Partly allowed

Smt Jayamma W/O. Late J D Narayanappa v. Smt G v Jayanthi D/O G v Venkataswamy

Karnataka HC18 Nov 2023RFA/598/2011

Case brief

AI extract

What is this about?

The High Court held that the presumption of debt discharge from a dishonoured cheque stands unless positively rebutted. While the loan contract is valid despite cash lending violating the Income-tax Act, the court quashed the trial court's award of 24% interest, ordering future interest at 6% p.a. instead.

What did the court decide?

The appeal is partly allowed. The decree is modified to award Rs.8,90,000 with interest at 8% p.a. from the date of the cheque dishonour and 6% p.a. thereafter.

Smt Jayamma W/O. Late J D Narayanappa Vs… — Contract and Commercial Disputes | Karnataka HC (2023)

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NC: 2023:KHC:41458-DB RFA No. 598/2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF NOVEMBER, 2023

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PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR. JUSTICE K. V. ARAVIND

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REGULAR FIRST APPEAL NO. 598/2011 (MON)

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BETWEEN:

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SMT. JAYAMMA, W/O. LATE J. D. NARAYANAPPA, AGED ABOUT 54 YEARS, R/AT NO. 212, 5^TH BLOCK, 68^TH CROSS, RAJAJINAGAR, BANGALORE – 560 010 … APPELLANT

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(BY SRI D. S. HOSMATH, ADVOCATE)

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AND:

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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SMT. G. V. JAYANTHI, D/O G. V. VENKATASWAMY, AGED ABOUT 55 YEARS, R/A NO. 441, 3^RD CROSS, ADJOINING AMS LAYOUT, VIDYARANYAPURA, BANGALORE -560 013 …RESPONDENT (BY SRI. MANU P. KUMAR, ADVOCATE FOR SRI C. S. PRASANNA KUMAR, ADVOCATE)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF

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CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE LEARNED III ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH No. 25), BANGALORE CITY IN O.S. No.2318/2002 DATED 06.01.2011 AND AWARD COSTS IN THE INTEREST OF JUSTICE AND EQUITY.

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NC: 2023:KHC:41458-DB RFA No. 598/2011

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THIS REGULAR FIRST APPEAL COMING ON FOR HEARING, THIS DAY, K.S. MUDAGAL J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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Challenging the judgment and decree passed for recovery of Rs.9,50,400/- with interest at 8% p.a., the defendant in O.S. No . 2318/2002 on the file of the III Additional City Civil and Sessions Judge, (CCH. No.25), Bengaluru City has preferred this appeal.

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The respondent was plaintiff and appellant was the defendant before the trial Court. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.

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Plaintiff filed O.S. No.2318/2002 before the trial

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Court against the defendant seeking decree for recovery of Rs.9,50,400/- with interest at the rate of 24% p.a. from the date of the suit till its realization.

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The case of the plaintiff in brief is as follows: a) The plaintiff and defendant were long time friends.

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On the request of defendant to sort out her financial difficulties, including performing the marriage of defendant's daughter,

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plaintiff lent in all loan of Rs.8,90,000/- in different bits on

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occasions as shown below:

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a.	12.04.1999	50,000.00
b.	03.05.1999	10,000.00
c.	14.08.1999	14,000.00
d.	15.09.1999	14,000.00
e.	29.09.1999	1,00,000.00
f.	21.11.1999	70,000.00
g.	11.12.1999	25,000.00
h.	22.03.2000	30,000.00
i.	28.03.2000	26,000.00
j.	20.08.2001	8,000.00
k.	19.11.2001	5,000.00
l.	05.12.2001	3,01,500.00
m.	10.12.2001	1,63,000.00
n.	20.12.2001	73,000.00
		8,90,000.00

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b) The defendant agreed to repay the said loan with interest at the rate of 24% p.a. by selling her lands bearing Survey Nos.114, 115 and 116 of Machehalli Village, Dasanapura Hobli, Bengaluru North Taluk. Though the defendant sold the lands bearing survey Nos.114 and 115, she did not repay the loan amount. While receiving the last loan dated 20.12.2001, the defendant issued cheque bearing No. 001588 drawn on Bank of Baroda, Kamakshipalya, Bengaluru for Rs.8,90,000/-. The

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defendant requested the plaintiff to present the cheque after two and half months. Accordingly, the plaintiff presented the cheque and the same was returned on 18.03.2002 with an endorsement "insufficient funds". The plaintiff informed the defendant about the dishonor of the cheque and requested for repay of the loan, which was not obliged. Therefore, plaintiff got issued notice dated 22.03.2002 demanding repayment of the loan amount.

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c) The defendant refused to receive the notice sent under RPAD. However, notice sent to her under certificate of posting was served on her. The defendant is liable to repay the loan amount of Rs.8,90,000/- with interest @ 24% p.a. Therefore, she sought decree for Rs.9,50,400/- with interest.

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The defendant contested the suit filing written statement. She denied lending of loan or availment of loan or the request of plaintiff to repay the same and issuing of the cheque etc. She claims that in the year 1997, on the request of the defendant, the plaintiff arranged loan of Rs.50,000/from some private money lender. At the instance of the plaintiff, the defendant issued blank signed cheque to hand over to the said money lender. Even after the repayment of

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the loan, the said cheque was not returned. When enquired,

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the plaintiff represented that she has collected the cheque from the money lender but has misplaced the same in her house. Misusing the said cheque, the plaintiff has filed a frivolous suit to make wrongful gain. When the defendant tried to advise the plaintiff in some of her family issues, the plaintiff has turned hostile and filed a false suit misusing the said cheque. Plaintiff's lending capacity was also denied. Thus, she sought dismissal of the suit.

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The trial Court based on said pleadings, framed the

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following issues:

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1) "Does Plaintiff prove that the defendant in all borrowed Rs. 8,90,000/- from her as detailed in Para-2 of the plaint?

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2) Did Defendant issue cheque for Rs.8,90,000/- on 20.12.2001 towards the discharge of said total amount borrowed?

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3) Is the plaintiff entitled for award of interest at 24% p.a.

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4) What decree or order?"

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In support of the case of the plaintiff, the plaintiff

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was examined as PW.1 and got marked Exs.P1 to P7. In support of her case, the defendant got examined herself as

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DW.1 and got marked bank pass book as Ex.D1 and the marriage invitation of her daughter as Ex.D1.

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The trial Court on hearing the parties by the impugned judgment held that the defendant has admitted issuance of the cheque, but she has failed to prove her defence that the cheque was issued for the purpose of handing over the same to the money lender or she had borrowed the loan from private money lender facilitated by the plaintiff. The trial Court further held that the fact of the defendant not replying the notice, amounts to admission of her liability. The trial Court further held that the lending capacity of the plaintiff is proved. Thus, trial Court decreed the suit for recovery of Rs.9,50,400/with interest thereon at 8% p.a.

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Submissions of Sri. D.S. Hosmath, learned counsel for the appellant/defendant.

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9(i) There is no evidence of proof of lending on 14 occasions as claimed in the plaint, except the lending of Rs.50,000/- admitted by the appellant. The notice did not contain any details of lending, like date of lending and amount. Ex.D1 - the marriage invitation card shows that the marriage of daughter of the defendant was solemnized in August - 1997

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whereas, the plaintiff claims to have lent loan on first occasion on 12.04.1999. That itself belies the case of the plaintiff.

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(ii) Under the Income Tax Act, 1961 (hereinafter referred to as 'I.T. Act' for short), to grant a decree for recovery of money, the alleged loan agreement shall be legally enforceable. As per the provisions of the IT Act, no loan above Rs.20,000/- can be lent in cash and such transactions should be by cheuqe or Demand Draft. Therefore, the alleged loan transaction was illegal and unenforceable. Since the notice did not contain the particulars of loan, there was no need for the defendant to reply to the same. The impugned judgment and decree is unsustainable.

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(iii) In support of his submissions, he relies on the following judgments.

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1. Krishna Janardhan Bhat V. Dattatraya G. Hedge¹

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2. Shiva Murthy V/s. Amruthraj²

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Submissions of Sri. C. S. Prasanna Kumar, learned counsel for the respondent/plaintiff.

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The defendant herself admitted the service of notice. The defendant did not dispute her signature on the

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1 (2008) 2 SCC (Cri) 166

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2 ILR 2008 KAR 4629

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cheque or execution of the same or dishonor of the said cheque. Under such circumstances, the presumption under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act' for short) that the cheque was issued for discharge of debt arises but the defendant failed to rebut the said presumption. If really the cheque was not issued for discharge of loan, at the earliest point of time when she received the notice she should have denied that. Only on the written statement, she comes up with different theories, which are unsustainable. The alleged violation of Section 269SS of I.T. Act, at the most on the part of the plaintiff may incur her liability of penalty under the said provision, but that does not vitiate the entire loan transaction itself. Thus, he seeks dismissal of the appeal.

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In support of his submissions, he relies upon the following judgments.

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1. Triyambak S Hegde v. Sripad³

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2. Gajanan Kallappa Kadolkar Vs. Appasaheb Siddamallappa Kaveri⁴

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3 (2022) 1 Supreme Court Cases 742

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4 2022 Live Law (Kar) 483

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NC: 2023:KHC:41458-DB RFA No. 598/2011

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On careful consideration of the submissions of both

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side and material on record, the questions that arise for consideration of the Court are;

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i) Whether the finding of Trial Court that defendant borrowed loan of Rs.8,90,000/from plaintiff and for payment of the same,

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she had issued cheque Ex.P.2 is sustainable in law?

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ii) Whether the impugned judgment and decree is sustainable in law?

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Analysis

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Reg. Point No.1

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According to the plaintiff, defendant was her long time friend. Whenever she needed financial help for domestic issues including marriage of her daughter, she lent money from 12.04.1999 to 20.12.2001, in all amounting to Rs.8,90,000/-.

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It is further her case that when defendant received loan of Rs.73,000/- on 20.12.2001, for repayment of the total amount due, defendant issued cheque Ex.P.2 for a sum of Rs.8,90,000/-.

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The defendant in her written statement, in the cross-examination of PW.1 or in her own evidence did not dispute that herself and plaintiff were long time friends. But she denies availing the loan from 12.04.1999 till 20.12.2001 in different sums as alleged by the plaintiff. Her case is that she needed money for performing her daughter's marriage, therefore, on her request, plaintiff arranged loan of Rs.50,000/from some private money lender and as security for repayment of said loan, cheque Ex.P.2 was issued. She claims that the said cheque was blank and she had only signed on it. She did not even dispute presentation of cheque by the plaintiff for realization and dishonour of the same by the Bank under Exs.P.3 and P.4 for want of sufficient funds.

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When defendant claims that cheque was issued only towards repayment of loan of Rs.50,000/- to some private lender at the intervention of plaintiff, she should have divulged the particulars of that private money lender. When she claims that she repaid the same to the private money lender, she should have produced some documents in proof of the same. Section 118(a) of the N.I. Act, which confers presumption

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NC: 2023:KHC:41458-DB RFA No. 598/2011

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about passing of consideration under the cheque, reads as

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follows;

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" 118. Presumptions as to negotiable instruments .— Until the contrary is proved, the following presumptions shall be made:—

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(a) of consideration :—that every negotiable instrument was made or drawn for consideration , and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration ; "

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Section 139 of N.I. Act, which confers presumption regarding receipt of cheque towards discharge of debt, reads as follows;

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" 139. Presumption in favour of holder .—It shall be presumed, unless the contrary is proved , that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge , in whole or in part, of any debt or other liability ."

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It is settled position of law that the holder of cheque

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has to discharge the initial burden that cheque was executed by the drawer. Once that initial burden is discharged, then it is for the drawer to disprove that cheque was issued for consideration and towards discharge of debt. Therefore, the question is, whether the plaintiff has discharged the initial

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NC: 2023:KHC:41458-DB RFA No. 598/2011

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burden that cheque was issued for consideration towards

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discharge of loan borrowed by the defendant .

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The defendant, as already pointed out, did not

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dispute that cheque Ex.P.2 was issued by her. According to her that was issued for repayment of loan of Rs.50,000/- borrowed from some third party private money lender which was facilitated by the plaintiff. She states that she handed over the cheque to plaintiff and plaintiff in-turn handed over the said cheque to the other money lender. Therefore, it becomes clear that defendant had issued cheque towards discharge of debt. Whether that was for a sum of Rs.50,000/- of plaint claim is a different issue.

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Plaintiff claims that when the cheque was dishonoured, she got issued legal notice as per Ex.P.5 to the defendant claiming repayment of Rs.8,90,000/- with interest at 24% per annum. Plaintiff claimed that defendant refused to receive the notice and therefore, the postal cover Ex.P.6 was returned with postal endorsement "refused". The defendant does not dispute that the postal cover was returned as "refused". She does not even deny that refusal.

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Plaintiff claimed that she had issued another notice simultaneously under Certificate of Postings and that was served on the defendant. DW.1 in her cross-examination initially denied issuance of notice on 22.03.2002. In the very next sentence, she says that she has not given any reply to the said notice. Defendant in para-9 of her written statement unequivocally admitted that she had received notice dated 22.03.2002 issued by the plaintiff. Though she contended that, she had replied that notice, no such reply was produced. As against that, in her cross-examination DW.1 admitted that she has not given any reply to the said notice. If a person of ordinary prudence receives a notice from another person claiming that the receiver of notice is due in a sum of Rs.8,90,000/-, naturally the response is to refute the same by issuing reply notice. The defendant had not done that. That leads to the inference that thereby she admitted the liability as mentioned in the notice. Only after the filing of suit, she has developed the story of issuing cheque as security for repayment of loan of Rs.50,000/- only to another private money lender etc. Under such circumstances, it has to be held that plaintiff discharged her initial burden that cheque was issued for consideration and for repayment of loan amount.

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Then, the burden shifts to the defendant to disprove

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that cheque was issued for consideration or repayment of loan of Rs.8,90,000/-. The defendant, except her self-serving testimony that she had borrowed only Rs.50,000/- from some other money lender at the intervention of plaintiff, for which she had handed over the cheque to plaintiff and that was misused, did not adduce any other piece of evidence. She did not even whisper who was the money lender and why she kept quiet without claiming the cheque for such long time. She herself admitted in her cross-examination that she did not issue any notice to the plaintiff for return of the cheque nor did she intimate the banker to stop the payment. She did not file any complaint to the Police or anybody claiming that plaintiff had played fraud on her by misusing the cheque etc.

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In similar circumstances, Hon'ble Supreme Court in Krishna Janardhan Bhat’s case referred to supra , reiterating the principles regarding presumption under Sections 118(a) and 139 of N.I. Act, referring to its earlier judgment in K.Bhaskaran vs. Sankaran Vaidhyan Balan⁵ and also

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5 (1999)7 SCC 510

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Basalingappa vs. Mudibasappa⁶ held that once execution of

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cheque is admitted, Section 139 of the N.I. Act mandates presumption that cheque was for discharge of any debt or liability. It was further held that drawer of cheque has to probabilise his/her defence. In this case, defendant did not probabilise her defence that cheque was issued to a private money lender for repayment of Rs.50,000/- only.

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Though, relying on Ex.D.1-Wedding Card of daughter of the defendant, it was contended that the plaintiff claims that loan was lent for the purpose of meeting marriage expenses of daughter of the defendant, but the marriage was performed in August 1997, but as per the plaint, loan was paid from 12.04.1999 till 20.12.2001. Therefore, plaintiff's case can be disbelieved.

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A reading of the plaint and evidence on record shows that plaintiff did not state that loan was given only for the purpose of marriage. She says loan was borrowed by the defendant for several of her financial needs including the marriage of her daughter. Reading of para 11 of the written statement shows that defendant did not say that loan was 6 (2019)5 SCC 418

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borrowed for the purpose of marriage of the daughter of defendant, but it was borrowed for some commitment. Apart from that, defendant herself admitted that she had borrowed loan of Rs.50,000/- for the purpose of marriage of her daughter. Therefore, it cannot be said that the case of plaintiff is in total contradiction of Ex.D.1.

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The other contention of learned counsel for the appellant is that plaintiff had no lending capacity. Defendant's own claim that she borrowed loan of Rs.50,000/- in the year 1997 and for that she had issued cheque belies the contention that plaintiff had no lending capacity. Though the defendant claimed that it was some other person who lent the loan, as already noticed, the said defence was not proved. Therefore, that contention also does not carry any merit. Moreover, once she failed to rebut the presumption, that ground is not available to her. Since the plaintiff discharged her initial burden of proof and the defendant failed to probabilise her defence, the judgment in Krishna Janardhan’s case referred to supra relied on by learned counsel for the appellant cannot be justifiably applied to the facts of the present case.

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NC: 2023:KHC:41458-DB RFA No. 598/2011

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The Trial Court on judicious appreciation of the evidence has rightly arrived at the conclusion that plaintiff has proved that defendant borrowed loan of Rs.8,90,000/- and towards discharge of said loan, she had issued Cheque Ex.P.2, which was dishonoured.

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Reg. Point No.2.

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The next question is, whether the Tribunal was justified in decreeing the suit for Rs.8,90,000/- with interest at 8% per annum.

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Learned counsel for the appellant relying on Section 269 SS of the I.T. Act contended that any transaction exceeding a sum of Rs.20,000/- shall be by way of Account Payee Cheque or Bank Draft. Therefore, the alleged contract between plaintiff and defendant borrowing loan in cash is unenforceable in law. Reading of Section 269 SS of I.T Act prohibits acceptance of loan or deposit exceeding Rs.20,000/in cash and not lending of loan. Even otherwise, assuming that plaintiff had violated any provisions of I.T. Act in lending loan in cash, that will make her liable for prosecution and the entire

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contract does not become void or gets vitiated. It is also settled principle of law that a party cannot be permitted to

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make unjust enrichment of his or her own acts. This view of

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ours is supported by the judgments of this Court in Mohammed Iqbal vs. Mohammed Zahoor in C.R.P.No.602/2006 c/w C.R.P.Nos.603/2006 &

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605/2006, DD 12.07.2007; Gajanan Kallappa Kadolkar vs. Appasaheb Siddamallappa Kaveri in Crl.R.P.No.2011/2013, DD 18.11.2022 and Division Bench judgment of High Court of Judicature at Bombay in Prakash Madhukar Rao Desai vs. Dattatraya Sheshrao Desai in Crl.A.No.795/2018, DD 19.08.2023.

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A reading of the judgment in Shivamurthy referred

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to supra relied upon by learned counsel for the appellant shows that, Trial Court instead of considering whether the holder of cheque discharged the initial burden of proving the legally recoverable debt had proceeded on the conduct of the accused. In that context, it was held that plaintiff had not proved the legally recoverable debt. In the present case, first of all, defendant had not raised the defence in her pleading that contract was void for violation of any of the provisions of law. Therefore, plaintiff had no occasion or chance to rebut that contention. As observed above, if there is violation of any of

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the provisions of the I.T. Act, that may entail prosecution of the plaintiff under the provisions of the said Act. But that itself does not vitiate the entire contract. Therefore, the contention that finding of the Trial Court regarding liability of the defendant is unsustainable carries no merit.

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The next question is, whether the Trial Court was justified in accepting the claim of plaintiff that interest payable was 24% and awarding future interest at 8% per annum. Though the plaintiff claimed that there was agreement to pay 24% interest on the loan amount, absolutely no evidence was adduced in proof of such contract with regard to interest. Needless to say, the defendant had disputed such contract regarding interest. Therefore, the trial Court was not justified in accepting the case of the plaintiff with regard to interest and granting decree for Rs.9,50,400/- including pre suit interest of Rs.60,400/-.

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Learned counsel for the respondent/plaintiff contends that defendant herself claimed that she had borrowed loan of Rs.50,000/- at 3% interest, therefore, the finding of the Trial Court regarding 24% of interest cannot be disturbed. At one stretch, plaintiff says such defence of the defendant is false

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and again she works to rely on the same. When plaintiff came

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to the Court, burden was on her to prove that there was contract between them for payment of interest at 24%. Except her self-serving statement, there was no evidence to show that interest agreed was 24% per annum.

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According to the plaintiff herself, it was personal loan for some family needs of the defendant. Even to award future interest at 8%, the Trial Court except saying that current bank lending rate of interest is 8%, refers to no document. Even plaintiff did not adduce any evidence to show that lending rate of interest at the relevant time is 8%. Even if the trial Court’s finding regarding bank lending rate of interest at 8% is accepted, in view of Section 34 of CPC, future interest has to be granted at 6% per annum. Therefore, the judgment and decree needs to be modified only to that extent. Hence, the following;

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ORDER

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i) The appeal is partly allowed. ii) The impugned judgment and decree in O.S.No.2318/2002, dated 06.01.2011 passed by

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the III Additional City Civil & Sessions Judge, Bengaluru, is modified as follows;

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a) The suit of the plaintiff is partly decreed with costs through out.

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b) The defendant shall pay Rs.8,90,000/- to the plaintiff with interest at 8% per annum from 21.12.2001 till the date of suit.

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c) Further, defendant shall pay the decretal amount with interest at 6% per annum from the date of suit till realization.

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iii) The amount deposited, if any, by the appellant towards decretal amount and cost shall be released to respondent-plaintiff digitally on furnishing required records.

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Sd/JUDGE

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Sd/JUDGE

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VBS - Page Nos.1 to 9. MV - Page Nos.10 to 22. List No.: 1 Sl No.: 13

Smt Jayamma W/O. Late J D Narayanappa v. Smt G v Jayanthi D/O G v Venkataswamy

Case brief

What is this about?

What did the court decide?

Smt Jayamma W/O. Late J D Narayanappa v. Smt G v Jayanthi D/O G v Venkataswamy

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

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