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2011 DIGILAW 1099 (KAR)

A. Bhaskara Gowda v. Simon Luis Rodrigues

2011-11-15

K.N.KESHAVANARAYANA

body2011
JUDGMENT K.N. KESHAVANARAYANA, J.—This appeal by the defendant in O.S. No. 117/2003 on the file of Civil Judge (Sr. Dn.), Puttur, Dakshina Kannada is directed against the concurrent judgments of the Courts below decreeing the suit of the respondent/plaintiff for recovery of sum of Rs. 69,850/-. 2. The respondent/plaintiff filed the suit against the appellant/defendant for recovery of Rs. 69,850/- with future interest at 18% per annum from the date of the suit till the date of realisation inter alia, contending that the defendant for valuable consideration received executed a promissory note for a sum of Rs. 45,000/- on 8.12.2000 in favour of the plaintiff agreeing to repay the said amount of Rs. 45,000/- on demand together with interest and also acknowledged receipt of the consideration, and in spite of the repeated requests, demands and issue of notices, the defendant failed to pay the amount due under the promissory note. The appellant/defendant upon service of suit summons appeared before the trial Court and contested the claim denying the plaint averments and inter alia contending that he had borrowed a sum of Rs. 10,000/- from the plaintiff and at that time the plaintiff had obtained his signature on a revenue stamp affixed on a blank white sheet and also obtained the signature of his brother as a ‘witness and that at the time of repayment of the said sum of Rs. 10,000/- the plaintiff demanded exorbitant interest and since he did not acceded to the said demand, the plaintiff by fabricating the document has made a false claim. According to him he has not borrowed a sum of Rs. 45,000/- from plaintiff as contended. 3. the trial Court framed the following issues: 1. Whether the plaintiff proves that the defendant had borrowed a loan Rs. 45,000/- from him by executing the suit promissory note? 2. Whether the defendant proves that he had borrowed only Rs. 10,000/- from plaintiff and discharged the same? 3. Whether the plaintiff proves the suit claim? 4. What order or decree? 4. In. support of his case, the plaintiff examined himself as P.W. 1 and also examined one of the attesting witnesses as P.W. 2. On the other hand the defendant examined himself as D.W. 1, his brother as D.W. 2 and two more witnesses as D.Ws. 3 and 4. 5. The trial Court on appreciation of oral and documentary evidence, answered issue Nos. On the other hand the defendant examined himself as D.W. 1, his brother as D.W. 2 and two more witnesses as D.Ws. 3 and 4. 5. The trial Court on appreciation of oral and documentary evidence, answered issue Nos. I and 3 in the affirmative and issue No. 2 in the negative, In the light of the findings recorded on those issues, the trial Court decreed the suit of the plaintiff and directed the appellant to pay a sum of Rs. 69,850/- with interest at the rate of 18% per annum from the date of the suit till the date of payment. Being aggrieved by the said judgment and decree, the appellant, preferred appeal in R.A. No. 16/06 before the District Judge, Dakshina Kannada, which was later transferred to Fast Track Court, Puttur. The Lower Appellate Court on re-appreciation of the oral and documentary evidence, dismissed the appeal and confirmed the judgment and decree passed by the trial Court. Aggrieved by the concurrent, judgments of the Courts below, the defendant has presented this appeal. 6. I have heard the learned counsel appearing on both sides. Perused the judgments under appeal. 7. The learned counsel for the appellant submits as under: “That the Courts below have erroneously drawn presumption under Section 118 of the Negotiable Instruments Act though the plaintiff has not proved the essential basic fact of execution of promissory note by the defendant that mere admission of signature of the defendant on the promissory note would not by itself constitute the proof of execution of the document; that the Courts below have not properly appreciated the evidence of D.W. 2 that according to the plaintiff D.W. 2 was the scribe of the promissory note Ex. P1, however, D.W. 2 in his evidence has categorically stated that he does not know reading and writing Kannada and the plaintiff has not placed any acceptable evidence on record to show that the contents of Ex. P1, however, D.W. 2 in his evidence has categorically stated that he does not know reading and writing Kannada and the plaintiff has not placed any acceptable evidence on record to show that the contents of Ex. P1 are in the hand writing of D.W. 2, therefore, in the absence of any such evidence, the defence put forth by the defendant that his signature was obtained on a blank white paper was highly probable as such the Courts below have committed error in holding that the plaintiff has proved the execution of promissory note that the Courts below have erroneously cast the burden of proving that D.W. 2 does not know reading and writing Kannada on the defendant and, therefore, the judgment and decree suffers from illegality and the matter requires consideration in this appeal.” 8. On hearing the learned counsel, for the appellant,, 1 am of the considered opinion, that the appeal does not involve any question of law much less substantial question of law. 9. As could be seen from the defence of the defendant, he admits his signature found on Ex. P1. No doubt, it is his specific case that his signature was obtained on a blank paper. Of course, the admission of signature Itself would not prove the contents of the document. In order to prove the contents of the document-Ex. P1, the plaintiff as well as one of the attesting witnesses examined as P.W. 2 have spoken about the execution of Ex. P1 by the defendant in their presence. Both the Courts below on appreciation of the evidence of P.Ws. l and 2 have held that the plaintiff has proved execution of Ex. P1. D.W. 2 is none other than the brother of defendant. He admits his signature on Ex. P1 and also writings giving his address found on Ex. P1. The signature as well as writing admitted by D.W. 2 are in English. Therefore, it cannot, be said that. D.W. 2 is an illiterate person. Though D.W. 2 in his evidence has stated that he does not know reading and writing Kannada, both the Courts have not accepted the evidence of D.W. 2. Except self-serving statement of D.W. 2 that he does not know reading and writing Kannada, there is no evidence placed on record to substantiate this evidence. Having regard to the fact that he has subscribed his signature on Ex. Except self-serving statement of D.W. 2 that he does not know reading and writing Kannada, there is no evidence placed on record to substantiate this evidence. Having regard to the fact that he has subscribed his signature on Ex. P1 in English and since he is a. literate person, his say that he does not know reading and writing Kannada cannot be accepted. More over he is the brother of defendant. Therefore, he is an interested witness. Therefore, the Courts below have not committed any error in not, accepting the evidence of D.W. 2. In view of admission of signatures by the defendant and D.W. 2 on Ex.P1, no error in law has been committed by the Courts below in drawing presumption under Section 118 of the N.I. Act as to the passing of consideration. It is the submission of the learned counsel for the appellant that though in the notice issued earlier to the suit it was alleged that amount of Rs. 45,000/- was paid on 8.12.2000, in the evidence of P.W. 1, he has stated that the consideration was paid on different dates, therefore, the say of the plaintiff in this regard is not substantiated as such the Courts below have committed error in. accepting the evidence of P.W. 1 with regard to proof of the document. Admittedly the defendant has not. sent any reply to the notice which he had received from the plaintiff. In the plaint what has been alleged is that for valuable consideration received the defendant executed the promissory note on 8.12.2000, In fact the very contents of Ex. P1 clearly indicates that consideration of Rs. 45,000/- was paid on different dates and not on the date of the promissory note. In Ex. P1 is stated as under: (vernacular matter not given) 10. This clearly indicates that consideration was paid on different dates and for having received Rs. 45,000/- on different dates, the defendant has executed the promissory note. The defendant, has not discharged his burden of rebutting the presumption with regard to the passing of consideration. In this view of the matter, I find no error in the judgments of the Courts below decreeing the suit of the plaintiff holding that the execution of the promissory note is proved. The defendant, has not discharged his burden of rebutting the presumption with regard to the passing of consideration. In this view of the matter, I find no error in the judgments of the Courts below decreeing the suit of the plaintiff holding that the execution of the promissory note is proved. The findings recorded by the Courts below in this regard is purely questions of fact and appreciation of evidence and such a finding cannot be found fault with in second appeal filed under Section 100 of C.P.C. In this view of the matter, I find no question of law much less substantial question of law involved in this appeal. Therefore, the appeal is devoid of merit. 11. Accordingly, the appeal is dismissed.