Bangalore District Court
S.Arvind Kumar vs S. Ramprasad on 19 December, 2015
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF XXXIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AT BANGALORE CITY. CCH 33
PRESENT:
Sri. D.Y. BASAPUR, B.Com., LL.B. (Spl.)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BENGALURU.
DATED: THIS THE 19th DAY OF DECMBER 2015
O.S.No.8518/2003
Plaintiff : S.Arvind Kumar, S/o. Seshmal,
Aged 36 years, Sanghvi and Sons,
Avenue Road, Bangalore-2.
( By Sri L. Ashok Kumar, Advocate)
V/S.
Defendant : S. Ramprasad,
Aged 34 years, No.3462/6,
7th Cross, R.P.C. Layout,
Vijayanagar II Stage, Bangalore-40.
(By Sri M.R.Shashidhar, Advocate)
Date of Institution of the suit: 29/11/2003
Nature of the Suit (Suit for
pronote, suit for declaration Money Suit
and possession, Suit for
injunction, etc,) :
Date of the commencement Affidavit evidence filed on
of recording of the Evidence : 27/7/2004
2
Date on which the Judgment 19.12.2015
was pronounced :
Total Duration : Year Months Days
12 - 20
(D.Y.BASAPUR)
XXXIII ADDL. CITY CIVIL JUDGE,
BANGALORE CITY.
JUDGMENT
The plaintiff has filed this suit directing the defendant to pay a sum of Rs.2,46,852/- with current and future interest at 24% p.a. from the date of suit till realisation of the decreetal amount and costs of the suit.
2. The brief facts of the suit are as under:-
The defendant is a family friend of the plaintiff and he had taken a hand loan of Rs.1,20,000/- from the plaintiff on 10/4/1998 for his personal commitments. The defendant had executed 2 on demand promissory notes and consideration receipts for Rs.60,000/- each. The defendant failed to repay
3 CCH-33 O.S.8518/03 the amount inspite of several requests and reminders. The plaintiff got issued legal notice dated 14/11/2003. But the defendant did not repay the loan amount. The defendant has acknowledged his debt on 1/12/2000 under each pronote agreeing to repay the total sum of Rs.2,03,552/-. As per the calculation of the plaintiff, the defendant is liable to pay a sum of Rs.2,46,852/- which is inclusive of interest from 1/12/2000 to 1/11/2003 and notice charges. The defendant has failed to fulfill his obligation despite several reminders and issuance of legal notice. Hence the plaintiff is constrained to file a suit for seeking aforesaid reliefs.
3. On service of summons the defendant has appeared through his counsel and filed written statement.
4. The brief facts of the written statement are as under:-
The defendant contending that the suit is not maintainable. The averments of the plaintiff that the defendant is a family friend of the plaintiff and had taken hand loan of Rs.1,20,000/- on 10/4/1998 by executing on demand 4 promissory notes and consideration receipts for Rs.60,000/- each are specifically denied as false. The defendant has not executed any documents. Hence the execution of the alleged pronotes and consideration receipts are denied. These documents are concocted for the purpose of the suit. The contents including the signature of the defendant are specifically denied. The allegations of the plaintiff that the defendant failed to repay the amount inspite of requests, reminders and issuance of legal notice are specifically denied as false. The averments of the plaintiff that the defendant has acknowledged his debt as on 1/12/2000 under each pronote are also denied. When the defendant has denied the execution of the documents, the question of acknowledging the debt does not arise. The defendant does not admit the suit claim. There is no cause of action for the suit. The plaintiff is not entitled for any relief sought for.
5. The defendant further submits that the plaintiff is the erstwhile tenant under the father of this defendant in respect of property No.30/1 and 30/2. After the death of the father of this defendant in the year 1996, the plaintiff continued as a 5 CCH-33 O.S.8518/03 tenant under this defendant. The plaintiff sub-let the said property in favour of third parties without the consent of this defendant. As such, the defendant requested the plaintiff to vacate and hand over the possession. At the intervention of well-wishers, the plaintiff agreed to vacate the premises with a condition that the defendant shall pay Rs.5,00,000/- which includes Rs.1,00,000/- deposit amount. In the year 2002 the plaintiff vacated the premises after collecting the said amount. During the subsistence of tenancy this defendant used to sign receipt for receiving the rent and also advance amount. Enraged by the eviction from the premises, taking undue advantage of the signature of this defendant, the plaintiff concocted a document purporting to be a promissory note by forging the signature of this defendant and another person. The endorsement is concocted by forging the signature of this defendant with a view to save the limiting for filing this suit. The plaintiff is in the habit of concocting the document by forging the signature. The signature of another person found on the alleged promissory note is conspicuously missing on the endorsement. Much less the said person is not made as a party to the proceedings. The defendant submits that the suit 6 is not maintainable for non-joinder of proper and necessary parties since the alleged promissory note contains signature of two person i.e., forged signature of the defendant and signature of another person. In the absence of parties to the alleged promissory note the suit itself is not maintainable and the non-joinder of person to the alleged promissory note itself is sufficient to dismiss the case. Hence prayed for dismissing the suit with costs.
6. On the basis of pleadings, the following issues are framed:
1. Whether the plaintiff proves that on 10/4/1998 the defendant borrowed a hand loan of Rs.1,20,000/- by executing two Demand Promissory Notes and Consideration Receipts?
2. Whether the plaintiff proves that the defendant had agreed to pay the interest on hand loan?
3. Whether the plaintiff proves that the defendant has acknowledged the debt on 1/12/2000?
4. Whether the plaintiff is entitled to suit claim?
Addl.
Issue No.1: Whether the defendant proves that suit is bad for non-joinder of proper and necessary party?
7 CCH-33 O.S.8518/03
5. What order and decree?
6. The plaintiff himself got examined as P.W.1 and got marked documents Ex.P1 to Ex.P3. Defendant himself and one witness got examined as DWs.1 and 2 and got marked documents Ex.D1 (a) to (f) and Ex.C1 to C3.
7. Previously, this suit came to be decreed on 19.1.2007. The defendant filed Misc.790/07 to set aside the exparte decree as no evidence adduced on behalf for defendant. The same came to be dismissed on 28.7.2012. Defendant challenged the said order in MFA. No.10182/2012 on the file of Hon'ble High Court of Karnataka. The said Appeal is allowed and the impugned order is set aside in Misc.790/07 and judgment and decree with costs of Rs.15,000/- and directed this court to restore the suit and shall dispose within 6 months from the date of receipt of copy of the judgment. Parties appeared through their counsel. Defendant filed IA No.5 to amend the written statement. Same was allowed and permitted amend the written statement. Addl. Issues framed 8 on 21.8.2015. Defendant filed IA No.6 to reject Ex.P1 and P2 as they are hit by Article No.1 of Karnataka Stamp Act for want of sufficient stamp duty and IA No.6 is dismissed.
8. My findings on the above issues are as under:
Issue No.1: In the negative Issue No.2: In the negative, Issue No.3: In the negative, Issue No.4: in the negative, Addl.Issue No.1: In the Affirmative Issue No.5: As per final order, for the following:
REASONS
9. Issue Nos.1 to 4 & Addl.Issue No.1:- These issues are interlinked. Hence for the sake of convenience, these issues are taken together.
10. Learned counsel for the plaintiff argued that as per the evidence of P.W.1 and Ex.P1 plaintiff has proved his case as defendant is not disputing the signature. Learned counsel for the defendant argued that suit is not maintainable as no attesting witnesses examined before the court to prove the case.
9 CCH-33 O.S.8518/03
11. On careful perusal of the material placed before the court, P.W.1 has reiterated the contents of the plaint averments in his affidavit filed in lieu of his chief examination. He has stated that the defendant borrowed loan of Rs.1,20,000/- on 10.4.1998 for his personal commitments and agreed to pay interest at 24% p.a., and executed pronotes for Rs.60,000/- each with consideration receipts. In spite of repeated demands he did not repay the same. On 1.12.2000 defendant has acknowledged the debt of Rs.1,12,200/- and alleged pronotes. Finally he got issued notice to pay the loan amount. He did not heed his request.
12. Per contra D.W.1 has reiterated the contents of written statement in his affidavit filed in lieu of his chief examination. He has stated that he never borrowed loan and agreed to pay interest and executed the pronotes and also acknowledgement. Further D.W.1 has contended that his father was the owner of property bearing Nos.30/1 & 30/2. Plaintiff was a tenant. His father died in the year 1996. Thereafter, plaintiff continued as a tenant under him. When he requested to vacate the house, plaintiff did not heed to his 10 request. At the intervention of well-wishers, plaintiff agreed to vacate the premises with a condition that D.W.1 shall pay Rs.5 lakhs which includes Rs.1 lakh deposit amount. In the year 2002, plaintiff vacated the premises after receiving the said amount. He used to sign receipts for receiving the rents. So, plaintiff concocted the pronotes and consideration receipts by forging his signature.
13. In the cross examination of P.W.1 he has denied that he is a tenant under the father of the defendant or defendant. Defendant came in contact with the plaintiff in a temple. He informed to his advocate that how the defendant came in contact with him. His father is a proprietor of Singwi & Sons and he is looking after the business. P.W.1 further stated that on 10.4.1998 he had a bank account, but no document is produced to show that Rs.1,20,000/- was with him on the said date. He has not produced any passbook to show that he was having the said amount in his bank account. He had no personal profession in the year 1998 except to assist his father. He has specifically admitted that suit amount is personal transaction between defendant and himself. He has 11 CCH-33 O.S.8518/03 not shown the said amount in his income tax returns. Even he has not shown Rs.1,20,000/- in account of his father. So, plaintiff has not proved that he had sufficient source to pay the said amount.
14. The learned counsel for the defendant has relied on a decision reported in 2009(2) Kar.L.J. 98 between Shiva Murthy Vs., Amruthraj wherein it is held that even according to complainant there was no documentary evidence to prove lending. No document executed evidencing receipt of money. Complainant was a person belonging to below poverty line, not explained as to how he could muster his resources to pay loan to accused. Circumstances proved complainant was in a financial position to lend. Hence, question drawing presumption U/s.139 of NI Act does not arise. The facts and circumstances of the above said decision is applicable to the case on hand.
15. P.W.1 admits that in Ex.P1-pronote, there is alternation and also he do not know the other signatures put on Ex.P1 and P2 other than the signature of defendant. He 12 denied that interest at '2%' mentioned in different ink. Ex.P1 and P2 pronotes reveal that on 10.4.1998 Rs.60,000/- paid to defendant and rate of interest mentioned as 2% p.m., and also consideration receipt executed by the defendant. Defendant specifically denied the signature on Ex.P1 and P2. In consideration receipt the name S Aravind is altered and the same is admitted by P.W.1. The ink written as "2%" is not similar with that of the other contents of the document. Moreover, on Ex.P1 one signature put in Kannada on revenue stamp. According to plaintiff, defendant put his signature below the said Kannada signature. On Ex.P2 the said Kannada signature put below the alleged signature of defendant. Kannada signature can be easily identified and it can be read as "¸ÀgÀ¸ÀévÀÀªÀÄä". But plaintiff has not pleaded regarding the said signature of "¸ÀgÀ¸ÀévÀªÀÄä".
16. The learned counsel for plaintiff vehemently argued that plaintiff do not know the signature put in kannada on Ex.P1 and P2. According to P.W.1, defendant only borrowed the loan and put his signature. Even in endorsement Ex.p1(c) 13 CCH-33 O.S.8518/03 and P2(c) also signature of defendant only obtained. In notice Ex.P3 also stated that defendant only borrowed the loan. When two signatures are found in the pronotes, out of which one signature is alleged to be of defendant, it is the bounded duty of the plaintiff to explain about another signature which is Kannada. Even he has pleaded about the said Kannada signature in the plaint and in his chief examination. He has not whispered a single word regarding another signature. Except oral submission of counsel for plaintiff, no explanation is given. So non explanation of another signature creates a doubt in the mind of the court to believe that whether defendant alone borrowed the loan or both the signatories to the pronotes have borrowed the loan. It is one of the suspicious circumstances to disbelieve the evidence of plaintiff.
17. Defendant borrowed loan of Rs.1,20,000/- on 10.4.1998. Plaintiff ought to have taken a single pronote. But he has taken two pronotes for Rs.60,000/- each. Plaintiff has not pleaded as to why he has taken two pronotes. Even endorsements on Ex.P1 and P2 are taken separately. Further the purpose of taking loan by defendant is also not stated. 14 Simply mentioned that defendant borrowed loan of Rs.1,20,000/- for his personal commitments. But in the plaint he has claimed interest at 24% p.a., as defendant has borrowed loan for commercial purpose.
18. According to plaintiff as per Ex.P1(c) and P2(c) defendant repaid Rs.5,000/- on 1.12.2010 and gave acknowledgement for remaining balance of Rs.1,01,776/- each. Ex.P1(c) and P2(c) written in Rajasthani language and obtained the signature of defendant on revenue stamp. On the left side, translation of Rajasthani language is shown in English, but no signature of defendant is obtained below the translated English version. It is suggested that defendant do not know the Rajasthani language. No endorsement regarding whether contents of Ex.P1(c) Ex.P2(c) explained to defendant and then obtained the signature. As stated above, the signature of another signatory who put her signature on Ex.P1 and P2 is not obtained on the endorsement. Below the endorsement it is written as witnesses, but no signature of witnesses obtained.
15 CCH-33 O.S.8518/03
19. The learned counsel for defendant argued that defendant has not paid Rs.5,000/- on 1.12.2000. Plaintiff falsely created the endorsement and put the date as 1.12.2000 only to save the limitation. The suit is filed on 29.11.2003. Prior to a week for limitation from the date of last payment dated 1.12.2000. So date of execution of pronotes, endorsement and date of filing of the suit reveal that to save the limitation, the endorsement is mentioned on Ex.P1 and P2 and filed the suit.
20. Even two attesting witnesses for Ex.P1 and P2 Sri S R Shivaprakash and T.Vedaraj are not examined by the plaintiff. When defendant specially denied the transaction and execution of pronotes, it is the duty of the plaintiff to prove his case by examining any one of the attesting witnesses. No explanation given by the plaintiff for non examination of independent attesting witnesses. In the absence of corroborative independent attesting witnesses, sole testimony of P.W.1 cannot be relied to prove his case. 16
21. Interest is calculated at the rate of 24% p.a., from the date of execution of pronotes. However, interest is restricted to 12% p.a., for Rs.43,330/- out of Rs.86,400/-. But no explanation given regarding why he has restricted the interest to 12% p.a.
22. Further in the chief examination of P.W.1 stated that after filing his affidavit in lieu of chief examination, defendant has paid a sum of Rs.60,000/- on different dates. Affidavit filed on 27.7.2004. He was further examined on 2.1.07, that is after 7 years. Plaintiff has not mentioned the particulars of date and amount repaid by the defendant. Simply stated that defendant has paid Rs.60,000/- on different dates. Of course, in the cross examination of P.W.1 no suggestion put to him to show whether defendant paid Rs.60,000/- or not. Previously, suit is decree after deducting Rs.60,000/- from the suit amount. Admittedly, P.W.1 is not examined by defendant and defendant has not adduced evidence. So, the evidence of P.W.1 was not challenged and the suit came to be decreed. Merely, exparte decree is passed previously, is not a sole ground to decree the suit again as P.W.1 was not cross 17 CCH-33 O.S.8518/03 examined and no evidence adduced by the defendant. Now, P.W.1 is cross examined and defendant has adduced his oral and documentary evidence. Plaintiff specifically stated that defendant is his family friend and had taken the loan. But in the cross examination stated that he met the defendant at a temple and again denied that he was not a tenant under the father of defendant. So the oral evidence of P.W.1 is quite contrary to the contents of the plaint.
23. Even in Ex.P3 notice is also not specifically stated the details of transaction. The learned counsel for defendant argued that no postal receipt or acknowledgement produced by plaintiff as such no notice served on the defendant. In the cross examination of D.W.1 stated that he came to know the forgery of his signature by plaintiff when he received notice, 8 years ago. But he has not taken any action against plaintiff for alleged forgery of signature and no complaint lodged again him. The learned counsel for the defendant argued that as defendant received the summons in this suit, he contested the case, hence, the question of lodging complaint and taking action does not arise. P.W.1 admitted that he received the 18 notice given by defendant. But in his re-examination stated that after receipt of court notice he appeared before court. In his cross examination again stated that he received the notice through advocate but he do not know whether notice received prior to filing of the suit or not. Any how, notice served or not is immaterial. However, plaintiff has to prove his case by corroborative reliable evidence.
24. D.W.1 and 2 have stated that plaintiff was a tenant. In the negotiations plaintiff agreed to vacate the premises after receiving Rs.5 lakhs. In the cross examination of D.W.1 he has admitted that he has not produced the rent deed or any document to show that plaintiff sub-let the house to other person and he has not produced the counter foil regarding the rent receipts of the plaintiff. He has stated that some of the receipts were missing and some were available. He has stated that in the year 2005-06, Keshavamurthy, broker and Fathe Singh were present at the time of panchayath. But he has not obtained document for paying Rs.5 lakhs to the plaintiff for vacating the premises.
19 CCH-33 O.S.8518/03
25. D.W.1 admitted his signature on vakalath, written statement as per Ex.C1, C1(a), C2, C2(a) and C3, C3(a). But denied the signature on Ex.P1(a)(b)(c) and P2(a)(b)(c). Of course, to prove the signature, plaintiff filed application to send the disputed signatures along with admitted signature for expert's opinion. At the eleventh hour the plaintiff has filed application when case was posted for arguments. But said application is dismissed as court is empowered to compare the signatures. Moreover, case is remanded from Hon'ble High Court with a direction to dispose of the same within 6 months. Even plaintiff has not made any efforts to examine the attesting witnesses.
26. On comparing the signatures on Ex.P1(a)(b)(c) and Ex.P2(a)(b)(c) with the admitted signature of the defendant on Ex.C1(a), C2(a) & C3(a), they are not similar. On comparing the style and stroke of the letters of admitted signature with that of disputed signature it can be seen that there is variation between them.
20
27. Defendant produced Ex.D1 receipt book wherein signature of plaintiff marked as Ex.D1(a)(b)(c)(d).
28. D.W.2 independent witness stated in his affidavit that plaintiff was a tenant under father of the defendant. He purchased the premises which was occupied by the plaintiff from the defendant. Sale deed executed on 27.3.1993 in favour of his wife. There was negotiation between plaintiff and the defendant. Plaintiff agreed to receive Rs.5,80,000/- including advance amount for vacating the premises. Accordingly, he has paid the said amount to the defendant, in turn defendant handed over the said amount to plaintiff. In the cross examination, D.W.2 has stated that in the year 1993 sale agreement executed in his favour by Shamanna. But the said agreement is not available with him. He has specifically stated that plaintiff and one Mohan Butans were tenants under Shamanna. He has stated that in the year 2000 there was a Panchayath at Ramdev Switch Center, near Avenue Road cross. He has specifically stated that he has paid Rs.5,80,000/-. Defendant in turn paid the said amount to 21 CCH-33 O.S.8518/03 plaintiff. But no document obtained from plaintiff. Of course, there are contradictions between D.Ws.1 and 2 regarding amount, place and year of the panchayath. D.W.1 stated that plaintiff received Rs.5 lakhs including deposit amount of Rs.1 lakh and vacated the premises. D.W.2 stated that plaintiff received Rs.5,80,000/- and vacated the premises. Merely, some contradictions found in the evidence of D.Ws.1 and 2 is not a sole ground to discard their reliable evidence. As per evidence of D.Ws.1 and 2 and Ex.D1 clearly goes to show that plaintiff was a tenant under defendant and his father. There was a negotiation between them to vacate the premises. So, plaintiff was acquainted with the signature of the defendant as he was a tenant under him. Thus, the contentions of defendant that plaintiff forged his signature on pronotes Ex.P1 and P2 cannot be ruled out. It is settled law that plaintiff is not entitled for the relief, on the weakness of the defendant. Of course, at first instance, defendant denied the case of the plaintiff in toto. After remand he got amended the written statement and contended that plaintiff was a tenant and there was negotiation to vacate the premises. Of course, defendant has not pleaded this defence at the earliest stage. 22
29. Further defendant has produced the rebuttal evidence to show that suit is bad for non joinder of necessary party as plaintiff has not made another signatory to the pronotes Ex.P1 and Ex.P2 as a party to the suit. Even though, additional issue framed regarding non-joinder of necessary party, plaintiff has not made efforts to implead the said person as a party and got amend the plaint or not made any efforts to prove the said additional issue. Except oral submission of plaintiff's counsel no material placed by the plaintiff.
30. For the above, plaintiff has failed to prove that defendant has borrowed loan of Rs.1,20,000/- and executed Pronotes and agreed to pay interest. Accordingly, I answer the Issue Nos.1 to 4 in the negative and Addl. Issue No.1 in the affirmative.
31. Issue No.5:- In view of my findings on issue Nos.1 to 4 and Addl. Issue No.1, I pass the following:
23 CCH-33 O.S.8518/03 ORDER The suit filed by the plaintiff U/O.7 Rule 1 of CPC., is hereby dismissed.
No order as to costs.
[Dictated to the Stenographer, transcribed and computerised by her, corrected, signed and then pronounced by me in Open Court on this the 19th day of December 2015] (D.Y. BASAPUR) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
ANNEXURE
1. List of witnesses examined for the:
(a) Plaintiff:
P.W.1 : S. Aravind Kumar
(b) Defendant :
D.W.1 : S.Ramprasad
D.W.2 : Fathe Singh
2. List of documents exhibited for the:
(a) Plaintiff:
Exs.P.1 & P.2 : Promissory notes & Consideration receipts 24 Ex.P.1(a)(b) } Ex.P.2(a)(b) } Signatures of defendant Ex.P.2(c) Endorsement of defendant acknowledging the Debt Ex.P.3 : Office copy of legal notice
(b) Defendant:
Ex.D1 : rental receipt folios (a) - (f) sigs.
(c) Marked through Court:
Ex.C1 vakalath (a) sig. Ex.C2 vakalath (a) sig. Ex.C3 written statement (a) sig.
(D.Y. BASAPUR) XXXIII ACC & SJ & SPL.JUDGE (NDPS) BANGALORE.
CN/*