Bangalore District Court
Santhoshi Lakshmi E R vs M/S Tirumala Constructions on 30 June, 2025
IN THE COURT OF LXXXIX ADDL.CITY CIVIL &
SESSIONS JUDGE, BENGALURU. (CCH-90)
Present: Sri.K.M.RAJENDRA KUMAR., LLM, M.Phil,
LXXXIX Addl.City Civil & Sessions Judge,
Bengaluru.
DATED THIS THE 30th DAY OF JUNE 2025
Com.O.S.No.221/2021
Plaintiff : Smt.E.R.Santhoshi Lakshmi,
Aged about 44 years,
W/o E.V.Rajesh,
R/at No.19, Market Road,
Basavanagudi,
Bengaluru-560 004.
Represented by her
Power of Attorney Holder,
Sri.E.V.Rajesh
(By Sri.V.B.Shivakumar, Advocate)
V/s.
Defendants : 1. M/s.Tirumala Constructions,
No.326, 5th Main, 10th Cross,
4th Stage, Vinayaka Layout,
Nagarabhavi,
Bengaluru-560 072.
Represented by its Partners
(1) Sri.R.Mohan
(2) Sri.Praveen Mohan
2. Sri.R.Mohan
/2/
Com.O.S.No.221/2021
Partner,
M/s. Tirumala Constructions,
No.326, 5th Main, 10th Cross,
4th Stage, Vinayaka Layout,
Nagarabhavi,
Bengaluru-560 072.
3. Sri.Praveen Mohan,
Partner,
M/s.Tirumala Constructions,
No.326, 5th Main, 10th Cross,
4th Stage, Vinayaka Layout,
Nagarabhavi,
Bengaluru-560 072.
(Defendant No.1 to 3
By Sri.Chethan
Kumar.K,Advocate)
4. Sri.S.K.Madappa,
S/o Mr.Kari Rangaiah,
Major,
R/at No.323, 6th Main,
BCC Layout, 1st Stage,
Vijayanagar 2nd Stage,
Bengaluru-560 040.
(Deleted vide order dated
24.08.2021)
5. Sri.Ananda Murthy,
S/o Late Ranogi Rao,
Aged about 59 years,
No.582/A, 'Balaji Heights'
T-1, 6th Cross, 2nd Stage,
11th Block, Vinayaka Layout,
Nagarbhavi, Bengaluru-560 072.
(By S.Ravishankar, Advocate)
Date of Institution of suit : 12.03.2021
/3/
Com.O.S.No.221/2021
Nature of suit : Money Suit
(suit on pronote, suit for
declaration and possession
suit for injunction, etc.,)
Date of commencement of : 25.03.2022
recording of evidence
Date of judgment : 30.06.2025
Total duration : Year/s Month/s Day/s
04 03 18
(K.M.RAJENDRA KUMAR)
LXXXIX ADDL.CITY CIVIL &
SESSIONS JUDGE,
BENGALURU. (CCH-90)
JUDGMENT
The plaintiff has filed this suit against the defendants to pass a judgment and decree directing the defendants to pay a sum of ₹.65,68,000/- (Rupees Sixty Five Lakhs Sixty Eight Thousand Only) along with interest @ 24% p.a. and for attachment before judgment of the property described in the schedule given to the plaint and costs and for such other reliefs in the interest of justice and equity.
The brief facts of the plaintiff's case are as under:
02. That, M/s.Tirumala Constructions is a partnership concern, the defendant No.2 and 3 are its /4/ Com.O.S.No.221/2021 partners, the 4th defendant is the title owner of the property for which the development agreement has been entered upon, the defendant No.5 is the purchaser of B-Schedule property and he being the purchaser of B-Schedule property for which the document of transactions has been executed in favour of Plaintiff, therefore, the 5 th defendant has been made as a party in the proceedings. That, the Plaintiff is before this Court seeking prosecution of the defendants for recovery of the amount on the ground of illegality committed by the defendants in the first instance by entering into and transaction to sell the property in favour of plaintiff and thereafter conveying the property in favour of 5th defendant. It is therefore the property of the 5th defendant which is the B-schedule property becomes attachable in view of the liability on the property created by way of charge in the present proceedings.
03. That, the Plaintiff is before the Court seeking a decree for recovery under the On Demand Promissory Note and Consideration Receipt dated 2.5.2017. The details of which are mentioned hereunder:
A. Rs.30,00,000/- Paid by way of RTGS. B. Rs.20,00,000/- paid by way of RTGS.
/5/ Com.O.S.No.221/2021 C. Part payment Received Rs.13,00,000/- D. Interest added at Rs.34,68,000/- E. Interest received at Rs.6,00,000/- F. Amount due at Rs.65,68,000/-
04. The transactions have arisen on the representations given by M/s.Tirumala Constructions stating that one S.K.Madappa the 4th Defendant is the absolute owner of property bearing Municipal No.15, PID No.40-27-15, Old Site No.232, formed out of Sy. Nos. 50/2, 50/3, 51/1, 51/2, 51.5, 45 to 48, 51 and 52 of Deevatigeramanahalli (Chandra Layout) formed by Bengaluru City Municipal Corporation Employees House Building Co-operative Society Ltd. It is this property which is mentioned as the schedule it is represented by defendants No.2 and 3 not only in their individual capacity but also representing as General Power of Attorney holder, builder/developer that they are offering convey the property for a valuable consideration of Rs.51,00,000/-, the property to be conveyed is free from litigation and therefore received the amount of Rs.50,00,000/- in the following manner:
a) Rs.30,00,000/- (Rupees thirty lakhs only) by way of RTGS Vide UTR No. YESBR52017050251052063 on /6/ Com.O.S.No.221/2021
2.5.2017 through YES Bank Ltd. Gandhibazar, Bengaluru to the developer paid by the purchaser to the developer as advance at the time of entering into agreement before witnesses;
b) Rs.20,00,000/- (Rupees twenty lakhs only) by way of RTGS Vide UTR No. YESBR52017050351066212 on 3.5.2017 through YES Bank Ltd. Gandhibazar, Bengaluru to the developer paid by the purchaser to the developer as advance at the time of entering into agreement before witnesses; the developer/owner hereby acknowledges the receipt of said sum of Rs. 50,00,000/- (Rupees my lakhs only) from the purchaser as advance at the time of registration of this agreement;
c) The balance sale price of Rs. 1,00,000/- (Rupees one lakh only) shall be payable by the purchaser to the developer at the time of registration of Sale Deed before the Sub-Registrar.
05. The amount is acknowledged to have been received by the Power of Attorney holder as Partner of the business concern of M/s.Tirumala Constructions and also as Power of Attorney holder/agent representing the owners of the property, the terms and conditions of the agreement failed /7/ Com.O.S.No.221/2021 to materialize and also upstated the terms and conditions of the agreements and therefore to the extent of Rs.51,00,000/-defendants came forward that the said transactions be converted to a loan transactions and therefore the Agreement of Sale became secured towards the amount borrowed as loan, the said transactions is for recovery of amount in regard to this fact the 1 st defendant by their partners not only in their individual capacity but also on behalf of the business concern executed On Demand Promissory Note and Consideration Receipt.
06. That, the defendant requested the plaintiff to maintain statement in regard to the transactions, accordingly the plaintiff have maintained the account despite request is made seeking payments with the defendants they have not paid. In addition thereto the defendants had handed over the following cheques towards the part discharge of liability which are detailed hereunder:
Part-I Sl. Cheque date Amount In Rs.
Cheque No. No.
1. 000557 28.8.2020 Rs.5,00,000/-
2. 000558 4.9.2020 Rs.5,00,000/-
3. 000559 10.9.2020 Rs.5,00,000/-
/8/ Com.O.S.No.221/2021
4. 000560 11.9.2020 Rs.5,00,000/-
5. 000561 14.9.2020 Rs.5,00,000/-
6. 000562 14.9.2020 Rs.2,00,000/-
Total 27,00,000/-
07. All cheques drawn on Karur Vysya Bank,
Rajajinagar Branch, Bengaluru-560 010. On the
assurances given by the Defendants, Plaintiff presented the cheques and same came to be dishonoured on 8.10.2020 with an endorsement as Payment Stopped" by drawer. Part-II Sl. No. Cheque No. Cheque date Amount In Rs.
1. 014072 23.9.2020 Rs.5,00,000/-
2. 014071 23.9.2020 Rs.5,00,000/-
3. 014070 21.9.2020 Rs.5,00,000/-
4. 017458 12.8.2020 Rs.5,00,000/-
5. 017457 10.8.2020 Rs.5,00,000/-
6. 017456 28.9.2020 Rs.2,00,000/-
7. 017452 27.8.2020 Rs.2,50,000/-
8. 017451 14.8.2020 Rs.2,50,000/-
Total Rs.32,00,000/-
08. All cheques drawn on Karur Vysya Bank,
Rajajinagar Branch, Bengaluru-560 010. On the
/9/
Com.O.S.No.221/2021
assurances given by the Defendants, Plaintiff presented the cheques and same came to be dishonoured on 8.10.2020 with an endorsement as "Funds Insufficient".
09. Therefore the defendants are liable to be pay the following:
Date Amt paid Date recd Amt recd Due Amt Due Int@24% In Rs. period 02.05.17 30,00,000 03.05.17 20,00,000 03.06.17 Chq.16201 50,00,000 1 1,00,000 5,00,000 month 08.08.17 Chq. 45,00,000 2 90,000 16202 months 5,00,000 4d 05.09.17 3,00,000 40,00,000 1 80,000 month (out of 37,00,000 42 31.08.000 Chq. months 34,68,000 16203 37,00,000 5,00,000 Till 17.00.000 02.11.2 71,68,000 0 bal due 06.05.17 6,00,000 Int recd- 6,00,000 Net due 65,68,000
10. It is further the case of the plaintiff that the /10/ Com.O.S.No.221/2021 defendants have been making drastic efforts to liquidate their immovable properties monetarily and intending to siphon the sale proceeds for the purposes of indulging into a practice to see whatever amounts that are received by them are available recovery either through the process of court and are trying to commit act of holding that if a decree is passed such a decree should become irrecoverable, if the attitude of the defendants to make the amount to be recover legally lawfully irrecoverable it is nothing else to defeating the rights of the plaintiff to recover the amount. In this regard an attempt to mediate was also indicated to have been done, the adamant nature of the defendants competence under which their attitudes have been indicated therein it cannot be taken just consideration, that the Court will have to consider the plaint for order of attachment of the immovable property, that apart, it is also prayed that pre-mediation would defeat the rights of the plaintiff which would consume enough time and on payment of court fee at the hands of this court it enables the defendants who are already aware of the demand being made by the plaintiff for the payment of the amount with interest will definitely siphon of the property and pre-mediation would be an effort to conduct the suit, /11/ Com.O.S.No.221/2021 consequently to make the suit claim irrecoverable. Plaintiffs seeks dispensing with notice for pre-mediation under Section 12A of the Commercial Courts Act.
11. That, the plaintiff have filed complaint seeking prosecution of the Accused for the dishonoured cheques, after issuing of the cheques despite having given dishonoured cheques and also knowing that the cheques have been returned dishonoured the payment having not been paid, therefore the plaintiff is left with no other alternative than to seek alteration in order to the interest and also principal amount has filed this present case not only for recovery but also to hold the said cheques as document indicating as a document which is recoverable as an instrument. In the circumstances, the cheques may be accepted for the purposes of recovery of the amount which came to be dishonoured in addition to hold contention that have been put forward in the present case.
12. That, the outstanding amount is ₹.65,68,000/- with commercial rate of interest as it taken up for commercial rate. That, the plaintiff has demanding the repayment of the loan amount with interest and therefore /12/ Com.O.S.No.221/2021 there was a miserable failure. That, in the circumstances, plaintiff was compelled to seek relief at the hands of this Court. By contending so, the plaintiff has prayed to decree the suit.
SCHEDULE "A"
All the piece and parcel of property bearing Site No.546/R, situated at 78A-01G, in Sy.No.17/18/1 to 6, 20, 23, 30, 31, 32, 36/1, 37, 64, 71, 95, 96, 97, 98, 112(19) 135 to 137(17) of Nagarabhavi Village, Yeshwanthpura Hobli, Bengaluru North Taluk, measuring East to West 30 feet and North to South 40 feet and bounded on:
East by: Site No.546/S;
West by: BDA Land;
North by: BDA Land;
South by: Road;
SCHEDULE "B"
All that piece and parcel of Flat bearing No.001, First Floor in the Building known as "TIRUMALA" constructed at Schedule A property bearing Municipal No.15, PID No.40- 27-15, Old Site No.323, Formed out of Sy.Nos.50/2, 50/3, 51/1, 51/2, 51/5, 45 to 48, 51 & amp; 52 of Deevatigeramanahalli (Chandra Layout) formed by the Bengaluru City Municipal Corporation Employees House Building Co-operative Society Ltd., situated at 6th Main /13/ Com.O.S.No.221/2021 Road, Deepanjalinagar, BBMP, Old Division No.21 after Ward no.40, now New Ward No.132, Bengalur measuring 1245 square feet of SDA with an undivided share of 338 square feet in Schedule A Property along with one covered car parking space in the stilt floor bounded on:
East by:Site No.325B;
West by: Road;
North by: Site No.324 South by: Site No.322;
13. After the service of summons the defendants have appeared before the Court through their advocate and filed their written Statement. The defendant no. 4 got deleted from the array of the parties.
14. The defendant No.1 to 3 and defendant No.5 have filed their separate written statements by contending that the suit filed the plaintiff is not maintainable either on law or on facts as the same is filed only to harass the defendants.
15. That, the Plaintiff has not complied Mediation and Settlement proceedings, as per section 12 (A) of Commercial Court Act 2015, hence on this ground itself, /14/ Com.O.S.No.221/2021 the suit needs to be returned to the Plaintiff.
16. The defendant No.1 to 3 specifically have contended that they have not executed any sale agreement in favor of plaintiff. That, the defendant No.1 to 3 have entered into a registered sale agreement with defendant No.5 pertaining to schedule B property vide document dated 17.06.2019. That, the plaintiff has stolen the cheques and other documents from the office of defendant No.1 and filed this suit to gain unlawfully. That, these defendants have not executed On demand Promissory note and on consideration receipt in favor of plaintiff.
17. That, as the plaintiff has already filed cheque bounce case, the present suit needs to be dismissed on this ground alone. The suit filed by the plaintiff is barred by limitation. By contending so, the defendant No.1 to 3 prays to dismiss the suit.
18. The defendant No.5 further contended that the Plaintiff is private person and the transaction if any is entered in between the plaintiff and the defendants it is only a private transaction and not the commercial /15/ Com.O.S.No.221/2021 transaction.
19. That, the defendant No.4 is the absolute owner of the schedule A property. That, the defendant No.1 to 3 have entered into Registered Joint Development Agreement with defendant No.4 to construct a Multi Storied Residential Building in the schedule A property and the defendant No.4 agreed to take 50% share in the schedule A property and the remaining 50% share in the schedule A property shall be given to the defendant No.1 to 3. That, the defendant No.4 has executed Power of Attorney to the defendant No.1 in respect of schedule B property for selling the share of defendant No.1 to 3. That the suit is barred by limitation. By contending so, the defendant No.5 pray to dismiss the suit with costs in the interest of justice and equity.
20. On the basis of the rival contentions, pleadings, material proposition of fact and law and the documents this Court has framed the following:
ISSUES
01. Whether the Plaintiff proves that the defendants No:1 to 3 have received ₹.50,00,000/- as /16/ Com.O.S.No.221/2021 against total sale consideration of ₹.51,00,000/-in respect of agreement of sale entered in to between the Plaintiff and defendant in respect of Suit B schedule property?
02. Whether the Plaintiff proves that the agreement of sale entered in to with defendants No:1 to 3 in respect of schedule B property has been converted to a loan transaction?
03. Whether the Plaintiff proves that the defendants are jointly and severally liable to pay ₹.65,68,000/- along with current and future interest at 24% p.a. from the date of suit till the date of realization?
04. Whether the Defendants No:1 to 3 and 5 prove that the suit is barred by Limitation?
05. Whether the defendant No:5 proves that he is not a party at Issue and the suit filed against him is not maintainable in law?
06. Whether the Plaintiff is entitled for suit reliefs?
07. What Order/decree?
/17/ Com.O.S.No.221/2021
21. To substantiate the case of the plaintiff, Sri.E.V.Rajesh, the Authorized Representative of the plaintiff got examined as PW.1 and got marked the documents at Ex.P1 to Ex.P85. On the other hand the defendant has examined himself as DW.1. No documents are marked.
22. Heard on both sides. The plaintiff filed written arguments.
23. The learned counsel for the plaintiff has relied upon by the following decisions:
Sl.No. Particulars Citations
01. K.Bhaskaran Vs. AIR 1999 SCC 3762
Sankaran Vaidhyan
Balan and Another
02. Bank of India, 2010 CRI.L.J. 2948
Jamshedpur Vs.
M/s.Aswi Electricals and
Ors.,
03. Shanti Budhiya Vest AIR 2010 SCC 2132 Patel and Ors., V.Nirmala Jayprakash Tiwari And Ors.,
04. Ashok Kumar V.Mrs. AIR 2017 MADRAS Latha 161 /18/ Com.O.S.No.221/2021
24. My answer to the above framed issues are as follows:
ISSUE No.1 : In the AFFIRMATIVE
ISSUE No.2 : In the AFFIRMATIVE
ISSUE No.3 : In the AFFIRMATIVE
ISSUE No.4 : In the NEGATIVE
ISSUE No.5 : In the NEGATIVE
ISSUE No.6 : Partly in the AFFIRMATIVE
ISSUE No.7 : As per final Order
for the following
REASONS
25. ISSUE No.1 to 3 : For the purpose of brevity and convenience I would like to answer above three issues in common.
26. It is pertinent here to mention that as I have already narrated the facts of the case in detail at the inception, I will not repeat the facts once gain at length, but I will confine myself to the material facts.
27. It is the specific case of the plaintiff herein that M/s.Tirumala Constructions is a partnership concern, the defendant No.2 and 3 are its partners, the 4 th defendant is /19/ Com.O.S.No.221/2021 the title owner of the property for which the development agreement has been entered upon, the defendant No.5 is the purchaser of B-Schedule property and he being the purchaser of B-Schedule property for which the document of transactions has been executed in favour of Plaintiff. Therefore, the 5th defendant has been made as a party in the proceedings.
28. The Plaintiff is before the Court seeking prosecution of the defendants for recovery of the amount on the ground of illegality committed by the defendants in the first instance by entering into and transaction to sell the property in favour of plaintiff and thereafter conveying the property in favour of 5th defendant. It is therefore the property of the 5th defendant which is the B-schedule property becomes attachable in view of the liability on the property created by way of charge in the present proceedings.
29. Plaintiff is before the Court seeking a decree for recovery under the On Demand Promissory Note and Consideration Receipt dated 2.5.2017. The details of which are mentioned hereunder:
/20/ Com.O.S.No.221/2021 A. Rs.30,00,000/- Paid by way of RTGS. B. Rs.20,00,000/- paid by way of RTGS. C. Part payment Received Rs.13,00,000/- D. Interest added at Rs.34,68,000/- E. Interest received at Rs.6,00,000/- F. Amount due at Rs.65,68,000/-
30. The transactions have arisen on the representations given by M/s.Tirumala Constructions mentioned that one S.K.Madappa the 4th Defendant is the absolute owner of property bearing Municipal No.15, PID No.40-27-15, Old Site No.232, formed out of Sy. Nos. 50/2, 50/3, 51/1, 51/2, 51.5, 45 to 48, 51 and 52 of Deevatigeramanahalli (Chandra Layout) formed by Bengaluru City Municipal Corporation Employees House Building Co-operative Society Ltd... It is this property which is mentioned as the schedule it is represented by defendants No.2 and 3 not only in their individual capacity but also representing as General Power of Attorney holder, builder/developer that they are offering convey the property for a valuable consideration of Rs.51,00,000/-, the property to be conveyed is free from litigation and therefore received the amount of Rs.50,00,000/- through RTGS and the balance /21/ Com.O.S.No.221/2021 sale price of Rs. 1,00,000/- (Rupees one lakh only) shall be payable by the purchaser to the developer at the time of registration of Sale Deed before the Sub-Registrar.
31. Based upon the above facts the plaintiff contends that the agreement of sale entered into with the defendant No.1 to 3 in respect of schedule B Property has been converted into a loan transaction and therefore, the defendants are jointly and severally liable to pay ₹.65,68,000/- along with interest @ 24% p.a. from the date of suit till the date of realization.
32. On the other hand, it is the specific case of the defendants that there is no agreement entered in favor of plaintiff as such the plaintiff has not produced the copy of the agreement and hence the question of agreement being converted into loan transaction will not arise. Hence, prays to dismiss the suit.
33. Keeping in mind the rival contentions of both the parties I would like to bestow my attention to the affidavit filed by PW.1 wherein it appears the PW.1 has deposed only with regard to loan transaction which is stated to be /22/ Com.O.S.No.221/2021 entered in between the plaintiff and the defendants by executing On demand Promissory Notes, consideration receipts and issuance of cheques in order to pay the loan in part.
34. The learned counsel appearing for defendant during the course of arguments took defense that the plaintiff ought to have pleaded and deposed regarding the agreement transaction in his affidavit evidence and as the chief evidence is not in consonance with the plaint, the suit filed by the plaintiff needs to be dismissed.
35. Keeping in mind the said argument I have bestowed my attention to the pleadings wherein admittedly, the plaintiff has not entered into a written agreement with the defendant to purchase property in question. Further it is not mandatory that entire chief evidence be the replica of plaint averments. Hence, I am of the view that the arguments canvassed by the defendant counsel that chief evidence is not in consonance with plaint, hence suit should be rejected holds no water. As such I am of the view that the question of producing the agreement before the Court do not arise.
/23/ Com.O.S.No.221/2021
36. In this case, even though the plaintiff pleaded regarding agreement the plaintiff mean to say that the agreement was an oral agreement. Hence, I am of the opinion that the non-production of the agreement before the Court is not fatal to the case of the plaintiff.
37. The PW.1 has produced the certified copy of GPA dated 17.12.2020 through which the plaintiff has given Power of Attorney to the PW.1 to contest the suit.
38. The Ex.P.2 is the certified copy of Promissory Note dated 02.05.2017 and Ex.P.3 is the consideration receipt executed by the defendant No.1 to 3 acknowledging borrowing loan of ₹.30,00,000/- from the plaintiff.
39. The Ex.P.4 is the certified copy of Promissory Note dated 02.05.2017 and Ex.P.5 is the consideration receipt executed by the defendant No.1 to 3 acknowledging borrowing loan of ₹.20,00,000/- from the plaintiff.
40. On careful perusal of the Ex.P.2 to 5 it is crystal clear that the defendant No.1 to 3 have acknowledged that they have borrowed ₹.50,00,000/- from the plaintiff /24/ Com.O.S.No.221/2021 through RTGS. Admittedly, these two documents have not at all denied by the defendants herein. There is no explanation from the defendants as to why they have executed Promissory Notes and consideration receipt in favor of the defendants. As per the case of the plaintiff it has paid ₹.50,00,000/- to defendant No.1 to 3 through RTGS. The defendants even though have denied the said fact, mere denial without producing documentary proof is of no consequence. Had the defendants did not received ₹.50,00,000/- from the plaintiff through RTGS they should have produced the Account statement to substantiate their defense. If the defendants did not received the said amount they would have definitely produce their account statement. The Non-production of account statement by the defendant No.1 to 3 is fatal to their case. In my opinion there is no impediment to this court to draw an adverse inference to hold that the defendant No.1 to 3 have received ₹.50,00,000/- through RTGS from the plaintiff and therefore they willfully withheld the account statement.
41. The Ex.P.2 to Ex.P.5 are the clinching document which supports the case of the plaintiff herein.
/25/ Com.O.S.No.221/2021
42. The learned counsel for defendant brought to the notice of this regarding the typographical error which is crept in the plaint and argued that as per plaint averments ₹.20,00,000/- has been paid through RTGS on 03.05.2017 however, the Ex.P.4 and Ex.P.5 bears the date 02.05.2017.
43. In my opinion the counsel for defendant without raising the said defense in his written statement is debarred to contend and raise an argument at fag end of the case. The typing error which is crept in plaint with regard to wrong mention of date and not tallying the date in Ex.P.4 and Ex.P.5 do not affect the merits of the case. Hence, the arguments of defendants counsel falls to the ground.
44. The PW.1 further produced Ex.P.6 to Ex.P.17 which are the certified copies of cheques and bank endorsements to prove that the cheques issued by the defendants got dishonored. These documents supports the case of the plaintiff to hold that the defendants in order to repay their liability issued the said cheques.
45. The law is well settled that as per Section 118 of NI Act a presumption in favor of holder of the cheques to /26/ Com.O.S.No.221/2021 conclude that the accused has issued the cheque in order to discharge his legally enforceable debt.
46. The Ex.P.18 is the Certified copy of legal notice dated 06.11.2020 through which the plaintiff has issued statutory notice under Section 138 of NI Act. The Ex.P.19 and Ex.P.20 are the certified copy of postal receipt and postal acknowledgment which are not in dispute.
47. The PW.1 further produced Ex.P.21 to Ex.P.36 which are the certified copies of cheques and bank endorsements to prove that the cheques issued by the defendants got dishonored. These documents supports the case of the plaintiff to hold that the defendants in order to repay their liability issued the said cheques.
48. The Ex.P.37 is the Certified copy of legal notice dated 06.11.2020 through which the plaintiff has issued statutory notice under Section 138 of NI Act. The Ex.P.38 and Ex.P.39 are the certified copy of postal receipt and postal acknowledgment which are not in dispute.
49. The PW.1 also produced the certified copy of complaint in CC No.2680/2021 which is marked at Ex.P.40, office copy of legal notice dated 11.12.2020 at /27/ Com.O.S.No.221/2021 Ex.P.41, 5 postal receipts at Ex.P.42 (1) to (5), 4 postal acknowledgment at Ex.P.43 (1) to (4), undelivered postal cover with notice marked at Ex.P.44 and Ex.P.44(a).
50. The PW.1 further got produced original copy of GPA dated 17.12.2020 along with original cheques, original endorsements, original legal notices, original postal receipts , original endorsements and original promissory notes with consideration receipts which are marked at Ex.P.45 to Ex.P.82. It is pertinent to note that the Ex.P.65 and the Ex.P.82 are the original copy of Ex.P.2 to Ex.P.5 promissory notes and consideration receipts through which the defendants have borrowed ₹.50,00,000/- through RTGS.
51. It is also pertinent to note that the documents which are marked at Ex.P.45 to Ex.P.81 are the original copies of the documents which were already produced by PW.1 in its certified copies and marked at Ex.P.1 to Ex.P.44.
52. The learned counsel for defendant No.1 to 3 has Cross-examined PW.1 wherein it is suggested that since /28/ Com.O.S.No.221/2021 2014 the PW.1 had different transactions with defendant No.2 and 3. The said suggestion is sufficient to conclude that there was business transaction between plaintiff and the defendant No.2 and 3. The suggestion put forward by the defendant No.2 and 3 in fact supports the case of the plaintiff.
53. The PW.1 further deposed that the defendants have issued 14 cheques towards refund of advance amount with interest. However, the counsel for defendant has not denied the said part of evidence by putting denial suggestion to PW.1.
54. The learned counsel for defendant has further Cross-examined the PW.1 at length wherein nothing useful is elicited from the mouth of witness.
55. On marshaling the entire evidence of PW.1 I am of the view that the plaintiff withstood the test of cross examination and the defendants failed to disprove the case of the plaintiff.
/29/ Com.O.S.No.221/2021
56. On the other hand the defendant No.2 has filed affidavit in lieu of his examination in Chief and examined himself as DW.1 and deposed that the suit filed by the plaintiff needs to be dismissed for non compliance of Section 12A of Commercial Courts Act. It is further deposed that the defendants have not at all executed any document to the plaintiff, the suit filed by the plaintiff is barred by limitation, hence prays to dismiss the suit.
57. However, the DW.1 did not depose to the facts and circumstances and the situation which made the defendants to sign the cheques and the Promissory notes in favor of plaintiff. Mere denial of the fact that they have not executed any document in favor of plaintiff is not sufficient. The defendants are bound to explain as to why and in what situation the Promissory notes and the cheques fell into the hands of the plaintiff. The non- explanation of the said facts by the defendants only supports the case of the plaintiff.
58. On perusal of order sheet dated 15.03.2021 it appears this Court has dispensed the compliance of Section 12A of Commercial Courts Act. Further in /30/ Com.O.S.No.221/2021 considering the order of Hon'ble Apex Court in RE:Cognizance COVID CASE, I am of the view that the suit filed by the plaintiff in the year 2021 is within the period of limitation. Even though the Promissory note is executed on 02.05.2017 the defendants herein have acknowledged their liability by issuing various cheques in the year 2020 and on this ground also the suit filed by the plaintiff is within the period of limitation. Hence, in my opinion all the defense which is raised by the defendants in the written statement and the affidavit evidence holds no water.
59. The learned counsel appearing for plaintiff has Cross-examined DW.1 wherein it is clearly admitted that the defendant No.2 and 3 are the partners of defendant No.1 and either of them can operate the bank account and both of them are authorized to sign the cheques.
60. The DW.1 further admits that the Ex.P.67 cheque has been signed by him and is returned unpaid as per Ex.P.68 as per his instructions to the Banker to Stop Payment. It is further admitted that some more cheques Ex.P69, Ex.P.71, Ex.P.73, Ex.P.75 and Ex.P.77 have been /31/ Com.O.S.No.221/2021 returned unpaid as per his instructions to the Banker to Stop Payment.
61. During the course of Cross-examination the DW.1 admits the copy of TDS traces as per Ex.P.84 and Ex.P.85 for the Assessment Year 2016-17 and 2017-18 showing the name of PW.1 wherein it appears the payment of interest by the DW.1 has been declared by the plaintiff to the Income Tax Authority. It is pertinent to note that the Ex.P.84 and Ex.P.85 also reveals the name of defendant No.1 Firm. Hence, in my opinion the defendants in order to repay the loan amount have paid interest to the plaintiff. In my opinion the defendants without there being supporting documents have simply denied the case of the plaintiff. Hence, the defendants are trying evade making payment to the plaintiff. The DW1 clearly admits his signature and seal upon the written statement and it is marked at Ex.P85 and Ex.P85(a). I have compared the said sign and seal of DW1 with other sign and sign of DW1 appearing upon promissory note, cheque and other documents wherein they resemble with each other. In this case even though the defendants have taken a contention that the plaintiff has stolen the cheques and other documents but there is /32/ Com.O.S.No.221/2021 no evidence that defendants have lodged a report before the police. Hence it is clear that the defendants have falsely pleaded before the case.
62. On marshaling entire evidence on record and on meticulous perusal of the documentary proof I am of the firm opinion that the plaintiff has successfully proved that the defendants are jointly and severally liable to pay an outstanding amount of ₹.65,68,000/- (Rupees Sixty Five Lakhs Sixty Eight Thousand Only) along with interest @ 24% p.a. from the date of this order till its realization. Accordingly, I answer Issue No.1 to 3 in the AFFIRMATIVE.
63. Issue No.4: The defendant No.1 to 3 have specifically taken a contention that the suit filed by the plaintiff is barred by limitation. However as I have already discussed in the above paragraphs, taking note of the judgment of Hon'ble Apex Court in RE:Cognizance during COVID period and the cheques which were issued by the defendants in the year 2020, I am of the view that the suit filed by the plaintiff in the year 2021 is well within the period of limitation.
/33/ Com.O.S.No.221/2021
64. Further, I rely upon the decision of Hon'ble High Court of Karnataka decided in CDJ 2005 KAR HC 206 between Adivelu (Dead by Lrs) Vs. Narayanachari wherein it is held as under:
65. Para No.6: An acknowledgment u/s 18 of the limitation Act and a promise u/s 25(3) of the Contract Act are required to be in writing and signed by the debtor or his authorised agent and both have the effect of giving fresh start of limitation. But, there is a distinction between the two. While an acknowledgment u/s 18 of the Limitation Act must necessarily be made before the expiry of the period of Limitation, a promise under Clause 3 of Section 25 of the Contract Act is made after the expiry of the period of limitation. Where a promise falls u/s 25(3) of the Contract Act, it constitutes a valid agreement for the purpose of suing, whether or not there is a fresh consideration for the promise and the debt covered thereby is within the limitation.
66. In view of the above decision I am of the view that the present suit filed by the plaintiff is well within the period of limitation. Accordingly, I answer Issue No.4 in the NEGATIVE.
/34/ Com.O.S.No.221/2021
67. Issue No.5: It is the specific case of the defendant No.5 that he is not a necessary party to the suit and hence the suit filed against him is not maintainable in law.
68. Even though the defendant No.5 has taken such a contention he has failed to lead evidence in his support. The defendant No.5 being the subsequent purchaser of the property in question is not only a proper party but he is also a necessary party before this Court. Accordingly, I answer Issue No.5 in the NEGATIVE.
69. Issue No.6: On marshaling entire evidence and on meticulous perusal of the documentary proof I am of the firm opinion that the plaintiff is entitled to claim suit claim amount of ₹.65,68,000/- (Rupees Sixty Five Lakhs Sixty Eight Thousand Only) along with interest @ 24% p.a. from the date of this order till its realization. Further the plaintiff is not entitle to the relief of attachment before judgment of the suit schedule properties, however he is at liberty to seek all available remedies to enforce the decree in execution proceedings. Accordingly, I answer Issue No.5 Partly in the AFFIRMATIVE.
/35/ Com.O.S.No.221/2021
70. Issue No.6: In view of my findings on Issue No:1 to 5, I proceed to pass the following:
ORDER The suit filed by plaintiff is hereby decreed in part with cost.
The defendant is hereby directed to pay to the plaintiff a sum of ₹.65,68,000/- (Rupees Sixty Five Lakhs Sixty Eight Thousand Only) along with interest @ 24% p.a. from the date of this order till its realization.
The plaintiff is not entitle to the relief of attachment before judgment of the suit schedule properties, however he is at liberty to seek all available remedies to enforce the decree in execution proceedings.
The pending IAs if any are disposed off accordingly.
Draw decree accordingly.
The office is hereby directed to send a copy of the judgment to the plaintiff and the /36/ Com.O.S.No.221/2021 defendants through e-mail as per Order XX Rule 1 CPC as amended by Section 16 of Commercial Courts Act, 2015. (Directly dictated to the Stenographer on computer, corrected and then pronounced by me in the open court on this the 30th day of June 2025).
(K.M.RAJENDRA KUMAR) LXXXIX Addl.City Civil & Sessions Judge, Bengaluru (CCH-90) ANNEXURES List of witnesses examined for the plaintiff:
P.W.1 Sri.E.V. Rajesh List of documents exhibited on behalf of the plaintiff: Sl.No. Particulars of documents Ex.P.
01. Certified copy of GPA dated 17.12.2020 Ex.P1
02. Certified copy of Promissory Note dated Ex.P2 02.05.2017
03. Certified copy of Consideration Receipt Ex.P3 dated 02.05.2017
04. Certified copy of Promissory note dated Ex.P4 02.05.2017
05. Certified copy of Consideration Receipt Ex.P5 dated 02.05.2017
06. Certified copy of cheque bearing Ex.P6 /37/ Com.O.S.No.221/2021 No.560053005/000557 dated 28.08.2020 for ₹.5 Lakhs
07. Certified copy of Endorsement issued by Ex.P7 Kotak Mahindra Bank dated 08.10.2020
08. Certified copy of Cheque bearing Ex.P8 No.5600530057/000558 dated 04.09.2020 for ₹.5 Lakhs
09. Certified copy of Endorsement issued by Ex.P9 Kotak Mahindra Bank dated 08.10.2020
10. Certified copy of cheque bearing Ex.P10 No.5600530057/000559 dated 10.09.2020 for ₹.5 Lakhs
11. Certified copy of Endorsement issued by Ex.P11 Kotak Mahindra Bank dated 08.10.2020
12. Certified copy of cheque bearing Ex.P12 No.5600530057/000560 dated 11.09.2020 for ₹.5 Lakhs
13. Certified copy of Endorsement issued by Ex.P13 Kotak Mahindra Bank dated 08.10.2020
14. Certified copy of cheque bearing Ex.P14 No.5600530057/000561 dated 14.09.2020 for ₹.5 Lakhs
15. Certified copy of Endorsement issued by Ex.P15 Kotak Mahindra Bank dated 08.10.2020
16. Certified copy of cheque bearing Ex.P16 No.5600530057/000562 dated 14.09.2020 for ₹.2 Lakhs
17. Certified copy of Endorsement issued by Ex.P17 Kotak Mahindra Bank dated 08.10.2020
18. Certified copy of legal notice dated Ex.P18 /38/ Com.O.S.No.221/2021 06.11.2020
19. Certified copy of postal receipt Ex.P19
20. Certified copy of postal acknowledgment Ex.P20
21. Certified copy of cheque bearing Ex.P21 No.5600530057/014072 dated 23.09.2020 for ₹.5 lakhs
22. Certified copy of Endorsement issued by Ex.P22 Kotak Mahindra Bank dated 08.10.2020
23. Certified copy of cheque bearing Ex.P23 No.5600530057/014071 dated 23.09.2020 for ₹.5 Lakhs
24. Certified copy of Endorsement issued by Ex.P24 Kotak Mahindra Bank dated 08.10.2020
25. Certified copy of cheque bearing Ex.P25 No.5600530057/014070 dated 21.09.2020 for ₹.5 Lakhs
26. Certified copy of Endorsement issued by Ex.P26 Kotak Mahindra Bank dated 08.10.2020
27. Certified copy of cheque bearing Ex.P27 No.5600530057/017458 dated 12.08.2020 for ₹.5 Lakhs
28. Certified copy of Endorsement issued by Ex.P28 Kotak Mahindra Bank dated 08.10.2020
29. Certified copy of cheque bearing Ex.P29 No.5600530057/017457 dated 10.08.2020 for ₹.5 Lakhs
30. Certified copy of Endorsement issued by Ex.P30 Kotak Mahindra Bank dated 08.10.2020
31. Certified copy of cheque bearing Ex.P31 /39/ Com.O.S.No.221/2021 No.5600530057/017456 dated 28.09.2020 for ₹.2 Lakhs
32. Certified copy of Endorsement issued by Ex.P32 Kotak Mahindra Bank dated 08.10.2020
33. Certified copy of cheque bearing Ex.P33 No.5600530057/017452 dated 27.08.2020 for ₹.2.50 Lakhs
34. Certified copy of Endorsement issued by Ex.P34 Kotak Mahindra Bank dated 08.10.2020
35. Certified copy of cheque bearing Ex.P35 No.5600530057/017451 dated 14.08.2020 for ₹.5 Lakhs
36. Certified copy of Endorsement issued by Ex.P36 Kotak Mahindra Bank dated 08.10.2020
37. Certified copy of Office copy of legal notice Ex.P37 dated 06.11.2020
38. Certified copy of postal receipt Ex.P38
39. Certified copy of postal acknowledgments Ex.P39
40. Certified copy of complaint filed I CC Ex.P40 No.2680/2021 along with list of witnesses and documents
41. Office copy of legal notice dated 11.12.2020 Ex.P41
42. Postal Receipts in 5 Nos. Ex.P42 (1) to (5)
43. Postal acknowledgments 4 Nos. Ex.P43 (1) to (4)
44. Undelivered postal cover addressed to Ex.P44 defendant No.4 Sri.S.K.Madappa
45. Notices sent through Ex.P.44 Ex.P.44 /40/ Com.O.S.No.221/2021
(a)
46. Original GPA dated 17.12.2020 Ex.P.45
47. Original cheque Bg. No.014072 dated Ex.P.46 23.09.2020
48. Endorsement dated 08.10.2020 issued by Ex.P.47 Kotak Mahindra Bank
49. Original cheque Bg. No.014071 dated Ex.P.48 23.09.2020
50. Endorsement dated 08.10.2020 issued by Ex.P.49 Kotak Mahindra Bank
51. Original cheque Bg. No.014070 dated Ex.P.50 21.09.2020
52. Endorsement dated 08.10.2020 issued by Ex.P.51 Kotak Mahindra Bank
53. Original cheque Bg. No.017458 dated Ex.P.52 12.08.2020
54. Endorsement dated 08.10.2020 issued by Ex.P.53 Kotak Mahindra Bank
55. Original cheque Bg. No.017457 dated Ex.P.54 10.08.2020
56. Endorsement dated 08.10.2020 issued by Ex.P.55 Kotak Mahindra Bank
57. Original cheque Bg. No.017456 dated Ex.P.56 28.09..2020
58. Endorsement dated 08.10.2020 issued by Ex.P.57 Kotak Mahindra Bank
59. Original cheque Bg. No.017452 dated Ex.P.58 27.08.2020
60. Endorsement dated 08.10.2020 issued by Ex.P.59 /41/ Com.O.S.No.221/2021 Kotak Mahindra Bank
61. Original cheque Bg. No.017451 dated Ex.P.60 14.08.2020
62. Endorsement dated 08.10.2020 issued by Ex.P.61 Kotak Mahindra Bank
63. Notice dated 06.11.2020 Ex.P.62
64. Postal receipt (3 Nos.) Ex.P.63(
a), (b) &
(c)
65. Postal acknowledgments (3 Nos.) Ex.P.64(
a), (b) &
(c)
66. Promissory note dated 02.05.2017 Ex.P.65
67. Signature of defendant no.2 and 3 in Ex.P.65( Ex.P.65 a) & (b)
68. Consideration receipt dated 02.05.2017 Ex.P.66
69. Signature of defendant no.2 and 3 in Ex.P.66( Ex.P.66 a) & (b)
70. Original cheque Bg.No.000557 dated Ex.P.67 28.08.2020
71. Signature of defendant no.2 in Ex.P.67 Ex.P.67(
a)
72. Endorsement dated 08.10.2020 issued by Ex.P.68 Kotak Mahindra Bank
73. Original cheque Bg.No.000558 dated Ex.P.69 04.09.2020
74. Signature of defendant no.2 in Ex.P.69 Ex.P.69(
a)
75. Endorsement dated 08.10.2020 issued by Ex.P.70 /42/ Com.O.S.No.221/2021 Kotak Mahindra Bank
76. Original cheque Bg.No.000559 dated Ex.P.71 10.09.2020
77. Signature of defendant no.2 in Ex.P.71 Ex.P.71(
a)
78. Endorsement dated 08.10.2020 issued by Ex.P.72 Kotak Mahindra Bank
79. Original cheque Bg.No.000560 dated Ex.P.73 11.09.2020
80. Signature of defendant no.2 in Ex.P.73 Ex.P.73(
a)
81. Endorsement dated 08.10.2020 issued by Ex.P.74 Kotak Mahindra Bank
82. Original cheque Bg.No.000561 dated Ex.P.75 14.09.2020
83. Signature of defendant no.2 in Ex.P.75 Ex.P.75(
a)
84. Endorsement dated 08.10.2020 issued by Ex.P.76 Kotak Mahindra Bank
85. Original cheque Bg.No.000562 dated Ex.P.77 14.09.2020
86. Signature of defendant no.2 in Ex.P.77 Ex.P.77(
a)
87. Endorsement dated 08.10.2020 issued by Ex.P.78 Kotak Mahindra Bank
88. Office copy of legal notice 06.11.2020 Ex.P.79
89. Postal receipts(3 Nos.) Ex.P.80(
a), (b) &
(c) /43/ Com.O.S.No.221/2021
90. Postal acknowledges (3 Nos.) Ex.P.81(
a), (b) &
(c)
91. Promissory note dated 02.05.2017 Ex.P.82
92. Signature of defendant No.2 and 3 on Ex.P.82 Ex.P.82 (a) & (b)
93. Promissory note dated 02.05.2017 Ex.P.83
94. Signature of defendant No.2 and 3 on Ex.P.83 Ex.P.83 (a) & (b)
95. TDS traces for the Assessment Year 2016- Ex.P.84 17
96. TDS traces for the Assessment Year 2017- Ex.P.85 18
97. Signature of defendant on Ex.P.85 Ex.P.85
(a) List of witnesses examined for the defendant/s:
P.W.1 Sri.Mr.Mohan.R. List of documents marked for the defendant/s:
NIL (K.M.RAJENDRA KUMAR) LXXXIX Addl.City Civil & Sessions Judge, Bengaluru (CCH-90) ****