Smt. K. Shyamala Vs Sri. Channappa

SMT. K. SHYAMALA, W/O K.L.KRISHNAPRASAD, AGED ABOUT 53 YEARS, R/AT NO.M-25, MANASA GANGOTHRI, UNIVERSITY QUARTERS, MYSURU CITY, MYSURU DISTRICT-570006.

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…APPELLANT

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(BY SRI. PANCHAM R.D., ADVOCATE)

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AND:

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Digitally signed 1. SRI. CHANNAPPA, by DEVIKA M S/O CHANNAIAH, Location: HIGH AGED ABOUT 54 YEARS, COURT OF KARNATAKA R/AT NO.121, NGO COLONY, CHAMALAPURADAHUNDI, NANJANGUD TOWN, MYSURU DISTRICT-571301.

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…RESPONDENT

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(BY SMT. PREREET JAIN B., ADVOCATE)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 18.07.2023 PASSED IN R.A.NO.42/2022 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, NANJANGUD, DISMISSING THE APPEAL AND CONFIRMED THE JUDGMENT AND DECREE DATED

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HC-KAR

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16.04.2022 PASSED IN O.S.NO.537/2015 ON THE FILE OF IST ADDITIONAL CIVIL JUDGE AND JMFC, NANJANGUD.

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

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission. Heard the learned counsel for the appellant and the learned counsel for the respondent.

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This second appeal is filed against the concurrent

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finding.

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The factual matrix of the case of the plaintiff

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before the Trial Court is that the plaintiff and the defendant being well acquainted with each other, the defendant demanded money for immediate necessity and hence the plaintiff lent a sum of Rs.1,25,000/- and got On Demand Promissory Note executed with Consideration Receipt from the defendant and the defendant agreed to pay interest at the rate of 1.50% per month. The defendant having borrowed the money, not paid the interest or principal amount and hence the suit was filed.

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HC-KAR

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The defendant on receipt of the suit summons appeared and filed the written statement denying the execution of On Demand Promissory Note and Consideration Receipt. It is contended that she did not purchase the stamp paper and the signatures are forged and created, but the legal notice was received and the same did not contain the signature of the advocate. Further, the plaintiff has not shown the source of income to lend the alleged money. The plaintiff is not a money lender to lend for interest and no decree can be passed.

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The Trial Court having considered the pleadings of the parties, framed the issues whether the plaintiff proves that the execution of On Demand Pronote and Consideration Receipt dated 28.10.2013? And if so, does the defendant prove that it is not supported by consideration? The plaintiff to substantiate his case examined himself as P.W.1 and also examined two witnesses as P.W.2 and P.W.3 and got marked the documents at Exs.P.1 to 6. On the other hand, the defendant got examined herself as D.W.1, but did not mark any documents. The Trial Court having considered both oral and documentary evidence placed on record, comes to the

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HC-KAR

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conclusion that when specific defence was taken in the written statement that On Demand Promissory Note and Consideration Receipt are created and forged, no steps were taken to send the documents to the handwriting expert. When the notice was issued, the defendant being the employee of the Mysore University, having received the notice, not given any reply. Though taken the defence that the notice did not contain the signature of the advocate, did not produce the notice before the Court as to whether the same contains the signature or not and the reason assigned is that the notice did not contain the signature of the advocate and hence not given any reply. The Trial Court having considered the material on record, particularly the execution of the documents Exs.P.1 and 2, service of notice and no reply was given and no documents were placed on record by

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the defendant to substantiate the contention that the signatures available in Exs.P.1 and 2 not belongs to the defendant, comes to the conclusion that the very execution of the documents of Exs.P.1 and 2 is suffice and there is no requirement to prove the source of income and decreed the suit with a direction to pay the interest of 18% per annum and 6% per annum on the principal amount of Rs.1,25,000/-.

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HC-KAR

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Being aggrieved by the said judgment and decree, an appeal is filed before the Appellate Court and the Appellate Court having considered the grounds urged in the appeal, formulated the point whether the Trial Court committed an error in coming to the conclusion that the plaintiff has proved the case. Having re-assessed the material available on record, in paragraph No.16 comes to the conclusion that the present suit is based on promissory note and consideration receipt said to be executed by the defendant in favour of the plaintiff at Ex.P.1. The defendant has disputed her signature found in Ex.P.6 notary register as well as the signature on Exs.P.1 and 2. The plaintiff examined the witness, particularly the scribe of the documents Exs.P.1 and 2 i.e., P.W.3. P.W.2 who is one of the witnesses to Exs.P.1 and 2 also deposed that he had signed Exs.P.1 and 2 and that the plaintiff had paid the amount of Rs.1,25,000/- to the defendant and the defendant on 28.10.2013 executed the pronote in favour of the plaintiff. Having taken note of the answers elicited from the mouth of P.W.1 to P.W.3, accepted the evidence of the plaintiff and comes to the conclusion that the Trial Court not committed any error in granting the relief

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NC: 2025:KHC:26350 RSA No. 1605 of 2023

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HC-KAR

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as sought and it does not require and interference and confirmed the judgment of the Trial Court.

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Being aggrieved by the concurrent finding, the present second appeal is filed before this Court.

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The learned counsel for the appellant would vehemently contend that both the Courts committed an error in coming to the conclusion that Exs.P.1 and 2 were duly executed by the appellant, when the e-stamp was not purchased either in the name of the appellant or the respondent and also for a transaction which is otherwise than for the execution of On Demand Pronote Note and Consideration Receipt , when the signature of the appellant

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and execution thereof has been seriously disputed by the appellant. The learned counsel would contend that the Trial Court comes to the conclusion that no need to compare the signatures of the appellant and the respondent by invoking Section 73 of the Evidence Act and shifting of burden on the defendant is erroneous and hence this Court has to frame the substantial question of law by admitting the appeal.

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HC-KAR

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Per contra, the learned counsel for the respondent

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would vehemently contend that the loan was taken for construction of the house and the fact that the house was constructed is admitted by the defendant. The learned counsel would contend that when the documents of Exs.P.1 and 2 are denied that the same are forged, the person who takes such a defence must prove the same by sending the document to the handwriting expert and the same has not been done. Apart from that, nothing is placed on record before the Trial Court that the defendant was not having any acquaintance with the plaintiff and the very admission is very clear that house was constructed. But the case of the plaintiff

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is that for immediate need and necessity, the same was borrowed. The Trial Court and the Appellate Court taken note of that the notice was acknowledged, but no reply was given and the reason assigned for not giving the reply is that the notice does not contain the signature of the advocate, but not produced the notice which the defendant has received. All these aspects were taken note of by the Trial Court and the Appellate Court and hence not committed any error.

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HC-KAR

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Having heard the learned counsel for the appellant

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and the learned counsel for the respondent and also taking note of the document of Ex.P.1 On Demand Promissory Note, no doubt, description of the document is mentioned as Article 4 Affidavit and first party is Suresh Advocate and Notary and second party name is not mentioned and stamp duty paid by is also Suresh Advocate and Notary. Though the defendant denies the signature in Exs.P.1 and 2, but did not send the documents to the handwriting expert when the defence was taken that the signature was forged. The defence of forgery ought to have been proved by the appellant and the same is not proved. Apart from that, when the notice was issued, the same was acknowledged and the appellant would contend that the notice did not contain the signature of the advocate. However, admits before the Court that Ex.P.3 contains the signature and also not denies the receipt of the notice in terms of Exs.P.4 and 5 and categorically admitted that notice was served on both the addresses i.e., University address, wherein she was working and also the residence. Apart from that, the notary register is also marked before the Trial Court, which was maintained by P.W.3, who is a notary. When such being the case, ought to have produced the notice, if really

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HC-KAR

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the notice issued to the appellant did not contain the signature of the advocate and no such document is produced. There is a clear admission regarding the receipt of notice and also the acknowledgment, but admits that Ex.P.3 contains the signature and the notice which was given to the appellant does not contain the signature of the advocate. The fact that she is working in Mysore University as a Clerk from last 26 years is admitted, but contend that she is not having any acquaintance with the plaintiff and what made to execute the documents of Exs.P.1 and 2, no explanation and the same is also not proved though denied the very execution.

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The fact is that the stamp paper is purchased in the name of the notary i.e., Suresh Advocate and she says that she did not go to the office of the notary. The notary register is also produced before the Court. The defendant admits that in July 2013 house was constructed at Chamalapura. The promissory note executed by the appellant is on 26.10.2013 and 28.10.2013 and all these documents clearly discloses that both the Trial Court and the Appellate Court considered the material available on record. When there was no any reply to the notice and when the defence

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HC-KAR

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was taken that Exs.P.1 and 2 were forged and not sent the documents to the handwriting expert, hence both the Courts have not committed any error in relying upon the documents of Exs.P.1 and 2 as well as the evidence available on record. When both the Trial Court as well as the Appellate Court considered the material on record, I do not find any perversity in coming to such a conclusion and the First Appellate Court also considered the presumption in case of execution of document of On Demand Promissory Note and Consideration Receipt and taken note of question of fact and question of law. When such being the case, no grounds to admit the appeal and frame substantial question of law.

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