IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE H.P.SANDESH RFA.No.341/2008 BETWEEN:
SMT. G.MEENAKSHI WIFE OF R.BHASKAR AGED ABOUT 48 YEARS R/AT. No11, “SAPTHAGIRI NILAYA” CIRCULAR STREET A.T.HALLI, SHANTHINAGAR BENGALURU-560 027. ... APPELLANT (BY SRI.RAMA MOHAN, ADV. & SRI.SANJEEV RAO, ADV. FOR M/S. RAMAMOHAN & ASSOCIATES) AND:
SRI. T.MUNIYAPPA SON OF LATE THIMMAIAH AGED ABOUT 82 YEARS R/AT. No162, 18TH CROSS 10TH MAIN, WILSON GARDEN LAKKASANDRA EXTENSION BENGALURU-560 030. ... RESPONDENT (BY SRI.G.D.ASWATHANARAYANA, ADV.(ABSENT)) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 02.1.2008 PASSED IN O.S.NO.7285/2003 ON THE FILE OF THE XIX ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, DISMISING THE SUIT FOR RECOVERY OF MONEY.
THIS RFA COMING ON FOR FINAL HEARING AND HAVING BEEN RESERVED FOR JUDGMENT ON 30.08.2019, THIS DAY THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed challenging the judgment and decree of dismissal of suit passed in O.S.No.7285/2003 dated 02.01.2008 on the file of XIX Additional City Civil and Sessions Judge, Bengaluru City.
2. The parties are referred to as per their original rankings before the Court below as plaintiff and defendant to avoid confusion and for the convenience of the Court.
3. The brief facts of the case:
It is the case of the plaintiff that she is resident of Bengaluru City. Earlier she was the tenant of the defendant and they were known to each other for many years. The son of the defendant by name Srinivas was not keeping well. At that time, the defendant was in need of money. Hence, the defendant approached the plaintiff in the second week of December 2001 and requested her for financial help to the tune of Rs.75,000/-. Therefore, the plaintiff advanced loan of Rs.75,000/-. To acknowledge, the defendant has executed a receipt on 25.12.2001 and assured that he will pay the amount within one year. The defendant executed the said receipt in presence of two witnesses and the same was written by the defendant. Thereafter, on repeated demands made by the plaintiff, the defendant did not repay the loan amount. Therefore, the plaintiff has issued legal notice to the defendant. In spite of the notice, the defendant did not repay the loan amount. Hence, the plaintiff was forced to file the suit.
4. In pursuance of the notice issued in the suit, the defendant appeared and filed written statement. The defendant admitted that the plaintiff was the tenant and she has been evicted. The defendant denied all other allegations made in the plaint and contended that he was not in need of any money. It is also contended by the defendant that when she was a tenant, she was not regular in making the payment and hence, she has been evicted. The plaintiff keeping in mind that she has been evicted, created a fabricated document and filed the false suit. It is also contended that on 02.12.2002, she has issued the legal notice to his son stating that he has taken loan from her and issued cheque and that cheque was dishonoured, for which the defendant replied suitably. The plaintiff is in the habit of creating false document and harassing the people. The very claim made by the plaintiff is bald and untenable and prayed the Court to dismiss the suit. The Court below, after considering the pleadings of both the parties framed the following:-
ISSUES 1. Whether the Plaintiff proves that the defendant borrowed hand loan of Rs.75,000/- on 25.12.2001 and executed the receipt on that date?
2. Whether the Plaintiff proves that there is cause of action?
3. Whether the Plaintiff is entitled for the decree sought?
4. What order or decree?
5. The plaintiff, in order to substantiate her claim, examined herself as P.W.1 and examined one more witness as P.W.2 and got marked documents Exs.P1 to P4. The defendant tendered his evidence as D.W.1 and got marked documents Exs.D1 to D7. The Court below, after considering both oral and documentary evidence, dismissed the suit and answered all the issues in the negative. Hence, the present appeal is filed.
6. In the appeal memorandum, learned counsel appearing for the appellant would contend that the Trial Judge has exceeded his jurisdiction and while considering the pleadings in the plaint and in the written statement, has clearly observed that the plaintiff was the tenant under the defendant and she was evicted by force keeping in mind that the plaintiff has created a fabricated document in order to take revenge. The Trial Court, after considering the material on record including the evidence of P.W.2, did not appreciate in a right perspective. The reason assigned by the Trial Court that the document produced by the plaintiff cannot be accepted is not a proper decision. The Trial Court ought to have accepted the documents, but unfortunately, the Court presumed under Section 118 of the Negotiable Instrument Act that the said document is not a genuine one. The Court below, considering the documents produced by the defendant, has erroneously come to the conclusion that the defendant was not in need of money and he was having sufficient funds in his account. Taking note of the said fact that those documents are the Fixed Deposit certificates, which depict with regard to Fixed Deposits and those certificates are renewed year after year, the Court below committed an error in accepting the evidence of the defendant.
7. It is also contended that the defendant has given reply to the notice issued to his son and the Court below has committed an error in coming to the conclusion that plaintiff has not at all paid the amount to the defendant. It is contended that no action was initiated to file the suit against the defendant’s son.
The very finding of the Trial Court is erroneous and it requires interference of this Court.
8. Learned counsel appearing for the appellant in his arguments vehemently contended that the Court below, while dismissing the suit held that the document, which has been produced as Ex.P.1 is neither the pro-note nor the valuable document. The Court below fails to take note of the fact that the signatures available in Ex.P.1 and the admitted signatures are one and the same. The Court below ought to have invoked Section 73 of the Evidence Act to compare the signatures of the defendant. The findings given by the Trial Court is very erroneous in not accepting the evidence of P.Ws.1 and 2 and believing the evidence of defendant. Hence, it requires interference of this Court.
9. When this Court heard the matter, the respondent’s counsel was absent. However, an opportunity was granted to the respondent’s counsel by adjourning the matter. Even when the matter was adjourned and listed again for arguments of respondent’s counsel, he did not turn up. Hence, the Court deemed that there is no arguments on part of the respondent and reserved the same for judgment.
10. Having considered the grounds urged in the appeal, arguments advanced by the appellant’s counsel and also considering the material on record with regard to the contentions, the points that arise for consideration of this Court are:
1. Whether the Court below has committed an error in dismissing the suit of the plaintiffs by answering all the issues No.1 to 3 in negative in coming to the conclusion that the plaintiff has not proved the loan transaction and it requires interference of this Court?
2. What order?
11. Points No.1 and 2:- In nutshell, the case of the plaintiff is that she was the tenant under the defendant and the son of the defendant was ailing and hence, the defendant was in need of money. Therefore, the defendant approached the plaintiff to advance the amount. She advanced an amount of Rs.75,000/- to the defendant and in turn, the defendant executed the document-Ex.P.1, but he failed to repay the amount. Hence, notice was issued. Inspite of issuance of notice, he did not repay the amount.
12. In nutshell, the defense of the defendant is that there is no dispute with regard to the fact that plaintiff was the tenant under defendant, but denied the loan transaction. It is also contended that the plaintiff is in the habit of creating the false documents. She also issued notice against his son and the same was replied suitably. The plaintiff has made the false claim.
13. The plaintiff, in order to substantiate her case, examined herself as P.W.1 and she reiterated the averments of the plaint and also got marked documents Exs.P1 to P4. i.e., Ex.P1 - receipt dated 25.12.2001, Ex.P.2 - legal notice dated 21.07.2003 and Ex.P3 - postal receipt and Ex.P4 - postal acknowledgement. She was subjected to cross- examination. In the cross-examination, it is elicited that she was the tenant and paying rent of Rs.400/- per month. P.W.1 admits that she knew M.Srinivas and M.Srinivas has not borrowed loan from her. Father of the defendant used to call her as Meenamma, but she claims that M.Srinivas gave cheque to her and the said cheque was bounced. She had given legal notice to Srinivas. The same was confronted to her, she admits the same and marked as Ex.D1. She admits that she does not know how much she demanded from Srinivas under Ex.D.1. It is further elicited that she does not remember when she advanced the loan to the defendant after issuance of Ex.D.1.
14. It is further elicited from the mouth of P.W.1 that the defendant had no need to take loan. It is elicited that she does not know when Srinivas expired. Ex.P.1 was written by defendant. Ex.P.1 does not bear the signature of Srinivas. P.W.1 volunteers that the address was written by her, which is marked at Ex.P.1(b). It is elicited that she knows P.W.2 since past 15 years. Ex.P.1(c) is written in her house by P.W.2. At the time of writing Ex.P.1(c), she herself, defendant and his son Srinivas were present. On that day, it was her son’s birthday. Her son’s date of birth is on 25.12.1986. It is elicited that at the time of execution of Ex.P.1(c), no relatives were present. It is suggested that she herself, M.Srinivas, P.W.2 have created Ex.P1 and the same was denied. P.W.1 admits that after execution of Ex.P.1, she has not advanced any loan to M.Srinivas. It is elicited that she cannot say whether Srinivas was healthy on 25.12.2001. Srinivas was not admitted to hospital on 25.12.2001 but he expressed that he is going to admit. The reply notice given to Ex.D1 was confronted, she admits the same and the same was marked as Ex.D2. It is suggested that she herself and Srinivas are very close and the same was denied. It is suggested that thereafter, she quarreled with M.Srinivas and the same was denied. It is suggested that because of quarrel with Srinivas, she has given notice to him as per Ex.D1.
15. The plaintiff also examined another witness as P.W.2. In his evidence, he says that on 25.12.2001 at about 10.30 a.m., he had gone to the house of the plaintiff and it was his casual visit. He saw the defendant with his son M.Srinivas and they were sitting in the said house. After the causal discussions, he was informed by the defendant that they came to the house of the plaintiff to borrow hand loan of Rs.75,000/- to meet the medical expenses of his son. The plaintiff gave the said loan of Rs.75,000/- in cash to the defendant in his presence and the said hand loan was given after subscribing the signature by the defendant. He also attested the document. He identified his signature at Ex.P1(c) and also identifies the signature of the defendant at Ex.P1(a).
16. In the cross-examination of P.W.2, he admits that the writings on Ex.P1(c) is not his hand writing and the defendant was well to do. He claims that Srinivas was addicted to alcohol and used to stay in the house of plaintiff. He does not know whether Srinivas has taken loan from the plaintiff. He admits that Srinivas’s wife left Srinivas and she has obtained divorce. He does not know who has written Ex.P.1 and so also Ex.P.1(b). It is suggested that Ex.P.1(a) is not written by the defendant and the same was denied. It is elicited that he does not know whether Muniyappa had taken loan from plaintiff. It is suggested that on 25.12.2001, he never visited the house of plaintiff and the same was denied. It is further suggested that in his presence plaintiff has not paid any amount to the defendant and the same was denied. He claims that plaintiff has given Rs.100/- notes in all 7 bundles. It is suggested that he is giving false evidence before the Court to support the plaintiff and the same was denied.
17. The defendant also examined himself as D.W.1 and in his evidence, he reiterated the contents of written statement. In the affidavit, he has stated that there was no need of taking hand loan from the plaintiff or from any person since he got sufficient funds to lead his family and to meet any other expenses of his family. He never borrowed any amount of Rs.75,000/- from the plaintiff. It is also his evidence that in the year 2001, his son-M.Srinivas had good health and he was not at all suffering from any ill health as stated by the plaintiff and there was no necessity of borrowing funds to meet the medical and other incidental expenses. He states that he has not executed Ex.P.1 and signed the said alleged document before any witnesses. He also got marked documents Exs.D3 to D7. He was subjected to cross-examination. In the cross-examination, he admits that the plaintiff was his tenant. He admits that his son has expired. He admits that in the reply notice, he has not mentioned that he was having money in the bank and to that effect, he would produce the receipts. The address shown in the plaint is correct. Ex.P3 is confronted to the witness and he admits the signature, which is already marked as Ex.P.3(a). Ex.P.1 is confronted to the witness and he denies the signature. He admits that he cannot produce the documents to show that in the 2nd week of December 2001, his son was healthy. It is suggested that his son was ailing, therefore, he has taken Rs.75,000/- from the plaintiff and the same was denied. Witness volunteers that they were not in need of money. It is suggested that in order to escape from the liability, he has filed false affidavit before the Court and the same was denied.
18. Having considered both oral and documentary evidence, also the grounds urged in the appeal memorandum and the contentions of the appellant’s counsel, this Court has to re-appreciate the material available on record.
19. The plaintiff has relied upon the document- Ex.P1 stating that after availing loan of Rs.75,000/- from the plaintiff, the defendant has executed Ex.P1. It is to be noted that in the cross-examination of P.W.1 with regard to the availment of loan by M.Srinivas, P.W.1 admits that M.Srinivas has not borrowed any money from her. But she claims that M.Srinivas gave her a cheque and the said cheque was bounced and also issuance of notice in terms of Ex.D1 is admitted. It is pertinent to note that the other admissions of P.W.1 that Muniyappa, who is the defendant had no need of taking loan from the plaintiff, but she claims that Ex.P1 is written by the defendant. It is also her evidence that Ex.P1 does not bear the signature of M.Srinivas, but she volunteers that address was written by her. She claims that Ex.P1(c) is written by P.W.2, at that time, she herself, defendant and his son were present and no relatives were present. It is elicited that after execution of Ex.P1, she has not advanced any loan to M.Srinivas. Exs.D1 and 2 are confronted to her and both are admitted.
20. The plaintiff also relied upon the evidence of P.W.2 with regard to advance of loan to the defendant. P.W.2 admits that defendant was well to do and he denies that Ex.P.1(c) is not in his hand writing. Further, he admits that he does not know who has written Ex.P1 and so also Ex.P1(b). It is pertinent to note that P.W.2 also admits that he does not know whether Muniyappa had taken loan from the plaintiff.
21. Having considered the answers elicited from the mouth of P.Ws.1 and 2, the same does not inspire the confidence of the Court that there was a loan transaction between the plaintiff and the defendant. It is also important to note that the defendant confronted the notice issued against his son in terms of Ex.D1. In the said notice, a claim was made that his son had borrowed Rs.50,000/- from the plaintiff and reply was given by the defendant and not by his son and also no action was taken against his son. It is also important to note that the defendant in order to substantiate his contention that he was not in need of money, he got marked the Fixed Deposit Receipts to show that he was having money from 1998 onwards. It is the case of the plaintiff that transaction had taken place in the year 2001, but the Fixed Deposits of the defendant were renewed periodically.
22. Having considered the materials available on record and also admissions on the part of P.Ws.1 and 2, the Court below has rightly come to the conclusion that the plaintiff has not proved the very transaction between the plaintiff and the defendant when the defendant denied his signature available on Ex.P1. Though the plaintiff examined P.W.2, the very presence of P.W.2 is doubtful. He says that he does not know whether plaintiff has advanced loan in favour of the defendant and also he claims that he does not know who has written Ex.P1 so also with regard to Ex.P1(b) and hence, the Court below has rightly disbelieved the evidence of P.Ws.1 and 2 by accepting the evidence of DW1 since the defendant has also produced the document in support of his claim that he was having money and Fixed Deposits in the Bank. Hence, there are no grounds to interfere with the order of the Trial Court and the appeal is devoid of merits.
In view of discussions made above, I pass the following:-
ORDER The appeal is dismissed.
Sd/- JUDGE PYR