IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY R.F.A.No.2278 OF 2006 BETWEEN:
Sri.L.Hanumanthiah, S/o. Late Lakkadasappa, Aged 58 years, Residing at No.114, III Cross, Deepanjali Nagar Mysore Road, Bangalore City-560026.
(By Sri.M.S.Prakash, Advocate) AND:
1. M/s. Gowri Financies, By its Proprietrix, Smt. Gowramma, Residing at No.2372/A, 1st Main, 9th Cross, R.P.C. Layout, Vijayanagar, Bangalore-560 040.
Rep. by G.P.A.Holder Sri.Byraiah,R/at No.2373/A, 1st Main, 9th Cross, R.P.C. Layout, Vijayanagar, Bangalore-560 040.
2. Sri. Muniyappa, Aged 65 years, …Appellant Residing at Door No.114, Service Road, Deepanjali Nagar, Bangalore-560026.
(By Sri.Y.V.Prakash, for Sri. Y.K. Narayana Sharma, Advocate for R1 R2- is served) …Respondents **** This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure praying to call for the records from the office of the Bangalore City Civil Court at Bangalore, (C.C.H.No.14) in O.S.8651/1995 dated 12-08-2006; to set aside the judgment and decree passed by the learned XXXI Additional City Civil Judge, Bangalore City(C.C.H.No.14) in O.S.8651/1995 dated 12-08-2006 by allowing this appeal in the interest of justice and equity.
This Regular First Appeal coming on for Hearing this day, the Court delivered the following:
J U D G M E N T The present respondent No.1 had instituted a suit against the present appellant as well the present respondent No.2 in the Court of the XXXI Additional City Civil Judge, Bangalore City (CCH-14) (hereinafter for brevity referred to as “Trial Court”) for recovery of a sum of `28,900/- with interest there upon from defendant Nos.1 and 2 jointly and severally.
2. The summary of the case of the plaintiff in the Trial Court was that, the plaintiff which is a proprietary concern under the name and style of “M/s. Gowri Financers” is engaged in money lending for which it has got licence. The defendant No.1 who is appellant herein had borrowed a sum of `20,000/- from the plaintiff on 15-12-1993 to meet his family necessity and had agreed to pay the interest at the rate of `1.75% per month. In that regard, he had also executed an On-demand Promissory Note with consideration receipt on the very same day in favour of the plaintiff.
The second respondent herein who was the second defendant in the Trial Court was a co-obligant to the said loan transaction. The borrowers failed to repay the loan availed by them together with interest there upon despite repeated requests and demands made by the plaintiff. This constrained the plaintiff to institute a suit against both the defendants for recovery of money.
3. The defendant No.1 contested the matter by filing his written statement wherein he has denied the alleged loan transaction and execution of the written documents at Exs.P3 and P4.
4. Based on the pleading of the parties, the Trial Court framed the following issues:
1. Does plaintiff prove that the first defendant borrowed Rs.20,000/- by way of hand loan from plaintiff on 15.12.1993 and executed a Demand Promissory note along with 2nd defendant agreeing to repay the said amount with interest at 1.75% p.m.?
2. What decree order?
5. From the plaintiff’s side, one Sri.G. Byraiah, the General Power of Attorney holder got himself examined as PW-1 and got marked Exs.P1 to P11 (a). The defendant No.1 - Sri.L. Hanumanthaiah (appellant herein) got himself examined as DW-1, but no document was marked as exhibit from his side.
6. After hearing both side, the Trial Court by its impugned judgment and decree dated 12-08-2006 decreed the suit of the plaintiff, entitling him to recover a sum of `28,900/- together with interest at the rate of `9% per annum over the balance deposit amount of `20,000/- from the date of the suit till the date of its recovery from the defendants, jointly and severally. It is against the said judgment and decree of the Trial Court, the first defendant in the Court below has preferred this appeal.
7. The first respondent is being represented by his counsel. The second respondent despite service of notice, has remained un-represented.
8. Lower Court records were called for and the same are placed before this Court.
9. Heard the arguments of the learned counsel from both side and perused the material placed before this Court including the memorandum of appeal and the impugned order.
10. The only point that arises for my consideration is:
“Whether the judgment and decree under appeal deserves to be set aside by allowing this appeal?”
11. The learned counsel for the appellant in his argument submitted that the first defendant has denied the loan transaction which was disbelieved by the Court below. However, he gave more emphasis on the other two points of his argument that, the Promissory Note at Ex.P-3 says that the loan was borrowed by both defendant No.1 and defendant No.2 as joint borrowers whereas the legal notice as well the plaint mentions that the present appellant who was the defendant No.1 in the Court below alone was a borrower but the other defendant was a co-obligant.
12. The other point upon which the learned counsel gave more emphasis is, the alleged wrong nomenclature of the plaintiff in the Court below.
13. According to the learned counsel for the appellant, the document at Ex.P-3 which is the Promissory Note mentions the name of the plaintiff establishment as “M/s. Gowri Financers” whereas the description of the name of the plaintiff in the plaint is “M/s. Gowri Financies”. As such, it cannot be said that the loan transaction is that of the plaintiff establishment.
14. Learned counsel also submitted that the suit itself was not maintainable for the reason that the suit is filed by a General Power of Attorney holder of the plaintiff, whose General Power is two years’ old.
15. Per contra, learned counsel for the respondent in his argument submitted that after appreciating the evidence and the material placed before it, the Trial Court has rightly held that the contention of the plaintiff that the first defendant has borrowed a loan on the co-obligation of the second defendant for a sum of `20,000/- from the plaintiff stood proved and it is in that regard there was execution of Exs.P-3 and P-4 by both the defendants.
He further submitted that the alleged wrong nomenclature of the plaintiff establishment is only a typographical error with a single letter spelling mistake in the name of the establishment. However, a reading of the plaint very clearly goes to show that the correct name and description of the plaintiff which in no way varies from what is in the cause title.
Learned counsel lastly submits that the alleged denial of execution of documents at Exs.P-3 and P-4 by the defendants was totally disbelieved by the Trial Court by observing that the defendant No.1 in the stretch of denying all the plaint averments has gone to the extent of denying his signature also on the Vakalath executed by him in favour of his counsel.
16. PW-1 in his evidence has reiterated the summary of the plaint averments contending that on 15-12-1993, the defendant No.1 had borrowed a sum of `20,000/- from the plaintiff on the co-obligation of defendant No.2 in which regard both of them had executed an On-Demand Promissory Note. In that regard, he also got produced and marked Demand Promissory Note and the consideration receipt at Exs.P-3 and P-4 respectively. He stated that despite issuance of legal notice to the defendants on 13-11-1995 and receipt of the said notice by them, the defendants have failed to repay the loan amount. The plaintiff also got produced and marked an office copy of the legal notice at Ex.P-7 - the undelivered postal envelope at Exs.P-5 and P-6. He has also produced his Money Lender’s licence at Ex.P-8 and the acknowledgement of receipt of loan amount of `20,000/- said to have been executed by the defendant No.1 at Ex.P-9. PW-1 also got produced and marked a copy of his business turnover statement submitted by the plaintiff to the Assistant Registrar of Money Lenders, Chamarajapet, Bengaluru, dated 15-12-1993 at Ex.P-10. The cross-examination of the said witness could not in any way shaken his evidence as given in his Examination-in-chief. Except making certain denial suggestions and suggesting to the witness that the document at Exs.P-3 and P-4 were not executed by them, which suggestions were not admitted as true by the witnesses, nothing else could be elicited in his cross-examination.
17. The appellant herein as defendant No.1 in the Trial Court got himself examined as DW-1 wherein he has stated that the alleged loan transaction was not at all proved and a false case has been instituted against him. In his cross-examination, suggestions made to him that he had availed a loan of a sum of `20,000/- from the plaintiff and in that regard he had executed documents at Exs.P-3 and P-4 along with defendant No.2 was not admitted as true by him. In the very same cross examination, the said witness has also denied the signature which is said to be his signature in his vakalath at Ex.P-11. He has denied that the signature finding a place in the vakalath shown to have been executed by him is his signature.
18. In the light of the above evidence of the parties and the documentary evidence, it is nobody’s case that the parties are strangers to each other. On the other hand the defence of the defendant is only a general denial that he has not availed any loan nor executed any document much less at Exs.P-3 and P-4 which are produced as Promissory Note and consideration receipt said to have been executed by the defendants. Though the defendant No.1 as DW-1 has denied that the signature confronted to him in these two documents were not of him, but it is noteworthy that the same witness has denied the signature upon Ex.P-11 which is nothing but a vakalath filed in the Court, executed by him for engaging a counsel to defend his case. So, the Trial Court has rightly considered both these aspects and the conduct of the defendants and by comparing the signature of the defendant on the vakalath at Ex.P-11(a) with that of the alleged signatures of the defendants at Exs.P-3(a) and P-4(a) rightly came to the conclusion that the signature corresponds and tallies to each other and the conduct of the defendant also gives rise to a suspicion that in order to deny the entire loan transaction he has not even hesitated to deny his signatures both on the Promissory Note and consideration receipt and as well on the vakalath. I do not find any error in the appreciation and analysis of the said evidence by the Trial Court in favour of the plaintiff. Thus, it goes to establish that the defendant No.1 joined by defendant No.2 has availed a hand loan of a sum of `20,000/- from the plaintiff on 15-12-1993 in which regard, they have executed a Demand Promissory Note and consideration receipt as per Exs.P-3 and P-4.
Ex.P9 is another document which also goes to show that both the defendants have acknowledged the receipt of the loan amount from the plaintiff. Even in the said document also, the signatures of the defendants have been marked. Therefore, the argument of the learned counsel for the appellant that the Trial Court has committed an error in the appreciation of the evidence which has led it to hold that the plaintiff has proved that the defendants have availed a loan as alleged in the plaint is an erroneous finding, is not acceptable.
19. The second argument of the learned counsel for the appellant is about the co-obligation of the defendant No.2. No doubt, a reading of the Promissory Note and consideration receipt goes to show that apart from the present appellant (defendant No.1) even his brother – Sri. Muniyappa (defendant No.2) was also shown as joint borrower in the said loan transaction. However, the plaintiff has called him as co-obligant in his claim petition. The said aspect that the second defendant shown as joint borrower in the Promissory Note whereas he is described as co-obligant in the plaint would not, in any way, diminish the liability of the defendants towards the plaintiff.
Further, it also cannot be ignored of the fact that the respondent No.1 has filed a memo dated 02-08-2012 submitting that he will give up his claim against second respondent. In the said background, the second argument of the learned counsel that defendant No.1 cannot be held liable to repay the loan amount which was held to be jointly and severally liable towards the plaintiff by the Trial Court, is also not acceptable.
20. The third argument of the learned counsel for the appellant that there is wrong naming of the plaintiff is on the point that in the plaint, the plaintiff has shown its name as “Sri. Gowri Financies”, whereas the Promissory Note at Ex.P3 and consideration receipt at Ex.P4 show the name of plaintiff as “Gowri Financers”. Thus, according to the plaintiff, the alleged mis-naming of the plaintiff is with respect to particular spelling of ‘ies’ for ‘ers’ in the word ‘Financers’. However, a reading of the plaint clearly goes to show that in the third paragraph, the plaintiff while describing about its name and the capacity has clearly stated that it is a licenced ‘Financier’ and carrying its business in the name and style of ‘M/s. Gowri Financier’. Thus, in the very same plaint in the very beginning itself, the plaintiff has given its correct, clear and complete name which clearly corresponds and tallies with the nomenclature of the documents executed at Exs.P-3 and P-4. Ex.P-8 – the Money Lender’s licence shows it as ‘Financer’. As such, the alleged mistake has to be construed only as a typographical error and nothing more. As such, the said argument of the learned counsel for the appellant on the said point also is not acceptable.
21. Even though the learned counsel for the appellant submitted that in view of the fact that the Power of Attorney who has filed the suit in his capacity as a General Power of Attorney holder for the plaintiff being two years’ old, the suit is not maintainable, still he could not give any reasons as to on what basis the said stand can be taken. A mere statement that merely because power of attorney is two years’ old, the same cannot be acted upon, is not acceptable in the absence of any reason showing as to under which provision of law the said power of attorney cannot be acceptable. It is not even the case of the appellant that due to change in the circumstance or by operation of law or by death of any of the parties or by the alleged act of revocation of the said general power of attorney, it has lost its enforceability. In the absence of happening of any such incident and merely because the General Power of Attorney is said to be of two years old, I do not find any reason to dismiss the suit as not maintainable.
22. Barring the above, no other points for consideration were placed before this Court in the argument of the learned counsel for the appellant which deserves consideration. In view of my analysis made above, since the Trial Court’s finding that defendants are liable to pay the sum to the plaintiff jointly and severally is found to be based on appropriate evidence placed before it, I do not find any reasons to interfere in it.
Accordingly, I proceed to pass the following:
O R D E R [i] The appeal stands dismissed.
[ii] The judgment and decree dated 12-08-2006 passed by the learned XXXI Additional City Civil Judge, Bangalore City (CCH.No.14), in O.S.No.8651/ 1995 stands confirmed.
Registry to transmit a copy of the judgment along with Lower Court records to the Court below, without delay.
There is no order as to costs.
The first respondent is at liberty to withdraw the amount said to have been deposited in the registry at the time of filing of this appeal which amount is said to be for `20,000/- towards partial satisfaction of the decree.
Sd/-
JUDGE BMV*