Sri Dr G Seenaswamy Vs Smt Parvathi

COFFEE POWDER FACTORY, MANAGER, MURALI BUILDING, 1ST FLOOR, 1^ST MAIN, 9^TH CROSS, VINAYAKA LAYOUT, NEAR DHANALAKSHMI WINE STORE, NAYANDAHALLI, BANGALORE - 39.

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…RESPONDENTS

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(BY SRI. PRAKASH M H., ADVOCATE)

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THIS RFA IS FILED UNDER SEC.96 R/W ORDER XLI-A AND XLI RULES 1 & 2 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 22.06.2016 PASSED IN O.S NO.5893/2014 ON THE FILE OF THE XIX ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, (CCH 18), DISMISSING THE SUIT FOR RECOVERY OF MONEY.

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THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 19.12.2024 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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RESERVED FOR ORDERS ON: 19.12.2024 PRONOUNCED ON : 07.01.2025

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CORAM: HON'BLE MR. JUSTICE K NATARAJAN

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CAV JUDGMENT

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This appeal is filed by the appellant under Section 96 R/w

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Order XLI-A and XLI Rules 1 & 2 of CPC., for setting aside the judgment dated 22.06.2016 passed in O.S. No.5893/2014 by the XIX Additional City Civil and Sessions Judge, Bangalore, whereby the trial Court has dismissed the suit of the plaintiff.

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Heard the arguments of the learned counsels appearing for the parties.

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The appellant was the plaintiff before the trial court and the respondents were the defendants. The rank of the parties before the trial court is retained for the sake of convenience.

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The case of the plaintiff before the trial Court is that the plaintiff has filed the suit for recovery of Rs.11,65,250/- with interest at 18% p.a. It is pleaded in the plaint that the plaintiff and defendants are known to each other for several years, the defendants approached the plaintiff for financial assistance to purchase the property at Nayandanahalli. Considering the request, the plaintiff paid Rs.8,50,000/- with interest at 18% p.a. The defendants executed promissory note and a receipt in favour of the plaintiff, but did not pay the amount. Hence, a legal notice was issued by the plaintiff on 05.07.2014, but the defendants gave reply denying the same. Hence, the plaintiff filed the suit.

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The defendants appeared through their counsel and filed written statement by denying the averments made in the plaint. It is contended that the defendants are poor labour, working in Bangalore, and the plaintiff, a doctor by profession, has filed the false suit. The land belonged to the defendants in Ramanagara district was acquired by Government and they received the compensation and they saved the money. They have not obtained any loan from plaintiff. Hence, prayed for dismissal of the suit.

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Based upon the pleading, three issues have been framed

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by the trial Court as under:

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(i) Whether the plaintiff proves that the defendants borrow a sum of Rs.8,50,000/- from the plaintiff on 20.07.2012 on agreeing to repay the same with interest at 18% p.a. by executing anon demand pronote and consideration receipt ?

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(ii) Whether the plaintiff is entitled for suit claim ? (iii) What order or decree ?

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On behalf of the plaintiff, the plaintiff himself was examined as P.W.1 and also examined P.Ws.2 and 3 and got marked 6 documents as per Exs.P.1 to P.6. On behalf of the defendants, themselves examined as D.Ws.1 and 2 and got marked 9 documents as per Exs.D.1 to D.9. After hearing the arguments, the trial Court answered issue Nos.1 and 2 in the negative and finally, dismissed the suit. Being the aggrieved by the same, the plaintiff is before this Court.

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The learned counsel for the appellant-plaintiff has contended that the plaintiff is a doctor by profession, practising Ayurveda medicine. The defendants, who are known persons to the plaintiff, borrowed loan from the plaintiff and executed an on demand promissory note and receipt. Ex.P.1 is promissory note and Ex.P.2 is receipt. The trial Court has committed an error in disbelieving these documents since the first letter of defendant No.1 is mentioned in the receipt and the remaining letters are not

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available, and the signature of defendant No.2 is available on the receipt. The trial Court has wrongly disbelieved the documents, which is not correct. The on demand pro-note clearly reveals the name of the defendants. The trial Court has also failed to appreciate the evidence on record for proving the on demand note. Ex.P.1 clearly reveals that the 1^st letter of defendant No.1 is appeared and since, the revenue stamp was fell down, the remaining letters are also not available. In Ex.P.2, both the names of defendants were mentioned and they signed. The name of the 1^st defendant appears in Ex.P.2. Exs.P.1 and P.2 are the adjoining documents that is promissory note/receipt and therefore, it cannot be created by the plaintiff. The witnesses were examined as P.Ws.2 and 3 to prove the on demand promissory note and receipt. Thereby, the trial Court has committed an error in dismissing the suit only on the ground that there is no paying capacity of the plaintiff. The non declaration of the loan in the income tax cannot be a ground for dismissing the suit of the plaintiff. The defendant claim that he is an illiterate person and not able to sign, but executed a mortgage deed as per Ex.P.5 where he has signed the document which reveals that he is able to sign the document. A sale deed was also executed by the defendants in favour of Valisha Baig as per Ex.P.6 where they signed the document and, therefore, disbelieving the signature on the Exs.P.1 and 2 does not arise. In a cheque case,

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where the respondents-defendants were acquitted, itself is not a ground to reject the claim of the plaintiff. Hence, prayed for allowing the appeal.

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Per contra, learned counsel for the respondentsdefendants has contended that there is contradiction between the evidence of the plaintiff and witnesses, where the witnesses have stated that Rs.8,50,000/- was not paid at one stage, and it was paid on instalment basis i.e. Rs.2.00 lakhs each for two times, Rs.50,000/- at one time and Rs.4.00 lakhs as on the date of the agreement. Therefore, it cannot be said that Rs.8,50,000/- was borrowed by the defendants. The defendants are in no need to borrow any money from the plaintiff. They received compensation in a land acquisition matter. The plaintiff filed a suit under Section 138 of the N.I. Act, wherein the defendants came to be acquitted and the said order has attained finality. Therefore, the trial Court has rightly dismissed the suit. The defendants also filed a complaint against the appellant-plaintiff for forging the signature. The document was marked by the defendants in their evidence. A private complaint also was filed by them as per Exs.D.6 to D.9 and the police have issued an endorsement stating that they shall approach the civil court and therefore, prayed for dismissing the appeal.

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Having heard the arguments of learned counsel for the parties, perused the records.

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The points that arise for consideration are:

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(i) Whether the appellant- plaintiff proves that the defendants have borrowed Rs.8,50,000/- and executed Exs.P.1 and 2 ?

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(ii) Whether the judgment of the trial Court calls for interference ?

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(ii) Whether the plaintiff is entitled for the relief sought in the suit ?

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On perusal of the records, the plaintiff’s case is for recovery of money. It is stated that, in the year 2012, the plaintiff has paid Rs.8,50,000/- as loan, and the defendants have executed Exs.P.1 and P.2. On perusal of the evidence of P.Ws.2 and 3, they are the attesting witnesses for receiving the amount by the defendants from the plaintiff, thereby the evidence of P.W.2 and 3 corroborates with the evidence of P.W.1 regarding the loan paid by

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the plaintiff to the defendants. Of course, there is some contradiction in respect of the payment of money by the plaintiff, where the plaintiff has stated that he has paid Rs.8,50,000/- as on 20.07.2012. Whereas, P.Ws.2 and 3 have stated that the said amount was not paid in one instalment, but was paid in four

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instalments, i.e. Rs.2.00 lakhs each in two times, Rs.50,000/- in one time and Rs.4.00 lakhs on 20.07.2012.The case of defendants is total denial and they have stated that they are having the financial capacity and there is no need to borrow any loan from the plaintiff. But the plaintiff’s case is that the defendants borrowed the loan for the purpose of purchasing the property. The defendants’ contentions is that the signature not belonged to them and it was forged. But, in Exs.P.1 and P.2, there is the signature and in Exs.P.5 and P.6 also, the signature of the defendants is found, which was executed by them at an undisputed point of time. Therefore, the contention of the defendants that they are unable to sign the document and they are illiterate, cannot be acceptable. On the other hand, the signature of the defendants in Exs.P.1 and P.2 is also similar to that of the signature found in Exs.P.5 and P.6, their own documents. Therefore, merely a police complaint was filed for forging the signature and denial of the signature on the document taking advantage of falling of revenue stamp on Ex.P.1, cannot be a ground to disbelieve the evidence of P.Ws.1 to 3.

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Apart from that, whether the amount was paid at one time or in four instalments, is not the defence of the defendants. Their defence is total denial and there is no defence that the plaintiff has no capacity and there is no declaration to the income

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tax authorities. Merely, not declaring the loan before the income tax authority by the plaintiff is not a ground to disbelieve the evidence of P.W.1 and the documentary evidence. The respondentsdefendants admit that the plaintiff is the doctor by profession. Therefore, the capacity of the plaintiff cannot be doubted in respect of the loan borrowed by the defendants. Merely, the respondentsdefendants filed a cheque case against some other person and that, itself is not a ground to say that the defendants are having the financial capacity and no need to borrow any loan. Such being the case, the paying capacity of the plaintiff cannot be doubted. Even otherwise, the cheque case filed by the plaintiff against defendant No.2 which was ended in acquittal, is also not a ground to disbelieve the evidence of the plaintiff. Therefore, I am of the view that the trial Court has committed an error in disbelieving the evidence of plaintiff only on the basis of the signature found in Ex.P.1 by forging the signature of defendant No.1 available in Ex.P.2, both the documents are the joint documents, and they are not the different documents. It is well settled that the degree of proof in Criminal case requires beyond reasonable doubt, whereas in civil dispute, it is required and the preponderance of probabilities. Therefore, I hold that the plaintiff is successful in proving the case of lending the sum of Rs.8,50,000/- to the defendants, who have executed on demand promissory note for repayment with interest. Therefore,

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the trial Court has committed an error in dismissing the aforesaid suit, and hence, the same calls for interference. Accordingly, point Nos.1 and 2 are answered in the affirmative. In view of the same,

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the appeal deserves to be allowed.

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