IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH R.F.A.No.1396/2013 BETWEEN:
SMT. SHANTHAMMA, W/O LATE S.J. RAJU, HINDU, AGED ABOUT 55 YEARS, No.46/2, BINNY MILL ROAD, COTTONPET, BANGALORE – 560 053. … APPELLANT (BY SRI GANGADHARA AITHAL S., ADVOCATE) AND:
1. SRI S.M. PRAKASHA, S/O MARAPPANA SIDDEGOWDA @ CHIKKANNA, HINDU, AGED ABOUT 45 YEARS, PRESENTLY R/AT No.122, 14TH CROSS, 1ST MAIN ROAD, OPP: RAILWAY COMPOUND, K.P. AGRAHARA, BANGALORE – 560 023.
2. SMT. C. SHIVANANJAMMA, W/O SRI S.M. PRAKASHA, HINDU, AGED ABOUT 40 YEARS, PRESENTLY R/AT No.122, 14TH CROSS, 1ST MAIN ROAD, OPP: RAILWAY COMPOUND, K.P. AGRAHARA, BANGALORE – 560 023. ... RESPONDENTS (BY SRI MAHESHA B, ADVOCATE) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CPC AGAINST THE JUDGMENT AND DECREE DATED 14.8.2013 PASSED IN O.S.NO.2697/2008 ON THE FILE OF THE XIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BANGALORE, DISMISSING THE SUIT FOR RECOVERY OF MONEY.
THIS REGULAR FIRST APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed against the judgment and decree of dismissal dated 14.8.2013, passed in O.S.No.2697/2008 on the file of the XIX Additional City Civil and Sessions Judge, Bangalore City (CCH No.18).
2. The parties are referred to as per their original rankings before the Court below to avoid the confusion and for the convenience of the Court.
3. The brief facts of the case are that the plaintiff in the suit contended that, on 12.4.2005 both the defendants borrowed a sum of Rs.4,00,000/- from the plaintiff agreeing to pay interest at 1% per month on the said amount by executing an on demand promissory note and consideration receipt in favour of the plaintiff. Thereafter, during the month of January 2007, the defendants have handed over three documents of title viz., panchayathi palupatti dated 1.2.1999, registered sale deed dated 27.1.2005 and another registered sale deed dated 29.11.2006 pertaining to their properties as a collateral security for re-payment of the loan. The defendants have orally promised to pay the said amount with interest by December 2007. But the defendants did not keep up their promise. Hence, the defendants were due for an amount of 5,45,000/- inclusive of interest. The plaintiff got issued a legal notice dated 5.3.2008, calling upon the defendants to repay the said loan amount with interest. The said notice was duly served on defendant No.1 on 11.3.2008. But the defendants neither paid the amount nor replied to the notice. Hence, the plaintiff was constrained to file a suit against the defendants.
4. The defendants appeared before the Court and filed their written statement. In the written statement, the defendants contended that the suit is barred by limitation and denied that they had borrowed a sum of Rs.4,00,000/- on 12.4.2005 and denied that they had agreed to repay the same along with interest at 1% per month and denied the very execution of the promissory note and consideration receipt in favour of the plaintiff. The defendants also denied the handing over of the original records, panchayathi palupatti dated 1.2.1999 and registered sale deeds dated 27.1.2005 and 29.11.2006 pertaining to their properties as a collateral security for repayment of the loan. The defendants also denied that they agreed to repay the said loan amount by the end of December 2007. The written statement is oral denial of the claim of the plaintiff.
5. Based on the pleadings of both the parties, the Court below framed the following issues:
1. Whether the plaintiff proves that defendant borrowed loan of Rs.4,00,000/- after executing the on demand promissory note on 12.4.2005?
2. Whether the plaintiff further proves that defendants are liable to pay the suit claim?
3. Whether defendants prove that suit is time barred?
4. Whether the plaintiff is entitled for the decree sought?
5. What order or decree?
6. In support of her case, the plaintiff examined herself as P.W.1 and examined another witness as P.W.2 and got marked the documents at Exs.P.1 to 5. On behalf of the defendants, defendant No.1 got himself examined as D.W.1 and did not produce any documents. The disputed signatures of the defendants on the promissory note and on consideration receipt along with admitted signatures of the defendants on postal acknowledgments, vakalath and written statement were sent to the handwriting expert i.e., Truth Lab, Chennai and Commissioner Report was received. After the closure of the evidence, the Court below considering both oral and documentary evidence available on record dismissed the suit of the plaintiff. Hence, the present appeal is filed before this Court.
7. The plaintiff in the present appeal would contend that the Court below has committed an error in dismissing the suit by coming to the conclusion that the signatures which were sent to the handwriting expert were examined by the Commissioner and report was given stating that the signatures do not tally with that of the signatures of defendant Nos.1 and 2. The Court below did not accept the evidence of P.W.2 as P.W.2 was not able to identify the signature of another witness, which is marked as Ex.P.2(d). It is also contended that the very approach of the Trial Court is very erroneous. It is further contended that it was the duty of the defendants to get the handwriting expert examined and to mark the same as exhibit. The Court below further failed to take note of the fact that the defendants have not proved the said report of the Commissioner in accordance with law, particularly when the plaintiff filed objections to the report of the Commissioner and in the absence of which the learned Judge ought not to have given much importance to the said report.
8. The learned counsel for the plaintiff – appellant in his arguments vehemently contended that though the defendants denied the issuance of notice, the same was served on the defendants and the same is admitted in the cross-examination and hence the Court has to take note of the conduct of the defendants. It is further contended that no motive has been attributed with regard to obtaining the signature on Exs.P.1 and 2. The evidence of P.W.1 is not controverted effectively during the course of cross-examination. The reasoning of the Trial Court is erroneous. The plaintiff has examined P.W.2 to prove the execution of Exs.P.1 and 2 and inspite of it, the Court below did not accept the evidence of P.W.2. The Court below has given the reason that other witness signature has not been identified by P.W.2 and the same cannot be a ground to dismiss the suit.
Hence, prayed this Court to set aside the judgment of dismissal of suit by allowing the appeal.
9. The learned counsel for the defendant – respondents in his argument has vehemently contended that the defendants have categorically denied the signatures on Exs.P.1 and 2, i.e, promissory note and consideration receipt. Nothing has been elicited in the cross-examination of the witness with regard to the signature is concerned. However, the defendants have taken the abundant caution and sent the documents for handwriting expert to give the opinion and the Commissioner examined the same and gave the report stating that the signatures on Exs.P1 and 2 are not that of the defendants.
10. The other contention of the counsel is that P.W.2 has been examined to prove the execution of the documents at Exs.P.1 and 2. P.W.2 did not identify the signature of other witness when the document was confronted to him during the course of cross-examination. The plaintiff though claimed that she is having original documents of sale deeds and panchayathi palupatti, the same have not been produced before the Court and has also not made any effort before the Court to produce the original documents contending that those documents are offered as collateral security. Mere showing the documents before the Court below is not enough to come to the conclusion that there was a transaction. The counsel would contend the relationship between the plaintiff and the defendants is sister and brother and the plaintiff was not having any source of income and her husband had passed away long back. In order to substantiate the contention that she was having an amount of Rs.4,00,000/- to advance in favour of her brother, no material is placed before the Court. The findings of the Trial Court is based on the material on record. Hence, there are no grounds to interfere with the judgment of the Trial Court and prayed this Court to dismiss the appeal.
11. Having heard the arguments of the learned counsel for the appellant and the learned counsel for the respondents with regard to their respective contentions, the points that arise for the consideration of the Court are:
(i) Whether the Court below has committed an error in coming to the conclusion that the plaintiff has not proved the very execution of the documents Exs.P1 and 2 and dismissing the suit disbelieving the claim of the plaintiff and whether it requires interference of this Court?
(ii) What order?
Points (i) and (ii):
12. Having considered the arguments of both the counsel, there is no dispute with regard to the fact that the plaintiff and the defendants are the sister, brother and brother’s wife. The main contention of the plaintiff is that the defendants were in need of money and hence they have approached the plaintiff to advance the money on 12.4.2005 and agreed to repay the amount with interest at rate of 1% per month and also agreed to repay the amount by the end of December 2007. When the defendants did not repay the amount, the plaintiff has caused the issuance of legal notice on 5.3.2008. Inspite of service of notice, the defendants did not repay the amount. It is emerged in the evidence that notice has been issued against the defendants. Though the defendants in the written statement have denied the very receipt of legal notice, which is marked as Ex.P.3, but in the cross-examination admitted the receipt of the legal notice. The main contention of the defendants is that the plaintiff was not having any source of income to advance the amount of Rs.4,00,000/- in favour of the defendants and the documents, which the plaintiff has relied upon, particularly Exs.P.1 and 2, does not contain the signature of defendant Nos.1 and 2.
13. The plaintiff in order to substantiate her case examined herself as P.W.1. In her evidence she reiterated the contents of the plaint in her affidavit. She was subjected to cross- examination. In the cross-examination, it is elicited that she paid Rs.4,00,000/- at a stretch. It is also her claim that she was doing tailoring work during lifetime of her husband. Her husband expired on 17.7.2000. She has paid the amount of Rs.4,00,000/- on 12.4.2005. She was a member of the chit, in which she got the money so also the pension amount and her son also gave some amount, which she had reserved for emergency. It was suggested that she has forged the signature on Exs.P.1 and 2 and the same was denied. It is elicited in the cross-examination that she can produce the original documents given by the defendants to her. It is suggested that she has taken original sale deeds and other documents from the possession of the defendants when their relations were cordial and the same was denied. It is elicited that she has not produced any document to show that the pension benefits of her husband are received by her. It is also suggested that the pro-note, which she has produced does not bear the signature of the defendants and the same was denied.
14. The plaintiff examined one witness P.W.2. P.W.2 in his evidence states that in his presence the transaction had taken place. The defendants have singed the promissory note and the consideration receipt in his presence and he can identify the signatures of the defendants on the said documents. He claims that one Mr. Rajashekar wrote the pro-note and the consideration receipt. One Mr. Ashok was also present at that time and he had also signed as a witness to the said documents. The said documents were executed by the defendants in the house of the plaintiff. He identifies his signature and also the signatures of the defendants on Exs.P.1 and 2. In the cross- examination, he admits that he is working as an auto driver. It is elicited that he does not know that the defendants were staying one or two years in the plaintiff’s house. He claims that money was paid on 12.4.2005 at 10.00 a.m. and it was Tuesday. The amount was paid by Shanthamma in the house. At that time, Shanthamma, Prakash, Shivananjamma, Ashok, Rajashekar were there. He admits that while making his signature, Ex.P.1 was already filled. He put his signature after the signature of defendant Nos.1 and 2. The witness was confronted with Ex.P.2 and he pleaded ignorance with regard to the signature which is marked as Ex.P.2(d). He admits that one Ashok and Raju put the signature as witnesses.
15. Defendant No.1 is examined as D.W.1. D.W.1 filed the affidavit reiterating the averments of the written statement. The affidavit is replica of the written statement. He was subjected to cross-examination. In the cross-examination, he admits that the plaintiff is his elder sister. He and his sister were in good terms upto 2007. Thereafter their relationship strained. The differences arose because of the marriage alliance of his daughter with that of younger son of his sister. It is elicited that he has filed the written statement without going through the documents placed by the plaintiff before the Court. He further admits that he has seen the documents four months back. He admits that he knows Rajashekar. He admits that Exs.P.4 and 5 bears his signature and he has not given any reply to Ex.P.3. It is suggested that Exs.P.1 and 2 bears his signature and signature of his wife and the same was denied. It is suggested that he himself and his wife after availing the loan of Rs.4,00,000/- from the plaintiff, have put the signature on Exs.P.1 and 2 and the same was denied.
16. Having considered both oral and documentary evidence paced on record and also the Commissioner’s report, which is available before the Court, there is no dispute with regard to the issuance of notice and the same was served on the defendants and no reply was given. Throughout in the cross- examination of P.W.1, it is suggested that the defendants have not borrowed the loan and also the signatures available on Exs.P.1 and 2 does not belong to them. In the cross-examination of D.W.1 also though suggestions are made that Exs.P.1 and 2 bears the signatures of defendant Nos.1 and 2, D.W.1 has categorically denied the signature. It is pertinent to note that P.W.1 was cross-examined with regard to capacity to pay the amount of Rs.4,00,000/-. P.W.1 in the cross-examination gave the answer that she has received the pension after the death of her husband. In the cross-examination, the defendants have also put the question whether she can produce the documents before the Court and she admits that she has produced the documents. Admittedly, her husband had passed away on 17.7.2000. The plaintiff claims that she has paid Rs.4,00,000/- on 12.4.2005, but she claims that she was a member of a chit in which she got money and she was also getting pension and also her claim is that her son gave her some amount, which she reserved the said fund for emergency and the said amount is given. Nowhere in the plaint, the plaintiff has stated why defendant Nos.1 and 2 approached the plaintiff seeking an amount of Rs.4,00,000/-. When the defendants have disputed the capacity of the plaintiff to pay the amount and when the plaintiff claims that she was having sufficient fund to advance the amount of Rs.4,00,000/-, the plaintiff ought to have produced the documents before the Court. No documents are produced before the Court to show that she was receiving the pension amount and her son gave the amount to her. The plaintiff has also not produced any material to show that she has received the amount from the chit and when the defendants have disputed the very capacity of the plaintiff to pay the amount, it is burden on the plaintiff to place the material before the Court for having paid the amount of Rs.4,00,000/-.
17. It is emerged in the evidence that relationship between the plaintiff and defendant No.1 was sister and brother and the defendants have taken the specific stand that the signatures available on Exs.P.1 and 2 does not bear their signature. Apart from that, they have also filed an application to send the documents to handwriting expert and the same was sent and report was received from the Truth Lab, Chennai stating that the signatures does not tally with that of defendant Nos.1 and 2. It is the contention of the appellant’s counsel that he has filed objection to the Commissioner’s report and defendants ought to have examined the Commissioner. The Commissioner’s report is in favour of the defendants and prima facie shows that those signatures does not belong to defendant Nos.1. When the opinion of the Commissioner is in favour of the defendants and when he did not choose to examine the Commissioner and when the plaintiff has filed the objections to the Commissioner’s report, the plaintiff ought to have examined the Commissioner before the Court, since the documents of Commissioner report is against the plaintiff. Hence, the very contention of the appellant’s counsel that the defendants did not choose to examine the Commissioner inspite of objection filed to Commissioner’s report, cannot be accepted. When the report goes against the plaintiff, the plaintiff ought to have examined the Commissioner by summoning him before the Court and the same has not been done.
18. The other contention of the appellant’s counsel is that under Section 73 of the Indian Evidence Act, 1872, the Court can compare the signature available on record. It has to be noted that there is no dispute with regard to the powers vested with the Court to compare the signatures available on record. It is also settled law that the Court cannot act as an expert when the expert report is available before the Court that the signature available on Exs.P.1 and 2 are not the signatures of the defendant Nos.1 and 2.. The said contention cannot be accepted.
19. The Court below also while coming to the conclusion has taken note of the evidence of P.W.2. P.W.2 categorically says that in his presence only the defendants have executed the documents of Exs.P.1 and 2 and he also says that after defendant Nos.1 and 2 made their signature, he attested his signature. It is also his evidence that the other witness Ashok also attested the document and when the document Ex.P.2 was confronted to him, he expressed his ignorance. Having considered the reasons assigned by the Trial Court and having considered the material available on record that the defendants have categorically denied the signatures and also borrowing of an amount of Rs.4,00,000/- from the plaintiff, I do not find any error committed by the Court below in appreciating the evidence. No doubt the plaintiff has not produced the original documents which were in her custody and the plaintiff has also not made any efforts before this Court as contended by the respondents that original documents ought to have been produced before this Court. But in the judgment of the Court below, the Court below made a reference that those documents were shown to the Court and now the question before the Court is whether those documents make any difference or whether it twilt the case of the appellant. There is no dispute with regard to the fact that the plaintiff and the defendants are the sister and brother and also it is suggested in the cross-examination that the plaintiff has taken those documents from the possession of the defendants when they were cordial and the same was denied. Having considered the relationship between the plaintiff and the defendants and the documents in the possession of the plaintiff will not come to the aid of the plaintiff. The very Commissioner’s report goes against the plaintiff with regard to the execution of the documents at Exs.P.1 and 2 and those two documents are important documents. Based on these documents only the plaintiff has made the claim. The source of income is also not proved by the plaintiff since the defendants have disputed the same. Hence, I do not find any reason to reverse the findings of the Trial Court.
20. In view of the discussions made above, I pass the following:
ORDER The appeal is dismissed.
Sd/- JUDGE MD