Karnataka High Court
Ameer Sab vs Nagachari on 19 June, 2023
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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NC: 2023:KHC:21045
RSA No. 1642 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.1642 OF 2022 (MON)
BETWEEN:
AMEER SAB
S/O USMAN SAB,
AGED ABOUT 68 YEARS,
PROPRIETOR,
M/S INDIAN AUTO LINKS,
OPP. BHARAT PETROLEUM BUNK,
OLD KEB KOTHITHOPU ROD,
TUMAKURU - 572 219.
AND R/AT 1ST CROSS, R.T NAGARA,
TUMAKURU 572 103
...APPELLANT
(BY SRI.SOMASHEKARA K M, ADVOCATE)
AND:
NAGACHARI
Digitally signed by
THEJASKUMAR N S/O RAMACHARI,
Location: HIGH AGED ABOUT 56 YEARS,
COURT OF
KARNATAKA R/AT SRINIVASA NAGARA,
PAVAGADA TOWN,
TUMAKURU DISTRICT - 561 202.
...RESPONDENT
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC., SEEKING CERTAIN RELEIFS.
THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC:21045
RSA No. 1642 of 2022
JUDGMENT
Sri.Somashekara. K.M., learned counsel for the appellant has appeared in person.
2. This is an appeal from the Court of IV Addl. District and Sessions Judge, Tumakuru, sitting at Madhugiri.
3. For the sake of convenience, the parties shall be referred to as per their status and rankings before the Trial Court.
4. The plaint averments are these:
Plaintiff is doing business in sales and service of Exide Batteries at the new bus stand road Pavagada in the name of Sri Laksmi Venkateswara Electrical Works. The defendant was doing business in the purchase and sale of Cars in the name & style of Indian Auto Links in his old building at Kothithopu Road near Survodaya College, Tumakuru Town. It is the case of the plaintiff that he and the defendant are close friends. The defendant borrowed a sum of Rs.4,50,000/- (Rupees Four Lakh Fifty Thousand only) for his family necessities and agreed to repay the same with interest at the rate of 2% per month on -3- NC: 2023:KHC:21045 RSA No. 1642 of 2022 17.02.2018 and executed a pro-note at Rs.200/- E-stamp in favor of the plaintiff. The defendant also agreed to repay the principal amount with interest whenever the plaintiff demands the same. The defendant did not repay the amount. Hence, he was constrained to issue legal notice on 21.09.2019 demanding the payment of the amount but in vain. Hence, the plaintiff-
initiated action and filed a suit for recovery of money.
After the service of the suit summons, the defendant appeared through his counsel and filed a detailed written statement. He denied the plaint averments. He contended that the plaintiff is a stranger and disputed the execution of the pro- note on 17.02.2018 and borrowed money from the plaintiff. Among other grounds, he prayed for the dismissal of the suit.
5. Based on the above pleadings, the Trial Court framed Issues. To substantiate the claim, the parties led evidence and got marked the documents. On the trial of the action, the Trial court decreed the suit and directed the defendant to pay a sum of Rs.4,50,000/- (Rupees Four Lakh Fifty Thousand only) at 6% interest from 17.02.2018 till realization. Aggrieved by the Judgment and Decree of the Trial -4- NC: 2023:KHC:21045 RSA No. 1642 of 2022 Court, the defendant preferred an appeal before the First Appellate Court. On appeal, the First Appellate Court confirmed the Judgment and Decree of the Trial Court. Hence, this Regular Second Appeal is filed by the defendant under Section 100 of CPC.
6. Sri. Somashekara. K.M., learned counsel for the appellant submits that the Judgments and Decrees of the Trial Court & the First Appellate Court are unsustainable in law and hence the same is liable to be set aside.
Next, he submits that the defendant has seriously disputed the signature on Ex.P.1 i.e., on Demand pro-note dated 17.02.2018.
A further submission is made that the E-stamp paper of Rs.200/- writes down the description as an Agreement but not as a Bond or Demand pro-note. Both courts have failed to consider the same.
Learned counsel vehemently contended that the defendant is not the plaintiff's close friend. -5-
NC: 2023:KHC:21045 RSA No. 1642 of 2022 Lastly, he submits that viewed from any angle, the decree of the suit for recovery of money is unsustainable in law. Hence, this Regular Second Appeal may be admitted by framing substantial questions of law.
Heard, the contentions urged on behalf of the learned counsel for the appellant and perused the Judgments & Decrees of the Trial Court and the First Appellate Court with utmost care.
7. The facts have been sufficiently said and the same does not require reiteration. The suit giving rise to this appeal was brought by the plaintiff seeking the relief of recovery of money.
8. Let us quickly glance the law relating to Negotiable Instruments. The law relating to Negotiable Instruments is not the law of one country or one nation; it is the law of the commercial world in general, for it consists of "certain principles of equity and usages of trade which general convenience and commonsense of justice had established to regulate the dealing of merchants and mariners in all the commercial countries of the civilized world". -6-
NC: 2023:KHC:21045 RSA No. 1642 of 2022 The Negotiable Instruments Act of 1881 (for short 'the Act') confines itself only to promissory notes, bills of exchange, and cheques, the three kinds of negotiable instruments most in common use.
A Negotiable Instrument is defined by the Act to be a promissory note, bill of exchange, or cheque payable either to order or to bearer. The definition is the result of an amendment by Act VIII of 1919. Before the amendment, it was necessary for instruments to be negotiable that they should contain words of negotiability such as 'order 'or 'bearer' so that an instrument drawn payable to a specified person was not negotiable.
A "Promissory note" is an instrument in writing (not being a bank note or a currency note) containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument.
To fulfill the definition given the document must conform to the following requirements: -
1) It must be in writing and signed by the maker. -7-
NC: 2023:KHC:21045 RSA No. 1642 of 2022
2) It must contain an unconditional promise to pay a sum certain in money only, and nothing more.
3) It must be payable on demand or at a fixed or determinable future time.
4) It must be payable to, or to the order of a specified person or to the bearer.
9. Bearing these principles in mind, let me analyze the facts of the case at hand.
The plaintiff specifically contended that the defendant is his close friend and he borrowed money for his family necessities. The defendant seriously disputed his signature on the On-Demand pro-note.
Ex.P-1 is the Pro-note. To prove the same, the plaintiff has examined himself and two more witnesses. The witnesses have spoken about the execution of the Pro note. It is pivotal to note that the defendant has disputed his signature on the pro note but strangely he did not take any necessary steps to file an application for sending the disputed signatures and admitted signatures to Handwriting Expert.
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NC: 2023:KHC:21045 RSA No. 1642 of 2022 Based on material proof, it was concluded the defendant has borrowed the money from the plaintiff and accordingly, decreed the suit. The First Appellate Court has examined the material evidence on record and re-appraised it. I am satisfied that it has been appreciated from the correct perspective. Furthermore, the findings about pro note recorded by the Trial Court & the First Appellate Court are neither vitiated by non- consideration of relevant evidence nor there is a wrong approach to the matter. Where based on evidence on record the Trial Court and the First Appellate Court had concurrently arrived at a finding of fact, the High Court in the Second Appeal cannot reverse the said concurrent findings under ordinary circumstances.
10. Learned counsel Sri.Somashekara. K.M., in presenting his argument vehemently contended that both courts have not appreciated the material evidence on record. I have given my anxious consideration to the said contention. This is a Regular Second Appeal filed under Section 100 of CPC and re-appreciation of evidence is not permissible. Hence, the said contention must necessarily fail. -9-
NC: 2023:KHC:21045 RSA No. 1642 of 2022
11. It is well to see that after the 1976 amendment, the scope of Section 100 of the CPC has been drastically curtailed and narrowed down. Under Section 100 of the Code of Civil Procedure 1908 (as amended in 1976) the jurisdiction of the High Court to interfere with the judgment of the Court below is confined to hearing substantial questions of law. Interference with a finding of a fact by the High Court is not called for if it involves re-appreciation of the evidence.
12. No substantial question of law arises for consideration in this appeal. As a result, I find no merit in this appeal, and so, it is dismissed at the stage of admission.
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JUDGE TKN List No.: 1 Sl No.: 27