Research › Search › Judgment

Karnataka High Court · body

2012 DIGILAW 926 (KAR)

Susheela Bai v. Ganga Electronics

2012-11-08

ARAVIND KUMAR

body2012
JUDGMENT ARAVIND KUMAR, J.—This appeal by 1st defendant is directed against the judgment and decree passed by the IV Addl. City Civil Judge, Bangalore, dated 17.11.2007 passed in O.S. No. 10193/1992 whereunder the suit has been decreed in part, namely as against a claim for recovery of Rs. 27,011/- with penalty at Rs. 200/- per month and interest came to be decreed for a sum of Rs. 15,460/-with proportionate cost, current and future interest at 6% per annum on the decretal amount. 2. Heard Smt. Manjula K.H., learned counsel appearing on behalf of Sri. G. Narayana Rao for appellant. Respondent Nos. 1 and 3 are served and unrepresented. Appeal against respondent No. 2 has been dismissed vide order dated 6.11.2012. Parties are referred as per rank in the Trial Court. 3. Plaintiff filed a suit against defendant Nos. 1 to 3 for recovery of sum of Rs. 27,011/- with penalty at the rate of Rs. 200/-per month and interest thereon interalia contending that plaintiff is carrying on the business of sale of Television under the name of M/s. Ganga Electronics, N.R. Road, Bangalore, and defendant No. 1 approached plaintiff for supply of one colour television set of Crompton Greaves make on credit basis and assured plaintiff that she would make payment in 48 equated monthly installments at the rate of Rs. 592/-per month and in the case of a single default she would pay a sum of Rs. 200/- for every defaulting month as penalty. It was further contended that defendant No. 1 offered defendant Nos. 2 and 3 as guarantors and took delivery of the colour television vide delivery challan dated 23.09.1988 bearing No. 93. It was contended that after delivery of the television set defendant No. 1 did not make payments regularly and as on the date of filing the suit a sum of Rs. 8,025/- had been paid and demanded payment of entire amount due and legal notice dated 23.10.1989 came to be issued whereunder a sum of Rs. 27,011/- was demanded. On account of non payment of amount and non compliance of the demand made in the demand notice, plaintiff instituted suit for recovery of said amount in O.S. No. 1193/1992. 4. On issuance of suit summons defendant Nos. 1 and 2 appeared and defendant No. 1 alone filed the written statement. 27,011/- was demanded. On account of non payment of amount and non compliance of the demand made in the demand notice, plaintiff instituted suit for recovery of said amount in O.S. No. 1193/1992. 4. On issuance of suit summons defendant Nos. 1 and 2 appeared and defendant No. 1 alone filed the written statement. Defendant No. 1 denied taking delivery of colour television as also agreeing to repay the amount in EMI @ Rs. 592/- per month. She also denied having offered defendant Nos. 2 and 3 as guarantors. However, in the written statement it was contended by defendant No. 1 that she was desirous of purchasing a television and as such she had approached plaintiff and had assured plaintiff that she would make payment every month depending upon her financial position and as situation permits. Based on the said assurance given by plaintiff she claims to have paid a total sum of Rs. 8,787/- on different dates and thereafter paid a sum of Rs. 300/- to plaintiff and took delivery of television set. It was contended that cost of television at the relevant point of time was Rs. 9,000/- and having paid the entire amount she took delivery of television. She also claimed that plaintiff had taken signature of defendant No. 1 on blank papers stating that it was only with regard to delivery of television set and she believed the version of plaintiff and as such she signed all the blank papers. She further contended that plaintiff with an intention to defraud defendant No. 1 and to have a wrongful gain has misused the blank papers signed by defendant No. 1 and has instituted a false suit. On these grounds, she sought for dismissal of the suit. 5. On the basis of pleadings of the parties following issues were framed by trial Court for its adjudication. “(1) Does the plaintiff proves that the defendant No. 1 purchased T.V. set agreeing to pay its cost in 48 equal installments at the rate of Rs. 592/- and executed the suit documents? (2) Whether the plaintiff further proves that the defendants 2 and 3 offered themselves as guarantors and signed the suit documents agreeing the liability in respect of payment of the amount? (3) Does the plaintiff further prove that the defendants failed to clear off the amount due in spite of making demands? 592/- and executed the suit documents? (2) Whether the plaintiff further proves that the defendants 2 and 3 offered themselves as guarantors and signed the suit documents agreeing the liability in respect of payment of the amount? (3) Does the plaintiff further prove that the defendants failed to clear off the amount due in spite of making demands? (4) Has this present suit cause of action? (5) Does the defendant No. 1 prove that the plaintiff obtained many signatures on the blank papers and created them as suit documents as contended in plaint para 9 of her written statement? (6) To what relief the parties are entitled? (7) What decree or order? Additional issue: Whether defendant No. 1 proves that the suit of the plaintiff is barred by limitation?” 6. Plaintiff in support of its contention examined the power of attorney holder namely husband of Proprietrix of plaintiff’s firm as PW1 and produced 9 documents through him and got it marked as Exhibits P1 to P9. Defendant No. 1 got herself examined as DW1 and no documents were marked. After hearing the arguments advanced by the respective learned Advocates and on appreciation of evidence, Trial Court by its judgment and decree dated 17.11.2007 decreed the suit in part, namely for a sum of Rs. 15,460/- with proportionate cost, current and future interest at the rate of 6% per annum on decreetal amount. Same is assailed in the present appeal. 7. Trial Court has held issue Nos. 2 and 5 against plaintiff which related to the burden cast on plaintiff regarding defendant Nos. 2 and 3 being the guarantors and defendant No. 1 having executed blank papers. Issue regarding suit being barred by limitation was held in the negative, there is no challenge to these findings in the present appeal. Issues 1, 3, 4 and 6 are held in favour of plaintiff. 8. It is the contention of learned counsel for appellant that Trial Court committed an error in arriving at a conclusion that plaintiff has proved that defendant No. 1 having purchased the television set agreeing to pay its cost in 48 EMI at the rate of Rs. Issues 1, 3, 4 and 6 are held in favour of plaintiff. 8. It is the contention of learned counsel for appellant that Trial Court committed an error in arriving at a conclusion that plaintiff has proved that defendant No. 1 having purchased the television set agreeing to pay its cost in 48 EMI at the rate of Rs. 592/- per month on 22.09.1988 since the evidence on record do not disclose that defendant No. 1 having signed delivery challan and contends that Exhibit P1 does not disclose the affixture of signature by defendant No. 1 as also the signatures of defendant Nos. 2 and 3. She further contends that Trial Court committed a serious error in accepting Exhibit P1 which is a carbon copy of delivery note to conclude that appellant has purchased the colour television on credit basis, which by itself was not sufficient to prove the liability of defendant No. 1. She would contend that evidence on record would disclose that defendant No. 1 had paid 149 EMI’s at the rate of Rs. 592/- per month and after paying the said amount only she had taken delivery of television set which was the then cost of the said television set and as such defendant No. 1 is not liable to answer the suit claim. She would elaborate her submission by contending that Court below erred in not noticing the fact that neither the pleadings nor the documents produced by the plaintiff would disclose as to what was the actual cost of the television set and in the absence of plaintiff’s proving the cost of television set, Trial Court erred in decreeing the suit in part. She contends that the Court below could not have relied on Exhibit P1 since it was not proved by plaintiff. She contends that alleged cheque issued by the appellant was not towards balance amount claimed by plaintiff and according to her it was not issued for repayment of balance amount and it was only a blank cheque given towards security which came to be misused by plaintiff and as such she contends that Court below ought not have relied upon Exhibit P7. On these grounds counsel for Appellant/defendant No. 1 seeks for allowing the appeal and setting aside the judgment and decree dated 17.11.2007 passed by the IV Addl. City Civil Judge, Bangalore and prays for dismissal of the suit. 9. On these grounds counsel for Appellant/defendant No. 1 seeks for allowing the appeal and setting aside the judgment and decree dated 17.11.2007 passed by the IV Addl. City Civil Judge, Bangalore and prays for dismissal of the suit. 9. Having heard the learned counsel appearing for the appellant and on perusal of the judgment and decree dated 17.11.2007 passed by IV Addl. City Civil Judge, Bangalore, in O.S. No. 10193/92 as also trial Court records, I am of the considered view that following points would arise for my consideration: (1) Whether the Court below was correct in decreeing the suit for a sum of Rs. 15,460/- with proportionate cost, current and future interest at 6% per annum; or Whether the judgment and decree passed in O.S. No. 10193/92 suffers from any error and illegality either on facts or on law which requires interference at the hands of this Court. (2) Whether the judgment and decree dated 17.11.2007 passed by the Trail Court requires to be reversed, affirmed or modified; (3) What order? 10. A perusal of judgment and decree passed by the Trial Court would go to show that on account of express denial in the initial paragraphs of the written statement about defendant No. 1 having purchased the television set, burden was cast on the plaintiff to prove that defendant No. 1 had purchased the television and had agreed to pay the cost of it in 48 equated installments at the rate of Rs. 592/- per month. 11. While answering the said issue, Court below has scrutinized both oral and documentary evidence tendered by the parties. At this juncture it requires to be noticed that though defendant No. 1 denied having purchased television as claimed by the plaintiff, she admitted in paragraph 9 of her written statement that she had taken delivery of the television set. In her own words said admission reads as follows: “This defendant submits xxxxxxxx around Rs. 9,000/-. Immediately, the 1st defendant paid the balance cash amount of Rs. 300/- App; and Thereafter wards, the plaintiff delivered the T.V to the 1st defendant. At the time of delivery of the T.V. Set, the plaintiff took some signatures xxxxxxxxxxxx exemplary costs.” (Emphasis supplied) 12. 9,000/-. Immediately, the 1st defendant paid the balance cash amount of Rs. 300/- App; and Thereafter wards, the plaintiff delivered the T.V to the 1st defendant. At the time of delivery of the T.V. Set, the plaintiff took some signatures xxxxxxxxxxxx exemplary costs.” (Emphasis supplied) 12. This admission of defendant No. 1 in the written statement clearly go to establish that defendant No. 1 in fact had taken delivery of the television set and there cannot be any dispute on this fact. However, defendant No. 1 contended that after paying a sum of Rs. 8,787/- in installments, i.e., spread over period and after paying balance amount of Rs. 300/- which would be Rs. 9,000/- and total cost of Television set, she took delivery of television set requires to be examined with utmost circumspection for reasons more than one. At the first instance, it has to be noticed that no prudent person would pay the installments in advance and does not take delivery of the goods (in the instant case television set) and thereafter agree to receive the goods (television set in the instant goods) after a long period. As to why she has paid the equated monthly installments in advance would be the moot question and it has been remained unanswered. She has neither contended in her pleadings or stated in her evidence as to why she paid these alleged-EMI’s in advance that too without taking delivery of the television set. Defendant No. 1 is not a layman. At an undisputed point of time, i.e., when she paid the installments and took delivery of Television she was working as Superintendent in Block Development Office at Tiptur. In other words it would mean she was possessing all worldly knowledge and aware of the nature of transaction she was entering into with plaintiff. In fact her entire defence regarding having not purchased the television set and had paid the installments in advance would fall to the ground by her entire admission in examination-in-chief dated 24.11.1997, which is to the following effect: “I am 1st defendant xxxxxxxxxxxxx PW1. In 1988 on the enquiry the plaintiff about the selling of television on installments basis. I purchased one television plaintiff by installments basis. I paid a sum of Rs. 8787/-to the plaintiff in 14 installments. I took delivery of the television on March 1990.” 13. In 1988 on the enquiry the plaintiff about the selling of television on installments basis. I purchased one television plaintiff by installments basis. I paid a sum of Rs. 8787/-to the plaintiff in 14 installments. I took delivery of the television on March 1990.” 13. From this admission of DW-1 it would establish the fact that she had purchased the television set from the plaintiff and had agreed to repay the cost of the television set in equated monthly installments. As to whether she agreed to pay equated monthly installments by taking delivery of the television set or there afterwards there is no whisper both in the pleadings and evidence. It is as vague, vagueness could be. In fact she unequivocally admits for having taken delivery of the television set in March 1990. As against this plea of the defendant, plaintiff has produced the office copy of the delivery challan said to have been executed by the defendant No. 1 at the time of taking delivery of the television set as per Exhibit P1. In fact the said document was confronted in the witness box in her cross examination which execution was denied by her. This evidence of DW1 cannot be eschewed for the simple reason that in the very same cross examination dated 22.08.2007, when she was confronted with the signature found in the vakalathnama executed by her in favour of her Advocate she denied her signature in the vakalathnama itself. In fact defendant No. 1 had disengaged the services of the Advocate who was appearing for her at 1st instance and later had engaged a new counsel who had entered appearance by signing a vakalathnama on 23.01.1995. Same was also confronted to the defendant and she denied her signature found in the said vakalathnama also. This clearly go to show that she is an untruthful witness and her evidence cannot be accepted. 14. A reading of the above admission of DW1 extracted hereinabove would also clearly go to show that there is no dispute with regard to defendant No. 1 having taken delivery of the television set. In fact defendant No. 1 has forwarded an EMI of Rs. 540/- by way of Demand Draft under covering letter dated 02.01.1990 which letter came to be marked as Exhibit P-6. In the said letter defendant states that it is towards payment of cost of television installment. In fact defendant No. 1 has forwarded an EMI of Rs. 540/- by way of Demand Draft under covering letter dated 02.01.1990 which letter came to be marked as Exhibit P-6. In the said letter defendant states that it is towards payment of cost of television installment. To reiterate the finding recorded herein above that evidence of DW1 cannot be accepted this letter, i.e., Exhibit P-6 fortifies the same. Defendant had taken delivery of the television set in March 1990 as admitted by her in paragraph 9 of her written statement and if she had not taken delivery as contended now, she would have stated that the television set is not delivered to her on said date or she would not have forwarded the demand draft for Rs. 540/- along with letter Ex.P-6 which was towards the payment of installment. In view of the said oral and documentary evidence placed before the Trial Court it has rightly answered issue No. 1 in the affirmative which does not suffer from any infirmities whatsoever. 15. In so far as the plea regarding the suit being barred by limitation the Trial Court framed also additional issue in this regard and has answered the same in the affirmative which does not call for any inference. Plaintiff filed the suit in question on 26.02.1992. even according Defendant No. 1 she claims to have taken delivery of the television set during the month of March 1990. Exhibit P6 is dated 02.01.1990 whereunder she has paid installment of Rs. 540/- by sending a demand draft to the plaintiff and within 3 years from the date of payment of last installment suit has been filed, i.e., on 26.02.1992. Hence plea of suit being barred by limitation deserves to be rejected. 16. Though PW1 claimed that defendant No. 1 had agreed to repay the cost of the television in 48 equated installments at the rate of Rs. 592/- per month and the sum of total of EMI’s would be Rs. 28,460/- no documents were produced by the plaintiff to establish the value of the television. As such plea of the plaintiff for claiming a sum of Rs. 27,011/- was not rightly accepted by the Trial Court. On the other hand defendant No. 1 had issued a cheque for Rs. 28,460/- no documents were produced by the plaintiff to establish the value of the television. As such plea of the plaintiff for claiming a sum of Rs. 27,011/- was not rightly accepted by the Trial Court. On the other hand defendant No. 1 had issued a cheque for Rs. 16,000/- on 23.09.1989 which cheque came to be dishonoured and though proceedings initiated in this regard for alleged offence under Section 138 of Negotiable Instruments Act, 1988 ended in dismissal of the complaint it did not absolve civil liability of the defendant No. 1 and taking into consideration the admissions given by the defendant No. 1 into consideration particularly Exhibit P6, Trial Court rightly held that plaintiff has proved that defendant No. 1 has failed to pay the amount due in spite of demand made by the plaintiff. Though defendant No. 1 has contended that she took delivery of the television set during March 1990 as already discussed hereinabove the said plea has remained a plea without proof and same was not accepted by the Trial Court, and rightly so. At this juncture itself it would be appropriate to note the contents of the letter written by defendant No. 1 to the plaintiff dated 02.01.1990 which is marked as Exhibit P6 which reads as under: “3. Please ensure that the immediate reply is given to my query separately made in my previous letters and also vide para 6 of my English version letter dated 04 Dec. 1989, to enable me to pay the dues in one and final instalment, otherwise my sending DD also may be delayed till the receipt of your reply.” 17. The above recital or admission made by defendant No. 1 would establish the fact that as on the date of writing of this letter 1st defendant was still due to the plaintiff towards the cost of the television set. The plea raised in paragraph 9 of the written statement that before taking delivery of the television set, she had paid the entire amount namely Rs. 8,787/- is nothing but a concocted story and as such the Trail Court has rightly not accepted the same. In that view of the matter point Nos. 1 and 2 formulated hereinabove is to be answered in the negative and against defendant No. 1 and in favour of plaintiff. 18. 8,787/- is nothing but a concocted story and as such the Trail Court has rightly not accepted the same. In that view of the matter point Nos. 1 and 2 formulated hereinabove is to be answered in the negative and against defendant No. 1 and in favour of plaintiff. 18. For the reasons aforesaid, I pass the following: ORDER (i) Appeal is dismissed. (ii) Judgment and decree dated 17.11.2007 passed in O.S. No. 10193/1992 by the IV Addl. City Civil Judge, Bangalore, is hereby affirmed. (iii) Since the respondents are served, un-represented and not contested the matter costs are made easy. (iv) This Court had stayed the judgment and decree under appeal subject to appellant depositing 50% of the decreetal amount and furnish security for the balance amount to the satisfaction of the Court below. If order has been complied and amount has been deposited by appellant, Court below is hereby directed to make the payment to the plaintiff/respondent No. 1 herein forthwith. 19. Registry to draw the decree accordingly and communicate the same to the Jurisdictional Court.