Bangalore District Court
Mrs. Neha. M vs Imtiaz H.A. Sattar on 27 November, 2019
C.R.P.67] Government of Karnataka
Form No.9(Civil) Title
Sheet for Judgment in
suits
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF SMALL CAUSES, (SCCH-09)
AT BANGALORE
PRESENT: Abdul Khadar, B.A., LL.B.,
JUDGE, Court Of Small Causes,
Bengaluru
Dated this the 27th Day of November 2019
SC. No: 1567/2018
Plaintiff : Mrs. Neha. M
W/o Mahesha J,
Aged about 54 years,
N. 502-A, Sangeeta Apartments,
5th Cross, Malleswaram,
Bengaluru-560008.
Rep. by SPA Holder
Mahesha J,
S/o C. Jethanand,
No. 502-A, Sangeeta Apartments,
5th Cross, Malleswaram,
Bengaluru-560008.
(By Sri.Naveen Tao, Advocate)
-Vs-
SCCH.9 2 SC.1567/2018
Defendant : Imtiaz H.A. Sattar
Proprietor of SHA Enterprises,
No. 3/3, Building No. 6, Begur Hobli,
Next to Kauvery Tank,
Kodichikkanahalli,
Bengaluru-560068.
Also at:
No. 1004, Cypress Block,
Prestige St. John's Wood Apartment
Taverekere Main Road,
Bengaluru-560029.
(By Sri.Kiran C.V.- Advocate)
Date of Institution of suit : 02-11-2018
Nature of the suit : Recovery of money
Date of commencement of : 06-03-2019
recording of the evidence
The date of pronouncement of : 27-11-2019
Judgment
Total Duration : Year/s Month/s Day/s
01 00 25
JUDGMENT
The plaintiff has instituted this suit to recover a sum of Rs.1,50,000/-from the defendant together with interest.
2. The facts of the case, in brief are that the defendant is a proprietor of SHA Enterprises had approached the plaintiff for loan sum of Rs.15,00,000/-
SCCH.9 3 SC.1567/2018on interest of 1.1% p.m. for a period of 10 months for the purpose of his business. The plaintiff paid Rs.10,00,000/- on 02.03.2017 and Rs.5,00,000/- on 03.03.2017 through RTGS to the defendant account with Karnataka Bank Ltd., from plaintiff's Canara Bank Account. The defendant had issued 11 cheques drawn on Karnataka Bank Ltd., Bengaluru in favour of plaintiff towards the repayment of borrowed amount with interest. The defendant has issued one cheque of Rs.1,65,000/- towards the interest and 10 cheques of Rs.1,50,000/- each towards the principal amount. The plaintiff has presented the cheque bearing No.163510 dated 02.04.2018 sum of Rs.1,50,000/- on 06.04.2018 through her banker YES Bank Ltd., Bengaluru. The said cheque was dishonoured for the reason of insufficient funds on 23.04.2018 and on 28.06.2018. The plaintiff submits that, the defendant is due and liable to pay of Rs.1,50,000/- to the plaintiff. The plaintiff had issued a legal notice dated 23.08.2018, which was duly served on the defendant and he had issued untenable reply denying the claim of the plaintiff, but not paid the amount covered under the cheque to the plaintiff. Hence, this suit is filed.
3. After service of summons, defendant has appeared through his counsel before the court and filed his SCCH.9 4 SC.1567/2018 written statement contending that the suit of the plaintiff for the recovery of money is liable to be dismissed, since plaintiff has approached this Hon'ble court with inconsistency pleading and suppressing the true material facts. He denied paras No.1 to 13 of the plaint averments. The defendant has issued the 10 cheques in favour the plaintiff towards the repayment of borrowed principal loan amount is true, but one more cheque was issued for security purpose and not for any interest. There is no cause of action and the paragraph is based on the plaintiff's figment of the imagination for just to prefer the present suit before this court. Hence the averments made in the para-13 are all denied as false. The date pleaded by the plaintiff is nothing but only just to create a date for cause of action for filing of the present suit. The suit is speculative in nature filed only with an ill motive to harass this defendant. Hence, prayed to dismiss the petition with costs.
4. To prove the case of the plaintiff her SPA holder examined himself as PW1 and got marked 9 documents at Ex.P.1 to P.9. The defendant examined himself as DW.1 and got marked 1 document at Ex.D.1.
SCCH.9 5 SC.1567/20185. Heard arguments. On going through the materials on record, the following points arise for the determination of the court.
1) Whether the plaintiff is entitled to the suit claim with interest as prayed for?
2) What order or decree?
6. My findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : As per final order for the following:
REASONS Point No.1 :
7. To prove the case of the plaintiff, the SPA Holder of the plaintiff by name Mahesh J himself examined as PW.1, who filed affidavit in lieu of examination in chief and reiterated the plaint averments in toto and produced 9 documents at Ex.P.1 to P.9. Ex.P.1 is the SPA wherein, the plaintiff has appointed her husband Mahesh J. as her attorney authorizing him to proceed with the case against the defendant for the recovery of sum of Rs.1,50,000/-. Due to her hill health, she is unable to attend and conduct the said proceedings. Ex.P2 is On demand promissory note wherein the defendant executed on demand promissory note in favour of plaintiff by agreeing to SCCH.9 6 SC.1567/2018 pay Rs.15,00,000/- together with interest at the rate of 1.1% per month value received by him through cheque bearing No. 163512 on 02.03.2017. Ex.P3 is the cheque bearing No. 163510 dated 02.04.2018 for sum of Rs.1,50,000/- drawn on Karnataka Bank limited, Overseas Branch, Bengaluru issued infavour of plaintiff. Ex.P3(a) is the signature of defendant issued cheque on behalf of SHA Enterprises as proprietor. Ex.P4 is the endorsement issued by the Yes Bank Limited, Malleshwaram Branch, stating that, cheque was dishonoured for the reason of "Funds Insufficient" on 27.01.2018. Ex.P5 is the demand notice dated 23.08.2018 issued through RPAD by the plaintiff to the defendant calling upon him to pay sum of Rs.1,50,000/- within 15 days from the receipt of notice. Ex.P6 is the postal acknowledgement wherein notice issued to the defendant was duly served on defendant on 28.08.2018. Ex.P7 is the reply wherein the defendant has taken defence that, he admits the transaction held between plaintiff and himself and stated that he availed loan of Rs.15,00,000/- from the plaintiff in the month of March 2007, at the time of availing the said loan he has handed over a blank signed cheque as security to the plaintiff. He has cleared entire loan amount and there was no due what so ever was pending. Taking advantage of blank signed cheque plaintiff played fraud to him. He never issued cheque in question to the plaintiff in the month of April SCCH.9 7 SC.1567/2018 2018 for repayment of any interest. Ex.P8 is the Unserved RPAD cover. Ex.P8(a) is the contents of Ex.P8. Ex.P9 is the bank statement from 01.03.2017 to 31.03.2017 wherein it reveals the fact that the plaintiff transferred Rs.10,00,000/- and Rs.5,00,000/- on 02.03.2017 and 3.3.2017 through cheques bearing No's 397908 and 397908 in favour of SHA Enterprises. The defendant has categorically admitted the said transaction and the aforesaid amount was credited to his account.
8. The counsel for the defendant cross-examined PW.1 wherein he admits that, plaintiff is a house wife. Out of her savings she is doing finance business. She do not have licence to run finance and not registered the said finance. She paid loan to the defendant on interest at the rate of 1.1%. The defendant had agreed to repay Rs.15,00,000/- within 10 months in installmens i.e., every month Rs.1,50,000/-. He obtained cheque for a sum of Rs.1,65,000/- from the defendant during the month of March 2017. The above cheque was issued for interest due and the said cheque was not honored. He admits that, he received Rs.15,15,000/- from the defendant. He denied that he has not received any interest on the said loan. He admits that defendant has paid Rs.15,00,000/- along with interest of Rs.15,000/-. He denied that, the defendant is not due to the plaintiff and she misused SCCH.9 8 SC.1567/2018 the security cheque which was received from him during the month of March 2017.
9. The afore said suggestion made to PW.1 by the counsel for the defendant is reproduced as it is:-
" G½vÁAiÀÄzÀ ºÀtzÀ°è ¥ÀsÉÊ£Á£ïì ªÀåªÀºÁgÀ ªÀiÁqÀÄvÁÛgÉ. ±ÉÃÀ 1.1gÀ §rØAiÀÄAvÉ ¸Á® ¤ÃqÀÄvÁÛgÉ. 10 ²AUÀ½UÉ ¥Àæw wAUÀ¼ÀAvÉ gÀÆ. 1,50, ®PÀë ºÀtªÀ£ÀÄß wÃgÀĪÀ½ ªÀiÁqÀ®Ä ¥ÀæwªÁ¢ M¦àPÉÆArzÀÝgÀÄ MAzÀÄ PÀAvÀ£ÀÄß ºÉÆgÀvÀÄ¥Àr¹ G½PÉ PÀAvÀ£ÀÄß ¥ÀæwªÁ¢ ¥ÁªÀw ªÀiÁr®è. ªÀiÁZïð 1017gÀAzÀÄ gÀÆ. 1,65,000/-UÉ ZÉPÀÌ£ÀÄß ¥ÀæwªÁ¢¬ÄAzÀ ¥ÀqÉ¢zÉÝ JAzÀgÉ ¸Àj"
10. To disprove the plaint averments, the defendant himself examined as DW.1, filed affidavit in lieu of his examination in chief and reiterated the written statement averments in toto and deposed that the plaintiff is paid Rs.15,00,000/- as hand loan and the same is payable in 10 installments only of monthly installment of Rs.1,50,000/- at the time of borrowing hand loan he agreed to pay Rs.15,000/- interest and he issued 10 cheques wherein the first cheque amount was for Rs.1,65,000/- includes the agreed interest and remaining 9 cheques Rs.1,50,000/- as security and performance guarantee cheque bearing No.163510. He paid full payment and asked blank cheque to return but she has not returned filed this suit.
11. The defendant produced bank statement at Ex.D1 to show that all the cheques out of 10 cheques honoured. This SCCH.9 9 SC.1567/2018 witness cross examined by the counsel for the plaintiff. Wherein he categorically admits that, he borrowed loan of Rs. 15,00,000/- from the plaintiff, agreeing to repay within one year. The averments made in para No.3 of his chief affidavit, the 10 cheques were cleared has been admitted. He admits that he had given 11 cheques to plaintiff towards repayment of loan and also Ex.P2 on demand promissory note issued to plaintiff. He denied that he borrowed loan for interest. He issued Ex.P3 cheques for sum of Rs.1,65,000/- to the plaintiff. He denied that, 10 cheques were issued for repayment of principal amount and one cheque issued for interest. He voluntaries that he gave 10 cheques for installment and one cheque for security to the said loan and also he calculated nominal interest of Rs.15,000/- and paid to the plaintiff. He denied that, he is due of Rs.1,50,000/- to the plaintiff for discharge of said liability, he issued Ex.P3 cheque to the plaintiff. He admits that Ex.P3 cheque is dishonoured as plaintiff issued demand notice through his counsel and he also gave reply to the notice and he admits that two cheque bounce cases are pending. He denied that, to cheat the plaintiff and not repaid the interest amount as agreed and deposing falsely before the court.
12. The counsel for the plaintiff has filed arguments and he argued that the defendant agreed the case of the plaintiff SCCH.9 10 SC.1567/2018 only denying that he agreed to pay nominal interest at rate of 1.1.% and principal amount of Rs.15,00,000/-. He denied that he issued Ex.P3 towards repayment of interest to the plaintiff. The plaintiff is received Rs.1,65,000/- towards interest and subsequently he received Rs.1,50,000/- for 9 months through cheques towards principal amount and he has not repaid the said amount and he is due of Rs.1,50,000/-. In the cross examination of DW-1 confronted that he had issued 11 cheques, 10 cheques were cleared out of 11 cheque. He admits the signature found in Ex.P2 on demand promissory note. The defendant promised to pay Rs.15,00,000/- with interest of 1.1%. Hence the plaintiff has made out prima facie case. The defendant is due of Rs.1,50,000/- to the plaintiff being balance outstanding.
13. As per Ex.D1, out of 11 cheques 10 cheques were cleared and cheque issued by the defendant towards interest was not been cleared. Hence the plaintiff proved that the defendant is due of Rs.1,50,000/- towards discharge said liability issued Ex.P3 cheque on 02.04.2018 infavour of plaintiff. The defendant admits his signature and cheque belong to him ad he also admits cheque was also dishonoured for "Fund Insufficient". Except reply he has not produced any document to show that he has not agreed to SCCH.9 11 SC.1567/2018 pay 1.1% interest on principal amount of Rs. 15,00,000/- to the plaintiff.
14. On perusal of entire evidence of the P.W.1 it clearly goes to show that the defendant has borrowed R.15,00,000/- from the plaintiff on interest at the rate of 1.1.% and towards discharge the same he issued Ex.P3 cheque and the same was dishonored on its presentation to the bank and the said amount was not repaid after sufficient request made by the plaintiff. The documents at Exs.P.2 and P3, clearly corroborates the version of P.W.1. As the plaintiff by adducing oral evidence and by producing the documentary evidence he successfully established that, the defendant is due to pay Rs.1,50,000/- to the plaintiff. On the other hand the defendant has fails that the plaintiff has misused the security cheque to make illegal gain. When the plaintiff has proved that the defendant has issued Ex.P3 cheque towards repayment of interest on principal amount of Rs.15,00,000/-. Hence, plaintiff is proved that the defendant is due of Rs.1,50,000/- and the plaintiff is entitled for recovery of said amount from the defendant. Hence, I answer Point No.1 in the Affirmative.
Point No.2:
15. For the forgoing discussions, I proceed to pass the following:
SCCH.9 12 SC.1567/2018ORDER The suit filed by the plaintiff is hereby decreed with cost.
The plaintiff is entitled to recover a sum of Rs.1,50,000/- and interest at the 9% per annum on principal from the date of suit till the date of realization from the defendant.
Draw decree accordingly.
(Dictated to the stenographer on computer directly, typed by her, corrected and then pronounced by me in the open court on this 27th day of November 2019) (Abdul khadar.), Judge, Court of Small Causes, Bengaluru.
ANNEXURE List of witnesses examined on behalf of petitioner:
PW1 - Mahesh J.
List of documents exhibited on behalf of petitioner:
Ex.P1 - SPA,
Ex.P.2 - On demand Promissory Note
Ex.P3 - Cheque
Ex.P3(a) - Signature of defendant
Ex.P4 - Endorsment
Ex.P5 - Notice
Ex.P6 - Postal receipt
Ex.P7 - Reply notice
Ex.P8 - Unserved postal covers
SCCH.9 13 SC.1567/2018
Ex.P8(a) - Contents of Ex.P8
Ex.P9 - Bank statement
List of witnesses examined on behalf of defendant:
DW.1 - Imtiyaz List of documents exhibited on behalf of defendant:
Ex.D1 - Bank Statement
(Abdul khadar.),
Judge, Court of Small Causes,
Bengaluru.