Dismissed

Sri B P Ashok Anand v. Smt.S M Chandra

Karnataka HC11 Aug 2023RFA/2202/2017

Case brief

AI extract

What is this about?

The Single Judge of the Karnataka High Court dismissed the second defendant's appeal in a money suit. The court upheld the trial court's finding that the appellant borrowed money and issued post-dated cheques which were dishonoured. The appeal failed due to the appellant's inconsistent testimony and lack of corroborative evidence for his defence.

What did the court decide?

The appeal filed by the defendant No.2 (appellant) stands dismissed; the trial court's judgment is affirmed.

Sri B P Ashok Anand Vs Smt.S M Chandra — Contract and Commercial Disputes | Karnataka HC (2023)

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R.F.A.No.2202 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY

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REGULAR FIRST APPEAL NO.2202 OF 2017 (MON)

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Between:

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Sri. B.P. Ashok Anand S/o. Late B.K. Panni, Aged about 63 years, Currently residing at No.19, 34 Main, 4th Cross, Vysya Bank Colony, J.P. Nagar Ist Phase, Bangalore 560 011.

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…Appellant

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(By Sri. Ravi R., Advocate)

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And:

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Smt. S.M. Chandra W/o. Late Late Kempaiah, Aged about 64 years,

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Sri. G.K. Chetan S/o. Late Kempaiah, Aged about 38 years,

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Sri.G.K. Jeevan, S/o. Late Kempaiah, Aged about 33 years.

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Above 1 to 3 all are residing at No.1696, 29th Main, 2nd Stage,

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R.F.A.No.2202 of 2017

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1st Phase, BTM Layout,

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Bangalore- 560 076.

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…Respondents

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(By Sri. Adinarayana B.N., Advocate for Caveator/Respondent No.1 and R-2 and R-3)

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This Regular First Appeal is filed under Section 96 read with Order XLI rule 1 of the Code of Civil Procedure, 1908, praying to call for entire records in O.S.No.8617/2004 and set aside the judgment and decree dated 12 October 2017, passed by the XXX Addl. City Civil and Sessions Judge, Bangalore City (CCH.No.31) at Bangalore, and grant costs of this appeal to the appellant and such other or further reliefs as this Court may deem fit to grant in the circumstances of the case, in the interest of justice and equity.

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This Regular First Appeal having been heard through physical hearing/video conferencing hearing and reserved on 27-07-2023 , coming on for pronouncement of judgment, this day, the Court delivered the following:

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J U D G M E N T

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This is the second defendant’s appeal. The present

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respondents as plaintiffs had instituted a suit against the

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present appellant, being the partner of M/s. Citi Acrylites and also against M/s. Citi Acrylites, Bengaluru, arraigning

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them as defendants in O.S.No.8617/2004, in the Court of

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the learned XXX Additional City Civil and Sessions Judge, Bengaluru City (CCH-31) (hereinafter for brevity referred to as “the Trial Court”), seeking recovery of a sum of

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2,27,500/- from the defendants together with future interest at the rate of 12% per annum, from the date of the suit till realisation and with costs.

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The summary of the case of the plaintiffs in the

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Trial Court was that, they are the legal heirs of one late Sri. Kempaiah, as his wife and two sons respectively and the defendant No.2 is known to them. The defendant No.2 had approached the plaintiffs and late Sri. Kempaiah, seeking for a hand loan of a sum of `1,75,000/- and borrowed the said sum on the date 25-11-2001 from them for the purpose of discharging his other hand loans and for his legal necessities. In that direction, agreeing to repay the said loan amount within two months, the defendant No.2 issued four post-dated cheques, among which three cheques were bearing No.788882 dated 10-01-2002,

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No.788894 dated 15-02-2002 (however, the cheque is dated 15-01-2002), No.788895 dated 21-01-2002 respectively and each was for a sum of 50,000/-. The fourth cheque bearing No.788896 dated 25-01-2002 was for a sum of 25,000/-. All the four cheques were drawn

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on the Corporation Bank, Shantinagar Branch, Bangalore, in favour of late Sri. Kempaiah.

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It is further pleaded by the plaintiffs that, as per the assurance and promise given by defendant No.2, when the said cheques were presented by the husband of the first plaintiff through his banker, i.e. State Bank of Mysore, C.B.A.B. Complex Branch, Bangalore, on the date 14-02-2002 for their encashment, the said cheques were dishonoured and returned with endorsements "insufficient funds" and subsequently, when the husband of the first plaintiff approached the defendants and requested to repay the amount covered under the cheques along with interest at `12% per annum as agreed by the defendants, the defendant No.2 failed to repay the same and prolonged the matter on one pretext or the other.

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It is further pleaded by the plaintiffs that, without any alternative, the husband of the first plaintiff got issued a legal notice dated 04-03-2002 to both the defendants, both by Registered Post Acknowledgment Due (RPAD) and also Under Certificate of Posting (UCP), calling upon them

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to pay the cheques' amount which came to be served upon them, for which the defendant No.2 issued a vague reply (wherein the date of reply notice is shown as '20-03-2001' at Ex.P-14). Hence, the husband of the first plaintiff filed a criminal case in C.C.No.30455/2002 before the 13th Additional Chief Metropolitan Magistrate at Bangalore, which was pending as on the date of filing of the suit.

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It is further pleaded by the plaintiffs that, as on the date of filing of the suit, the defendants were liable to pay to the plaintiffs a sum of 1,75,000/- towards principal amount and a sum of 52,500/- towards interest, totally a sum of `2,27,500/-. Therefore, the plaintiffs were constrained to file the present suit and prayed to decree their suit.

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In response to the suit summons served upon them, the defendants appeared through their counsel and filed their Written Statement, denying the averments made by the plaintiffs as false and contended that the second defendant (appellant herein) had a financial transaction with one Smt. Saroja S.M. and one

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Smt. Chandramma long back during the year 1997 and at that relevant point of time, the second defendant had borrowed a hand loan of a sum of 1,00,000/- and 50,000/- from Smt. Chandramma and Smt. Saroja S.M. respectively and towards security for the said sums, said Smt. Chandramma and Smt. Saroja S.M. had taken blank signed cheques and blank On-Demand Promissory Notes from him with an assurance that the same would be returned by them after repayment of the hand loan availed by him.

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The second defendant (appellant herein) further contended that, after repayment of the said hand loans, when he asked them for the return of the said blank cheques and Promissory Notes, Smt. Chandramma and Smt. Saroja S.M. went on postponing the same on one or the other pretext. The plaintiffs being their relatives colluded with each other and have created false documents with an intention to make money and by misusing the said blank documents have filed the present false suit.

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The second defendant further contended that,

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earlier, late Sri. Kempaiah had filed a false case against him and the same came to be dismissed. Thereafter, by relying upon the said false and fabricated documents, the present suit is filed by the plaintiffs. He further contended that the suit is barred by limitation and that there is no cause of action for the plaintiffs to file the present suit. He further contended that the plaintiffs have no locus standi to make such a claim, since they are unconnected to defendants. Hence, the defendants prayed to dismiss the suit with exemplary costs.

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Based on the pleadings of the parties, the Trial Court framed the following issues for its consideration:

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1) Whether the plaintiffs prove that the defendant has borrowed a sum of _1,75,000/- on 25-11-2001 from Late Sri. Kempaiah and agreed to pay interest at the rate of_ 12% per annum and towards repayment of the said amount, defendant No.2 has issued four post-dated cheques bearing Nos.78882, 788895 and 788894 for _50,000/- each and No.788896 for_ 25,000/-?

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2) Whether plaintiffs further prove that inspite of repeated requests and demands defendants have not repaid the loan amount of _1,75,000/- with interest at_ 12% per annum amounting to ` 2,80,000/-?

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3) Whether the plaintiffs are entitled to the suit claim as prayed for?

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4) What order or decree?

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In support of their plaint, the plaintiff No.1 -

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Smt. S.M. Chandra, wife of late Sri. Kempaiah got herself examined as PW-1 and got marked documents from Exs.P-1 to P-19. On behalf of the defendants, though the second defendant got himself examined as DW-1, however, no documents were got marked from their side.

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After hearing both side, the Trial Court by its impugned judgment and decree dated 12-10-2017, while answering issues No.1, 2 and 3 in the affirmative, decreed the suit of the plaintiffs in part with costs, holding that the plaintiffs are entitled to recover a sum of 2,80,000/- with future interest at the rate of 6% per annum on the principal amount of `1,75,000/- from the date of the suit

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till realisation. It further directed the defendants to pay

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the decreetal amount within two months from the date of the said judgment and decree.

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The learned counsel for the appellant (defendant No.2) is appearing physically before the Court. Learned counsel for the respondents (plaintiffs) is neither present physically nor through video conference.

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The Trial Court records were called for and the same are placed before this Court.

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Heard the argument of the learned counsel for the appellant (defendant No.2). Perused the material placed before this Court including the memorandum of appeal and the impugned judgment and decree passed by the Trial Court.

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For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court.

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Learned counsel for the defendant No.2 (appellant herein) in his argument submitted that, Exs.P-1

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to P-4 are not the originals, but they are the certified copies, as such, they cannot be identified. He denied the existence of a legally enforceable debt by the defendants in favour of the plaintiffs. Further, contending that the interest claimed at `12% per annum was not an agreed term, the learned counsel prayed for allowing the appeal and dismissing the suit of the plaintiffs.

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In spite of granting several and sufficient opportunities, no argument was addressed from the plaintiffs' (respondents') side. The learned counsel for the plaintiffs (respondents herein) also has remained absent. As such, it is taken that the respondents' side arguments are not addressed.

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In the light of the above argument, the points that arise for my consideration in this appeal are:

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[i] Whether the plaintiffs have proved that the defendant No.2 has borrowed a sum of ` 1,75,000/- on the date 25-11-2001, from late Sri. Kempaiah, the husband of the plaintiff No.1 and father of plaintiffs No.2 and 3, and agreeing towards the repayment of the said loan amount, the

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defendant No.2 had issued four cheques of defendant No.1 - Firm bearing Nos.788882, 788895, 788894, each for a sum of _50,000/- and a cheque bearing No.788896 for a sum of_ 25,000/to late Sri. Kempaiah?

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[ii] Whether the plaintiffs further prove that when those cheques were presented for their realisation by them, the same came to be returned unpaid for want of sufficient funds in the account of the drawer?

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[iii] Whether the judgment and decree under appeal warrants any interference at the hands of this Court?

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The plaintiff No.1 - Smt.S.M. Chandra, wife of

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late Sri.Kempaiah got herself examined as PW-1, who, in her examination-in-chief in the form of affidavit evidence has reiterated the contentions taken up by the plaintiffs in their plaint. In support of her contention, she produced and got marked a certified copy of the four cheques bearing Nos.788882, 788894 and 788895, each for a sum of 50,000/- and another cheque bearing No.788896 for a sum of 25,000/- as Exhibits P-1 to P-4 respectively and the banker's endorsements regarding the return of those

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cheques unpaid from Exs.P-5 to P-8. A certified copy of

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the memo by the State Bank of Mysore issued to late Sri.Kempaiah intimating him about the return of the

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cheques as un-paid is produced at Ex.P-9. A certified copy of the legal notice dated 04-03-2002 shown to have been issued on behalf of late Sri. Kempaiah to the defendants is marked at Ex.P-10. A certified copy of two postal receipts and a certified copy of the Certificate of Posting are marked at Exs.P-11 and Ex.P-12 respectively. A certified copies of the returned postal cover with acknowledgment are marked at Ex.P-13. A certified copy of the reply of the second defendant wherein the date is shown as '20-03-2001' to the notice got issued by late Sri. Kempaiah is marked at Ex.P-14. A certified copy of the Bank Account Pass Book of late Sri. Kempaiah and a certified copy of the letter dated 31-10-2003 issued by the State Bank of Mysore, C.B.A.B. Complex Branch, Bangalore, are marked at Exs.P-15 and P-16 respectively. A certified copy of the copy application together with office endorsement are marked at Exs.P-17 and P-17(a)

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respectively. A certified copy of the judgment in C.C.No.34640/2002, in the Court of the learned 16th Additional Chief Metropolitan Magistrate, Bangalore City, and dated 26-10-2004, is marked at Ex.P-18. A certified copy of the defence evidence given by the defendant No.2 (appellant herein) as accused in the said C.C.No.34640/2002 is marked at Ex.P-19.

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The present appellant, as defendant No.2 in the present suit led his evidence as DW-1 in the Trial Court, who, in his examination-in-chief, in the form of affidavit evidence, has reiterated the contentions taken up by him in his Written Statement. However, no documents were marked as exhibits from the defendants' side.

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The defendant No.2 who has taken a contention that the plaintiffs are unknown to him, has also taken a contention that he had financial transaction with one Smt. Saroja S.M. and Smt. Chandramma in the year 1997, from whom he had borrowed a total sum of `1,50,000/-. It was at that point of time, they had collected from him duly signed blank cheques and On-Demand Promissory

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Notes. Out of the said loan amount, he has repaid a sum of `1,00,000/- and even after the said repayment, his blank cheques and Promissory Notes were not returned to him by them, however, the said cheques are now being misused by the plaintiffs who are hand in glove with the said Smt. S.M. Saroja and Smt. Chandramma.

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The said evidence of DW-1 has been specifically denied in his cross-examination from the plaintiffs' side and made several denial suggestions to DW-1 in that regard. It was also attempted to elicit in his crossexamination that the plaintiffs and the second defendant were known to each other since a long time, as such, on the date 25-11-2001, he (defendant No.2) had borrowed a sum of `1,75,000/- from late Sri. Kempaiah, the husband of the plaintiff No.1. Though DW-1, at one place, has stated that Smt. Chandramma was introduced to him through one Smt. Saroja in the year 1997, but he denied that he had borrowed any sum from late Sri. Kempaiah, the husband of the plaintiff No.1 (PW-1).

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Though he was confronted with his alleged

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signatures in the four cheques at Exs.P-1 to P-4, the witness refused to identify the same stating that since they were certified copies but not the originals, he could not identify them. However, the Trial Court has recorded in the deposition of DW-1 that, it was submitted to the Court that the originals of Exs.P-1 to P-4 were produced in a criminal case in C.C.No.30455/2002 and after the disposal of the said matter, they were destroyed by the Court, as such, the certified copies of the same were produced.

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Ex.P-17 shows that the certified copies of the entire order sheets and the exhibits were applied in C.C.No.30455/2002 and the Office of the concerned Trial Court has given an endorsement stating that the entire case file was destroyed. Further, it can be seen that, when PW-1 marked the certified copy of those cheques also, no specific objections were raised for marking them. On the other hand, the defendant No.2, in the Written Statement filed on behalf of the defendants, has, nowhere

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denied that the cheques at Exs.P1 to P-4 were drawn by him (DW-1). On the other hand, the contention of the defendant No.2 was that those cheques were given by him to one Smt. Chandramma and Smt. Saroja as security deposit and that the same have been misused by them being hand in glove with the plaintiffs. Thus, even if the defendant No.2 (DW-1) has denied to identify his alleged signatures in Exs.P-1 to P-4 as the drawer of the said instruments, still, his own statement in the Written Statement as well in his evidence as DW-1 would go to show that the defendants have admitted that the cheques at Exs.P-1 to P-4 were drawn and issued by defendant No.2. Further, except taking a contention that those cheques were given to Smt. Chandramma and Smt. Saroja and the same were misused by colluding with the plaintiffs, the defendants have not placed any material to corroborate their defence. Had really the defendant No.2 had given those cheques to Smt. Chandramma and Smt. Saroja and had really those persons failed to return them after the alleged repayment of the loan amount by

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the defendant No.2 to them, then, the defendants would have necessarily taken appropriate action either civil or criminal or both against the said Smt. Chandramma and Smt. Saroja for retaining the alleged blank but duly signed cheques with them unauthorisedly, even after repayment of the loan amount by him.

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Admittedly, the defendants have not taken any action in that regard. They have not even sent any notice to the said Smt. Chandramma and Smt. Saroja, calling upon them to return the alleged blank cheques and the On-Demand Promissory Notes. As such, a mere oral contention of the defendant No.2 about the reason for his dispossession of the cheques at Exs.P-1 to P-4 is not acceptable. Since all the four cheques at Exs.P-1 to P-4 stand in the name of late Sri. Kempaiah, who was the husband of plaintiff No.1 and the father of the remaining plaintiffs, as the payee in the instruments, the evidence of PW-1 that those cheques were given to her late husband towards repayment of the loan amount of a sum of

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`1,75,000/- which was borrowed by the defendant No.2 appears to be more probable and nearer to the truth.

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As contended in the legal notice at Ex.P-10, the defendant No.2 is shown to be the partner of defendant No.1 - Firm. The cheques at Exs.P-1 to P-4 also depict that the said cheques were issued by the Firm and the signatory to the said cheques is shown to be the defendant No.2 as its partner, as such, both the Firm as well the signatory partner have been arraigned as the persons liable to pay the cheques' amount, which cheques' amount is towards the repayment of the loan said to have been borrowed by the defendants.

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In the light of the above, the reply to the notice which is at Ex.P-14 is not sufficient to discard the contention of the plaintiffs. Thus, the evidence of PW-1 coupled with the documentary evidence at Exs.P-1 to P-4 and Ex.P-10 establishes that, on the date 25-11-2001, the defendant No.2, who is the partner of defendant No.1 - Firm, had borrowed a hand loan of a sum of `1,75,000/from late Sri. Kempaiah, the husband of plaintiff No.1 and

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father of plaintiffs No.2 and 3 and towards the repayment of the said loan amount, he (defendant No.2) had issued four cheques at Exs.P-1 to P-4. The evidence of PW-1 corroborated with banker's endorsements and memo of the State Bank of Mysore at Exs.P-5 to P-9 would further go to show that, those cheques when presented for their realisation, have been returned unpaid by the banker with the shara of insufficiency of funds in the drawer's Bank account. It is in that regard, as evidenced in Exs.P-10 to P-12, late Sri. Kempaiah had got issued notice to the defendants calling upon them to repay the loan amount with interest thereupon, for which, the defendants sent a reply as per Ex.P-14, however, the said reply is not sufficient to disbelieve or suspect the evidence of PW-1, both oral and documentary.

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PW-1 has also produced a certified copy of the Bank Account Pass Book of her late husband Sri. Kempaiah at Ex.P-15. A perusal of the said Pass Book would go to show that for the period from 01-11-2001 to 21-11-2001, the said late Sri. Kempaiah the account

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holder had withdrawn a sum of 1,03,000/- and on the date 24-11-2001, he had again withdrawn a sum of 50,000/-. This clearly goes to show that, as on the date of the loan given by the said late Sri. Kempaiah to the defendant No.2, he had sufficient funds with him and had withdrawn the said sum from his Bank account which has enabled him to give the same as a hand loan to the defendant No.2, as requested for by him. Hence, the financial capacity of late Sri. Kempaiah also stands established.

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The defendant No.2 has taken inconsistent stand in the suit before the Trial Court at different stages. In the Written Statement, he has taken a contention that he had given blank cheques to Smt. Chandramma and Smt. Saroja as a security while he was availing a loan of a sum of `1,50,000/- from them in the year 1997 and the present plaintiffs, being hand in glove with them have filed the present suit by misusing those cheques. However, in his cross-examination as DW-1, he refused to identify his signatures in the said cheques at Exs.P-1 to

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P-4, stating that since they are certified copies he cannot identify his signatures. If according to him, he had issued those cheques to Smt. Chandramma and Smt. Saroja and that they were being misused, then he should have shown no hesitation to identify his signatures, however, without prejudice to his contention that he was not liable to pay any amount under those cheques to the plaintiffs. It also cannot be ignored of the fact that he has not specifically denied about the presentation of those four cheques to his Bank Account by the payee therein and those cheques having been returned for the reason of insufficiency of funds by his own banker as per documents at Ex.P-5 to P-8. Similarly, when the certified copy of his deposition in C.C.No.34640/2002 which was marked as Ex.P-19 was confronted to him, he has denied his signatures therein stating that unless the original is produced, he cannot identify the said document, knowing fully well that the originals of the depositions cannot be secured by the plaintiffs in the normal course.

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The defendant No.2, who had taken a contention that the cheques in question were issued to Smt. Chandramma and Smt. Saroja in the year 1997, in his Written Statement filed in the suit under consideration, has, in his deposition in C.C.No.34640/2002, taken a contention that the cheques were issued to one Sri. Munnegowda in the year 2001. Thus, at many places, the defendant No.2 has taken inconsistent stand with respect to the very same cheques in different proceedings and the same would go to show that, he is not proceeding with the matter with clean hands and is deposing falsehood only with an intention to avoid his liability in the matter. Hence, for all these reasons, it clearly establishes that the plaintiffs have proved that the defendant No.2, being a partner of the defendant No.1 - Firm had borrowed

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a sum of `1,75,000/- from late Sri. Kempaiah, the husband of the first plaintiff and the father of plaintiffs No.2 and 3 on the date 25-11-2001, and towards the repayment of the said loan liability, had issued four cheques from Exs.P-1 to P-4 which came to be

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dishonoured when presented for their realisation by the plaintiffs. As such, the liability of the present appellant as defendant No.2 towards the present respondents as plaintiffs in respect of the amount mentioned in the cheques stands established. Thus, the argument of the learned counsel for the defendant No.2 (appellant herein) that there was no loan transaction between the parties and that the defendant No.2 (present appellant) is not liable to pay any amount to the plaintiffs (respondents) is not acceptable.

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Learned counsel for the defendant No.2 (appellant herein) has also taken a contention that, the plaintiffs' claim for interest on the alleged principal amount at `12% per annum is exorbitant and that it was not agreed to between the parties.

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No doubt the plaintiffs in their plaint have claimed interest at the rate of 12% per annum on the principal amount of 1,75,000/- from the date of loan till its realisation, at a sum of `2,27,500/inclusive of interest, as on the date of filing of the suit.

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Admittedly, there is no loan agreement or any such document evidencing the terms of the loan transaction between the parties. However, considering the nature of loan transaction between the parties, the Trial Court has ordered the defendants before it to pay interest at the rate of 6% per annum from the date of the suit till realisation on the principal amount of a sum of 1,75,000/-. Even Section 34 of Part I of the Code of Civil Procedure, 1908, also empowers and enables the Courts, which try the suits for recovery of money, to award the interest at such rate. Hence, I do not find any reason to accept the point of argument canvassed by the learned counsel for the defendant No.2 (appellant) regarding the awarding of interest and its rate also.

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Barring the above, the learned counsel for the defendant No.2 has not raised any other grounds worth to be considered. Hence, in the light of the above reasoning, I do not find any ground to interfere in the impugned

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judgment and decree passed by the Trial Court.

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Accordingly, I proceed to pass the following:

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O R D E R

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[i] The appeal filed by the defendant

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No.2 (appellant herein) stands dismissed ;

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Registry to transmit a copy of this judgment along

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with the Trial Court records to the concerned Trial Court, immediately.

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Sd/JUDGE

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BMV*

Sri B P Ashok Anand v. Smt.S M Chandra

Case brief

What is this about?

What did the court decide?

Sri B P Ashok Anand v. Smt.S M Chandra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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