Bangalore District Court
H.N. Malleshappa vs Sri. H.N. Dhananjaya on 1 August, 2022
KABC010289272018
IN THE COURT OF THE VII.ADDL.CITY CIVIL &
SESSIONS JUDGE, BENGALURU (CCH.No.19)
Dated: This the 1 st day of August, 2022.
PRESENT
Smt. S.G.SUNITHA, BSc., LL.B.,
VII Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.NO.7572/2018
Plaintiff : H.N. Malleshappa
S/o Late Nanjappa,
Aged about 50 years,
R/at No.1350, 2nd Cross,
6th Block HMT Layout,
Nagasandra, Bengaluru - 560 073.
(By Sri. M. Lakshmikanth Arya.,
Advocate)
V/S
Defendant : Sri. H.N. Dhananjaya
S/o Late Nanjappa,
Aged about 42 years,
C/o Yuvarajappa, Matigatta,
Shettehalli Post,
Shimoga - 577 277
And also at
Sri. H.N. Dhananjaya
S/o Late Nanjappa,
Aged about 42 years,
BEML Limited.,
No.206/D1 Bhagirathi
Behind NCC Campus,
Rameshwaram Colony,
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OS NO.7572/2018
Bariata Road,
Ranchi - 834 009.
(By Sri.Manu B.S., Advocate)
Date of institution of suit 20-10-2018
Nature of the suit Money Suit
Date of commencement of 30-01-2021
recording of evidence
Date on which Judgment was 01-08-2022
pronounced
Total duration Year/s Month/s Day/s
04 02 04
J UDGMENT
This suit is filed by the plaintiff against defendant to direct
the defendants to pay the sum of Rs.2,00,000/- (Rupees Two
Lakhs Only) with interest at Rs.24% from the date of the
payment till the realization of the said amount and litigation
expenses of Rs.5,000/- and for such other relief/s, in the interest
of justice and equity.
2. The brief facts of the plaintiff's case as follows;
The defendant and the Plaintiff are the kin brothers. The
defendant approached plaintiff in the 2nd week of June 2015
with a request that he is facing financial problem at that time
therefore he requested for hand loan of Rs. 2,00,000/- (Rupees
Two Lakhs Only) in the plaintiff. It was difficult for plaintiff to
arrange that much amount immediately. Therefore, the plaintiff
sought time from defendant to arrange the amount. Being a
bother of the plaintiff, to help in his financial problem, has
approached his friend and his relative and collected the amount
with only sole intention to help the defendant in his financial
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OS NO.7572/2018
crisis. That as promised by the plaintiff, has transferred
Rs.1,50,000/- by way of NET BANKING to defendant account on
15.10.2015 and Rs.50,000/- on 20.10.2015. While receiving the
amount, the defendant has assured the plaintiff that he will repay
the said amount within a month. The details of the amount
transaction to the defendant detailed hereunder:
Sl.
Mode of Transfer Account No. Date Amount
No.
1 Amount though NET S/B account 15.10.2015 1,50,000.00
BANKING my client bearing no.
ICICI Bank account 20007116328
no. 029601504125
2 Amount though NET S/B account 20.10.2015 50,000.00
S/B account BANKING bearing no.
my client bearing no. 20007116328
ICICI Bank account
no. 20007116328
029601504125
TOTAL 2,00,000.00
That it is unfortunate to submit here that, the defendant
had receive the amount, not shown any sign to repay the
amount as assured by him. The plaintiff approached the
defendant several time with a request to return the amount. In
every visit, the defendant seeking the time by giving one or other
reasons avoiding to make payment. When the plaintiff confirmed
from the act of defendant of extending the time in every visit
evading to make payment by giving one or other reason, without
any alternative option, the plaintiff got issued a legal notice
dated: 14.09.2018 calling the defendant to make the payment
with interest. Even though several request has been made to the
defendant and given legal notice to him, the defendant has not
chosen to reply to the notice issued by the plaintiff nor came
forward to return the amount as prayed in the notice. The act of
the defendant is clear that with an intention to harass and to
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make illegal gain and the same is also clear that he is evading to
return the amount. Hence the defendant is liable to pay 24%
interest per month from the date of payment to till realization.
The plaintiff has no other alternative mode to recover his
amount. CAUSE OF ACTION: The Cause Of Action for the
above suit arose on 15.10.2015 and 20.10.2015 when the
defendant had taken a hand loan of Rs.2,0,0,000/- (Rupees two
Lakhs) from the plaintiff and subsequently, when the plaintiff
issued legal notice dated 14.09.2018 for recovery of the amount.
3. On issuance of summons, the defendant appeared
through his Counsel and filed his written statement. In the
written statement the defendant has stated as follows;
The case is filed by the plaintiff with a prayer for a decree
for directing the defendant to pay a sum of Rs. 2,00,000/- with
interest. The said suit is not maintainable either in law or on
facts and circumstances of the case and as such the same is
liable to be dismissed in limine. At the outset, it is submitted that
the initiation of the present proceedings and the continuance of
the same before this Hon'ble Court is an abuse of due process
of law for the reasons more specifically set out hereunder. The
plaintiff is indulged in suppression of material facts and has also
made various false statements, deliberately and knowing fully
well that such statements are false and the plaintiff has indulged
in such false allegations with malafide intentions and ulterior
motives. The above case is filed by the plaintiff is thus liable to
be dismissed and the plaintiff is not entitled to any reliefs as
prayed for. All other allegations made by the plaintiff in the above
suit, which have not been specifically traversed herein are
hereby denied. The plaintiff is put strict proof of the same. The
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suit is barred by limitation and liable to be dismissed in limine.
The alleged loan transaction is dated 15.10.2015 and this suit is
filed on 20.10.2018 after three-year time and is barred by
limitation under Article 19 of Schedule-1 of the Limitation Act.
The defendant is not residing within the jurisdiction of this
Hon'ble Court and the alleged cause of action is not within the
jurisdiction of this Hon'ble Court. Facts in brief: Without prejudice
to the contentions supra, before traversing to the plaint's
averments, the defendants crave leave to set the facts in brief
as follows: The plaintiff and defendant are brothers and the
defendant working in BEML Limited in Ranchi, Jharkhan State.
The plaintiff aware of the fact that the defendant is residing in
Ranchi. The defendant is earning sufficiently from the income of
his profession to take care of his family needs and has fulfilled
the basic need of the family. It is submitted that the averments
made in the plaint are concocted stories by creating fabricated
documents, which does not sustain under law. The alleged
transaction with the plaintiff has not at all took place, nor the
defendant has received any hand loan.
Regarding Paragraph No.1: The averments made in the
paragraph are formal in nature and needs no specific traverse
herein. Regarding Paragraph No.2: The address of the
defendant is as mentioned in the cause title address No.2 and
the defendant is not residing at cause title address No.1.
Regarding Paragraph No.3: It is true that, plaintiff and defendant
are kin brothers. Regarding Paragraph No.4: The averments
made in the paragraph are totally false and are denied by the
defendant. The defendant has never approached the plaintiff for
hand loan of Rs. 2,00,000/-. The plaintiff has not borrowed any
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amount from his friends and relatives to help the defendant and
has not at all paid any amount to the defendant. The plaintiff is
put to strict proof of the same. Regarding Paragraph 5: The
averments made in the paragraph are false, the plaintiff has not
transferred an amount of Rs.1,50,000/- by net-banking on
15.10.2015 and Rs. 50,000/- on 20.10.2015 as loan. The
defendant had not assured to repay any amount to the plaintiff.
The details of the amount transaction are all false. The plaintiff is
put to strict proof of the same. Regarding Paragraph No.6: The
averments made in the paragraph are all false, the defendant
had not promised to repay any amount and the plaintiff has
never approached requesting to repay the amount, and the
defendant has not avoided to make any payment. The plaintiff is
put to strict proof of the same. Regarding Paragraph No.7: The
averments made in the paragraph are all false, the plaintiff had
never approached to defendant seeking payment and the
plaintiff has not issued any legal notice to the defendant. The
notice dated 14.09.2018 is not served on the defendant. The
plaintiff is put to strict proof of the same. Regarding Paragraph
No.8 & 9: The averments made in the paragraphs are all false,
the plaintiff has not served any notice on the defendant, the
defendant is not liable to make any payment to the plaintiff and
payment of interest at the rate of 24 % per annum doesn't arise
at all, the plaintiff is put to strict proof of the same. The cause of
action mentioned in the plaint is barred limitation. The plaintiff is
put to strict proof of the same. No proper court fee is paid by the
plaintiff. This Court has no jurisdiction to proceed the matter.
Hence, prayed to dismiss the aforesaid case with exemplary
costs in the interest of justice and equity.
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4. Based on these pleadings, this court has framed the
following issues:
1. Whether plaintiff proves that defendant had
taken a hand loan of Rs.2,00,000/- to meet
his financial necessities?
2. Whether defendant proves that the suit is
barred by limitation ?
3. Whether plaintiff proves that the cause of
action to this suit is within the jurisdiction of
this court ?
4. Whether plaintiff is entitled for the relief as
prayed ?
5. What order or decree ?
5. In support of his claim plaintiff got examined himself
as PW.1 and got marked 7(a) documents as Ex.P.1 to P7(a).
The defendant did not adduced their side of evidence and no
documents were marked.
6. I have carefully scrutinized entire records before
me. Heard Arguments.
7. My findings on the above issues are:
Issue No.1 : In the Affirmative;
Issue No.2 : In the Negative;
Issue No.3 : In the Affirmative;
Issue No.4 : Partly in the Affirmative;
Issue No.5 : As per final order,
for the following:
REASONS
8. ISSUES NO.1 AND 3: Plaintiff, in order to prove his
case, stepped into the witness box and got examined as PW1
and he filed his Affidavit in lieu of oral evidence, wherein he
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reiterated the plaint averments and in order to corroborate his
testimony, got produced, in support of his claim, 7(a) documents
marked as per Exs.P1 to P7(a). Ex.P1 is the bank statement,
Ex.P2 is the RPAD notice, Ex.P3 is the 2 postal receipts, Ex.P4
is the track consignment, Ex.P5 is the track consignment, Ex.P6
is the RPAD cover with acknowledgment, Ex.P7 is the
computerized copy of whatsapp message and Ex.P7(a) is the
C.D.
9. Upon consideration of above facts and documents it
is seen that Ex.P1 bank statement of plaintiff of ICICI bank,
evidencing payment of Rs.1,50,017.10/- on 15.10.2015 and
Rs.50,005.70/- on 20.10.2015 through net banking. Further
EXP7 computerized copy of whatsapp message dated
11.10.2017 of time 2.17 PM stating " Dear brother ninna account
number and IFSC code kalisu sadyadrale ninna amount return
madthini mosa antu madala nanna kastake sahaya madidiya
nanu mareyala" clearly evidences the loan received by the
defendant from plaintiff as contended in his plaint. Further from
list of Whatsapp call dated 28.04.2020 photo of defendant is
seen where profile name typed as Hnd and PW1 in his cross
examination has deposed as to the photo shown in profile Hnd
was that of his brother, further in EXP7 the other messages of
defendant of complaint in Grahak Suraksha against one Sanjeev
Kumar Mehta and Ajit Kumar legal advisor dated 6 th May 2018
and also on 28th May 2018 clearly evidences financial
constraints of defendant. The contention of Defendant that the
above chat message was taken from website and Section 65B
certificate produced by Plaintiff was not issued by concerned
website holds no water as Plaintiff had downloaded the same
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from his computer and it was marked along with Section 65B
certificate produced by Plaintiff. Further the said message
clearly shows that defendant at that time was working at Ranchi,
Jharkhand, PW1 in his cross examination had also deposed that
on 14.09.2018 defendant was working at BEML in Ranchi at
Jharkhand and EXP3 postal receipt as to legal notice sent to
defendant to both addresses at Shimoga and another at Ranchi,
Jharkhand. Further EXP4 track consignment showing item
returned Addresses moved and EXP6 is the unserved RPAD to
Defendant. Further, EXP5 track consignment showing item
dispatched to Ranchi medical college. Though it is admitted by
PW1 in his cross examination it is true that there is no mention
of loan transaction given to Defendant in documents produced
by him, as already said it is clear from EXP7 the Whatsapp chat
where Defendant has told that he would return Plaintiff's amount
and that he would not defraud him.
10. To be noted, Defendant has not led his evidence to
disprove the case of Plaintiff. Further this court has jurisdiction
to try the suit under Section 20 of CPC as cause of action arose
in Bengaluru as payment by Plaintiff was made through NET
banking from his account in ICICI bank, Bengaluru. Hence, for
the above reasons, issue No.1 and 3 answered in the
Affirmative.
11. ISSUES NO.2: Under Article 19 of Limitation Act
for money payable for money lent period is 3 years when the
loan made. This suit filed on 20.10.2018 on cause of action
dated 15.10.2015 and 20.10.2015 and subsequently on
14.09.2018 date of issue of legal notice. Hence, it is filed within
limitation period. Accordingly, Issue No.2 held in the Negative.
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12. ISSUE NO.4: For my findings on Issue No.1
and 3, I hold Plaintiff entitled to receive Rs.2 lakhs from
Defendant with interest @ 6% p.a. from the date of loan till its
realization in the interest of justice. Accordingly this Issue
answered partly in the Affirmative.
13. ISSUE NO.5 : In view of my findings on above
issues No.1 to 4, I proceed to pass the following:
ORDER
The suit filed by the plaintiff is hereby partly decreed.
Defendant directed to pay the sum of Rs.2,00,000/- (Rupees Two Lakhs Only) with interest @ 6% p.a. from the date of the payment till its realization.
No order as to cost.
Draw decree accordingly.
*** (Dictated to the Stenographer on computer, and print out taken by him, revised, corrected, signed and then pronounced by me in open Court today the 1 st day of August, 2022).
(S.G.SUNITHA) VII.ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU.
ANNEXURE Witnesses examined on behalf of Plaintiff:
PW.1 : H.N. Malleshappa 11 OS NO.7572/2018 Witness examined and documents marked on behalf of Defendant:
- Nil -
Documents marked on behalf of Plaintiff:
PW.1 : Bank statement
PW.2 : RPAD notice
PW.3 : 2 postal receipts
PW.4 : Track consignment
PW.5 : Track consignment
PW.6 : RPAD cover with acknowledgment
PW.7 : Computerized copy of watsapp message
PW.7(a) : CD
VII. ADDL.CITY CIVIL &
SESSIONS JUDGE, BENGALURU.