amount to the plaintiff as agreed and cheated the plaintiff with malafide intention. The defendant is in the habit of cheating the public and there are several other complaints against the defendants and plaintiff is also learnt that the defendants company is indebted to many people likely to go for insolvency though there are no assets of the company. Further the defendants threatened the plaintiff with dire consequence after he ask for repayment of loan. At the time of filing the suit 6 O.S.No.489/2012 the defendants is liable to pay a sum of Rs.25,10,000/- towards the principal amount as well as legal notice charges. Hence suit is filed prayed for decreeing the suit directing the defendants to pay a sum of Rs.25,00,000/- with interest at the rate of 18% per annum from the due date and also future interest at the rate of 18% per annum from the date of filing suit till realization.
3. After service of summons, the defendants have appeared through their counsel and filed written statement denying the plaint averments. The brief facts of the written statement are as under.
It is true to say that plaintiff is a pharmaceutical distributor carrying on business in the name and style given in the plaint. It is also true that defendants are also in the same trade. Thus they have developed acquaintance with the plaintiff. The contentions of the plaintiff that taking advantage of the plaintiff's acquaintance the defendants have approached the plaintiff for loan of Rs.25,00,000/-. Such loan to 7 O.S.No.489/2012 defendants is specifically denied as false. Further towards repayment of the said loan the defendant No.2 issued cheque bearing No.49537 for a sum of Rs.25,00,000/- dated 4.5.2010 drawn on Syndicate Bank in favour of the plaintiff and promised the same will be honoured on presentation is specifically denied as false. The plaintiff has presented the same for encashment and same was returned with endorsement 'Insufficient funds"
on 5-5-2010 is admitted as true. But the fact that the plaintiff brought the same to the notice of defendant is specifically denied as false. Issuance of legal notice, dated 19-4-2011 by the plaintiff calling the defendant to make payment of Rs.25,00,000/- within 15 days of receipt of said notice is admitted as true. Upon receipt of said notice the defendant has demanded to furnish ledger extract, mode of transaction, date of transaction is also admitted as true. But the averments that plaintiff has telephonically furnished particulars of said transaction is specifically denied as false. That the defendant issued a cheque on 21-10-2010 for an amount of Rs.5,00,000/- is 8 O.S.No.489/2012 admitted as true, same is also dishonoured is also true. When it was brought to the notice of the defendant, the defendant has issued another cheque, dated 31-10-2010 is also admitted as true. The averments stated that it was for the part payment for the said transaction is specifically denied as false. But said cheque of Rs.7,00,000/- was issued as full and final settlement between the plaintiff and defendant as promised by the plaintiff though the earlier cheque of Rs.5,00,000/- shall be retuned on receipt of fresh cheque of Rs.7,00,000/- to plaintiff finally to return the same and hence with no other alternative the said cheque was stopped for its payment as such instructions were given to the bankers. It is false to say that defendant with an intention to cheat and with malafide intention to make wrongful gain has done all these is specifically denied as false. The defendants are not at all liable to pay a sum of Rs.25,10,000/- . There is no cause of action to file this suit. The cause of action shown in the plaint is imaginary, hence plaint needs to be rejected. The suit valued by 9 O.S.No.489/2012 the plaintiff is incorrect, court fee paid is insufficient. Therefore suit is not at all maintainable prayed for dismissal of the suit.
4. On the basis of the above pleadings, materials and documents, my predecessor in office has framed the following issues:
1. Whether the plaintiff proves that defendant has borrowed loan of Rs.25 lakhs and in consideration thereof the 2nd defendant has issued cheque and on being presentation said cheque has been dishonoured?
2. Whether the plaintiff is entitled for the suit claim?
3. What order or decree?
5. In order to prove the case of the plaintiff, over all two witnesses have been examined as P.W.1 and 2 and got marked Ex.P1 to P5 documents. On behalf of the defendants, one witness is examined as D.W.1 and no documents got marked, and case is posted for argument. 10 O.S.No.489/2012
6. Heard the arguments of both sides.
7. My answers on the above issues are as follows Issue No.1 : In the affirmative, Issue No.2 : Partly affirmative, Issue No.3 : As per final order for the following;
REASONS
8. Issue No.1: According to the plaintiff, he is a Pharmaceutical Distributor carrying on business. Defendants are also doing the same trade thus developed acquaintance and friendship with the plaintiff. It is submitted that, defendants taking advantage of the said acquaintance requested him to lend a loan of Rs.25,00,000/- for improvement of their business. Considering the friendship, the plaintiff has lent the loan to the defendants. The defendants have issued cheque for a sum of Rs.25,00,000/- to discharge the said loan amount and same has been presented for encashment but it is dishonoured with shara of insufficient fund. The defendants in their 11 O.S.No.489/2012 written statement admitted the fact that plaintiff is a Pharmaceutical Distributor carrying on business, and defendants are also in the same trade. Thus developed acquaintance and friendship with the plaintiff as true, but the fact that taking advantage of the plaintiff's acquaintance the defendants approached the plaintiff for loan of Rs.25,00,00/- for improvement of their business. The plaintiff considering the said friendship and acquaintance lend loan to the defendants has been specifically denied as false. Further it is denied that defendants have issued cheque for a sum of Rs.25,00,000/- to discharge the said loan amount, but admitted fact that said cheque was dishonoured by the bank on its presentation for encashment. To prove the case of the plaintiff, initially its proprietor got examined as P.W.1 filed affidavit in the form of examination in chief and reiterated the plaint averments. In support of his contention he has also got marked Ex.P1 to 4 documents. Due to his ill health the P.W.1 was not subjected to cross 12 O.S.No.489/2012 examination by the other side. On the other hand he has executed G.P.A. in favour of his son who has been examined as P.W.2. The P.W.2 in his affidavit filed in the form of examination-in-chief also reiterated the plaint averments and contended that plaintiff and defendants are doing business of pharmaceutical Distributor and they have developed acquaintance and friendship with each other. Taking advantage of the said acquaintance of the father of the P.W.2 defendants have requested to lend loan of Rs.25,00,000/- towards improvement of the defendant No.1 concern. Considering the said friendship plaintiff has lent the loan amount. In support of his oral contention apart from Ex.P1 to 4 he has also got marked Ex.P5 GPA, dated 1-7-2016 executed by his father in his favour to give evidence in this case. In the course of cross examination of P.W.2 the defendants have tried to deny the borrowing loan amount of Rs.25,00,000/- from the plaintiff, suggestion made in this regard have been denied by the witness. Further 13 O.S.No.489/2012 they have made an attempt to elucidate the fact about non furnishing of ledger extract of the disputed transaction. For which the witness stated that the details of the transaction have already furnished to the defendants over phone. That on behalf of the defendant one witness has been examined i.e. defendant No.2 himself examined as D.W.1. No documents has been got marked in support of his oral evidence. In his affidavit filed in the form of examination in chief he has tried to deny the very loan transaction stated to be held between plaintiff and defendants. In his affidavit filed in the form of examination in chief he has admitted the fact of issuance of legal notice, dated 19-4-2011 by the plaintiff. Admittedly, defendants have also given reply notice as per Ex.P4, wherein the defendants have not denied the loan transaction contended by the plaintiff. On the other hand he has requested to furnish ledger account and mode of transaction, so also date of transaction. According to the plaintiff to discharge the 14 O.S.No.489/2012 said loan amount, the defendants have issued cheque bearing No.49537 for a sum of Rs.25,00,000/- drawn on Syndicate Bank, it has been presented before the bank for encashment, and same was dishonoured with an endorsement of insufficient fund. Even the defendants in their written statement with regard to dishonour of cheques stated as under:
The plaintiff has presented the same for encashment and same was returned with endorsement "Insufficient funds" on 5-5-2010 is admitted as true. It is also pleaded that the defendant issued a cheque on 21-10-2010 for an amount of Rs.5,00,000/- is admitted as true, same is also dishonoured is also true. When it was brought to the notice of defendants, they have issued another cheque dated 31-102-10 is also admitted as true. In this regard D.W.1 in his cross examination deposed as under.
"ªÁ¢ ¸ÀA¸ÉÜAiÀÄ ªÀiÁ°ÃPÀgÁzÀ ¸ÀÄPÀAzÀgÀ eÉÊ£ï ªÀÄvÀÄÛ ¥ÀæwªÁ¢ ¸ÀA¸ÉÜAiÀÄ ªÀÄzsÉå ºÀtPÁ¹£À ªÀåªÀºÁgÀ DVgÀÄvÀÛzÉAzÀgÉ ¸Àj . ¥ÀæwªÁ¢ 15 O.S.No.489/2012 ¸ÀA¸ÉÜAiÀÄ ªÀiÁ°ÃPÀgÀÄ qÁ. ²æêÁvÀìªï JAzÀgÉ ¸Àj. ¤.¦.1 gÀ ZÉPï ¥ÀæwªÁ¢ ¸ÀA¸ÉÜUÉ ¸ÀA§A¢¹zÀÄÝ CAzÀgÉ ¸Àj . ¸ÀzÀj ZÉPï £ÀUÀ¢ÃPÀgÀtPÉÌ ¸À°è¹zÁUÀ ¥ÀæwªÁ¢ ¨ÁåAPï SÁvÉAiÀÄ°è ¸ÀªÀÄ¥ÀðPÀ ºÀt«®èzÀ PÁgÀt CªÀiÁ£ÀåUÉÆArgÀÄvÀÛzÉAzÀgÉ ¸Àj . "
9. On perusal of the above pleadings as well as evidence of D.W.1 it is quite clear that the D.W.1 has categorically admitted that defendants are having transaction with the plaintiff firm. It is also admitted that they are having business transaction with plaintiff since long. It is the specific contention of the plaintiff that apart from this transactions requested the plaintiff for lending a sum of Rs.25,00,000/- for improving their business though this fact has been denied by the defendants. But D.W.1 in his further cross examination deposed as under.
"ªÁ¢ ¸ÀA¸ÉÜ ¥ÀæwªÁ¢UÉ gÀÆ.25 ®PÀë ¸ÀAzÁAiÀÄ ªÀiÁqÀĪÀAvÉ ¢B 19- 4-2011 gÀAzÀÄ £ÉÆÃnøï PÉÆnÖgÀÄvÁÛgÉAzÀgÉ ¸Àj . ¸ÀzÀj £ÉÆÃnøï PÉÆlÖ £ÀAvÀgÀ £ÁªÀÅ ¥ÀæwªÁ¢ ¸ÀA¸ÉÝUÉ gÀÆ. 5 ®PÀë ZÉPï ªÀÄÆ®PÀ ¸ÀAzÁAiÀÄ ªÀiÁrgÀÄvÉÛêÉAzÀgÉ ¸Àj . ¸ÀzÀj ZÉPï ¸ÀºÀ CªÀiÁ£ÀåUÉÆArgÀÄvÀÛzÉAzÀgÉ ¸Àj . 16 O.S.No.489/2012 ¸ÀzÀj «µÀAiÀÄ £À£Àß vÀAzÉAiÀÄ UÀĪÀÄ£ÀPÉÌ vÀAzÀ £ÀAvÀgÀ £Á£ÀÄ F zÁªÉ «ZÁgÀuÉAiÀÄ°ègÀĪÁUÀ gÀÆ. 7 ®PÀëUÀ¼À E£ÉÆßAzÀÄ ZÉPï PÉÆnÖgÀÄvÉÛãÉAzÀgÉ ¸Àj . £Á£ÀÄ 7 ®PÀë gÀÆ. UÀ¼À£ÀÄß ¸ÀAzÁAiÀÄ ªÀiÁrzÀ £ÀAvÀgÀ ¥ÀÅ£ÀB AiÀiÁªÀÅzÉà ºÀt PÉÆnÖgÀĪÀÅ¢®è JAzÀÄ ºÉüÀĪÀÅzÀÄ ¸Àj ."
10. On perusal of the above evidence, it is quite clear that D.W.1 has categorically admitted about the issuance of notice by the plaintiff to the defendants. The said notice has been marked as Ex.P3. On perusal of the contents of the said notice, it reveals that the plaintiff has made it clear in his notice on paragraph No.1 as under.
" That 2nd of you taking advantage of the acquaintance and friendship of my client accosted and requited to lend loan of Rs.25,00,000/- towards the improvement of the business of the 1st of you. Whereas my client considering the acquaintance and friendship paid a sum of Rs.25,00,000/- to the 2nd of you on a monthly interest at the rate of 24% per month ...." 17 O.S.No.489/2012
11. Admittedly for which the defendants have given reply as per Ex.P4. On keen observation of Ex.P4 the reply notice issued by defendants, it clearly reveals that defendants have not at all denied the loan transaction stated by the plaintiff in Ex.P3 notice. On the other hand they have requested the plaintiff to furnish ledger account and mode of transaction and dates of transaction held between them. There is no whisper about the denial of loan transaction. Such being the case the contention of the D.W.1 and defendants that there was no loan transaction between plaintiff and defendants does not holds good. So as contended by the plaintiff before filing the suit, he has caused notice to the defendants wherein he has made it clear about the nature of transaction held between himself and defendants. Such being the case immediately after receiving the notice the defendant ought to have made it clear in their reply notice about the said transaction, which has not been done nor they have denied the loan transaction specifically. 18 O.S.No.489/2012 Therefore the contention of the plaintiff that at the earliest stage only he has made it clear that it is a loan transaction taken place between himself and defendants, on the other hand no contra evidence is placed by defendants to deny the same. But the defendants have tried to deny the said transaction in their written statement and set up new plea that they have issued suit cheques in respect of different transactions, but not placed material evidence in their contention and to rebut the contents of Ex.P3 notice. Since the defendant also admitted issuance of cheque and the signature of defendant No.3 on the said cheque. Therefore presumption available under Negotiable Instrument Act, that said cheque has been issued to plaintiff to discharge legal recoverable debt holds to be good. No reason is available to deny the same though opportunity has given to the defendants to rebut the said presumption but which they have not made any attempt. That considering all these facts and circumstances it is clear that the plaintiff has proved 19 O.S.No.489/2012 that defendants have borrowed loan of Rs.25,00,000/- for improvement of their business and in consideration thereof they have issued cheque and on being presentation of the said cheque it has been dishonoured for want of sufficient fund in their account. Hence he has proved this issue. Accordingly, I have answered this issue in the affirmative.
12. Issue No.2: As already discussed in issue No.1, the plaintiff has proved that there was loan transaction between plaintiff and defendants. To discharge the said loan transaction the defendants have issued cheque bearing No.49537 for a sum of Rs.25,00,000/- drawn on Syndicate Bank which has dishonoured for want of sufficient fund. According to plaintiff, though the defendants have agreed to repay the said amount of Rs.25,00,000/- with interest at the rate of 24% but failed to do the same. Therefore suit is filed and prayed for decree the suit. To prove the case of the plaintiff, he examined two witnesses and 20 O.S.No.489/2012 got marked Ex.P1 to P5 documents. On behalf of the defendants one witness is examined. In the course of cross examination of D.W.1 a suggestion has been made that defendants have issued cheque of Rs.5,00,000/- to discharge part of the loan amount which has also dishonoured for want of insufficient fund it has been brought to the notice of the defendants. Therefore defendant No.2 has issued another cheque for a sum of Rs.7,00,000/- it has been encashed, it is also elucidated from the mouth of D.W.1 that after issuance of cheque for sum of Rs.7,00,000/- no other payment has been made by the defendants. Though D.W.1 in his cross examination admitted issuance of two cheques for a sum of Rs.5 lakhs and for a sum of Rs.7,00,000/- but tried to contended that those cheques have been issued with respect to different transaction. But he has not made it clear about the different transaction for which he had issued those cheques. If at all those cheques were issued in respect of different transaction 21 O.S.No.489/2012 stated the defendant ought to have been made it clear about the reason for which they have issued the cheques. Therefore the defendants contention appears to be unacceptable. Though the plaintiff has prayed for granting decree for recovery of sum of Rs.25,00,000/-. In the course of cross examination of D.W.1 categorically mmade suggestions that Rs.7 lakhs has already been paid by defendant after issuance of Ex.P3 notice as part payment of Rs.25,00,000/- towards the said loan transaction. Further he has also admitted the fact by making suggestion that balance of Rs.18,00,000/- is remained to be payable by the defendants. Such being the case the contention of the plaintiff that the defendants are liable to pay only a sum of Rs.18,00,000/- as on today does not holds good. So considering all these facts and circumstances in my view the plaintiff is entitled for recovery of a sum of Rs.18,00,000/- only with interest at the rate of 18% per annum. Hence plaintiff has proved this issue 22 O.S.No.489/2012 partly. Accordingly, I have answered this issue partly affirmative.
13. Issue No.3 :- In the result, I proceed to pass the following;
ORDER The suit of the plaintiff is partly decreed with cost.
The defendants are directed to pay a sum of Rs.18,00,000/- (Rupees Eighteen lakhs only) to the plaintiff with interest at 18% per annum from the date of suit till its realization.
Draw the decree accordingly.
[Dictated to the Judgment Writer, transcribed, typed by him, corrected by me and then pronounced by me in Open Court, on this 21st day of August, 2019) (MALLIKARJUNA) XIV Addl. City Civil Judge Bangalore.
23 O.S.No.489/2012ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
P.W.1 : Sukan Raj S Jain P.W.2 : Siddanath.S.
List of documents marked on behalf of the plaintiff/s:
Ex.P.1 : Cheque Ex.P.2 : Memo Ex.P.3 : Legal notice Ex.P.4 : Reply notice Ex.P.5 : GPA
List of witnesses examined on behalf of the defendant/s:
D.W.1 : Amit Srivastav List of documents marked on behalf of the defendant/s:
-NIL-
XIV Addl. City Civil Judge Bangalore.24 O.S.No.489/2012