IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF DECEMBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No. 318 of 2017 Between:
ROSE MARY WIFE OF YESUDAS AGED ABOUT 53 YEARS RESIDENT OF SHIMHAPURA VILLAGE B.G. PURA HOBLI, MALAVLLI TALUK MANDYA DISTRICT - 571 437.
(BY SRI.SURESH KUMAR H.M., ADVOCATE ) And:
SMT. LAKSHMAMMA SINCE DEAD BY HER LRS 1(a) MADAIAH SON OF LATE BOREGOWDA AGED ABOUT 58 YEARS.
1(b) ASHAREANI.M DAUGHTER OF MADIAH AND DECEASED LAKSHMAMMA AGED ABOUT 27 YEARS.
1(c) CHAITHANYA.M DAUGHTER OF MADAIAH AND DECEASED LAKSHMAMMA ... APPELLANT AGED ABOUT 24 YEARS.
1(d) KIRAN KUMAR.M SON OF MADAIAH AND DECEASED LAKSHMAMMA AGED ABPIT 22 YEARS.
ALL ARE RESIDENT OF 4TH CROSS GOWDAIAHNA BEEDI WARD NO.6 NES EXTENSION, MALAVALLI TOWN MANDYA DISTRICT – 571 437.
... RESPONDENTS THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 07.09.2016 PASSED IN R.A. NO. 29/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C MALAVALLI, REJECTING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 19.11.2014 PASSED IN OS.NO. 157/2010 ON THE FILE OF THE PRL. CIVIL JUDGE, MALAVALLI.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 12.12.2019 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THIS COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed by the defendant in O.S.No.157/2010 on the file of the Principal Civil Judge, Malavalli (for short, the ‘civil Court’) calling in question the judgement and decree dated 19.11.2014 therein and the judgement and decree dated 7.9.2016 in RA No. 29/2015 on the file of the Senior Civil Judge and JMFC Malavalli (for short, the ‘appellate Court’) confirming the judgement and decree of the civil Court.
2. The respondent has filed the suit in O.S.No.157/2010 for recovery of a sum of Rs.1,17,000/– asserting that she had lent a sum of Rs.90,000/– to the appellant as against ‘On Demand Promissory Note’ dated 22.4.2009 (for convenience referred to as ‘Pro-Note’) executed by the appellant acknowledging the receipt of the loan and also undertaking to repay the said amount on demand along with interest. The appellant, despite repeated requests and reminders, did not pay either the principal amount or the agreed interest. The appellant resisted the suit disputing the loan transaction entirely denying the execution of the Pro-Note. The civil Court framed Issue which required the respondent to prove that the appellant had borrowed a sum of Rs.90,000/- on 22.4.2009 and she had executed Pro-Note.
3. The respondent examined herself as PW.1 and the scribe as PW.2. However, because PW.2 died before his cross-examination commenced, the respondent examined his son as PW.3, who identified his father’s signature on the Pro-Note. The respondent marked the Pro-Note as Exhibit P.1 with the corresponding signatures thereon marked as Exhibits P1(a) to P1(d). The appellant examined herself as DW.1 and marked a copy of the private complaint (as Exhibit D.1) lodged by the respondent against a certain M. Shivamma under section 200 of CRPC for return of an alleged cheque issued in favour of the respondent. The civil Court summoned an Assistant Executive Engineer, M/s KPCL and an Executive Engineer, M/s KPCL, Shimsha as court witnesses, and they are examined as CW-1 and CW-
2. Through these witnesses Attendance Register Extracts for the month of April 2009 are marked as exhibits.
4. The civil court, on appreciation of the evidence on record, has concluded that the respondent is able to prove the due execution of the Pro-Note (Exhibit P.1), and the appellant, who had to rebut the presumption under Section 118 of the Negotiable Instruments Act, 1881 (for short, ‘N.I. Act’) that would follow once the execution of the promissory note is established, has failed to lead any evidence to rebut such presumption. The civil Court has concluded in favour of the respondent on the execution of the Pro-Note on appreciation of the following material on record. The respondent’s husband and the appellant were both employees of M/s KPCL, and even the witnesses who have attested the Pro-Note are employees of M/s KPCL. The appellant has admitted prior acquaintance with the respondent and that there was no ill will between them. The respondent, as PW.1, has spoken about saving the money over a period of time for purchase of jewellery and lending this amount of Rs. 90,000/- because the appellant requested for a loan. At the instance of the respondent processes, including witness warrants, are issued to the two witnesses who had attested the Pro-Note, but their presence could not be secured. However, the respondent has examined the scribe of the Pro-Note, and because the scribe died before his cross-examination, the scribe’s son is examined as PW.3. This witness has identified the signature of his father on the Pro-Note.
5. Insofar as the appellant’s defence that she could not have executed the Pro-Note on 22.4.2009 during the office hours because she was on duty, and similarly the attesting witnesses, employees of M/s KPCL, could also not have witnessed the execution of the Pro-Note or attested the same, the civil Court has considered the testimony of the aforesaid officials who were summoned as court witnesses. The civil Court has opined that the evidence on record is that one of the attesting witnesses was on night duty, and therefore, this witness could have attested the Pro-Note, and as regards the appellant and the other attesting witness, the civil Court has opined that it is possible that they may have stepped out of office to execute the promissory note. Further, no inference can be drawn as regards the place of execution of the Pro-Note being either Shimsha or Malavalli, because there is no pleadings or evidence in this regard. Furthermore, the civil Court, on a comparison of the appellants signatures on the Pro-Note and in the Vakalat, under section 73 of the Indian Evidence Act of 1872, in conjunction with the aforesaid circumstances, has also concluded that the signature in the Pro-Note and the Vakalat are identical.
6. The civil Court, having concluded that the respondent has proved execution of the Pro-Note in the light of the discussion as aforesaid, has concluded that the appellant, who had to lead evidence to rebut the presumption in favour of the respondent under Section 118 of the Negotiable Instruments Act,1881 has not led in any evidence in this regard. Therefore, the presumption that Pro-Note is executed for consideration would prevail, and as such, the respondent would be entitled for a decree. The civil Court has accordingly decreed the suit.
7. The appellant Court on re-appreciation of the evidence, has also concluded that the respondent is able to establish the due execution of the Pro-Note. The respondent’s testimony, which is not impeached, and the testimony of the son of the scribe who is examined as PW3 after the demise of the scribe who was examined as PW2 establish the execution of the Pro-Note. The appellant is not credible in denial of the due execution of the Pro-Note, amongst others, because the appellant, while denying her signature on the Pro-Note, has also denied her signature in the Vakalat and her pleadings.
8. The appellant has filed an application under Order XLI Rule 27 of CPC seeking leave to produce an affidavit purportedly executed by one of the attesting witnesses, Sri Rajanna, asserting that this witness had in fact prepared an affidavit in support of the appellant’s defence but the same could not be filed before the civil Court through him because of his untimely demise. The appellant was not aware of this, but his family members, after his demise, have handed over the affidavit to the appellant. The appellate Court has concluded that in the light of the evidence on record, the purported affidavit executed by Sri Rajanna is not necessary for the adjudication of the controversy, and in any event, it was only a notarised copy of the affidavit. The appellate Court has dismissed the appeal confirming the civil Court’s judgement concurring with its finding on the due execution of the Pro-Note and that the appellant being unable to rebut the presumption under Section 118 of the N.I. Act.
9. The learned Counsel for the appellant argued in support of the appeal contending that the due execution of the Pro-Note is not established because the appellant, who was on duty on 22.4.2009, could not have gone near the Sub-Registrar’s office between 11:30 am and 12:13 pm and executed the Pro-Note as asserted by the respondent. The learned counsel tried to impress upon this Court that the finding on the due execution of the Pro-Note is contrary to the evidence. However, the Courts below, as discussed above, on detailed examination of the evidence on record have concluded that the respondent is able to establish the due execution of the Pro-Note. If the conclusion on a fact by a trial court is based on the evidence on record, and if the same is confirmed in appeal on re-appreciation of evidence, and if such re-appreciation is in accordance with law, it is settled that no substantial question of law as contemplated under Section 100 of Civil Code of Procedure would arise. Therefore, this Court is of the considered view that no substantial question of law arises as regards the due execution of the Pro-Note or the presumption drawn against the appellant under Section 118 of the N.I.Act.
10. The learned counsel for the appellant also contended that the interest awarded by the Courts below is exorbitant and it is contrary to the provisions of the Karnataka Prohibition of Charging of Exorbitant Interest Act, 2004. The provisions of the aforesaid enactment define what would amount to exorbitant interest, and exorbitant interest is defined as that rate of interest which is higher than the interest notified by the State Government under Section 28 of the Karnataka Money Lenders Act, 1961. As such, whether the appellant and respondent agreed upon exorbitant interest would essentially be a question of fact. But there is no pleading or evidence in this regard, and the interest is awarded by the courts below as per the agreed rate. Therefore, no question of law arises even in this regard. However, in view of the provisions of Section 34 of the Code of Civil Procedure, future interest i.e., from the date of the decree to the date of payment cannot be more than 6% per annum. This has not been clarified by the appellate Court, and therefore, the appeal is disposed of confirming the impugned judgment and decree in O.S.No.157/2010 on the file of the Principal Civil Judge, Malavalli and in R.A.No.29/2015 on the file of the Senior Civil Judge and JMFC, Malavalli but clarifying that the decree insofar future interest shall be only at the rate of 6% per annum.
In view of disposal of the appeal, IA No.2/2018 does not survive for consideration and the same is disposed of.
Sd/- Judge nv* Ct:sr