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2017 DIGILAW 152 (KAR)

G. N. Shankarappa v. G. P. Chandre Gowda

2017-01-25

K.N.PHANEENDRA

body2017
JUDGMENT : K.N. Phaneendra, J. Heard the learned counsel for the appellant with regard to admission of the appeal. Respondent's counsel is present before the Court. Perused the records. 2. Perusal of the judgment of the trial Court and the First Appellate Court reveals that, the plaintiff (respondent herein) filed a suit for recovery of a sum of Rs. 2,57,500/- along with interest at 12% p.a., on the borrowed amount of Rs. 2,50,000/-, basing the claim on a promissory note alleged to have been executed by the defendant on 15.11.2012 agreeing to repay the said amount along with interest as agreed upon on the promissory note. In spite of repeated requests and demands, the defendant has not paid the said amount and therefore, the suit came to be filed. Even before institution of the suit, a notice was issued by the plaintiff to the defendant calling upon him to make payment of the outstanding amount. The defendant appeared before the trial Court, contest a the suit mainly on the ground that there was no occasion for the defendant to take any amount from the plaintiff. It is also the contention of the defendant that the plaintiff and defendant were known to each other since long and they were having money transaction with each other from 2004. On 18.9,2012, in respect of the past money transaction between plaintiff and defendant, a panchayath was convened and the parties have entered into an agreement on that day, wherein the defendant has paid a sum of Rs. 2 lakhs through cash to the plaintiff before the panchayathdars and on that day, the plaintiff has returned one blank cheque and one promissory note, out of two cheques and two promissory notes. The defendant on protest has agreed upon the said contents of the document and the parties have signed the document in the presence of the panchayathdars. It is further contended that when the matter has raised between the parties by virtue of the said document marked at Ex. D1 and even they have agreed that they will not have any future transaction with each other, there was no occasion or necessity for the defendant to give to the plaintiff and enter into any money transaction by executing any promissory note. D1 and even they have agreed that they will not have any future transaction with each other, there was no occasion or necessity for the defendant to give to the plaintiff and enter into any money transaction by executing any promissory note. On the basis of the above rival contentions of the parties, the trial Court has framed the following issues: (1) Whether the plaintiff proves that, the defendant has borrowed a sum of Rs. 2,50,000/- from the plaintiff with agreed rate of interest at 1% per month by executing a promissory note and consideration receipt.? (2) Whether the plaintiff proves that, the defendant is liable to pay the suit claim amount of Rs. 2,57,500/- to the plaintiff? (3) Whether the plaintiff proves that, the defendant is liable to pay the interest at 1% per month as current and future interest on suit claim amount of Rs. 2,57,500/- from the date of suit till the date of its realization? (4) Whether the plaintiff is entitling for the relief as prayed for? (5) What order or decree? 3. In order to establish the case, the plaintiff himself was examined as PW1 and one more witness as PW2 and got marked three documents Ex.PI to P-3. The defendant was also examined himself as DW1 and got exhibited the documents on D1 and D2 and closed his side. The Court after appreciating the oral and documentary evidence on record has answered issue Nos. 1 and 2 in the Affirmative and Issue Nos.3 & 4 in the partly affirmative and decreed the suit of the plaintiff as prayed for. 4. Being aggrieved by the said judgment and decree, the appellant herein (defendant) has preferred an appeal in RA No.26/2015 on the file of the Senior Civil Judge & JMFC, Arsikere. The First Appellate Court has also in detail considered the pleadings of the parties and also the issues framed by the trial Court, evidence led by the parties and considering the oral and documentary evidence on record with reference to the grounds of appeal, has framed the following points: (1) Whether the impugned judgment and decree passed by the trial Court in OS No.94/2013, dated 25.4.2015 is illegal, perverse and not in accordance with law and the same is liable to be set aside? (2) What order or decree? 5. (2) What order or decree? 5. After re-appreciation of the entire materials on record, the First Appellate Court has found absolutely no mistake committed by the trial Court and answered the point formulated by it in the negative and as such confirmed the judgment of the trial Court by dismissing the appeal filed by the appellant. Being aggrieved by the above said two judgments, the present RSA is preferred. 6. If is the fundamental basic principle of law with reference to Section 100 of CPC that when the Court has to formulate substantial question of law in order to entertain the present RSA, it is just and necessary for this Court to examine whether there arises any substantial question of law to be framed in this particular case. 7. There is no much dispute with regard to Ex.PI & P2 marked before the trial Court which are the promissory note and signature of the defendant and consideration receipt. As the defendant has taken up the contention that at the time of Ex.D1, the plaintiff has only given one promissory note and one cheque and retained another promissory note and a cheque which contain the signature of the defendant and it is the case of the defendant that taking advantage of one Promissory Note and a cheque with the plaintiff, subsequent to Ex.D1, the compromise between the parties, the plaintiff has filed a false case against the defendant by misusing the documents. As could be seen from the pleadings of the parties and evidence led by them, it is the case of the defendant that subsequently after Ex.D1 there was no occasion for him to take any money from the plaintiff. It is his case that the Promissory Note and the cheque which were retained by the plaintiff has been made use of by the plaintiff subsequently in order to foist a false claim against the defendant. It is exactly, the crux of this particular case. Therefore, the plaintiff said to have been proved his case so far as Ex.PI and P2 Promissory Note is concerned with reference to the signature on the said document i.e., on the Promissory Note ana consideration report with that of the defendant. It is exactly, the crux of this particular case. Therefore, the plaintiff said to have been proved his case so far as Ex.PI and P2 Promissory Note is concerned with reference to the signature on the said document i.e., on the Promissory Note ana consideration report with that of the defendant. The defendant has extensively relied upon the document Ex.D1 in order to establish that there was no occasion for him to go to the plaintiff once again as the entire transaction between them have been set at rest on 18.9.2012 itself. The present Promissory Note alleged to have been executed by the defendant as per the plaintiff's case is subsequent to Ex.D1. Therefore, the Court has to see whether this particular document (Ex. D1) has been properly understood and the courts have properly considered this document and appreciated the same. The learned counsel for the appellant has taken me through the judgment of the trial Court. It is seen from the judgment that the trial Court in-extenso discussed this Ex.D1 at paragraph 16 to 20 with reference to the evidence of PWs.1 and 2 and with that of DW1. The trial Court has appreciated this document on various grounds. It is observed by the trial Court that though this Ex.D1 was entered into between the parties, the defendant has received a legal notice from plaintiff with reference to Ex.PI and P2 under a legal notice marked at Ex.P3. The trial Court observed that though a reply was given, no action has been taken by the defendant so far as Ex.D1 is concerned. Even after causing the reply till the fling of the suit also, the defendant has not taken any action, but subsequently after receiving the summons, a private complaint appears to have been filed against the plaintiff. The conduct of the defendant has been appreciated by the trial Court as the conduct and attitude of the defendant was not to the mark in keeping quite for such a long time even after issuance of the notice. The trial Court has further discussed that if at all the plaintiff has retained one cheque and one Promissory Note at the time of Ex.D1, there is no reference with regard to this particular aspect particularly, the retention of one cheque and one Promissory Note, nothing has been spelt out about the documents which are retained by the plaintiff. The trial Court has further discussed that if at all the plaintiff has retained one cheque and one Promissory Note at the time of Ex.D1, there is no reference with regard to this particular aspect particularly, the retention of one cheque and one Promissory Note, nothing has been spelt out about the documents which are retained by the plaintiff. The defendant's contention is that at the time of Ex.D1 itself, defendant has the knowledge that he has executed two Promissory Notes and two creases in favour of the plaintiff, but what made him at the time of Ex.D1 not getting it recorded with reference to those Promissory Notes and cheques. If at all the documents were retained by the plaintiff at the time of executing Ex.D1 and only one cheque and one Promissory Note were given back to the defendant, that should have been mentioned in the said document. That clearly goes to show, as on the date of Ex.D1, the parties have decided that nothing was there with the plaintiff or the defendant, particularly the documents pertaining to each other. They have categorically stated that upto the date of Ex.D1 they have settled the entire past transaction and they have no dispute upto that particular date and they have resolved the dispute as the defendant has paid an amount of Rs. 2 lakhs showing that upto the date of Ex.D1, the repayment is accepted by the plaintiff. Even this document does not show that there was any document retained by the plaintiff. After the above transaction, no material is available to show that the parties developed differences and therefore, there was no occasion for the defendant to enter into such transaction with the plaintiff. It cannot be imagined by the Court that after execution or at the time of execution of Ex. D1, the parties were at logger heads and therefore, there was no occasion for the defendant to go to the plaintiff once again seeking some money. The transaction between the parties is not that of a single transaction. As admitted, since 2004 they have been transacting with each other perhaps due to the cordial understanding between them, they might have entered into an agreement (Ex.D1) to square up their past transaction. The transaction between the parties is not that of a single transaction. As admitted, since 2004 they have been transacting with each other perhaps due to the cordial understanding between them, they might have entered into an agreement (Ex.D1) to square up their past transaction. Therefore, it is a very strong burden on the defendant to show that subsequent to Ex.D1 they were at logger heads and they were not in talking terms with each other and there was no occasion for him to go to the plaintiff and ask for money. Ex.D1 has been extensively considered by the trial Court and the same has been re-appreciated on the touch stone of the evidence of PW1 and DW1. Therefore, the entire gamut of the case of the defendant has been appreciated by the trial Court ana the First Appellate Court. A particular portion of Ex.D1 as submitted by the learned counsel that in future, they will have no financial transaction with each other that recital has not been property understood by the trial Court, in my opinion, that agreement is not proper and correct. The Court cannot just imagine the conduct of the parties subsequent to E/.D1, unless there is a substantial evidence adduced by the parties to show that the defendant and plaintiff were at logger heads after Ex.D1. Therefore, when it was left to the discretion and imagination of the Court, the Court has to consider all the materials available on record. When there is no denial with regard to the signature on Ex.PI and P2 and further, there is no explanation offered as to why, it has not been mentioned that one Promissory Note and one cheque has been retained by the plaintiff Ex.D1 in the absence of such materials, the trial Court has come to the conclusion that the transaction has been proved by the plaintiff that the defendant has executed the Promissory Note by receiving an amount of Rs. 2 lakhs. 8. Section-81 of the Negotiable Instruments Act reads as under: "Sec.81. 2 lakhs. 8. Section-81 of the Negotiable Instruments Act reads as under: "Sec.81. Delivery of instrument on payment or indemnity in case of loss.-(1)'Any person liable to pay, and called upon by the holder therefor to pay, the amount due on a promissory note, bill of exchange or cheque is before payment entitled to have it shown, and is on payment entitled to have it delivered up, to him, or if the instrument is lost or cannot be produced, to the indemnified against any further claim thereon against him." In view of the said provision when the defendant claims that ha has paid the entire amount by virtue of the earlier compromise between the parties as per Ex.D1, he should have called upon the plaintiff to deliver up all the instruments which where in the custody of the plaintiff. If really those instruments were lost and cannot be produced at that time or else there should have been an indemnification against any further claim thereon against the defendant. In the absence of that, the law presumes that no such documents are lefty the defendant, with the plaintiff. Therefore, in the absence of any convincing materials, if is very difficult to come to any conclusion that the defendant has not at all entered into any transaction with the plaintiff subsequent to Ex.D1. 9. The First Appellate Court has also re-appreciated the same by giving cogent and convincing reasons. It has also categorically stated at paragraph 14 that, according to the defendant, the plaintiff has returned one Promissory Note and one cheque, but he has not returned remaining documents, but the same has not been recited in Ex. D1. Therefore, the First Appellate Court has also accepted the reasons given by the trial Court. 10. Under the above said facts and circumstances of the case, what emerges from the above said judgment is that the trial Court and the First Appellate Court have extensively discussed with regard to the execution of Ex.D1, contents of Ex.D1 and on facts appreciated the said document, There is absolutely no legal question arose either before the trial Court or before the First Appellate Court. It is only an appreciation of the evidence of PW1 and DW1 with reference to Ex.D1, which has been questioned before this Court. It is only an appreciation of the evidence of PW1 and DW1 with reference to Ex.D1, which has been questioned before this Court. Even the appreciation of the trial Court and the First Appellate Court according to the learned counsel for the appellant is erroneous. Mere erroneous appreciation of evidence itself is not sufficient to construe it as substantial question of law, unless the trial Court or the First Appellate Court have not at all discussed and considered Ex.D1. 11. In the above said facts and circumstances of the case, 1 do not find any substantial question of law in this case to be framed. Hence, the appeal is devoid of merit and liable to be dismissed at the threshold itself. 12. Accordingly, the appeal is dismissed.