Bangalore District Court
Sri. Prashanth P vs Avinash Nagaraj on 22 February, 2021
1
IN THE COURT OF THE LXIV ADDL.CITY CIVIL & SESSIONS
JUDGE: AT BANGALORE CITY (CCH-65)
Dated this the 22nd day of February, 2021
PRESENT
Sri. RAJESHWARA
B.A., L.L.M.
LXIV ADDL. CITY CIVIL & SESSION JUDGE,
CCH-65, BENGALURU CITY.
O.S.No.3993/2020
PLAINTIFF : Sri. Prashanth P.,
Aged about 39 years,
S/o. Late Prakash N.
R/at "Prakash Nilaya",
No.15, EWS, 1st Main,
8th Cross, Kengeri
Satellite Town,
Near Last Bus Stop,
Bengaluru-560 060.
(By M/s. S.B.Mukkannappa and
associates, Advocates)
-Vs-
DEFENDANT : Avinash Nagaraj,
Aged about 40 years,
S/o. M.A.Nagaraj,
R/at No.276, "Ashirwad",
1st 'D' Main Road,
Opposite to Ayodhya Complex,
Near Last Bus Stop,
Kengeri Satellite Town,
Bengaluru-560 060.
(Defendant placed exparte)
2
O.S.No.3993/2020
Date of institution of the suit: 3.9.2020
Nature of the suit: Money suit
Date of commencement of 8.2.2021
recording of evidence:
Date on which Judgment was 22.2.2021
pronounced:
Duration:
Years Months Days
- 4 19
JUDGMENT
Plaintiff has filed this suit against defendant for the relief of money decree for a sum of Rs.14,26,000/- (Rupees fourteen lakhs twenty six thousand) along with costs of the suit and interest @ 12 % p.a. from the date of suit till realization of the decreetal amount.
2. In the plaint, plaintiff has submitted that he is an employee in IBM India Pvt.Ltd., working in the said company from last 10 years. Plaintiff and defendant are neighbours and known to each other from several years. Defendant has borrowed hand loan of Rs.15,00,000/- (fifteen lakhs) on different dates from the plaintiff for his 3 O.S.No.3993/2020 personal commitments and for payment of hospital bill of the baby of his sister-in-law and agreed to repay the same. After receipt of the said hand loan, defendant promised to repay a sum of Rs.1,00,000/-(one lakh) to the plaintiff within three months from the date of initial amount lent i.e., 30.7.2019 and further agreed to repay the balance amount of Rs.14,00,000/-(fourteen lakhs) within one month from 12.12.2019. Instead of repaying Rs.1,00,000/-(one lakh), defendant has paid only a sum of Rs.74,000/-(seventy four thousand) by way of cash and online transfer on different dates and requested that he would pay remaining amount of Rs.26,000/-(twenty six thousand) along with balance amount of Rs.14,00,000/- as agreed. As on 12.12.2019, defendant was due for a sum of Rs.14,26,000/-(fourteen lakhs twenty six thousand) to the plaintiff. After lapse of stipulated period also, defendant did not repaid the balance loan amount. After repeated requests and demands made by the plaintiff, defendant issued a cheque bearing No.000089 4 O.S.No.3993/2020 dated 22.1.2020 for Rs.10,00,000/-(ten lakhs) in favour of the plaintiff and assured to repay the remaining amount of Rs.4,26,000/-(four lakhs twenty six thousand) within ten days from 22.1.2020. Plaintiff presented the said cheque which was dishonoured by his banker for the reason " funds insufficient". Hence, plaintiff got issued legal notice to the defendant calling upon him to repay the outstanding loan amount. Thereafter, defendant requested and sought time to repay the outstanding loan amount but did not repaid the loan amount as agreed. Defendant issued one more cheque bearing No.004875 for Rs.2,00,000/-(two lakhs) belonging to his mother, in favour of the plaintiff, which was dishonoured by his banker for the reason 'Funds insufficient". Thereafter once again defendant approached the plaintiff and issued fresh five blank cheques bearing No.000128, 000129, 000130, 000131, 000132 in favour of plaintiff. Defendant has intentionally, mischievously and deliberately issued those cheques. Despite issuance of fresh five cheques, 5 O.S.No.3993/2020 defendant never instructed the plaintiff to present the same for encashment and cheated the plaintiff again and again.
3. Cause of action for the suit arose on 30.7.2019 i.e., first date of initial amount lent to defendant and on 12.12.2019 i.e., the last date of the amount lent to the defendant. Further cause of action arose on 14.2.2020, the date on which plaintiff issued a legal notice to the defendant calling to clear the due amount. Further cause of action arose when the defendant admitting his claim and again issued fresh five cheques to clear the outstanding amount. Suit filed by the plaintiff is well within the limitation. This court has got jurisdiction to adjudicate this suit. Plaintiff has paid prescribed court fee. For the said reasons, plaintiff has prayed to decree the suit against the defendant.
4. Suit summons were served on the defendant. Despite substituted service of suit summons to defendant 6 O.S.No.3993/2020 by way of paper publication, defendant did not appear before the court. Hence, defendant was placed exparte.
5. Thereafter, matter was posted for recording evidence during which plaintiff has examined himself as Pw.1 and got exhibited 11 documents at Ex.P.1 to P.11.
6. Now following points arising for determination:
1. Whether the plaintiff is entitled for money decree as sought for?
2. What order or decree?
7. It is answered for the aforesaid points as under?
Point No.1 : In the Affirmative
Point No.2 : As per final order for the
following:
REASONS:
8. POINT NO.1: Advocate for plaintiff has
submitted that defendant got issued Ex.P.4/cheque for repayment of loan amount of Rs.10,00,000/- (ten lakhs). Further, another cheque Ex.P.5 was also issued by the defendant. Notice issued as per Ex.P.11 was duly served 7 O.S.No.3993/2020 to the defendant. Defendant had not given any reply for the same. Summons issued by this court was served to the defendant. On 9.10.2020, on behalf of defendant, an undertaking was given to appear and file vakalath by his counsel. Amount due by the defendant is not in dispute . After receipt of legal notice, defendant approached the plaintiff praying not to lodge complaint to prosecute him U/s.138 of N.I.Act. Hence, plaintiff did not filed any complaint U/s.200 of Cr.P.C. against defendant for offence punishable U/s. 138 of N.I.Act for dishonour of cheque issued by the defendant. Claim made by the plaintiff is well within time of limitation. Hence, advocate for plaintiff has prayed to decree the suit.
9. To prove ingredients of the plaint averments, plaintiff examined himself by filing his examination-in- chief affidavit. In the examination-in-chief affidavit, averments made in the plaint is reiterated. Pw.1 identified documents at Ex.P.1 to Ex.P.11. Ex.P.1/certified copy of the statement of account, Ex.P.2/ account 8 O.S.No.3993/2020 statement of credit card, Ex.P.3/account statement of Kotak Credit card, made it clear that, plaintiff paid amount to the defendant on different dates and it is also made clear that there was transactions between the plaintiff and defendant. Ex.P4cheque dated 22.12.2020 and bank endorsement made it clear that, defendant had issued cheque in favour of the plaintiff which was dishounred by his banker for the reason stated in the bank endorsement. Ex.P.6 to Ex.P.10/ 5 blank cheques are cheques said to have been issued by defendant for repayment of outstanding loan amount. Ex.P.11/ office copy of legal notice made it clear that for non-payment of the loan amount, plaintiff got issued legal notice to the defendant calling upon him to repay the loan amount.
10. Perused evidence deposition by way of affidavit of Pw.1, compared the same with contents of Ex.P.1 to Ex.P.11. Plaintiff made out a case that, defendant is liable to pay to the plaintiff a sum of Rs.14,26,000/- (Rupees fourteen lakhs twenty six 9 O.S.No.3993/2020 thousand) along with cost of the suit and interest @ 12% per annum form the date of the suit till realization of the decreetal amount.
11. Defendant did not appeared before the court. Evidence adduced by the Pw.1 went unchallenged. Perused date of availing loan, last payment made by the defendant and date of suit filed by the plaintiff. Suit is not barred by relevant provisions of law of limitation.
12. Plaintiff has filed this suit by paying court fee, as per provisions of Karnataka Court Fees and Suit Valuation Act. Plaintiff incurred expenses for engaging counsel to issue legal notice, bear other legal expenses i.e. advocate fees and other miscellaneous expenses to file this suit. Hence, plaintiff is entitled for costs of the suit.
13. For the reasons stated above and as discussed herein above, this court is of the opinion that, plaintiff is entitled for decree for reliefs prayed in this suit 10 O.S.No.3993/2020 with costs. Accordingly, point No.1 is answered in the affirmative.
14. POINT No.2: For the aforesaid reasons this court is of the opinion that plaintiff is entitled for decree as prayed. Hence following Order is made.
ORDER Suit filed by the plaintiff is hereby decreed with cost.
Defendant do pay a sum of Rs.14,26,000/- (Rupees fourteen lakhs twenty six thousand) with interest @ 12% per annum from the date of the suit till realization of the decreetal amount.
Draw decree accordingly.
(Dictated to the Judgment Writer directly on computer, typed by her, corrected and then signed and pronounced by me in the open court on this the 22nd day of February 2021) (RAJESHWARA) LXIV ADDL. CITY CIVIL & SESSION JUDGE, (CCH-65), BENGALURU 11 O.S.No.3993/2020 ANNEXURE List of the witnesses examined for the plaintif:
P.W.1 Prashanth P. List of the documents marked for the plaintif:
Ex.P.1 Certified copy of account statement of A/c.No.17581610010959.
Ex.P.2 Certified copy of account statement of credit card No.3353.
Ex.P.3 Certified copy of account statement of Kotak credit card.
Ex.P.4 Cheque dated 22.12.2020 and bank endorsement.
Ex.P.5 Bank endorsement dated 18.6.2020
issued by HDFC Bank
Ex.P.6 to Ex.P.10 5 Blank cheques
Ex.P.11 Office copy of legal notice dated
14.2.2020
Ex.P.11(a) RPAD receipt
Ex.P.11(b) RPAD Acknowledgement
List of the witnesses examined for the defendants:
Nil List of the documents marked for the defendants: Nil (RAJESHWARA) LXIV ADDL. CITY CIVIL & SESSION JUDGE, (CCH-65), BENGALURU 12 O.S.No.3993/2020 22.2.2021 Judgment pronounced in open court.
vide separate Judgment ORDER Suit filed by the plaintiff is hereby decreed with cost.
Defendant do pay a sum of Rs.14,26,000/- (Rupees fourteen lakhs twenty six thousand) with interest @ 12% per annum from the date of the suit till realization of the decreetal amount.
Draw decree accordingly.
(RAJESHEARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65) BENGALURU CITY.