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2019 DIGILAW 1436 (KAR)

M. Chockalingam v. A. G. Gururaj

2019-06-26

H.B.PRABHAKARA SASTRY

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JUDGMENT : H.B. Prabhakara Sastry, J. The suit of the present appellant filed against the present respondents in O.S.No.428/2004 before the XXXI Addl. City Civil Judge, Bengaluru City (hereinafter for brevity referred to as 'trial Court'), came to be dismissed by the judgment and decree dated 07.03.2011. It is against the said dismissal of the suit, the plaintiff has preferred this appeal. 2. The summary of the case of the plaintiff in the Court below is that the defendant Nos.1 to 4 had jointly borrowed a sum of Rs.2,00,000/- from him on 24.01.2001 and had promised to repay the same with interest thereupon at 2% per month. It is in that regard the defendants had executed on demand promissory note and consideration receipt. Despite the repeated requests and demands made by the plaintiff, the defendants failed to repay the loan amount. The plaintiff was constrained to issue a legal notice dated 30.07.2003 upon the defendants calling upon them to repay the loan amount together with interest thereupon. Since the defendants failed to repay the amount due, the plaintiff was constrained to institute a suit against them. 3. It was only the defendant No.2, who filed her written statement in the trial Court. She denied the alleged loan transaction and also the execution of on demand promissory note in favour of the plaintiff. On the other hand, she contended that she came to know that the defendants have paid and the plaintiff has received a cash of Rs.50,000/- on 01.07.2003 at his office. She admitted the receipt of legal notice sent by the plaintiff. She denied that she along with defendant Nos.1, 3 and 4 are due to the plaintiff a sum of Rs.2,00,000/- and are liable to pay the said sum with interest. 4. Based upon the pleadings of the parties, the trail Court framed the following issues: 1. Whether the plaintiff proves that on 24.1.2001 the defendants 1 to 4 having availed suit loan of Rs.2,00,000/- jointly executed On Demand Promissory Note agreeing to repay the same together with interest at the rate of 2% per month? 2. What order or decree? 5. To substantiate his case, the plaintiff got examined himself as P.W.1 and got produced and marked the documents Exs.P-1 to P-7. The defendants neither led evidence on their behalf nor produced and marked any documents in their support. 2. What order or decree? 5. To substantiate his case, the plaintiff got examined himself as P.W.1 and got produced and marked the documents Exs.P-1 to P-7. The defendants neither led evidence on their behalf nor produced and marked any documents in their support. The trial Court passed the impugned judgment dismissing the suit of the plaintiff observing that P.W.1 though had admitted in his cross-examination that some amount was received by him, since he was unable to account the same, he is not entitled for the decree. 6. Lower Court records were called for and the same are placed before this Court. 7. Heard the arguments of the learned counsel for the appellant. 8. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court. 9. Learned counsel for the appellant in his argument canvassed his first point stating that even if it is taken that plaintiff has received some amount, but there is no material to show that the said amount was towards the loan transaction, which is the subject matter of the suit. Even according to P.W.1, the said amount was given to him in Criminal Revision Petition No.1797/2006, which was then pending before this High Court. As such, the same being different transaction and has got nothing to do with the one on hand, but the trial Court has committed an error in dismissing the suit of the plaintiff. 10. The trial Court has answered issue No.1 in the affirmative thereby holding that the plaintiff has proved that on 24.01.2001, the defendant Nos.1 to 4 have availed a loan of Rs.2,00,000/- jointly from the plaintiff and have executed on demand promissory note agreeing to repay the same together with interest. However, the issue No.2 regarding the final order, it answered in the negative by observing that P.W.1 has admitted that he has received some amount from defendant No.2. However, he has not stated in his affidavit evidence about the receipt of the said amount and his evidence does not disclose the exact suit amount and the cheque amount which are distinct, as such, the plaintiff is not entitled for the decree. 11. However, he has not stated in his affidavit evidence about the receipt of the said amount and his evidence does not disclose the exact suit amount and the cheque amount which are distinct, as such, the plaintiff is not entitled for the decree. 11. In the light of the above reasoning of the trial Court, if the evidence of P.W.1 is analyzed, it can be seen that P.W.1 in his cross-examination has admitted that he had filed cheque dishonour case against defendant No.4 and the same came to be dismissed, against which he has preferred an appeal before this Court. Subsequently, in the very same cross-examination after denying a suggestion that defendants have repaid a sum of Rs.1,00,000/- in the year 2000, he has stated in reply to a separate question put to him, that he has filed cheque dishonour case against defendant No.2. He further stated that he has received some amount from defendant No.2 as per the orders of this High Court passed in Crl.R.P.No.1797/2006. However, he has not received full amount. It is based on the said statement of P.W.1, the trial Court, though has answered issue No.1 in the affirmative, has answered issue No.2 in the negative by holding that plaintiff is not entitled for the decree as prayed. 12. Admittedly, the defendants, except filing a written statement from the side of defendant No.2, have not contested the matter. The defendant No.2, even after her written statement, has not chosen to enter the witness box and to lead her evidence. As such, the evidence of P.W.1 is available on record to adjudicate the matter. 13. In his examination-in-chief the plaintiff as P.W.1 has reiterated the contents of his plaint and has clearly stated that defendants have jointly availed loan of Rs.2,00,000/- on 24.01.2001 agreeing to repay the same with interest at the rate of 2% per month and had executed on demand promissory note and consideration receipts in that regard. He has got produced and marked the on demand promissory note and consideration receipt at Exs.P-1 and P-2 respectively and has identified the signatures of defendants therein from Exs.P-1(a) to (d) and Exs.P-2(a) to (d) respectively. He has also produced and got marked the office copy of the legal notice dated 30.07.2003 issued by him to the defendants and three postal acknowledgments, got marked at Exs.P-3 and P-5 to P-7 respectively. 14. He has also produced and got marked the office copy of the legal notice dated 30.07.2003 issued by him to the defendants and three postal acknowledgments, got marked at Exs.P-3 and P-5 to P-7 respectively. 14. Defendant No.2 in her written statement itself has acknowledged the receipt of the legal notice. Admittedly, none of the defendants have replied to the legal notice denying the demand made in the said legal notice. Therefore, at the very first instance when the defendants had opportunity of denying the claim of the plaintiff, they have not made use of the said opportunity. Secondly, in the cross-examination P.W.1 though has stated that he has received some amount from defendant No.2 as per the order of this Court passed in Crl.R.P.No.1797/2006, but nowhere he has stated that the said criminal proceeding was with respect to the suit transaction of loan for Rs.2,00,000/- availed by the defendants on 24.01.2001. P.W.1 has stated that he had instituted a cheque bouncing case against defendant No.4 and the same came to be dismissed, challenging which he has preferred an appeal before this Court. Thus, when there was different cause of actions for the plaintiff for filing a criminal case and a civil case and when there are no material to link that the alleged criminal case in Crl.R.P.No.1797/2006 was in relation to the suit loan transaction itself, the trial Court has committed an error by presuming itself certain aspects which are not available in the material placed before it. As such, the trial Court's finding that the admitted payment by P.W.1 was with respect to the suit transaction only was an unfounded reasoning based upon no evidence either oral or documentary. This erroneous finding of the trial Court has led it to deny the relief to the plaintiff even though issue No.1 was answered in his favour. As such, the erroneous finding now deserves to be setaside and issue No.2 is requires to be answered partly in the affirmative holding that the plaintiff is entitled for recovery of the suit claim with the interest thereupon. Even though the plaintiff has claimed interest at the rate of 2% p.m., however considering the nature of the transaction, which is not commercial, and the circumstances of the case, I am of the opinion that interest be confined at the rate of 6% per annum. 15. Even though the plaintiff has claimed interest at the rate of 2% p.m., however considering the nature of the transaction, which is not commercial, and the circumstances of the case, I am of the opinion that interest be confined at the rate of 6% per annum. 15. Accordingly, I proceed to pass the following order: ORDER: Appeal is allowed with costs. The judgment and decree passed by the XXXI Addl. City Civil Judge, Bengaluru City in O.S.No.428/2004, dated 07.03.2011, is set-aside. Suit of the plaintiff is decreed. It is held that the plaintiff is entitled for a sum of Rs.3,44,000/- together with interest thereupon at the rate of 6% p.a. from the date of suit till the realization from the defendant Nos.1 to 4 jointly and severally. Draw the decree accordingly. The Registry is directed to transmit a copy of this judgment along with lower Court records to the lower Court without delay.