IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.1837/2018 (MON) BETWEEN:
SRI M.K.RUDRAPPA S/O LATE KENCHAIAH AGED ABOUT 61 YEARS AGRICULTURIST, MADENERALU VILLAGE KELAGOOR POST ALDUR HOBLI CHIKKAMAGALURU TALUK – 577 101 …APPELLANT (BY SRI V.PRABHAKAR, ADV.) AND:
SRI M.R.HARISH S/O K.M.RUNDRE GOWDA AGED ABOUT 38 YEARS AGRICULTURIST R/O MADENERALU VILLAGE KELAGOOR POST ALDUR HOBLI CHIKKAMAGALURU TALUK – 577 101 …RESPONDENT (BY SRI GIRISH B.BALADARE, ADV.) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:05.07.2018 PASSED IN R.A.NO.26/2018 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE CHIKKAMAGALURU, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 03.03.2018 PASSED IN O.S.NO.122/2017 ON THE FILE OF THE 1ST ADDITIONAL CIVIL JUDGE AND JMFC., CHIKKAMAGALURU.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal of the defendant arises out of judgment and decree dated 5.7.2018 in R.A.No.26/2018 passed by the I Additional Senior Civil Judge, Chikkamagaluru.
2. By the impugned judgment and decree, the first appellate court allowed the appeal and reversed the judgment and decree dated 3.3.2018 passed by the Principal Civil Judge & JMFC., Chikkamagaluru in O.S.No.122/2017.
3. By the judgment and decree in O.S.No.122/2017, the trial court had dismissed the suit of the plaintiff for recovery of money.
4. The first appellate court on reversing the judgment and decree of the trial court decreed the suit of the plaintiff for recovery of `1,55,000/- with interest @ 6% per annum thereon from the date of suit till its realization.
5. Plaintiff filed O.S.No.122/2017 contending that the defendant borrowed `1,00,000/- from him on 20.2.2014 executing an On-demand Promissory Note and agreeing to repay the same with interest @ 18% per annum. He further contended that the defendant failed to repay the loan and when he issued notice dated 19.1.2017, the defendant issued an untenable reply.
6. The defendant filed his written statement denying the availment of the loan and execution of the document.
7. On the basis of such pleadings, the trial court framed the following issues:
1.Whether the plaintiff proves that by executing on-demand promissory note dated: 20.02.2014, the defendant has borrowed a sum of `1,00,000/-?
2.Whether the plaintiff proves that the defendant has agreed to repay the above said amount with interest at 18% p.a.?
3.Whether the plaintiff is entitled for the relief sought for?
4. What order or decree?
8. In support of the case of the plaintiff, he got examined himself as PW-1; the attestors to the Promissory Note and consideration receipts as PWs-2 and 3 and the scribe of the document as PW-4. The defendant got himself examined as DW-1 and no document was produced on his behalf.
9. The trial court after hearing the parties dismissed the suit on the following grounds:
1) The writing and signature on Exs.P1 and P2, the Consideration Receipt and Pronote are in different inks;
2) Plaintiff did not produce any document to show that he was having cash of `1,00,000/- to lend the same;
3) Section 269SS of the Income Tax Act barred any financial transaction exceeding `20,000/- in cash and the amount was not paid by cheque or Demand Draft;
4) Plaintiff did not seek experts’ opinion regarding the admitted and disputed signatures of the defendant.
10. Plaintiff challenged the said judgment and decree before the I Additional Senior Civil Judge, Chikkamagaluru in R.A.No.26/2018. The first appellate court by the impugned judgment and decree allowed the appeal and decreed the suit as aforesaid on the following grounds:
1) In the written statement and evidence of the witnesses, defendants did not dispute his signatures;
2) There is no bar to use different inks for writing the document and for subscribing the signatures of the signatories;
3) Defendant did not demonstrate that there was any enmity between him and PWs-2 to 4 to implicate him falsely in the case.
4) There was no defence about the lending capacity of the defendant;
5) In the evidence of PWs-1 to 4, there was no denial of signature of the defendant;
6) The defendant did not initiate any criminal proceedings alleging forgery of his signatures;
7) Section 269SS of the Income Tax Act came into force after the transaction in question. Therefore, invocation of the same by the trial court retrospectively is incorrect;
8) The comparison of the admitted and disputed signatures indicates that they are one and the same.
11. Sri.V.Prabhakar, learned Counsel for the appellant submits that, when the defendant disputed the execution of the document, the first appellate court should not have ventured to compare the signatures on the admitted and disputed documents without referring to the handwriting expert.
12. He submits that the execution of the document was not proved, therefore, comparison of the signature and proof of the signatures of the defendant on the documents constitute the substantial question of law.
13. Per contra, Sri.Girish B.Baladare, learned Counsel for the respondent submits that defendant in the written statement and evidence did not deny his signature nor impute any forgery or concoction. He further submits that the defendant did not initiate any civil or criminal proceedings against the plaintiff alleging forgery or concoction and he had not raised any defence of incapacity of the plaintiff to lend the loan. He submits that based on the preponderance of probabilities, the first appellate court has rightly decreed the suit and there is no substantial question of law in the case on hand.
14. To admit the appeal, the appellant has to show that the matter involves substantial question of law for consideration. It is the settled position of law that on the question of fact, the first appellant court is the last court. To call it a substantial question of law, there must be a foundation in the pleading and that question must arise on sustainable findings of the courts below relating to the matter.
15. In the case on hand, plaintiff examined himself, attesting witnesses and scribe to prove the execution of Exs.P1 and P2, the On-demand Promissory note and the consideration receipt.
16. The notice Ex.P3 was issued to the defendant much earlier to the suit contending that he has executed the On-demand Promissory Note and borrowed the loan. In reply Ex.P4, the defendant denied the availment of the loan and execution of the document.
17. While filing the written statement, his case was denial of availment of the loan and execution of the documents. He did not allege any forgery of the signatures.
18. In the cross-examination of PWs-1 to 4 also, defendant did not impute any forgery to the witnesses. He did not allege any enmity between himself and PWs-1 to 4. They were not totally strangers to him. PWs-1 to 4 and the defendant all hailed from the same village. They deposed that defendant borrowed the loan of `1,00,000/- after executing Exs.P1 and P2.
19. Though the defendant denied execution of the document, till date, he has not initiated any legal action against the plaintiff alleging forgery of the signature or concoction of the documents. So far as the lending capacity, there was no such defence at all. Therefore, that does not become a substantial question of law.
20. So far as the reference of the document for expert’s opinion, though defendant disputed execution of the document, firstly he did not allege any forgery of signatures; secondly, before two courts below, he did not seek reference of the document for handwriting experts opinion. For the first time before this court, he comes up with the application which, according to the respondent, is only to gain time.
21. So far as comparison of signatures, Section 73 of the Evidence Act vests the court with such power to compare the signatures. Therefore, there was no legal bar for the first appellate court to compare the signatures.
22. The first appellate court has accepted the theory of execution of the On-demand Promissory Note and consideration receipt, not solely based on its comparison. First Appellate Court bases its findings on the other attendant circumstances in the case and the preponderance of probabilities with reference to the said facts and circumstances.
23. Amended Section 269SS Income Tax Act was brought into force w.e.f. 1.6.2015. The suit transaction took place on 20.2.2014. Therefore First Appellate Court was right in holding that trial Court committed error in applying that retrospectively.
24. Under these circumstances, this Court does not find any substantial question of law in the matter to admit the appeal. Therefore, the appeal is dismissed with costs.
In view of the observations made above, I.A.No.1/2018 is untenable and disposed of accordingly.
Sd/- JUDGE KNM/-