IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE H.P.SANDESH REGULAR FIRST APPEAL No.1496 OF 2012 (MON) BETWEEN:
1. SMT. JAYALAKSHMI, W/O LATE B.P.SESHACHALAM, 80 YEARS 2. SMT. S.THARA, D/O LATE B.P.SHESHACHALAM, 66 YEARS, 3. SRI. S.SRINIVASA, S/O LATE B.P.SHESHACHALAM, 65 YEARS 1 TO 3 RESIDING AT NO. 67, 1ST MAIN ROAD, 5TH CROSS, CANARA BANK COLONY, NAGARABHAVI ROAD, BENGALURU -560 072.
4. SRI. S.GAJENDRA, S/O LATE B.P.SHESHACHALAM, 60 YEARS 5. SRI. S.ARMUGAM, S/O LATE B.P.SHESHACHALAM, 58 YEARS 4 AND 5 RESIDING AT No.4, 4TH CROSS, SAI KRUPA BUILDING, S.P. EXTENSION, MALLESHWARAM, BENGALURU-560003.
6. SRI. S.SATHYANARAYAN, S/O LATE B.P.SHESHACHALAM, 66 YEARS, NO.17, ANANTHALAKSHMI NILAYA, TEACHERS COLONY, BSK II STAGE, BENGALURU-560070.
7. SMT. SHANTA, S/O LATE B.P.SHESHACHALAM, 62 YEARS, NO.24, 8TH CROSS, 2ND BLOCK, JAYANAGAR, BENGALURU -560011.
...APPELLANTS (BY SRI. RAMESH P. KULKARNI, ADVOCATE ) AND:
1. SRI R.VENKATESH, S/O LATE S.P.RAMAKRISHNA SHETTY, MAJOR 2. SRI. R.KRISHNA PRASAD, S/O LATE S.P.RAMAKRISHNA SHETTY, MAJOR 3. SRI. R.SUDHAKAR, S/O LATE S.P.RAMAKRISHNA SHETTY, 63 YEARS ALL ARE RESIDING AT:
NO.24, 1ST CROSS, MALLESHWARAM, BENGALURU -560 003.
…RESPONDENTS (BY SRI.H.T.NATARAJ, ADVOCATE FOR R1 AND R2, SRI.S.V.SHASTRI, ADVOCATE FOR R3) THIS RFA IS FILED UNDER SECTION 96 OF THE CIVIL PROCEDURE CODE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 11.04.2012 PASSED IN O.S.No.6753/2000 ON THE FILE OF THE XXXIII ADDL. CITY CIVIL JUDGE, BENGALURU, DISMISSING THE SUIT FOR RECOVERY OF MONEY.
THIS RFA COMING ON FOR FURTHR ARGUMENTS, 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 the Suit in O.S. No.6753/2000 dated 11.04.2012 on the file of 33rd Additional City Civil and Sessions Judge, Bengaluru City (CCH No.33).
2. The parties are referred to by their original ranking before the trial Court for the sake of convenience of this Court and also to avoid confusion.
3. The plaintiff filed the suit seeking the relief of recovery of amount of Rs.1,23,400/- together with interest at the rate of 5% per annum on Rs.94,335/- from the date of the suit till the date of payment against defendant Nos.1 and 2 and also for other reliefs.
4. It is noticed that after filing of the suit, both the original plaintiff and defendant No.1 had passed away and hence, their respective legal representatives were brought on record.
5. It is the case of the plaintiff that defendant No.1, Sri S.P. Ramakrishna Shetty, had borrowed money on various dates from the plaintiff to meet day to day domestic necessities and also for the welfare of his mentally retarded daughter. The details are furnished in the plaint that amounts of: Rs.10,335/- was borrowed on 15.11.1997; Rs.3,300/- was borrowed on 16.05.1996; Rs.8,700/- was borrowed between 19.05.1997 to 20.08.1997; Rs.10,000/- each was borrowed on 15.07.1996 and 06.09.1996; Rs.10,000/- was borrowed on 03.02.1997; Rs.17,300/- was borrowed on 14.10.1995; Rs.10,000/- was borrowed on 17.10.1995 and Rs.14,700/- was borrowed on 19.09.1997. In all, he borrowed a sum of Rs.94,335/-. Defendant No.1 also agreed to pay interest at the rate of 5% per annum. He had promised to repay the said amount at the earliest and executed nine documents for having received the said amount. As security towards the said loan amount and the amount to be borrowed by defendant No.1 including interest amount, defendant No.1 had given northern portion of his immovable property bearing No.24, situate at 1st Cross, Malleswaram, Bengaluru and which is described in the schedule to the suit, as security in favour of the plaintiff. It is stated that with an intention to defraud and cheat the plaintiff, defendant No.1 on 24.12.1999, had gifted the said property in favour of his son, who is defendant No.2 in the suit, under registered document. Therefore, the second defendant being the son of defendant No.1 had got the property way of gift without clearing the liability to pay the suit claim. In spite of repeated requests, defendant No.1 failed to make any payment, but he executed the acknowledgement of debt on 08.10.1997. The plaintiff got issued the legal notice calling upon the defendant No.1 to pay the amount borrowed by him together with up-to-date interest. Defendant No.1 has received the notice and not complied with the demand and got issued false and untenable reply. It is stated that as on the date of filing of the suit, defendant Nos.1 and 2 were due in a sum of Rs.1,23,400/-.
6. In pursuance of the suit, suit summons was issued to defendants. In the meanwhile, defendant No.1 passed away. The legal representatives of the first defendant were brought on record. In their written statement, they contended that the suit is not maintainable either in law or on facts. It is also contended that the suit is hopelessly barred by limitation. The legal representatives of defendant No.1 got separated from their father in the year 1979 itself and they have been residing independently and separately and therefore, there was no pious obligation on the part of the defendants to discharge the debt of their father. Assuming that their father had borrowed money from the plaintiff, the documents produced by him are concocted to suit his claim. The defendants have also denied the averment that the amount was borrowed to look after the welfare of the plaintiff’s mentally retarded daughter. There was no necessity whatsoever for the first defendant to receive the said loan amount. The very execution of the gift deed is not within the knowledge of the legal representatives of the first defendant. The plaintiff cannot claim any amount from defendant No.1(a) and 1(b) under the principle of pious obligation since they have not received any property from the first defendant. The second defendant appears to have fabricated the alleged gift deed and defendant Nos.1(a) and 1(b) are reserving their right to initiate appropriate action against defendant No.2 who is alone enjoying the property of their deceased father. The alleged acknowledgement of debt or receipts are concocted, fabricated and created for the purpose of the case. The same are not enforceable as they are not capable of being considered as promissory note. Defendant Nos.1 (a) and 1(b) have contended that the second defendant alone is liable to discharge the suit claim, if it is established by the plaintiff.
7. The second defendant in the written statement contended that Defendant No.2 in the written statement contended that the suit is misconceived and the same is bad for misjoinder of parties inasmuch as defendant No.2 is neither a proper party nor necessary party. He cannot be saddled with such false and unwarranted liabilities said to have been incurred by defendant No.1. The plaintiff has not approached the Court with clean hands and the suit is liable to be dismissed. Without prejudice to the said contention, it is contended that the suit is bad for misjoinder of causes of action and the plaintiff cannot merge all the amounts said to have been given by him on various dates to the deceased defendant No.1 and file one composite suit. The plaintiff obviously knows that the suit claim is barred by limitation and therefore, he has ventured to include all the transactions in one suit without any legal basis. The plaintiff has merged all these accounts together to cover the limitation except the sum of Rs.10,355/- which is said to have been borrowed by defendant No.1 on 15.11.1997 and with regard to the remaining amounts, the suit is barred by law of limitation. The mentally retarded daughter was looked after very well by defendant No.1 and unfortunately, the said mentally retarded daughter is no more. There was no necessity for defendant No.1 to borrow money for that purpose and he had not agreed to pay interest at 5% per annum. This defendant denied nine receipts as having issued by defendant No.1. The signatures found on the said receipts were not that of his father, Sri Ramakrishna Setty. Defendant No.1 does not say who is Mr. Sheshachalam from whom he is purported to have borrowed amount, as receipts were addressed to Seshachalam or C. Sheshachalam and not the plaintiff and initial in the name was changed from time to time. The alleged receipts produced by the plaintiff are tailor made for the purpose of filing the present suit. The alleged hand written note produced by the plaintiff is also concocted and fabricated one obviously set up by him only to cheat the first defendant and to otherwise saddle false and unwarranted liabilities on the legal representatives of defendant No.1 including defendant No.2, a false suit is filed. The signature found on receipt dated 15.11.1997 is totally forged and fabricated. Defendant No.1 had every right to gift his property to defendant No.2 and the plaintiff has no business to attribute fraud against defendant No.1. There is no privity of contract entered into between the plaintiff and defendant No.2 either to pay interest or suit claim. It is stated that defendant No.2 is under no pious obligation to settle any such bogus claim of the plaintiff, in as much as the first defendant has not taken any amount from the plaintiff and there was no legal necessity or family necessity to take the said amount. Defendant No.2 was not aware of any demand made by the plaintiff. During the life time of his father, Sri S.P. Ramakrishna Shetty, lodged a complaint with Malleswaram Police Station on 12.07.2000 alleging that Sri B.P. Sheshachalam had harassed him by setting up false and concocted fabricated documents. Defendant No.2 contended that the plaintiff has not stated on what basis he received a sum of Rs.10,000/- from defendant No.1. He further contended that all the other averments made in the plaint are concocted. There is no cause of action for the suit.
8. Based on the pleadings of the parties, the Court below has framed the following Issues:
1. Whether the plaintiff proves that he has paid an amount of Rs.94,335/- to the deceased defendant No.1 on different dates from 14.10.95 to 15.11.97 and accordingly deceased defendant No.1 has executed receipts in his favour agreeing to repay the same along with interest at the rate of 5% p.a.?
2. Whether the plaintiff further proves that the deceased defendant No.1 has given security of the northern portion of immovable property No.24 as described in the schedule towards repayment of the said amount?
3. Whether the plaintiff further proves that the deceased defendant No.1 during his lifetime and defendant No.1(a and b) and defendant No.2 after his death have failed to pay the said amount inspite of demand and issue of legal notice?
4. Whether the plaintiff further proves that the deceased defendant No.1 has acknowledged the liability on 08.10.1997 as alleged?
5. Whether the L.Rs. of defendant No.1 proves that the suit of the plaintiff is barred by limitation?
6. Whether the defendant No.2 proves that the suit of the plaintiff is bad for non-joinder of necessary parties?
7. Whether the plaintiff is entitled for the recovery of the suit claim as prayed for?
8. What decree or order?
9. The plaintiffs in order to substantiate their claim, examined one of the legal representatives of the plaintiff as PW.1 and also examined one witness as PW.2 to prove Ex.P11. The plaintiffs also got marked the documents Exs.P1 to P15. The legal representatives of defendant No.1 i.e., Defendant Nos.1(a) and 1(b) and defendant No.2 have been examined as DWs.1 to 3. On behalf of the defendants, seven documents have been marked as per Exs.D1 to D7. The Court below after hearing the counsels for the parties and also considering the oral and documentary evidence and dismissed the suit and hence, the present appeal is filed.
10. In the appeal memorandum, it is contended that the Court below has committed an error in not considering both the oral and documentary evidence particularly the evidence of PW.2, who is the signatory to Ex.P11. PW.1 has categorically deposed that he had seen Sri S.P. Rama Krishna Shetty fixing his signature on Ex.P11. The trial Court failed to appreciate that the father of the respondents have clearly admitted for having borrowed money frequently from the father of the appellants for the requirements of himself and his mentally retarded daughter and also he has executed an acknowledgement of debt on 08.10.1997. Therefore, the Court below ought to have decreed the suit claim made in the suit. The signature of late Sri S.P. Krishnashna Shetty on the document - Ex.P11 tallies with his signatures on Ex.P2 and Ex.P10. Therefore, the trial Court ought to have held that all the documents are proved and failed to note that the respondents having disputed the signature of their father on Exs.P2 to P11 were under an obligation to provide the documents having his admitted signature to disprove the evidence of the appellants. The respondents being in possession of the documents, having admitted signatures of their deceased father, have deliberately withheld the same from the Court and as such, the trial Court ought to have drawn an adverse inference under Section 114 of the Indian Evidence Act, 1872. The third respondent having claimed that his father late Sri S.P. Ramakrishna Shetty has executed registered gift deed in his favour, he ought to have produced the same before the Court. But, he did not produce the same and the trial Court has failed to come to the conclusion that the plaintiffs have not proved Exs.P2 to P11. The very approach of the trial Court is erroneous. The acknowledgment was executed on 08.10.1997. The suit was filed on 30.09.2000 and hence, the suit is within time. Even going by the contentions of the defendants, the document Ex.P11 could have been treated as an agreement to pay debt under Section 25 of the Indian Contract Act, 1872. The trial Court appears to have been carried away by the nomenclature “Acknowledgement of debt” or “demand promissory note” or “Agreement to sell” without going through the text and meaning of the document Ex.P11. Hence, the appellants prayed the Court to set aside the judgment and decree passed by the trial Court.
11. The learned counsel for the appellants reiterating the grounds urged in the appeal memo contended that the suit is based on receipts and defendant No.1 had retired in the year 1971 itself. He was not having sufficient money to lead his life and also take care of his daughter, who was mentally retarded and he was in need of money during the period from 1995 to 1997. Hence, he has received an amount of Rs.94,335/- from the plaintiff – Sri B.P. Seshachalam. Defendant No.1, who borrowed the money also executed an acknowledgement acknowledging the amount which he has received. Before the receipt of the suit summons, defendant No.1 had passed away and hence, his legal heirs were brought on record as defendant Nos.1(a) and 1(b). During the lifetime of defendant No.1, he also executed gift deed in favour of defendant No.2 and hence, he is having pious obligation to repay the amount. The defendants took the defence that the documents which are produced are not containing signature of their father, but the plaintiffs secured the document of caveat filed by defendant No.1 which is marked as Ex.P15 and which contains the original signature of defendant No.1. It is clear from Exs.D1 and D2 that defendants agreed to pay the amount and they have also not produced the admitted signature of defendant No.1 and clandestinely denied the signature available in Ex.P15(a). The Court can draw an adverse inference against the defendants.
12. In support of his contention, the learned counsel for appellants has relied upon the judgment rendered by Bombay High Court in the case of M/s. R. Sureshchandra & Co. v. M/s. Vadnere Chemical Works and others reported in AIR 1991 Bombay 44. Referring to this judgment, learned counsel would contend that under Section 25(3) of the Contract Act, 1872, even if the transaction is barred by promising to pay the amount, the loan transaction was renewed and it amounts to promise note within the meaning of Section 25(3) of the Contract Act Referring to para No.10 of the said judgment, learned counsel contends that Section 25(3) of the Contract Act validates a promise to pay a debt barred by limitation and hence, the suit is within time. Learned counsel also relied upon the judgment of the Hon`ble Supreme Court in the case of Sarwan Singh vs. State of Punjab reported in AIR 2002 SC 3652 and by referring to para No.8, the learned counsel would contend that there exists no other evidence nor even there being any suggestion of existence of any other factor for such perforced outing at 3 a.m. and it is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross- examination, it must follow that the evidence tendered on that issue ought to be accepted. Learned counsel also relied upon the judgment rendered by Calcutta High Court in the case of A.E.G. Carapiet vs. A.Y. Derderia reported in AIR 1961 Calcutta 359 and brought to my notice para No.10 of the judgment wherein the Calcutta High Court held that the law is clear is on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross- examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross- examination is being made comes to give and lead evidence by producing witnesses. The learned counsel has also relied upon the judgment of the Hon`ble Supreme Court in the case of A. Raghavamma and another vs. A. Chenchamma and another reported in AIR 1964 Supreme Court 136 and brought to my notice paragraph No.18 of the said judgment with regard to adverse inference and would contend that the plaintiff in the said case admitted in her cross-examination that she has documents and when she fails to produce the documents before the Court an adverse inference can be drawn. In the case on hand also, DW.1 admitted in his cross- examination that he is having the document with signature of his father and did not produce the same before the Court and hence, the said judgment is aptly applicable to the case on hand.
13. Per contra, learned counsel appearing for defendant Nos.1(a) and 1(b) (respondent Nos.1 and 2 herein) in his argument, he vehemently contended that the said respondents have not derived any property from their father and hence, the question of pious obligation does not arise. It is contended that in the year 1970 itself, defendant Nos.1(a) and 1(b) separated from their father and living separately. Ex.P11, which the plaintiffs relied upon is not having the characteristic of pronote and also not having the characteristic of any acknowledgement and the Court below in detail discussed with regard to the nature of the document and has rightly come to the conclusion that the plaintiff cannot seek suit claim based on the documents – Ex.P11 and Exs.P2 to P9. The learned counsel in support of his contention, relied upon the judgment of the Delhi High Court rendered in the case of M/s. Packing Paper Sales and another vs. Smt. Veena Lata Khosla reported in AIR 2007 Delhi 175 and brought to my notice that a perusal of the definition of promissory note as defined by Sub-section 22 of Section 2 of the Indian Stamp Act, 1899 and the definition of a promissory note as defined under Section 4 of the Negotiable Instruments Act, 1881, read with the definition of ‘negotiable instrument’ as defined under Section 13 of the Negotiable Instruments Act, 1881, the document which the plaintiffs relied upon cannot be termed as a promissory note. It should satisfy the four requirements referred to in Section 14 (Section 13) of the Negotiable Instruments Act, 1881. The document must pass three further tests, namely, the promise to pay must be the substance of the instrument, (b) there must be nothing else inconsistent with the character of the document as substantially a promise to pay, and (c) the instrument must be intended by the parties to be a promissory note. In order to find out whether a particular document is a promissory note or not, the intention of the parties at the time of execution of the document is to be looked into with reference to the substance of the document, the surrounding circumstances in which the document has been executed and its negotiability in the popular sense, whether the document was intended to be a promissory note or was intended to be a mere acknowledgement of a debt or receipt of consideration. The learned counsel also relied upon the judgment rendered by Rajasthan High Court in the case of Mangilal vs. L.Rs. of Lal Chan reported in AIR 1995 Rajasthan page 189, and brought to my notice that where the document showed that there was an account between the parties and in view of the account the amount had become due and the words of document reflected intention of the parties at the time of its execution such document cannot be considered to a promissory note even though there is an amount ascertained which is payable by the person to whom the money has been named and there is promise to pay, yet such document does not fall within the definition of Section 4 of the Negotiable Instruments Act, because the words of document showed that this was an agreement or acknowledgment of amount due found on account stated. The learned counsel also relied upon the judgment rendered by Full Bench of the Madras High Court in the case of Valliamma Champaka vs. Sivathanu Pillai and others reported in AIR 1964 Madras 269 with regard to Section 19 of the Limitation Act, 1908 and contended that acknowledgment must be of substituting liability the release deed executed by mortgage in the said case cannot obviously constitute an acknowledgement of a subsisting liability. A mere recital of past liability accompanied by a statement as to its discharge cannot be construed as an acknowledgement of liability. Learned counsel also relied upon the judgment rendered by this Court in the case of K. Gopala Reddy (deceased) by LRs. vs. Suryanarayana and Others reported in 2004(1) KCCR 662 and referring to the said judgment, the learned counsel would contend that whenever a party approaches this Court for a relief, based on the pleadings and issues, he has to prove his case. A suit has to be decided based on merits and demerits of the party who approaches the Court. Weakness of the defendant cannot be considered as a trump card for the plaintiff.
14. Learned counsel for the third respondent supports the arguments of learned counsel for defendant Nos.1(a) and 1(b) (respondent Nos.1 and 2 herein) and contends that the Court below has rightly appreciated both the oral and documentary evidence and there are no grounds to interfere with the findings of the Court below.
15. In reply to the arguments of the learned counsel for respondents, the learned counsel for appellants would contend that though the defendant No.2 in his cross-examination has categorically admitted that he was having the document with signature of his father and he sought time to produce the same, but he did not place any such document before the Court below. Hence, the Court can draw adverse inference that the defendants intentionally withheld the document of their father. Learned counsel also contended that there was a gift deed available with defendant No.2 and original signature on the gift deed will be available on the document - gift deed and same is also not placed before the Court. It is submitted that defendant No.2 also derived the interest in respect of the property of his father and he has got pious obligation to pay the amount of debt of his father. It is also contended that nowhere in the pleadings as well as in the evidence the defendants have not denied that their father has not availed the loan from the plaintiff. When such being the case, the trial Court to have decreed the suit instead of erroneously proceeding without considering the documents.
16. Having regard to the arguments of the learned counsel for appellants and learned counsel for respondents and also keeping in view the contentions urged by the respective counsels, the points that arise for consideration of this Court are :
1. Whether the Court below has committed an error in dismissing the suit and in coming to the conclusion that the plaintiffs have not proved the loan transaction and the suit is also barred by limitation ?
2. Whether the Court below has committed an error in answering issue No.6 as negative by holding that the defendant No.2 proves that the suit of the plaintiffs is bad for non-joinder of necessary parties ?
3. What order ?
POINT No.2 :
17. Before considering Point No.1, I would like to consider point No.2 with regard to the trial Court answering issue No.6 in the negative. On perusal of the pleadings in the suit, it discloses that defendant No.1 has borrowed the amount only to meet his daily expenses and also to meet the daily expenses of his mentally retarded daughter. The main contention of defendant No.2 in the written statement is that the suit is bad for non-joinder of necessary parties. Since the deceased defendant No.1 was having three sons and three daughters and they have not been made as party to the proceedings. On perusal of the entire plaint, it is specifically pleaded that the first defendant has borrowed money from the original plaintiff and he also promised to pay the amount under document Ex.P11. He also created interest in respect of a portion of the property. But, in order to defraud the plaintiff/s, defendant No.1 has executed a gift deed in favour of defendant No.2. When the plaintiff has specifically pleaded in the plaint that defendant No.2 is having pious obligation to pay the amount, which was advanced in favour of defendant No.1, the very contention of defendant No.2 that the suit was bad for non-joinder of necessary parties cannot be accepted. The Court below has committed an error in answering issue No.6 by holding that defendant No.2 has proved that the suit of the plaintiffs is bad for non-joinder of necessary parties. The Court below did not consider the pleadings of the plaint and when the specific pleading was made that the property was gifted in favour of defendant No.2 and he derived interest in the property of the plaintiff, the trial Court ought not to have answered issue No.6 in the negative and hence, point No.2 is answered in the affirmative by holding that the Court below has committed an error in coming to the conclusion that defendant No.2 has proved that the suit is bad for non-joinder of necessary parties.
POINT No.1:
18. Now, this Court has to consider the grounds of appeal. Since the appellants in the appeal vehemently contended that the Court below has committed an error in coming to the conclusion that the plaintiffs have not proved the loan transaction between the father of the plaintiffs and defendant No.1. The Court below also committed an error in accepting Ex.P11 as acknowledgement in respect of the loan transaction. Before considering the grounds urged by both the counsels, it is appropriate to consider the evidence available on record, both oral and documentary evidence. This Court has got power to re-appreciate both oral and documentary evidence on record and apart from that both the question of fact and law since this is a statutory appeal.
19. The plaintiffs in support of their contentions, have examined one of the legal heirs of the original plaintiff i.e., plaintiff No.1(d) as PW.1 and in his affidavit, he has reiterated the contents of the plaint in the form of affidavit and also got marked the documents Exs.P1 to P14. He was subjected to cross-examination. In the cross-examination, he admits that his father, Sri Sheshachalam, had studied up to 4th or 5th standard. He was working as Supervisor in H.A.L. His father was not an income tax assessee. He had no hindrance or obstacle for producing the document to show that his father was working as Supervisor in H.A.L. He has stated that he could also produce bank account extract. He does not know the education of Sri Ramakrishna Shetty, but he was working at Bangalore City Corporation (BCC). He does not know whether Ramakrishna Shetty was working as Executive Engineer in BCC. It was suggested to PW.1 that after filing of the case, Ex.P1 was created and the same was denied. He admits that he is not witness to Ex.P2. Further, he admits that when Ex.P2 was written, he was not present and also he cannot say in whose handwriting is Ex.P2. He also admits that in Ex.P2, there is no address of Sheshachalam. There are no witnesses signatures in Ex.P2. He admits he can identify the signature of Ramakrishna Shetty. There is signature of Sri Ramakrishna Shetty in Ex.P2. He also admits in Exs.P3 to P11, there are no witnesses signatures. In Ex.P3, there is no initial of his father. In Exs.P4 to P7, his father’s initial has been shown as ‘C’. In Ex.P10, his father’s initials have been shown as ‘B.P.’ and there it has not been shown as ‘s/o’ (son of). A question was put to PW.1 that in Exs.P2 to P10, there is difference in the signature of Ramakrishna Shetty, the witness responded to the said question as “when his signature come on the Revenue stamp there is some difference”. It was suggested to PW.1 that Exs.P2 to P11 do not contain signatures of Ramakrishna Shetty and they are created and the same was denied. He admits that Ex.P1 is dated 15.11.1997. Ex.P11 is dated 08.10.1997. He cannot say in whose hand writing was Ex.P11. He was not present at the time of execution of Ex.P11, but his brother was present. He admits that generally, if a person is due to somebody and again, he approaches for loan, that person will not lend money unless his previous debt is discharged. In his further cross-examination, he admits that Ramakrishna Shetty has not executed any registered mortgage deed or any other deed in favour of his father. It was suggested to PW.1 that the signatures available on Exs.P2 to P11 were not the signatures of Ramakrishna Shetty and the same was denied. He admits that Ex.P13 was not issued to defendant No.2. He admits that the transaction between his father and Ramakrishna Shetty was prior to 1997. He admits that Ramakrishna Shetty was not having any health problem. Ramakrishna Shetty himself was looking after his one daughter, who was mentally retarded. It was suggested to PW.1 that the defendants are not liable to pay any money to his father and the same was denied. He admits he does not know the family members of Ramakrishna Shetty and also, he does not know R.Venkatesh and Krishnaprasad separated from his father in 1979 and R. Venkatesh is residing at No.24/2 and Krishna Prasad is residing at 24/1. PW.1 has stated that Ramakrishna Shetty died in the year 2000, but he claims that he was personally present on two or three dates when his father had lent amount to Ramakrishna Shetty. He does not know whether any other witnesses were present on the other dates when his father lent amount to Ramakrishna Shetty. On the date of Ex.P11, he (PW.1) was not present. Nagaraju and Vinod were present at the time of execution of Ex.P11. He claims Ramakrishna Shetty availed loan for the medical treatment of his daughter. He admits that when his father advanced loan to Ramakrishna Shetty in his presence, at that time Venkatesh and Krishna were not present. He also does not know as to who has written Ex.P11.
20. The plaintiffs also examined one witness as PW.2. PW.2 in his evidence says he was present at the residence of the plaintiffs and late S.P. Ramakrishna Shetty on 08.10.1997. On that day, Sri Rama Krishna Shetty executed an acknowledgement of debt – Ex.D11 in favour of late Sri B.P. Seshachalam. He has identified his signature on Ex.P11 as Ex.P11(c). He was subjected to cross-examination. In the cross-examination, he says he knew deceased Ramakrishna Shetty personally. When a question was put to the witness as to what did he know about the transaction between Sheshachalam and Ramakrishna Shetty, he has replied that Ramakrishna Shetty now and then was borrowing money from Sheshachalam. The said fact was told to him by both Sheshachalam and Ramakrishna Shetty. He admits that except Ex.P11, with respect to the other financial transactions between Ramakrishna Shetty and Sheshachalam, he was not a signatory witness. On the date of execution of Ex.P11, there was no financial transaction. Sheshachalam called him to his house in the evening as a witness to Ex.P11. He does not know as to who has written Ex.P11. When he went to the house of Sheshachalam, Ramakrishna Shetty, Sheshachalam, Sheshachalam’s wife, one more person by name, Nagaraj, were present and in his presence, Ramakrishna Shetty and Sheshachalam have signed Ex.P11 firstly. He did not observe whether Ramakrishna Shetty signed with his initials or not. The witness admits that there were grammatical mistakes in Ex.P11 and for that reason, corrections were inserted. Ex.P11 was written and it was on the table when he went to the house of Sheshachalam and except both of them, no others had signed Ex.P11. It was suggested to PW.2 that Ex.P11 was not signed by Ramakrsihna Shetty in his presence and he was falsely deposing and same was denied. He also admits that he does not remember the entire substance of Ex.P11. He can only identify the signatures of Sheshachalam and Ramakrishna Shetty. He does not know whether Sheshachalam had not lent any money to Ramakrishna Shetty.
21. Defendant No.2 has been examined as DW.1.
He reiterated the averments made in the written statement in his affidavit. He was subjected to cross-examination. In the cross-examination, he admits that himself and his two brothers were residing together till 1979. He admits that after 1979, R. Venkatesh and R. Krishna Prasad went out and started residing separately with their families. This answer is elicited from Defendant No.2 by the counsel appearing for defendant Nos.1(a) and 1(b). He also admits that his father was with him during the suit transaction. His father was with him from 14.10.1995 to 15.11.1997. He further admits that with regard to the present case, there was oppanda between himself and his brothers. He admits that himself and his brothers are not in cordial terms since 1979. A suggestion was made that in the said oppanda, he has given in writing that whatever the Court gives the verdict, he will be bound by that. A document was confronted to witness - DW.1 and document was got marked as Ex.D1 and he admits that handwritten portion of Ex.D1 is in his writing and the same is marked as Ex.D1(a) and he has identified his signatures on Ex.D1 as per Ex.D1(b) and Ex.D1(c). He admits that after the death of his father, his two brothers have not taken any estate of his father. Learned counsel appearing for the plaintiffs got elicited answer from the mouth of DW.1 that he can see the Caveat petition No.3730/2000 and same is marked as Ex.P15 and he has stated that he was not aware of the legal notice. Ex.P15 is the caveat petition filed by his father against B.P. Sheshachalam. Ex.P15(a) and P15(b) are not the signatures of his father. He admits that he has not produced any document to show the signature of his father. It was suggested to DW.2 that he was falsely deposing that Exs.P15(a) and 15(b) are not the signatures of his father and in reply, DW.2 has stated that he knew how his father was signing and he could identify his signature. He had no impediment to produce the document containing the signature of his father. He admits he needed time to produce document containing the signature of his father since he has to search the document/s. He admits that the property that was gifted to him by his father belonged to his father and same was the self-acquired property of his father. He also admits that there is a document to show that his father had given police complaint against B.P. Seshachalam on 12.07.2000. He further admits that the contents of Exs.D1 and D2 are correct and in Exs.D1 and D2, it has been written that he will take the responsibility of B.P. seshachalam as per the decision of the Court.
22. The other witness DW.2 is one of the legal representatives of the original defendant No.1. He got marked documents as per Exs.D3 to D7. In his cross- examination, he admits that in Ex.D1, there is reference to affidavit stated to have been executed by him, but witness volunteers that the said affidavit is obtained by force by his brothers. He admits Ex.D7 when the said document was confronted to him. The plaintiffs’ counsel also cross- examined this witness and in the cross-examination, he admits that his father was in service till 1969-70. In the cross-examination, a question was put to him as to whether signatures found on Exs.P2 to P11 did not belonged to his father, but he answered that he had seen his father’s signature about 31 years ago and out of his memory on looking at Exs.P2 to P11, he said that the signatures were not that of his father. However, he admits that he has not produced any document containing his father’s signature.
23. The other son of the original defendant No.1 is also examined as DW.3. He also reiterates the averments made in the written statement in his evidence. He was subjected to cross-examination. In the cross-examination, he admits that he is an income tax assessee. It is elicited that one of his sisters has not joined execution of document in his favour along with other brothers and sisters. He admits Ex.D7 contains his signature at three places. He admits that his father stayed with defendant No.2 and one of his mentally retarded sister. It was suggested to DW.3 that in order to escape from the liability, he has stated that Ex.P2(a) to Ex.P11(a) are not the signatures of his father and the same was denied.
24. Having considered both oral and documentary evidence available on record, it is seen that the plaintiff has relied upon Exs.P2 to P11. It is clear from the evidence of PW.1 that he is not signatory to Exs.P2 to P10, but he claims that he was not present at the time of two or three transactions between his father and defendant No.1. He further admits that he is not an attesting witness to any of the documents Exs.P2 to P9. On perusal of Exs.P2 to 10, it is seen that these are the documents with regard to the loan transaction. In order to prove these documents, no doubt, none of the witnesses have been examined before the Court below. It may also be noted that PW.2 also categorically admits that during the execution of the documents as per Exs.P2, P10, he was not present. PW.2 is examined in order to prove the document Ex.P11 and also he identifies the signature of Ramakrishna Shetty as Ex.P11(a). The very document Ex.P11 is disputed and also defendants have contended that the document is not having the characteristic of a promissory note. On perusal of the document, Ex.P11, no doubt the document discloses with regard to the availment of loan. The said document discloses that the total amount which defendant No.1 had borrowed is Rs.1,16,000/- and he had acknowledged the earlier loan transaction. He executed the said document and he also created interest in favour of the plaintiff in respect of portion of the property so that he can proceed against him for recovery of the said amount. This document came into existence on 08.10.1997. The document - Ex.P10 came into existence on 15.11.1997. There is no explanation on the part of the plaintiffs with regard to Ex.P10 since the said document is dated subsequent to Ex.P11. It is also rightly contended by learned counsel for defendant Nos.1(a) and 1(b) (respondent Nos.1 and 2 herein) that this document cannot be termed as a promissory note. In order to bring the document within the purview of promissory note, the recitals of the document are not in consonance with Sections 4 and 13 of the Negotiable Instruments Act, 1881 as contended by the respondents’ counsel. No doubt, the document recitals in Ex.P11 disclose that the loan transaction had taken place in between 1995 to 1997. The Court has to examine the evidence of PW.2. PW.2 in his evidence says that when he went to the house of the original plaintiff B.P. Seshachalam, the document was on the table. He does not know who prepared the document Ex.P11 and also does not know in whose handwriting Ex.P11 is. It is also not his case that the other witness has signed the document in his presence. The document, Ex.P11, is not in the nature of promissory note. It is also to be noted that the document, Ex.P11, discloses with regard to the earlier loan transaction. It is not specifically mentioned in the document, Ex.P11, the date on which the earlier transaction had taken place. Defendants have categorically denied the signature of defendant No.1 at Ex.P2(a) and P11(b) contending that those signatures are not the signatures of Ramakrishna Shetty. In order to prove the said document, none of the witnesses have been examined and none of witnesses have also spoken as to whether there was a loan transaction between the original plaintiff and original defendant No.1. It is also pertinent to note that the witness, who has been examined as PW.2 is not the witness to the loan transaction. He claims only he has signed the document Ex.P11 in the presence of the original plaintiff and also original defendant No.1. The very evidence of PW.2 also does not inspire confidence of this Court that the document Ex.P11 was executed in his presence. He does not know the contents of the document. Also, he does not know the scribe of the document - Ex.P11 and also, he does not know about the other witnesses. It is also pertinent to note that Exs.P2(a) to P11(a) do not contain the signature of any of the witnesses to show that loan transaction had taken place. PW.1 also categorically admits that his signature is not found on Exs.P2 to P10. First of all, the plaintiffs have not proved the document. It is the contention of the plaintiffs that though defendant No.2 in his cross-examination denied the signature of his father in the caveat petition, he admitted that he can produce the document. He did not produce the document. No doubt, DW.1 in his cross-examination categorically admits that he can produce the documents after making search for documents containing signature/s of his father. Learned counsel for the appellants would contend that when DW.1 did not produce the document containing his father’s signature an adverse inference can be drawn against him. No doubt Court can draw adverse inference if the party fails to produce document. In the case on hand, it is rightly pointed out by the learned counsel for respondents that no application is filed before the Court calling upon PW.1 to produce admitted signature of the original defendant No.1. No doubt, defendant No.2 also claims that there was a gift deed executed by his father in his favour in respect of the property belonging to his father and he also admits that there was an understanding between defendants in the event the Court directed to make the payment in terms of Exs.D1 and D2 in favour of the plaintiffs. First of all, the plaintiffs have not proved the very loan transaction between the original plaintiff No.1 and original defendant No.1 since Exs.P2 to P10 are not proved by examining a witness. No doubt the Court can compare the signatures of the parties by exercising powers under Section 73 of the Indian Evidence Act, 1872. At the same time, when the defendants have denied the very signature of their father, the Court also cannot act as an expert, but the Court can compare the signatures. But, in the case on hand, even if the Court compares the signatures, the question before this Court is that very execution of the documents, Exs.P2 to P10 are not proved. When such being the case, the Court below has considered the evidence available on record both oral and documentary evidence in length with regard to the nature of the documents including Ex.P11. I have already pointed out that Ex.P11 is not in the form of promissory note and also not in the form of acknowledgment. No doubt if the original borrower executes any document acknowledging liability, the same can be taken note of. In the case on hand, the signature of the original defendant No.1 on Ex.P11 is totally denied by the defendants. In order to prove the same, the plaintiffs rely upon the evidence of PW.2. The evidence of PW.2 also does not inspire the confidence of this Court. The answer elicited from the mouth of PW.2 is that when he came to the house of the plaintiffs, the document was on table and he says that in his presence, no other person has signed the document and that he does not know the contents of Ex.P11 and also Scribe of the document, Ex.P11. When such being the case, the plaintiffs have failed to prove their case.
25. Having considered both the oral and documentary evidence on record and also reasoning given by the trial Court, I am of the opinion that the Court below did not commit any error in considering the case on hand and also did not commit any error in appreciating both the oral and documentary evidence on record. The burden is on the plaintiffs to prove the very loan transaction and also the execution of the document Ex.P11 by defendant No.1 and the same has not been discharged by the plaintiffs. When such being the case, this Court cannot reverse the findings of the trial Court. In order to come to the other conclusion, there must be cogent evidence before the Court that there was a transaction between the original plaintiff and original defendant No.1 and the same was witnessed by any of the witnesses and merely because defendant No.2 failed to produce the document containing signature of his father, adverse inference cannot be drawn against the defendants. The plaintiffs have also not made any effort to bring the document with admitted signatures of defendant No.1 before the Court. No doubt, defendant No.2 admits that his father had filed the caveat before the Court, but he specifically denied the signature of his father and the disputed signature was not sent to the handwriting expert. In the absence of report of handwriting expert, this Court cannot form any other opinion. I do not find any merit in this appeal to reverse the finding of the trial Court.
26. Learned counsel for appellants also vehemently contended that under Section 25(3) of the Contract Act, 1872, if the transaction is acknowledged even after the loan transaction, which is time barred, the Court can grant the decree. There is no dispute with regard to the statutory provisions and in the case on hand, when this Court comes to the conclusion that the very documents Exs.P2 to P11 are not proved, the said contention of the learned counsel cannot be accepted. The learned counsel also would contend that there is a pious obligation on the part of defendant No.2 to pay the amount and there is no dispute with regard to the pious obligation of defendant No.2 to pay the amount since he has derived interest in respect of the property of his father. But, when the loan transaction was not proved, the question of directing defendant No.2 to comply with the pious obligation on his part also does not arise.
27. In view of the discussion made above, I pass the following:
ORDER The Appeal is dismissed Sd/- JUDGE sma