Bangalore District Court
Sri. T.K Thimmaraja Shetty vs Smt. Prabhavathi Srinivasa Reddy on 2 March, 2020
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O.S No. 8349/2013
IN THE COURT OF THE LXXV ADDL.CITY CIVIL & SESSION
JUDGE, BENGALURU (CCH-76)
Dated this the 02nd day of March 2020
PRESENT:
Smt. S. Nirmala Devi, B.Sc., LLB.
LXXV Addl.City Civil Judge & Session Judge
Bengaluru
O.S.No. 8349 /2015
Plaintiff/s: Sri. T.K Thimmaraja Shetty
S/o Late Sri. T.V Kencharaya Shetty
Aged about 60 years
R/at Flat No. 102,
Manivilasa Apartments 7/1,
K.H Road, Basavanagudi,
Bengaluru - 560 004.
(By Sri. S.S Advocate)
Vs
Defendant/s: 1. Smt. Prabhavathi Srinivasa Reddy
W/o Late. Sri. M. Srinivas Reddy
Aged about 50 years
2. Sri. Hitesh
S/o Late. Sri. M. Srinivas Reddy
Aged about 19 years
3. Sri. Rakshith
S/o Late. Sri. M. Srinivas Reddy
Aged about 16 years
Since Minor, represented by his Mother and
Natural Guardian Smt. Prabhavathi Srinivasa Reddy
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O.S No. 8349/2013
All are R/at No. 1304, 'Vybhava'
GM Reddy, 9th Cross, 1st Phase, JP Nagar,
Bengaluru - 560078.
Also at:
C/o. Dr. B.B Reddy
34, Smitha, 9th Main Raod, II Cross,
Radhakrishna Layout,
Padmanabhanagar,
Bengaluru.
(By Sri. K.N.D Advocate)
Date of the institution of suit: 16.11.2013
Nature of the suit: Money Suit
Date of the commencement of 13.07.2015
recording of the evidence:
Date on which the judgment was 02.03.2020
pronounced:
Total duration: Year/s Month/s Day/s
06 03 16
(S.Nirmala Devi)
LXXV ACC & S.J
Bengaluru
JUDGMENT
This suit is filed for Recovery of Rs. 5,04,526/- together with interest at 24% P.A from the date of suit till the date of realization. 3
O.S No. 8349/2013
2. Brief facts of the case are as follows:
That the defendant No.1 is the wife and defendant No. 2 & 3 are the children of one Sri. M. Srinivas Reddy. That the plaintiff and deceased M. Srinivas Reddy were the friends. Therefore, he had borrowed a sum of Rs. 3,10,000/- during November to December 2010 agreeing to repay the same together with interest at 24% P.A. In this regard the deceased M. Srinivas Reddy executed On demand promissory note and undated cheques in a sum cumulatively amounting to Rs.2,70,000/-. The cheque bearing No. 186248, drawn on Punjab National Bank, JP Nagar Branch, Bengaluru for a sum of Rs.2,10,000/- and second cheque bearing No. 785572, drawn on Tamilnad Mercantile Bank Ltd., Cantonment Branch, MG Road, Bengaluru for a sum of Rs.60,000/-. The said M. Srinivas Reddy also paid interest to the plaintiff regularly till April 2011. But in spite of repeated requests and demands he failed to repay the loan amount. He paid interest up to 01.04.2011. He requested the plaintiff not to present the cheques for encashment issued by him towards the repayment of partial amount. Therefore, he did not present the said cheque for encashment. Meantime during March 2012 the said M. Srinivas Reddy 4 O.S No. 8349/2013 expired leaving behind the defendants as successors to his estate. Thus, the defendants have inherited the estate of the deceased and they are liable to pay the loan amount together with interest. Therefore, the plaintiff demanded for repayment of the amount due. But the defendants not paid. Therefore, he got issued legal notice dated: 20.08.2013 calling upon to pay a sum of Rs. 4,87,200/- i.e., a sum of Rs. 3,10,000/- towards principal and Rs. 1,77,200/- towards interest. The said notice is duly served to the defendants. But the defendants got issued a reply notice dated: 20.08.2013 with an untenable contentions. Therefore, the plaintiff constrained to file the present suit.
3. The defendants appeared through advocate and filed written statement. They have admitted that the plaintiff and deceased M. Srinivas Reddy were acquainted to each other but they denied the rest of plaint averments. They have vehemently contended that there is no financial transaction between the plaintiff and deceased M. Srinivas Reddy and the same is not within their knowledge. They have admitted regarding receipt of legal notice issued by the plaintiff and contended that they have given 5 O.S No. 8349/2013 suitable reply. They contended that the deceased M. Srinivas Reddy was not in any financial distress to have borrowed a sum of Rs.2,70,000/- from the plaintiff and if at all there was any transaction it may be in the process of the business transaction. Therefore, these defendants are not liable to answer nor have liability to pay the suit claim with interest. These defendants have denied that the deceased has executed On demand promissory note as alleged by the plaintiff and the cheques. They have also denied that the deceased having paid interest regularly till the month of April 2011. They contended that the plaintiff having acquaintance of the deceased with an intention to make wrongful gain has filed the present false suit with only an intention to extract the money from the defendants by creating the false story. Based on these contentions prayed to dismiss the suit with cost.
4. Based on above pleadings the following issues has been framed.
1. Whether plaintiff proves that defendants are due of Rs. 5,04,526/- as on the date of filing the suit ?
2. Whether the plaintiff is entitled for the decree as prayed for ? 6
O.S No. 8349/2013
3. What decree or order?
5. In support of the plaint averments the plaintiff got examined as PW.1 and other witnesses as PW.2 to 4 and got marked at Ex.P.1 to P.22 and defendant No.3 got examined as DW.1 and not relied on any documents.
6. Perused written argument filed on behalf of plaintiff record.
7. My findings on the above issues are as under:-
Issue No.1 : In partly Affirmative;
Issue No.2 : In partly Affirmative;
Issue No.3 : As per final order for the following:-
REAS O NS
8. Issues No.1: In order to prove the plaint averments the plaintiff got examined as PW.1 and relied on Ex.P.1 to P.22. Defendant No.2 got examined as DW.1.
9. In order to prove the deceased M. Srinivas Reddy had borrowed Rs. 3,10,000/- and executed On demand promissory note at 7 O.S No. 8349/2013 Ex.P.1 to P.4 and issued 2 undated cheques drawn on Punjab National Bank and Tamilnad Mercantile Bank Ltd., the plaintiff has relied on the evidence of PW.2, 3 & 4 and the documentary evidence at Ex.P.1 to 6 and Ex.P.22. The plaintiff got examined as PW.2 & 3 who are the managers of Punjab National Bank and Tamilnad Mercantile Bank Ltd., They have identified Ex.P.5 & 6 are pertaining to the account of Heram International, a Proprietary concern and also identified the signatures of the deceased M. Srinivas Reddy. PW.3 has produced Ex.P.22 which is specimen signatures of deceased M. Srinivas Reddy. Since, the defendants have stated that they are not aware about the said loan transaction, the plaintiff has submitted written argument and argued that an admitted fact need not be proved and admission is the best evidence. In this regard the plaintiff has relied on decisions reported in AIR 997 SC 1724 (Thrujahn V/s Returning Officer) ; AIR 1977 SC 409 (Union Bank of India V/s Mukesh Builders and Financials).
10. In the cross-examination of PW.2 & 3 the defendants elicited that they were not working in the said banks when Ex.P.22 is executed by the deceased M. Srinivas Reddy. However, the said evidence is not 8 O.S No. 8349/2013 material as both these witness have deposed based on the records available with them. Therefore, in view of the evidence of PW.2 & 3 and Ex.P.22 the plaintiff has proved that the un-dated cheques at Ex.P.5 & 6 were belongs to the account of Heram International which is a proprietary concern of deceased M. Srinivas Reddy.
11. In order to prove the On demand promissory note and the consideration receipt at Ex.P.1 to 4 the plaintiff got examined attesting witness as PW.4. According to the plaintiff he is a common friend of the plaintiff and deceased M. Srinivas Reddy. PW.4 has identified signatures of deceased M. Srinivas Reddy and deposed that he was present when the deceased borrowed loan and signed Ex.P.1 to 4 and handed over the undated cheques at Ex.P. 5 & 6. In cross-examination of PW.4 the defendants could not elicit anything to dis-prove his evidence.
12. In this regard counsel for the plaintiff has relied on the decision reported in AIR 2012 RAJ 75 (Bhadur Singh V/s Poorna Singh); AIR 1955 SC 346 (Girijadatta V/s Gangatan Datta). 9
O.S No. 8349/2013
13. The counsel for plaintiff has relied on Section 73 of Indian Evidence Act regarding comparison of the disputed signatures with the admitted signatures and in support of his argument he relied on the decisions reported in AIR 1949 MAD 419 (Vimbu Ambal V/d Esakia) ; AIR 2011 ORI 185 (Bhagirati Sahu V/s Akapati Bhaskar Patra) ; (2006) 4 CCC 2014 AP ; AIR 2013 MAD 1 (Mehanavathy V/s Punyakodi) ; AIR 1964 SC 529 (Fakhruddin V/s State of MP).
14. Further the counsel for plaintiff submitted written argument and relied on Section 47 of Indian Evidence Act, 1872 regarding the evidence of PW.4 and in support of his argument he relied on the decisions reported in AIR 1967 SC 1326 (Fakhruddin V/s State of MP) ; AIR 1978 CAL 64 (P.M Das V/s Central Bank). On perusal of the evidence of PW.4 the defendants are unable to elicit anything from the said witness and dis-prove the contents of Ex.P.1 to P.4. Therefore, in view of the evidence of PW.4 and the decisions relied by the counsel for plaintiff, the plaintiff has proved that the deceased M. Srinivas Reddy has executed the Ex.P.1 to 4 in the presence of PW.4. Therefore, in view of the evidence placed on record by the plaintiff, he proved that the deceased M. Srinivas 10 O.S No. 8349/2013 Reddy borrowed loan of Rs 2,10,000/- and Rs.1,00,000/-.
15. The plaintiff has claimed that the deceased M. Srinivas Reddy agreed to pay the interest at 24% P.A and accordingly paid interest up to 01.04.2011. In this regard except On demand promissory note and consideration the plaintiff has not produced supporting documents nor he pleaded specifically as to how much amount was paid as interest. It has come in the evidence that the plaintiff and deceased M. Srinivas Reddy were closed friends. Therefore, considering the friendship there is no possibility of to paying the interest as claimed by the plaintiff. On perusal of the plaint averments he has not stated as to for what purpose the deceased had borrowed amount.
16. On perusal of Ex.P.1 to 5 the deceased has signed the documents in his individual capacity and Ex.P.6 is singed as proprietary of Heram International. Accordingly, in view of the evidence of Ex.P. 2 & 3 it is proved that the cheques were belonged to the said proprietary concern. The DW.1 has admitted that his father was doing real estate business. Therefore, considering the same the interest can be awarded at 11 O.S No. 8349/2013 the rate of 10% P.A from the date of suit till the date of realization. However, the plaintiff is not entitled for interest at the rate of 24% P.A from the date of advancing the loan amount till the date of suit i.e., Rs. 1,72,200/-. Therefore, the plaintiff is entitled for recovery of Rs.3,10,000/- together with interest at 10% P.A from the date of suit till the date of realization. Hence, I answer Issue No.1 in partly Affirmative.
17. Point No.2 : In view of the finding given to Issue No.1 the plaintiff has proved that the deceased M. Srinivas Reddy borrowed Rs.3,10,000/- during November - December 2010 and failed to repay the same. DW.1 has admitted that the deceased has left behind residential house and it is an ancestral property. But the defendants have not adduced evidence to prove that the said house is ancestral property and the deceased had only a share in the said property. Even otherwise, if the said property is ancestral, the deceased M. Srinivas Reddy had one share in the said property. Therefore, in view of the contents of the written statement and evidence of DW.1 the plaintiff has proved that the deceased M. Srinivas Reddy has left behind estate and the defendants being his legal heirs have inherited the same.
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O.S No. 8349/2013
18. Regarding liability of the defendant the advocate for plaintiff argued about pious obligations of the defendants to discharge the debts of their deceased father and relied on the decisions reported in (1926) 53 IA 204 (Masit V/s Damodar, 198) ; 41 MAD 136 (Peda V/s Srinivasa) ; (1914) BOM 177 (Jamboo Raw V/s Annappa) ; 1976 MP 69 (Chabbi Rani V/s Giridhar Lal) ; AIR 1953 SC 487 (Sidheshwar Mukarji V/s Bhuvaneshwar Prasad Naraian Singh). In view of the admitted fact that the deceased has left behind immovable property inherited by the defendants and the decisions relied by the counsel for plaintiff, the defendants are jointly and severally liable to pay the loan amount of Rs.3,10,000/- together with interest at 10% P.A from the date of suit till the date of realization. Hence, I answer Issue No.2 in partly Affirmative.
19. Issue No. 3: In view of the above discussion proceed to pass the following:-
ORDER Suit is partly decreed.13
O.S No. 8349/2013 Defendant No. 1 to 3 are jointly and severally liable to pay Rs. 3,10,000/- together with interest at 10% P.A from the date of suit till the date of realization.
Draw decree accordingly.
{Dictated to the Stenographer transcribed by her, corrected and then pronounced by me in open court this 02nd day of March 2020} (S.NIRMALA DEVI) LXXV ADDL.CITY CIVIL & SESSION JUDGE, BENGALURU ANNEXUERE List of witnesses examined for plaintiff:-
PW.1 Sri. T.K Thimmaraja Shetty PW.2 Sri. M. Raghunath PW.3 Sri. P.V Joshi PW.4 Sri. A. Vittal Murthy
List of documents exhibited for plaintiff:-
Ex.P.1 On demand promissory note
Ex.P.2 Consideration receipt
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O.S No. 8349/2013
Ex.P.3 On demand promissory note
Ex.P.4 Consideration receipt
Ex.P.5 & 6 Cheques
Ex.P.7 Legal notice
Ex.P.8 to 13 Postal receipts
Ex.P.14 to 19 Postal acknowledgements
Ex.P.20 Reply notice
Ex.P.21 Tamilnad Merchantile Bank statement
Ex.P.22 Account opening form
List of witnesses examined for defendant:-
DW.1 Sri. Hitesh
List of documents exhibited for defendant:-
Nil (S.NIRMALA DEVI) LXXV ADDL.CITY CIVIL & SESSION JUDGE, BENGALURU