Shaheen Wajid Vs K. Pushparaj

K. PUSHPARAJ S/O LATE KRISHNAJEE RAO AGED ABOUT 53 YEARS, PRESENTLY RESIDING AT NO.20 2^ND FLOOR, 21^ST MAIN ROAD, 3^RD C CROSS BTM 2^ND STAGE, BENGALURU – 560 076

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Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA

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…RESPONDENT

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(BY SRI. MANJUNATHA S.V, ADVOCATE)

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THIS RFA FILED UNDER SECTION 96(1) OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 10.04.2019 PASSED IN O.S.NO.26039/2016 ON THE FILE OF THE LVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU, PARTLY DECREEING THE SUIT FOR RECOVERY OF MONEY.

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THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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NC: 2025:KHC:43586 RFA No. 1509 of 2019

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HC-KAR

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ORAL JUDGMENT

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The appeal is filed by the plaintiff questioning the judgment and decree dated 10.04.2019 passed by the LVII Addl. City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru (CCH-58), in O.S.No.26039/2016, thereby, so far as partly decreeing the suit directed the defendant to pay a sum of Rs.1,00,000/- (Rupees One Lakh only) only to the plaintiff, but not decreeing for the entire claim of Rs.2,00,000/-.

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Rank of the parties is referred to as per their rankings before the trial court.

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It is the case of plaintiff that himself and defendant they are known to each other and the defendant had requested the plaintiff for financial assistance due to medical expenses and for performance of rituals of death of defendant's mother. Therefore, plaintiff had lent hand loan of Rs.2,00,000/- and defendant executed promissory notes, but thereafter the defendant has not repaid the said

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NC: 2025:KHC:43586 RFA No. 1509 of 2019

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HC-KAR

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amount. Thus, the plaintiff was constrained to file the suit

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for recovery of money.

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Inspite of service of summons to the defendant, the defendant engaged the services of Advocate, but has not contested the suit. Upon pleadings of the plaintiff, the trial court has framed the following points for

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considerations:

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Whether the Plaintiff proves that the defendant borrowed a sum of Rs.2,00,000/on 26-02-2015 and on 26-03-2015 by executing relevant documents?

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Whether the Plaintiff proves that the Defendant became the defaulter in the matter of repayment of the loan amount and willfully neglected to repay the same?

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Whether the Plaintiff is entitled to recover the suit claim with interest at the rate of 18% p.a.?

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What order or decree?

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The plaintiff is examined as PW1 and got

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marked the documents as Exs.P-1 to P-5. The defendant since has not attended the Court inspite of engaging the

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HC-KAR

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services of Advocate, there is no defence evidence by the defendant.

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The trial court after considering the pleadings and evidence of the plaintiff has decree the suit in part by directing the defendant to pay a sum of Rs.1,00,000/- only out of claim of plaintiff for Rs.2,00,000/- on the reason that Ex.P-3 is not a stamp paper and there is no signature of the defendant on Ex.P-3 and therefore, the plaintiff has not established the thumb impression found on Ex.P-3 is not of the defendant and found fault with the plaintiff that the plaintiff has only obtained thumb impression on Ex.P-3 instead of signature as per Ex.P-1 and P-2. Therefore, as per Exs.P-1 to P-2 it is only proved that the plaintiff has lent only Rs.1,00,000/-, but Ex.P-3 is not proved for remaining Rs.1,00,000/-. Therefore, decreed the suit in part.

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Being aggrieved by it, the plaintiff has preferred

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the appeal so far as not granting the decree for a sum of

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HC-KAR

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Rs.1,00,000/by raising various grounds in the memorandum of appeal. Learned counsel for the appellant/plaintiff constrained his arguments with regard to grounds raised that Ex.P-3 though is not the stamp paper, but the defendant has put the signature and also thumb impression and just for putting thumb impression is not reason to disbelieve the said document. Hence, the trial court has committed an error and the order passed by the trail court is perverse. Therefore, prays to allow the appeal and decreed the suit in full.

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Learned counsel for the respondent/defendant

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justified the judgment and decree passed by the trial court. Therefore, prays for dismissal of the appeal.

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Upon hearing arguments from both the sides, following points would arise for consideration:

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(1) Whether, under the facts and circumstances involved in the present case, the plaintiff proves that she has lent a sum of Rs.2,00,000/- and Exs.P-1 to P-3 documents proves that the defendant has received a sum of Rs.2,00,000/-

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HC-KAR

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and thus he is liable to pay a sum of Rs.2,00,000/- to the plaintiff?

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(2) Whether, under the facts and circumstances involved in the present case, the judgment and decree passed by the trial court needs any interference by this Court?

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Upon considering the evidence on record and pleadings, Exs.P-1 and P-2 are the on demand promissory notes, which are duly signed by the defendant, which proves the fact that defendant has received a sum of Rs.1,00,000/- and accordingly, two promissory notes were issued Rs.50,000/- each. On the finding given by the trial court on the Exs.P-1 and P-2 is found to be correct.

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Insofar as the reason given by the trial court that in Ex.P-3 document only thumb impression is found, but there is no signature on Ex.P-3, is not correct approach. Though Ex.P-3 is unstamped paper, but it contained signature and also thumb impression of the defendant promising the plaintiff by the defendant to pay a sum of Rs.1,00,000/-. The trial court assigned the

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HC-KAR

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reason that there is no signature on Ex.P-3, but Ex.P-3 is the promissory note having undertaken by the defendant to pay Rs.1,00,000/- to the plaintiff on demand. Therefore, from document Ex.P-3 also it is proved that the defendant has promised to pay a sum of Rs.1,00,000/- to the plaintiff. The trial court has erroneously disbelieved this document. Therefore, from Ex.P-3 also it is proved that the defendant is liable to pay a sum of Rs.1,00,000/-.

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Upon considering the documentary evidence Exs.P-1 to P-3, it is proved that the defendant is due of balance of Rs.2,00,000/- payable to the plaintiff. The plaintiff has issued legal notice to the defendant, but the defendant has not replied to the plaintiff. Therefore, the plaintiff has completely put her case by placing evidence before the trial court, but the trial court has wrongly disbelieved Ex.P-3. Hence, it is resulting into erroneous decree of rejecting the part payment of the plaintiff. Therefore, the judgment and decree is liable to be interfered with and needs modification. Thus, the plaintiff

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NC: 2025:KHC:43586 RFA No. 1509 of 2019

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HC-KAR

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is entitled to decree as prayed for. Accordingly, I answer

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Point Nos.1 and 2 in the affirmative .

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The rate of interest imposed at the rate 18% p.a.

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is exorbitant, hence the defendant is liable to pay interest at the rate of 6% p.a.

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Resultantly, I proceed to pass the following:

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ORDER

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(i) The appeal is allowed .

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(ii) The judgment and decree is modified directing the defendant to pay a sum of Rs.2,00,000/- with interest @ 6% p.a. from the date of suit till realization to the plaintiff. Accordingly, the suit is decreed.

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(iii) Draw decree accordingly.

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(iv) No costs.

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SD/(HANCHATE SANJEEVKUMAR) JUDGE

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DR

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List No.: 1 Sl No.: 19

Shaheen Wajid v. K. Pushparaj

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Shaheen Wajid v. K. Pushparaj

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