IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE H.P.SANDESH REGULAR FIRST APPEAL NO.222/2012 (MON) BETWEEN:
1. SMT. KANTHAMMA AGED ABOUT 69 YEARS W/O. LATE B.M. CHAMANNA 2. SRI. M.C. SURESH AGED ABOUT 49 YEARS S/O. LATE B.M. CHAMANNA BOTH RESIDINDG AT No.968/47 2ND MAIN ROAD, M.C. LAYOUT VIJAYANAGAR BENGALURU-560 021 ... APPELLANTS (BY SRI. C.M.NAGABHUSHANA, ADV.,) AND:
SRI. M. VINOD KUMAR AGED ABOUT 41 YEARS S/O. SRI. N. MUNIRAJU R/AT NO.117/1A BEHIND BRINDAVAN HOTEL 2ND STAGE, PEENYA BENGALURU-560 070 ... RESPONDENT (BY SRI. V.F. KUMBAR, ADV.,) THIS RFA IS FILED UNDER ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 21.09.2011 PASSED IN O.S.NO.7631/2004 ON THE FILE OF XXXI ADDL. CITY CIVIL JUDGE, BENGALURU (CCH.14), DECREEING THE SUIT FOR RECOVERY OF MONEY.
THIS RFA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed challenging the Judgment and Decree dated 21.09.2011 passed in O.S.No.7631/2004 on the file of XXXI Additional City Civil Judge, Bengaluru City, (CCH-14), decreeing the suit filed by the plaintiff.
2. The parties are referred to as per their original ranking before the Court below in order to avoid the confusion and for the convenience of the Court.
3. Brief facts of the case are:
It is the case of the Plaintiff that the Defendants have been introduced by one Sri B.Srinivasa Naik in the first week of October 2001. The Defendants requested the Plaintiff for advancing the loan of Rs.50,000/- stating that they are in need of money to discharge the debts of Dr. Sunil Kumar, who is the son of the first defendant and brother of the second defendant against whom a criminal case was filed before the Magistrate Court at Bengaluru. The friend of the plaintiff namely Sri B.Srinivasa Naik also recommended for advancing the loan to the defendants. Considering the request of the defendants, the plaintiff advanced a sum of Rs.50,000/- to the defendants on 12.10.2001. The defendant Nos.1 and 2 have jointly executed on demand promissory note and consideration receipt. Further, the defendants agreed to pay the interest at the rate of 2% p.m. The defendants had also agreed to repay the principal amount within 6 months. After availing the loan, the defendants did not repay the loan amount with interest as agreed, in spite of repeated requests made by the plaintiff. The defendants went on assuring that they will settle the loan amount with interest but they did not keep up their promise. Hence, the plaintiff has issued a legal notice on 14.08.2004 and the same was served on the defendants and they had given untenable reply on 31.08.2004. Hence, the plaintiff was forced to file a suit for recovery of Rs.86,000/- with interest.
4. In pursuance of the notice issued in the suit, the defendants have been appeared before the Court and filed the written statement. In the written statement, they have contended that they do not know the plaintiff at all. It is contended by the defendants that the said Sri B.Srinivasa Naik has set up the plaintiff as they have not transacted with the plaintiff at any point of time and denied the allegations made in the plaint and contended that they had given the suitable reply to the legal notice dated 14.08.2004. It is specifically averred in the written statement that Sri B.Srinivasa Naik, the friend of the plaintiff, who is an un-licensed money lender and who is enemical to the defendants, who has filed frivolous litigations against the second defendant. Since the second defendant has been contesting the suit with ulterior motive has set up the plaintiff to file this suit, taking advantage of some papers on which, he had obtained the signatures from the defendants. Hence, it is contended that the suit is frivolous, vexatious and false and prayed the Court to dismiss the suit.
5. Based on the pleadings of both the parties, The Court below has framed the following issues:-
1. Does plaintiff prove that defendants borrowed Rs.50,000/- from plaintiff in order to discharge the debt of Dr.Sunil Kumar (son of D1 and brother of D2) and executed suit pronote on 12.10.2001 undertaking to repay said amount with interest at 2% p.m.?
2. Do defendants prove that one B. Srinivas Naik had obtained their signatures on blank papers?
3. Is the suit document a concocted one as alleged by defendants?
4. What decree or order?
6. The plaintiff in order to substantiate the appeal memorandum, he, himself has examined as P.W.1 and also examined two witnesses as P.Ws.2 and 3 and got marked the documents as Ex.P1 to P10. On the other hand, the defendants both have been examined as D.W.1 and D.W.2 and marked the documents as Ex.D1 to D14. The Court below after considering the arguments both on oral and documentary evidence, decreed the suit. Hence, the present appeal is filed by the defendants before the Court.
7. In the present appeal, the main contention of the appellants is that Ex.P5 and Exs.D1 and D14 clearly demonstrate the financial position of the respondent. They are not sound enough to lend any amount to the appellants. Since they were not having any financial capacity to advance the money, the Court below failed to appreciate the fact that the plaintiff did not know the defendants at all and infact the plaintiff could not identify the defendant No.2, who was present in the Court on 15.06.2009 when the plaintiff-P.W.1 was in the witness box. The Court below also failed to take note of the fact that the plaintiff was not having any financial capacity, though, he deposed that he has drawn the money from the Bank. In order to substantiate the same, the plaintiff did not produce the Bank Pass Book evidencing the fact that he has drawn the money from the Bank and paid the money to the defendants. It is also contended that for the reasons assigned for advancing the loan is also contradictory. The evidence of P.Ws.2 and 3 does not support the case of P.W.1 for having lent the money. Instead of the material available before the Court, it is clear that P.W.2 made use of P.W.1 to file a suit against the defendants.
8. The other contention of the appellants is that when the signatures available on the pro-note was denied and also denied the consideration receipt. The plaintiff ought to have sent the documents for handwriting expert to prove the very execution of the pro-note, the same has not been done. Inspite of all these material contradictions, the Court below has committed an error in decreeing the suit and it requires an interference of this Court.
9. Learned counsel appearing for the defendants/appellants also reiterated the grounds urged in the appeal memorandum and mainly contended that the plaintiff was not having any financial capacity to lend the money. In order to substantiate his capacity, he has not placed any documentary proof. The evidence of P.Ws.2 and 3 are also not come to the aid of the plaintiff and it emerges in the evidence that there are cases between P.W.2 and the defendants. When the relationship was strained between P.W.2 and the defendants, the question of introducing the plaintiff to lend the money in favour of the defendants is not natural and hence, the Court below fails to consider all these aspects while decreeing the suit.
10. On the other hand, the learned counsel appearing for the respondent/plaintiff, in his arguments, he vehemently contended that it is not the case of the defendants that they have not signed the document Ex.P1 – pro-note and in the written statement at paragraph No.7, it is specifically taken the contention that P.W.2 obtained the signatures on the blank papers and again the defendants in their evidence totally denied the signatures available on the pro-note. The very written statement and the evidence adduced by the defendants contrary to each other. It is also contended by the counsel that when the plaintiff proved the very execution of the document by examining P.Ws.2 and 3, the defendants ought to have filed necessary applications for sending the documents to the handwriting expert and not to the plaintiff. Hence, the Court below taking note of both the oral and documentary evidence, rightly comes to the conclusion that the defendants have borrowed the money and executed the pro-note and also the consideration receipt. Hence, there are no grounds to interfere with the Judgment and Decree passed in favour of the plaintiff and the appeal is devoid of merits.
11. Having heard the arguments of the learned counsel appearing for the appellants/defendants and also the respondent/plaintiff, with regard to the rival contentions urged before this Court, the points that arise for consideration of this Court are:
(1) Whether the Court below has committed an error in answering issue No.1 as in the affirmative that the plaintiff has proved the very execution of the pro- note and consideration receipt and lent the money in favour of the plaintiff and it requires an interference of this Court?
(2) Whether the Court below has committed an error in answering issue Nos.2 and 3 as in the negative and it requires an interference of this Court?
(3) What order?
12. Point Nos.1 to 3: The case of the plaintiff is that defendant Nos.1 and 2 have approached to lend the money of Rs.50,000/- in order to discharge the liability of Dr.Sunil Kumar, who filed the criminal case against the defendants and hence, the plaintiff has lent the money.
13. In support of his contentions, he relied upon the pro-note, which is marked as Ex.P1. It is also his case that the amount was advanced in the house of P.W.2. P.W.2 is the scribe to the document. P.W.3, Who is the wife of P.W.2 and an attesting witness. Inspite of the demand, the defendants did not repay the money. Hence, the plaintiff has issued a legal notice and the same was served and reply was given.
14. The case of the defendants in the written statement is that P.W.2 has obtained the signatures on the blank documents and the same were made use of by the plaintiff and P.W.2. Hence, issue No.2 is framed before the Court below regarding making use of the document and also concoction of document.
15. The plaintiff in order to substantiate his case, he examined himself as P.W.1 and got marked the documents as Exs.P1 to P10 and so also identified the signatures of the defendants as Exs.P2(a) and P2(b). P.W.1 was subjected to cross – examination. In the cross – examination, it is elicited that about two days before 12.10.2001, he had withdrawn the cash of Rs.50,000/- from his Bank. Earlier defendants had taken the loan from Sri B.Srinivasa Naik. The defendants had issued cheque to Sri B.Srinivasa Naik to discharge that loan. The said cheque was bounced. When the transaction was taken place, at that time, his wife Shalini, V.R.Prabhu, himself (P.W.1) and defendants were present in the house of Sri B.Srinivasa Naik.
16. P.W.2 had written all the documents relating to this transaction in his presence. It is elicited that on oath, he knows the reading and writing of English and Kannada. He had seen defendants coming to the house of B.Srinivasa Naik about two times in a year before this transaction. He cannot give the dates of those visits of defendants to the house of B.Srinivasa Naik. It is elicited in the cross- examination that he has no difficulty to produce the Pass Book for the years 2000 – 2001 and 2001 – 2002. It is also elicited that he does not know to whom the defendants exactly owed the liability to pay the money. It is further elicited that he did not tried to know from the defendants as to what was their difficulties to lend the money. He admits that the other person, V.R. Prabhu, is the friend of P.W.2. Defendants had assured him to repay the hand loan within 2 to 3 months. The signatures at Ex.P1(a);
Ex.P1(b); Ex.P2(a) and Ex.P2(b) are the signatures of defendant Nos.1 and 2. It is suggested that there are no signatures of the defendants and the same was denied. A question was put to the witness, whether he can identify the defendants and looked around the entire court hall and deposed that both the defendants were not in the court hall. At that time, the learned counsel appearing for the defendants points out that the second defendant is very much present in the court hall and the same is also noted in the deposition. The person, who has been identified as defendant No.2 in the court hall tells his name as M.C.Suresh. It is suggested that the person, who is present in the Court Hall as M.C.Suresh had never met him earlier and he is not aware of him and the same was denied. He also admits that he is not having the scooter and he has availed a loan from Centurian Bank. P.W.1 also admits ‘B’ register extract, which is marked as Ex.D1. It is elicited that he was having no impediment to produce the Sale Deed and Bank Pass Book before the Court. It is elicited that the defendants have availed the loan to clear their loan taken from his brother. The plaintiff also examined P.W.2.
17. P.W.2, in his evidence stated that, in his presence the amount of Rs.50,000/- was lent to the defendants and he only introduced the plaintiff to the defendants. He further deposed that the plaintiff and defendants have executed the pro-note and consideration receipt and he also identifies the signature of the defendants. It is also his evidence that his wife is also a witness to the document.
In the cross-examination of P.W.2, he admits that there was a transaction of loan between him and the defendants and the said amount was discharged through legal process. He is the scribe of Ex.P1. At the time of execution of the document, his wife and another person by name V.R. Prabhu were present. It is elicited that the defendants have sought for a loan of Rs.1,00,000/- with the plaintiff for repair of the house and to clear his loans. It is suggested that the defendants have not executed Exs.P1 and P2 in his presence and the same was denied.
18. Plaintiff also examined the witness - P.W.3.
P.W.3, in her evidence, she deposed that the plaintiff gave an amount of Rs.50,000/- as loan on 12.10.2001 to the defendants and her husband was the scribe to the document and she has attested those documents and marked her signature at Ex.2(e).
In the cross-examination, P.W.3 deposed that the plaintiff is doing flower decoration work and also doing laundry work at Peenya and reiterates that at the time of execution of the document, P.W.3, defendants, plaintiff, V.R.Prabhu and her husband –Sri B.Srinivasa Naik, were present. It is also elicited in the cross-examination that a sworn statement has been recorded in P.C.R.No.14/2006. The certified copy of the sworn statement was confronted to the witness and witness admits the same as Ex.D7. It is also elicited that the plaintiff has also been examined in P.C.R.No.14/2006. It is further elicited that her husband has also been examined in P.C.R.No.14/2006.
19. The second defendant has been examined as D.W.1 and in his affidavit, he sworn that, he has not borrowed any amount on 12.10.2001 to the plaintiff and also not executed any document. Further produced his mother’s bank pass book to show that an amount of Rs.1,08,000/- in her bank account and the same was deposited on 04.10.2001 and out of that amount, on 13.10.2001, the demand draft was obtained and the same falsifies the claim of the plaintiff that he advanced the amount. It is also his evidence that P.W.2, who has got ill will against him has set up the plaintiff to file a false and frivolous case.
20. In the cross-examination of D.W.1, it is elicited that he, himself and his brother Dr. Sunil Kumar had availed the loan from Sri B.Srinivasa Naik in the year 1998-99. They had availed a loan of Rs.50,000/- from Sri B.Srinivasa Naik and not Rs.1,00,000/-. He admits that Sri B.Srinivasa Naik -
P.W.2 had filed a criminal case against his brother Dr.
Sunil Kumar. He admits that the plaintiff had issued a legal notice dated 14.08.2004 to him and to his mother demanding the amount and he voluntarily stated that he has given reply. It is elicited in the cross-examination that they have not mentioned in the reply given to the notice of the plaintiff that as on 12.10.2001, there was sufficient fund in the bank account of his mother and there was no need to avail the loan from the plaintiff. It is also elicited that, P.W.2, Sri B. Srinivasa Naik had filed a suit for recovery of amount against him and his brother Dr. Sunil Kumar and the said suit came to be decreed and as against the said Judgment and Decree, they have preferred an appeal before the High Court in RFA No.904/2008. The appeal filed by them was also dismissed. It is elicited that himself and his mother has not lodged any complaint before the police against the plaintiff. The plaintiff had created the documents, Exs.P1 and P2 by forging their signatures. The first defendant also examined as D.W.2 and the evidence of D.W.2 is also in consonance with the evidence of D.W.1 swearing an affidavit that he has not borrowed any money from the plaintiff.
21. D.W.2, is also subjected to cross – examination. In the cross – examination, it is suggested that both defendant Nos.1 and 2 have availed the loan of Rs.50,000/- from the plaintiff and the same has been denied and nothing fruitful in the cross – examination was made in respect of D.W.2.
22. Having considered the oral and documentary evidence and also the rival contentions of the parties, this Court has to re-appreciate both the oral and documentary evidence. The First Appellate Court can consider both the question of facts and question of law.
23. Having considered the material on record, it is the specific case of the plaintiff that the defendants have approached for availing the loan of Rs.50,000/- and inturn they have executed on demand promissory note and consideration receipt. The first defence of defendant Nos.1 and 2 in the written statement in paragraph No.7 that the P.W.2 has obtained the signatures of the defendants on the blank papers and hence, the Court below framed issue No.2.
24. On perusal of the oral and documentary evidence available before the Court, the defence of Defendants No.1 and 2 is that they have not executed Exs.P1 and P2 and those signatures does not belong to them. P.W.1 in order to substantiate the contention, examined P.W.2, who is the scribe and also P.W.3, who is the wife of P.W.2. The relevant material before the Court is, when P.W.1 was cross examined, a question was put to him that whether any defendants are before the Court. P.W.1 looked around the Court and deposed before the Court that no defendants are present before the Court.
25. The learned counsel appearing for Defendant No.2 pointed out that the Defendant No.2 is present before the Court and his name was also was called before the Court and confirmed that Defendant No.2 is present before the Court.
26. It is important to note that in the evidence, it is emerged that P.W.1 categorically says that he was aware of Defendant Nos.1 and 2 and they were visiting the house of P.W.2, on two to three occasions, he has seen the defendants prior to the loan transaction. If that is the evidence of P.W.1 and if really the defendants have approached the plaintiff for seeking loan, the Plaintiff would have identified defendant No.2, who was present before the Court. It creates doubt in the mind of the Court that there was any transaction between the plaintiff and the defendants.
27. It is also important to note that in the cross – examination of P.W.3, it is elicited that the plaintiff and P.W.2 were examined before the Court in P.C.R. No.14/2006 and it discloses that they were having acquaintance with each other and further important to note that it is emerged in the evidence that P.W.2 earlier lent the money in favour of defendant No.2 and also his brother and there was a litigation before the Court of law against defendant No.2 and also against the brother of defendant No.2.
28. It is the case of the plaintiff that P.W.2 only introduced defendant Nos.1 and 2, when there was already litigation between P.W.2 and defendant No.2 and his brother, when the appeal is also before the High Court and the relationship is strained between the parties, it is very difficult to accept the evidence of the plaintiff that P.W.2 only introduced defendant Nos.1 and 2 to lend the money. No doubt, the documents Exs.P1 and P2 are produced claiming that the defendants have executed the document i.e., pro-
note and consideration receipt. The witnesses, who have been examined before the Court in order to prove those documents as P.Ws.2 and 3. Though the witnesses have claimed that one V.R.Prabhu, was also present at the time of execution of the document, the said witness has not been examined before the Court below. When there were transaction between P.W.2, defendant No.2 and his brother, it is very difficult to accept the evidence of P.Ws.2 and 3 since both are husband and wife and P.W.2 is the scribe and P.W.3 is the wife of P.W.2 and also the witness and the very evidence of P.Ws.2 and 3 does not inspire the confidence of the Court that the transaction has taken place between the plaintiff and the defendants. Apart from that, P.W.1 in his cross – examination categorically admits that two days prior to advancing the loan in favour of the plaintiff, he has withdrawn the amount from the Bank. In the cross – examination, he admits that he has no difficulty to produce the bank pass book before the Court to substantiate that he has withdrawn the amount. In spite, question was put to him, the plaintiff did not produce any material before the Court to substantiate the evidence of P.W.1 that amount was drawn from the Bank two days prior to the said loan transaction. All these circumstances show that no transaction was taken place between the plaintiff and defendants. The Court below fails to consider the materials available before the Court, particularly, the plaintiff was not able to identify the defendants when he was present before the Court. If really, he has transacted with the plaintiff that too he has lent the money in favour of the defendants, certainly, he would have identified the defendant No.2 and this very fact has been ignored by the Court below while considering the pleadings and evidence of the parties, the same amounts to nothing but miscarriage of justice. When the material available on record before the Court not considered and ignored by the Trial Court, the findings of the Trial Court requires to be set aside.
29. No doubt, in paragraph No.7 of the written statement of the defendants have contended that, P.W.2 had obtained signatures on the blank papers, but it is emerged in the evidence that there was a transaction between P.W.2, defendant No.2 and his brother. In the evidence, they have categorically denied their signatures and when the signatures are denied and the transaction between them is doubtful since the plaintiff did not identify the defendants, who borrowed the money from the plaintiff. The Plaintiff ought to have sent the document for the hand writing expert when the specific defence was taken and the evidence adduced before the Court that the signatures available in Exs.P1 and P2 does not belongs to the defendants, the same has not been done. Merely because taking the defence in the written statement in para No.7 that the signatures are obtained by P.W.2 on the blank papers, there cannot be a substantive piece of evidence to come to the conclusion that the signatures available on Exs.P1 and P2 are executed by the defendants, the same also has not been considered. The Court below also while considering the issue Nos.2 and 3 have not considered the material on record.
30. It is the specific evidence and the contentions of the defendants in the written statement as well as in the evidence that one Sri B.Srinivasa Naik, had obtained their signatures on the blank papers and concocted the documents of the defendants to claim the amount from the plaintiff. It is also the specific defence in the written statement that the said Sri B.Srinivasa Naik had obtained their signatures on the blank papers and the witnesses, who have been examined as P.W.2, who is none other than the husband of P.W.3, in order to prove the execution of the documents - Exs.P1 and P2. When there was an earlier transaction between the parties and the defendants did not pay the amount, P.W.2 has filed the suit for recovery of money and the same was decreed. Against the Judgment and Decree, defendants have filed the appeal before the High Court. When the relationship was strained between them, the very case of the plaintiff is that P.W.2, he himself has introduced to defendants No.1 and 2 to lend the money in their favour, cannot be accepted. The Court below failed to take note of the defence of the defendants and while answering issues Nos.2 and 3 also committed an error in not appreciating the same in a proper perspective.
31. Having considered the material on record both oral and documentary evidence, the Court below has committed an error in decreeing the suit believing the evidence of P.Ws.1 to 3 and their evidence is doubtful with regard to the transaction is concerned. Hence, the Judgment and Decree of the Trial Court requires to be set aside by answering points No.1 to 3 as affirmative.
32. In view of the discussions made above, I proceed to pass the following:
ORDER (i) The appeal is allowed;
(ii) The Judgment and Decree dated 21.09.2011 passed in O.S.No.7631/2004 on the file of XXXI Additional City Civil Judge, Bengaluru City, (CCH-14), is set aside; and (iii) The suit of the plaintiff is dismissed.
The office is directed to refund the amount in favour of the second appellant with accrued interest, forthwith, if any interest is derived on deposit.
The parties to bear their own cost.
Sd/- JUDGE cp*