B. T. RAJASHEKARA v. VYSYA BANK LIMITED, JAYANAGAR BRANCH, BANGALORE
1999-06-07
HARI NATH TILHARI
body1999
DigiLaw.ai
( 1 ) THE learned Counsel for the parties desired that the case may be heard and disposed of on merits at the stage of admission. ( 2 ) I have heard Sri R. Gunashekar, learned Counsel for the revision petitioner and Sri B. R. Aswath Ram, learned Counsel for the respondent 1-Bank as well as Sri N. B. Nijalingappa, learned Counsel for the respondent 2. ( 3 ) THIS revision arises from the judgment and decree dated 17-2-1997 passed by the Judge of small Causes Court decreeing the plaintiff's suit for a sum of Rs. 8,561. 10 with costs and with pendente lite interest at 18% p. a. and future interest at the rate of 6% p. a. on Rs. 8,000/ -. ( 4 ) THE learned Counsel for the revision petitioner contended that the petitioner was not a guarantor and the plaintiff has failed to prove it that the revision petitioner was a surety or guarantor. He submitted that the Court below erred in taking the view that as defendant 2 has not produced any expert evidence to show that the document does not contain his signature so the evidence of the plaintiff has to be accepted. He submitted that the burden of proof was on the plaintiff to prove that the revision petitioner was a guarantor. That the decision is as such not according to law. The learned Counsel further contended that the suit is barred by limitation particularly against the revision petitioner. ( 5 ) THESE contentions of the learned Counsel have hotly been contested by the learned Counsel for the respondents especially by Sri B. R. Aswatha Ram. He contended that the burden of proof looses all its importance when the parties have already led their evidence. The Court below has considered the oral and documentary evidence and has taken into consideration the circumstances arising from the circumstance namely defendant's failure to produce any expert evidence otherwise to disprove his signatures on the document Ex. P. 4. He further submitted that the suit was well within time. As per Ex. P. 5 it can be seen that the 1st defendant has executed the acknowledgement of debt. He submitted that there is a clause in Ex.
P. 4. He further submitted that the suit was well within time. As per Ex. P. 5 it can be seen that the 1st defendant has executed the acknowledgement of debt. He submitted that there is a clause in Ex. P. 4 that any acknowledgement in writing by borrower of the debt shall be deemed to be for and on behalf of and as the agent of the guarantor as well. That as such he submitted that the Court below held that the acknowledgement was binding on the 1st defendant and also on the 2nd defendant and rejected the contentions. ( 6 ) I have applied my mind to the contentions raised by the learned Counsel for the parties. A decision, if it can be termed not in accordance with law, may be interfered with and set aside under Section 18 of Karnataka Small Causes Courts Act. What is 'in accordance with law' is a term which has been considered in a number of cases beginning from the case of Hari Shankar and Others v Rao Girdhari Lal Chowdhury, where their Lordships having referred with approval the observations made by Hon'ble Beaumont, C. J. , (as he then was) in Bell and Company limited v Waman Hemraj, laid it down that the phrase "according to law" refers to overall decision which must be according to law which cannot be if there is a miscarriage of justice due to mistake of law. At page 701 their Lordships quoted with approval those observations of hon'ble Beaumont, C. J. from Bell and Company Limited's case, supra, in the context of Section 25 of the Provincial Small Causes Courts Act and which is pari materia to Section 18 of the karnataka Small Causes Courts Act. The observations quoted in the decision read as under. "the object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law.
The observations quoted in the decision read as under. "the object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the Court may interfere in revision, as does Section 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction," or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at". The observation has our full concurrence". ( 7 ) THE burden of proof no doubt in the suit for recovery of money lies on the plaintiff to prove his case. The burden of proof looses all its importance once both sides have led their evidence before the Court and thereafter it remains a matter of appreciation of evidence, oral, documentary and circumstantial. In the present case, the Court below has in this context considered the evidence of P. W. 2-Management at Ex.-P. 4. The Court below relying on the evidence of P. W. 2 and the circumstances arising out of the defendant-petitioner's failure of department to produce expert evidence dislodging and disproving the plaintiff's case, accepted the evidence of P. W. 1. It also took into consideration that the defendant 2 himself has stated that he is S. S. L. C. pass and he had been signing his signature in Kannada and no doubt since after 1976 he started signing in English. That statement has been believed and thus the Court recorded its finding that the defendant-revision petitioner has signed the document Ex. P. 4 as a guarantor.
That statement has been believed and thus the Court recorded its finding that the defendant-revision petitioner has signed the document Ex. P. 4 as a guarantor. The Court below further dealt with that question and held that defendant 1 has admitted to have signed the document and exhibit. Referring to clause (3) of Ex. P. 4 when defendant 4 executed the document in July 1989, he shall be deemed to have executed also on behalf of the guarantor as clause (3) (a) provides that any acknowledgement in writing by the borrower of the debt shall be deemed to be for and on behalf of and as the agent of the guarantor. So it relied on the acknowledgement and held the suit to be within time against both the defendants and decreed the suit. In my opinion, the Court below did not commit any error of law or fact which may make the decision not according to law. Decision appears to be according to law. Hence, revision is dismissed. Judgment and decree of the Court below is maintained.