Karnataka High Court
Smt. C Krishnaveni vs M/S State Bank Of Hyderbad on 14 July, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14th DAY OF JULY, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
R.F.A.NO.2039/2013
BETWEEN:
SMT. C.KRISHNAVENI
W/O CHANDRASHEKAR NAIDU
AGED ABOUT 50 YEARS
R/AT NO.68, RAJAMMA GARDEN
RAJIVAGANDI ROAD
JARAGANAHALLI
BANGALORE-560 078.
... APPELLANT
(BY SRI. S.P.S. KHADRI AND SRI NAVEEN KUMAR,
ADVOCATES)
AND:
1. M/S STATE BANK OF HYDERBAD
JAYANAGAR BRANCH
NO.568, 38TH CROSS
11TH MAIN, V-BLOCK
JAYANAGAR,
BANGALORE-41.
REPRESENTED BY ITS
BRANCH MANAGER
2. SRI HANUMANTHAPPA
AGED ABOUT 54 YEARS
S/O GOLAPPA
EX-BRANCH MANAGER
STATE BANK OF HYDERABAD
JAYANAGAR BRANCH
BANGALORE.
2
PRESENTLY: CHIEF MANAGER
WORKING AT A.D.B. SINDHANUR
BRANCH, STATE BANK OF
HYDERABAD
R/AT NO.25, 2ND CROSS
A.D.HALLI, BANGALORE-79.
... RESPONDENTS
(BY SRI S.K.M. SHETTY, ADVOCATE FOR R-1 AND R-2)
THIS APPEAL IS FILED UNDER SECTION 96 R/W
ORDER 41 RULE 1 OF CPC, AGAINST THE JUDGMENT
AND DECREE DATED 30.9.2013 PASSED IN
O.S.NO.2865/2009 ON THE FILE OF XXXVII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BANGALORE,
DISMISSING THE SUIT FOR DECLARATION AND
MANDATORY INJUNCTION.
THIS APPEAL BEING HEARD AND RESERVED,
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, ARAVIND KUMAR J, DELIVERED THE FOLLOWING:
JUDGMENT
This is a plaintiff's appeal calling in question judgment and decree passed in O.S.No.2865/2009 by XXXVII Additional City Civil and Sessions Judge, Bangalore, on 30.09.2013 dismissing the suit filed by the plaintiff, which was for the relief of declaration to declare that registered mortgage deed dated 27.12.2004 executed by her (plaintiff) in favour of first defendant - Bank and duly registered in the Office of Sub-Registrar, 3 Kengeri, Bangalore, on 30.12.2004 as null and void and for consequential relief of mandatory injunction to direct the defendants to deliver the possession of original title deeds pertaining to suit schedule property. BRIEF BACKGROUND:
2. Plaintiff, who is the absolute owner of property bearing No.18 (No.68), Rajamma Garden, Rajiv Gandhi Road, Jaraganahalli, Bangalore 560078, had instituted the suit in question contending interalia that in order to further construct the house on the remaining extent of suit schedule site, she had approached the first defendant - Bank for a housing loan of `10,00,000/- and second defendant, who was the then Manager of first defendant - Bank had demanded and had called upon plaintiff to furnish all the original documents and as such, she handed over the documents to second defendant for the purposes of scrutiny along with loan application during the third week of December' 2004. It was further contended that second defendant demanded that plaintiff had to 4 execute some documents in favour of Bank as security towards the loan amount proposed to be sanctioned and took signatures of plaintiff on blank papers and printed formats. It was also contended that second defendant demanded that plaintiff should execute a mortgage deed in favour of Bank and believing that loan will be sanctioned in her favour subject to legal opinion that would be furnished by the panel Advocate of the Bank as assured, she executed the same. She has also stated that she had repeatedly visited the Bank enquiring as to when loan amount would be sanctioned and after few months she was informed that housing loan was not sanctioned but a personal loan of `1,00,000/- was sanctioned. Plaintiff has further contended that she made her own arrangements to put up construction of her house and as such, she demanded return of original documents from first defendant-Bank, but first defendant stated that it was misplaced and would be returned on tracing of the same. She has also stated that in spite of repeated enquiries, she was not 5 furnished with the documents but received a notice alleging that legal opinion submitted by plaintiff is not in the prescribed format, which was duly replied and a demand notice dated 05.09.2006 came to be issued by the Bank claiming a sum of `82,000/- as installment towards housing loan of `10,00,000/- and by the time, she approached first defendant - Bank for return of title deeds, Bank had initiated proceedings to recover the amount.
3. Plaintiff has contended that she was not at all sanctioned housing loan and Bank Officials had taken signatures on blank white papers and illegal demand had been made by the Bank and mortgage deed had been obtained fraudulently. It is also contended that on a private complaint filed by the plaintiff, investigation was conducted by the jurisdictional police and 'B' Report came to be submitted. On these amongst other grounds, plaintiff sought for declaring that mortgage deed dated 27.12.2004 executed by her in favour of first defendant- Bank is null and void and 6 sought for a mandatory injunction to direct the defendants to return the original title deeds relating to the suit property.
4. On service of suit summons first defendant appeared and filed the written statement contending interalia that plaintiff had approached the Bank by submitting an application on 30.11.2004 for sanction of loan of `10,00,000/- for constructing a house and said loan amount was duly sanctioned on 31.12.2004 to the plaintiff. It was further contended that plaintiff executed mortgage deed in favour of the Bank on 27.12.2004 mortgaging the suit property as security for the loan, which was also registered. It is further stated that loan amount of ` 10,00,000/- was credited to the savings bank account of the plaintiff on different dates and plaintiff has withdrawn the said amount periodically. It is also contended that plaintiff had periodically repaid the amounts towards the loan account on different dates as indicated in paragraph 4 (iv) of the written statement. First defendant has also contended that 7 plaintiff became irregular and defaulted in repayment of installments. The legal opinion submitted by the plaintiff was contended to be fabricated. It was also contended that on account of core banking being introduced loan account number of the plaintiff came to be changed and as such, it was contended that total outstanding amount due from the plaintiff to the Bank was `13,62,179.49. On these grounds, first defendant sought for dismissal of the suit.
5. Second defendant has filed a memo on 09.10.2009 adopting the written statement of the first defendant.
6. Trial Court on the basis of pleadings of parties formulated the following issues:
(i) Does the plaintiff proves that, the defendant No.1 has got executed registered mortgage deed with respect to the suit schedule property without sanctioning the loan amount by taking the signatures of the plaintiff on all the 8 documents by making false representation as stated in the plaint?
(ii) Does the plaintiff proves that, she is entitled for the custody of the original documents of her property in the custody of defendant No.1 by obtaining mandatory injunction as contended in the plaint?
(iii) Does the plaintiff proves that, suit is properly valued and court fee paid on the same is sufficient?
(iv) What order or decree?
7. Plaintiff got herself examined as P.W.1 and in all got marked 7 documents as Exs.P-1 to P-7. On behalf of first defendant, Branch Manager of first defendant - Bank was examined as D.W.1 and second defendant was examined as D.W.2. On behalf of defendants, 24 documents were produced and they were got marked as Exs.D-1 to D-24. On appreciation of evidence tendered by the parties, trial Court by its judgment and decree dated 30.09.2013 dismissed the 9 suit. Hence, this first appeal has been filed by the plaintiff.
8. Heard the arguments of Sri.S.P.S.Khadri and Sri. Naveen Kumar, learned Advocates appearing for appellant and Sri.S.K.M.Shetty, learned Advocate appearing for the respondents. Records secured from the trial Court has been perused.
9. It is the contention of Sri. S.P.S.Khadri, learned counsel appearing for appellant that suit as filed was not maintainable, since D.W.2 had not produced the authorization letter to appear on behalf of first defendant/Bank or lead evidence on behalf of the Bank and there being no valid resolution or authorization on behalf of first defendant - Bank, written statement of first defendant and deposition of D.W.2 could not have been considered. He would also elaborate his submission by contending that trial Court has not examined the evidence of D.W.1 an D.W.2 in detail and he draws the attention of the Court that 10 under Ex.P-6 first defendant has admitted that legal opinion alleged to have been submitted by the plaintiff is not in prescribed format though plaintiff has contended she has not produced any legal opinion. It is further contended defendants had contended before the trial Court that plaintiff had not produced the original documents in relation to the suit property, but in the cross examination D.W.2 admits that original sale deed has been produced by the plaintiff. Learned counsel appearing for the appellant has drawn the attention of the Court to evidence of D.W.1 to contend that said witness has admitted that loan will be sanctioned only after obtaining opinion and the admission of D.W.1 that loan will be sanctioned in favour of plaintiff subject to legal opinion, would disclose and prove that second defendant had sent the document of title to legal scrutiny and as such, the evidence of D.W.2 is to be disbelieved.
10. He has further contended that as per Ex.D-1 value of the property is shown as ` 9,96,000/- and as 11 such the sanction of loan of ` 10,00,000/- is to be disbelieved and this vital point has been ignored by the trial Court. He would draw the attention of the Court to admissions of D.W.1 not knowing the plaintiff and yet certified that he had inspected the suit property on 26.11.2004 though application for loan was submitted on 30.11.2004. Non-consideration of the circumstances under which mortgage deed - Ex.D-5 came into existence has been ignored by the trial Court, since without obtaining the legal opinion first defendant -
Bank could not have sanctioned or released the loan. He would submit that second defendant - D.W.1 has admitted that staff of the Bank used to fill up the application forms and as such, it would clearly go to establish that Bank had obtained the signatures of plaintiff on blank documents.
11. He would further contend that Ex.D-4, which is said to be a sanctioned letter, is not so, since it is only a specimen and even the loan account number is not mentioned, which is the normal practice as 12 admitted by D.W.2 in his cross-examination. He would also contend that Ex.D-9 and D-10, purported documents produced along with the title deeds relating to the suit property, does not contain either the name of plaintiff nor the number of suit schedule property. He would submit that loan disbursement would take place only if all the papers relating to the property are proper and in the instant case, when there being no title scrutiny report relating to suit property, loan could not have been sanctioned. On these grounds, learned counsel seeks for allowing the appeal by setting aside the judgment and decree passed by the trial Court.
12. Per contra, Sri.S.K.M.Shetty, learned counsel appearing for the respondents has submitted that judgment and decree passed by trial Court dismissing the suit does not suffer from any infirmity either on facts or in law and as such, he prays for dismissing the appeal with costs. He would contend that for recovery of amounts due in respect of loan borrowed by the plaintiff, defendants had filed an 13 application before the Debt Recovery Tribunal in O.A.No.638/2009 and same came to be allowed by the Tribunal and being aggrieved by the same, an appeal had been filed by plaintiff herein in appeal No.373/2014, which has since been dismissed on 08.05.2017 for failure to comply with the pre-deposit requirement and as such, he prays for dismissal of the appeal.
13. He would also elaborate his submission by contending that suit in question had been filed to stave off the liability arising under the judgment passed in O.A.No.638/2009. He submits that there is no mortgage or illegality in the judgment passed by the trial Court and contends that issues framed by trial Court has been adjudicated on proper appreciation of evidence, which does not call for interference and as such, he prays for dismissal of the appeal.
14. Having heard the learned Advocates appearing for parties and on perusal of judgment and 14 decree passed by the trial Court as well as original records secured from trial Court and on bestowing my careful and anxious consideration to the rival contentions raised, following points would arise for my consideration:
(i) Whether judgment and decree passed by trial Court suffers from any infirmity either on facts or in law calling for interference?
(ii) Whether Court below has either failed to appreciate the evidence available on record or erroneously appreciated the available evidence calling for interference?
(iii) What order?
RE.POINTS 1 & 2:
15. Since these two points are interlinked and finding recorded on either of the points is likely to overlap, they are taken up together for adjudication. 15
16. It has been the specific case of plaintiff that she had never borrowed any amount from first defendant-Bank and no housing loan was sanctioned by the first defendant - Bank and the then Branch Manager of first defendant - Bank had clandestinely obtained title deeds relating to the suit property from her. It is also the case of plaintiff that she had approached first defendant - Bank for sanction of housing loan of ` 10,00,000/- and on account of second defendant who was the then Branch Manager of first defendant having assured to sanction the loan and had called upon plaintiff to furnish all the relevant documents relating to suit schedule property, plaintiff had handed over the original sale deed and other related documents including title deeds and mother deed of the suit property for the purposes of obtaining title scrutiny report. It was also contended that said loan was never sanctioned in favour of plaintiff and mortgage deed which the plaintiff had executed on 30.12.2004 was only on the assurance by second defendant that loan 16 sought for by the plaintiff would be sanctioned in her favour subject to legal opinion that would be furnished by the panel Advocate of the Bank. It is in this background, plaintiff contended that without sanctioning housing loan and release of the amount, defendants had obtained her signatures on all blank papers. Plaintiff contended that she had executed the mortgage deed on false representation that housing loan would be sanctioned and as such said deed is not binding on her and as such, plaintiff sought for mortgage being declared as null and void and she sought for mandatory injunction to the defendants to deliver the original title deeds of suit schedule property. This plea of the plaintiff having been specifically denied by defendants in their written statement, resulted in issue Nos.1 and 2 being framed by trial Court by casting burden on the plaintiff to prove the same. It reads as under:
(1) "Does the plaintiff proves that the defendant No.1 has got executed registered mortgage deed with respect to the suit schedule 17 property without sanctioning the loan amount by taking the signatures of the plaintiff on all the documents by making false representation as stated in the plaint?
(2) Does the plaintiff proves that she is entitled for the custody of the original documents of her property in the custody of defendant No.1 by obtaining mandatory injunction as contended in the plaint?"
These two issues were taken up together for consideration by trial Court, adjudicated and answered them in the negative.
17. A perusal of the judgment and decree passed by the trial Court would disclose that undisputedly, plaintiff had approached first defendant - Bank for sanction of a housing loan for undertaking construction of a residential building in the suit schedule property. Prime contention raised by the plaintiff is that no application was filed by her for sanction of housing loan and there was no letter issued by the Bank sanctioning the said loan. Said contention is without merit, 18 inasmuch as, plaintiff herself has admitted in the plaint that she had approached the first defendant - Bank for sanction of a housing loan of `10,00,000/- and she had submitted a loan application during December, 2004 along with all the original and relevant documents of suit schedule property as could be seen from the averments made in paragraph 4 of the plaint. Though this admission is sufficient to reject her plea that she had not submitted an application for sanction of housing loan and she had not availed the said loan, her admission in evidence also belies her contention. In fact, in cross-examination dated 15.06.2012 plaintiff has admitted as under:
"It is true that, in the month of December 2004 I had submitted a loan application before the defendant No.1/Bank. It was a housing loan."
18. Above admission would clearly indicate that plaintiff had submitted an application for housing loan and as such, her contention that she had not submitted loan application and Bank having not sanctioned said 19 loan is brushed aside. Defendant at the same time has also produced the loan sanction letter, which is at Ex.D-4 which contains plaintiff's signature in each page. Though, learned counsel for the appellant has contended that sanction letter is not in regular format and it is only a 'specimen form' and as such, said document cannot be relied, is an argument without any basis and it is liable to be rejected. The mere nomenclature in the sanction letter dated 31.12.2004 would not wipe out the contents of the document or the signature of the plaintiff found in the document. A perusal of Ex.D-4 would also disclose that plaintiff has signed on each page and in the column "documents produced", plaintiff herself has specified application for grant of loan. As such, contentions raised in this regard by the plaintiff deserves to be rejected and it is accordingly rejected.
19. Plaintiff had also contended that she was sanctioned a personal loan of ` 1,00,000/- during said 20 period. Thus, it was incumbent upon plaintiff to establish there was yet another loan sanctioned to her and she had applied for said loan with the first defendant - Bank. The very fact that she admits that there was loan account standing in her name in first defendant - Bank is sufficient enough to hold that plaintiff in order to stave off her liability, is attempting to take different stands at different stages. In her cross- examination dated 15.06.2012 plaintiff has clearly admitted that she does not remember the loan account number to which the personal loan amount of ` 1,00,000/- was debited. She also admits that she had a Savings Bank Account in the first defendant - Bank. Though first defendant has specifically contended in the written statement the dates on which loan amount of `10,00,000/- was sanctioned in favour of plaintiff and was credited to her Savings Bank Account, plaintiff has pleaded her ignorance about this fact in her cross examination and plaintiff had failed to place her S.B.Account statement. In her cross examination dated 21 15.06.2012 she has stated that she does not remember the loan account number to which personal loan amount of `1,00,000/- sanctioned by first defendant - Bank was debited.
20. A bare perusal of the plaint averments would disclose that plaintiff had executed suit documents namely, mortgage deed - Ex.D-5 pursuant to sanction letter issued by the first defendant - Bank sanctioning housing loan to plaintiff as per Ex.D-1. Execution of the mortgage deed - Ex.D-5 is not disputed by the plaintiff. Plaintiff has also categorically admitted execution of simple mortgage deed relating to housing loan. Her admission reads as under:
"It is true that, I had executed a simple mortgage deed in favour of defendant No.1 bank with respect to my housing loan. I executed that mortgage deed after receipt of a letter from the bank. I am not remembering as to whether that letter produced before the Court or not."
21. Plaintiff having admitted these facts had made an attempt not only before trial Court but also 22 before this Court to contend that no such loan was sanctioned or she had not availed said loan facility from first defendant - Bank and she had been assured of such loan being sanctioned and based on such assurance, she had signed blank papers. Except her self serving testimony and asserting to said effect in her pleadings and in her examination-in-chief, no other material came to be placed by plaintiff before trial Court to substantiate said claim. Plaintiff did not examine any independent witnesses to substantiate her claim. In fact, suggestion made to D.Ws.1 and 2 in that regard in their cross - examination has been denied by them. On the contrary, records would disclose that first defendant - Bank on treating the loan borrowed by plaintiff as non-performing asset had filed an application under Section 19 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 before Debt Recovery Tribunal, Bengaluru in O.A.NO.638/2009. Said application came to be allowed by the Tribunal by order dated 22.05.2014. Recovery 23 certificate came to be issued. In the said proceedings, documents relating to loan transactions have been produced and marked as Exs.A-3 to A-45 and jurisdictional Tribunal, on appreciation of entire evidence, had allowed the application and directed the plaintiff herein to pay a sum of `13,81,606/- as on 30.09.2009 with current and future interest @ 10.50% p.a. at quarterly rests from the date of application till realization and has further granted liberty to the Bank to sell mortgaged schedule properties. Being aggrieved by the said judgment and decree, plaintiff herein filed an appeal No.373/2014 which came to be dismissed on 08.05.2017 for non- payment of pre-deposit, which is a pre-requisite for entertaining an appeal by Debt Recovery Appellate Tribunal. These facts would clearly establish that plaintiff had borrowed a sum of `10,00,000/- towards construction of house in the suit schedule property and had executed said documents including the mortgage deed in favour of first defendant - Bank. 24
22. One of the prime contentions raised by the appellant before this Court is, first defendant had not authorised D.W.2 to sign the written statement and tender his evidence on behalf of first defendant-Bank and there is no valid Board Resolution or no valid authorization issued by the Bank and this aspect has not been considered by the trial Court. However, when said contention is re-examined, it would not detain this Court for too long to reject the said contention, inasmuch as, said plea was not raised before the trial Court and even otherwise, D.W.1 being the Branch Manager in his affidavit filed in lieu of examination-in- chief has categorically stated that he is the authorised signatory of the Bank. In fact, no suggestion has been made to D.W.1 that he was not authorised to represent the Bank. Hence, said contention is hereby rejected.
23. Plaintiff has also contended that Officials of the defendant - Bank had obtained her signatures on blank forms and as such, loan documents produced by the defendants could not have been accepted by the 25 trial Court or in other words, trial Court ought to have accepted the plea of plaintiff, is liable to be rejected for reasons more than one;
Firstly, in the plaint itself it is categorically admitted by the plaintiff that she had affixed her signatures to the loan documents. It is no doubt she states it was on blank papers and also on printed forms and at the same time, she admits in paragraph 6 of the plaint that except personal loan she did not avail any other loan including housing loan. If it were to be so, the moot question that would arise, would be as to what documents plaintiff had executed towards the personal loan, which she claims to have obtained. There is no whisper in this regard in the plaint. In fact, plaintiff had got issued a legal notice on 08.11.2016 - Ex.P-2 calling upon the defendant to handover the original documents. Even in this notice she admits that she had submitted loan application for housing loan. However, there is no whisper about any other loan amount having been borrowed by her, as claimed now. This itself would 26 indicate that plaintiff was fully conscious of the loan she was obtaining and forms/agreements/loan documents being executed by her and as such she cannot contend that she was unaware of the contents of the suit document;
Secondly, defendant - Bank having treated the loan borrowed by plaintiff as a bad debt, had initiated proceedings by filing an application before the Debt Recovery Tribunal, Bangalore in O.A.No.638/2009 for recovery of loan amount and had sought for issuance of Recovery Certificate thereunder. Said application came to be resisted to by the defendant therein namely, plaintiff herein by filing detailed written statement and raising plea similar to the one raised in the suit in question. Jurisdictional Tribunal on evaluation of entire evidence has rejected her plea and allowed the application filed by the Bank and had directed the defendant therein i.e., plaintiff herein to pay a sum of ` 13,81,606/- as on 30.09.2009 with current and future interest @ 10.5% at quarterly rests from the date of 27 application till realization. It was also ordered that Recovery Certificate is to be issued in favour of Bank. Said order of the Tribunal came to be challenged by plaintiff herein before the Debt Recovery Tribunal, which appeal was numbered as AIR No.373/2014 and was dismissed on 08.05.2017 for non-deposit of statutory amount as required to be deposited under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Said order as on date has reached finality. However, plaintiff in her cross- examination dated 15.06.2012 of the present suit in question has pleaded her ignorance about any order passed by the Appellate Tribunal; and Thirdly, plaintiff has admitted in her pleadings as well as in her evidence that she had executed a simple mortgage deed in favour of defendant No.1, which has been marked as Ex.D-5. Any plea contrary to the recitals found in a registered document, is hit by Section 91 of the Evidence Act, 1872 and plaintiff has 28 not placed any rebuttal evidence contrary to recitals found in the registered document.
24. Learned counsel appearing for the appellant has contended that defendants have been contending that legal opinion relating to suit schedule property furnished by the plaintiff was forged and created and is not in the prescribed format by relying upon complaint lodged by the Bank on 06.11.2007 - Ex.D-17 against the plaintiff before jurisdictional police and yet defendants had failed to produce the alleged legal opinion. Hence, it is contended by the plaintiff that findings recorded by the trial Court is without appreciating the evidence in proper perspective. It is the specific case of the defendant - Bank that plaintiff after having submitted the loan application and execution of the registered mortgage deed on 27.12.2004 and the memorandum of term loan agreement on 31.12.2004 a sum of `10,00,000/- was sanctioned and credited to her Savings Bank account No.0190009048 of the plaintiff with the defendant branch on following dates: 29
(a) ` 3,00,000/- on 31.12.2004 by way of Defendant Bank Pay Order bearing No.308561 dated 31.12.2004.
(b) ` 3,00,000/- on 26.02.2005 by crediting to the S.B. A/c of Plaintiff.
(c) ` 3,00,000/- on 18.04.2005 by crediting to the S.B. A/c of Plaintiff.
(d) ` 1,00,000/- on 02.06.2005 by crediting to the S.B. A/c of Plaintiff.
25. This would disclose that plaintiff had sought for grant of housing loan, she had executed the loan documents and had mortgaged the property by executing mortgage deed, which was also duly registered. It is no doubt true that D.W.1 in his cross examination dated 22.09.2012 has admitted that one B.C.Guru, panel Advocate gave his legal opinion with regard to plaintiff's property documents. However, he does not state that the Bank had obtained the said opinion, but on the other hand the complaint lodged by the defendant-Bank with the jurisdictional police dated 06.11.2007 - Ex-D-17 would disclose that Bank had received a letter of confirmation from the said Advocate 30 of not having furnished legal opinion dated 28.12.2000 relating to suit schedule property. This stand of the defendant - Bank would fortify their claim that legal opinion relating to the plaintiff's property was available on record and it did not disclose as to who had obtained the legal opinion. However, nothing much can be said about said legal opinion inasmuch as, it would not have any bearing with regard to the mortgage having been created by the plaintiff in respect of her property.
26. Thus, viewed from any angle the judgment and decree passed by the trial Court dismissing the suit of plaintiff cannot be held as a result of either non- appreciation of available evidence or erroneous appreciation of available evidence.
For the reasons aforestated, this Court proceeds to pass the following:
JUDGMENT
(i) Appeal is hereby dismissed.
(ii) Judgment and decree dated 30.09.2013 passed in O.S.No.2865/2009 by XXXVII 31 Addl. City Civil & Sessions Judge, Bangalore City, is hereby affirmed.
(iii) No order as to costs.
SD/-
JUDGE DR/*sp