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Karnataka High Court · body

2019 DIGILAW 1893 (KAR)

Salamma v. A. Wahab Khan

2019-08-28

H.B.PRABHAKARA SASTRY

body2019
JUDGMENT : H.B. Prabhakara Sastry, J. The suit of the present appellants filed against the present respondent arraigning him as a defendant in O.S.No.9697/2007 in the Court of the XXXI Additional City Civil Judge, Bangalore City (CCH-14) (hereinafter for brevity referred to as "Trial Court") for recovery of a sum of Rs. 2,00,000/- with interest at the rate of Rs. 18% per annum from the defendant came to be dismissed by the Trial Court by its judgment and decree dated 27-03-2012. It is against the said judgment and decree, the plaintiffs in the Court below have preferred this appeal. 2. The summary of the case of the plaintiffs in the Court below was that, plaintiff Nos.1 and 2 are respectively the wife and son of late Sri.D. Byappa Reddy, who passed away at Bengaluru on 19-06-2005. The plaintiffs as legal heirs of the deceased late Sri.D. Byappa Reddy have succeeded to his estate. During his life time, Sri.D. Byappa Reddy had entered into an Agreement dated 04-10-1999 with the defendant to purchase the land in Sy.No.57 of Kadugondanahalli Village to an extent of 32 guntas from its owner, i.e. the defendant. In that direction, the said late Sri.D. Byappa Reddy had paid an advance sale consideration also. Later in the year 2004, late Sri.D. Byappa Reddy came to know that the said land which he intended to purchase from the defendant was the subject matter of acquisition having been acquired by the Bangalore Development Authority (BDA). Thereafter, the purchaser late Sri.D. Byappa Reddy asked the defendant to refund the advance sale consideration paid to him. Accordingly, the defendant agreed to repay a sum of Rs. 1,50,000/-, but pleaded difficulty in refunding the amount forthwith and sought for time. In that regard, he executed an Agreement dated 17-12-2004 in favour of late Sri. D. Byappa Reddy. In the said Agreement, the defendant undertook to pay a sum of Rs. 1,50,000./- to late Sri.D. Byappa Reddy, within a period of three months from the date of the said Agreement. The defendant had collected back the original Agreement of Sale dated 04-10-1999 from late Sri.D. Byappa Reddy, when he executed the Agreement dated 17-12-2004. The defendant subsequent to the Agreement dated 17-12-2004 did not keep up his promise and did not repay the amount to late Sri.D. Byappa Reddy/the plaintiffs. The defendant had collected back the original Agreement of Sale dated 04-10-1999 from late Sri.D. Byappa Reddy, when he executed the Agreement dated 17-12-2004. The defendant subsequent to the Agreement dated 17-12-2004 did not keep up his promise and did not repay the amount to late Sri.D. Byappa Reddy/the plaintiffs. The plaintiffs made several attempts for the refund of the amount from the defendant. Since he did not accede to their request, they were constrained to institute a suit for recovery of a sum of Rs. 2,00,000/- together with interest thereupon at Rs. 18% per annum from the defendant. 3. In response to the summons served upon him, the defendant appeared through his counsel and filed his Written Statement, wherein he contended that, late Sri.D. Byappa Reddy had agreed to purchase the land from him on 09-1-2005 and also had paid an advance amount of a sum of Rs. 1,00,000/-. Later, in the year 1996, the defendant paid back the amount to late Sri.D. Byappa Reddy and the Agreement was cancelled at the instance of late Sri.D. Byappa Reddy and that neither the defendant agreed to pay a sum of Rs. 1,50,000/- nor executed an Agreement on 17-12-2004 in favour of late Sri.D. Byappa Reddy. The defendant further contended that he refunded the amount due in the year 1999 itself and that the entire sale transaction had come to an end. He called the alleged Agreement of the year 2004 as a got-up and a concocted one. The defendant denied that the alleged Agreement of the year 2004 bears his signature in it. 4. Based on the pleadings of the parties, the Trial Court framed the following issues for its consideration: "1) Whether the plaintiffs prove that the defendant on 14-10-1999 had entered an Agreement with deceased Sri.D. Byappa Reddy for purchasing the land bearing Sy.No.57 measuring 32 guntas situated within the limits of Kadugondanahalli village, Kasaba Hobli in Bangalore North Taluk by receiving the advance from the said deceased? (2) Whether the plaintiffs further prove that as the said property was subject matter of acquisition by the BDA the defendant had come up with another Agreement dated 17-12-2004 to refund the advance received in sum of Rs. 1,50,000/- within the period of three months? (3) Whether the plaintiffs further prove that they are entitled to claim interest at the rate of Rs. 18% per annum? 1,50,000/- within the period of three months? (3) Whether the plaintiffs further prove that they are entitled to claim interest at the rate of Rs. 18% per annum? (4) What decree or order?" 5. In support of the plaint, the plaintiffs got examined two witnesses including plaintiff No.2 as PW-1 and got produced and marked documents at Exs.P-1 and to P-1(a). The defendant got himself examined as DW-1 and got produced and marked documents from Exs.D-1 to D-2(a). 6. After hearing both side, the Trial Court by its impugned judgment and decree dated 27-03-2012, answered all the three issues in the 'Negative' and proceeded to dismiss the suit of the plaintiffs. It is against the said judgment and decree, the plaintiffs have preferred this appeal. 7. Lower Court records were called for and the same are placed before this Court. 8. Heard the arguments of the learned counsel from both side and perused the material placed before this Court including the memorandum of appeal and the impugned judgment. 9. In the light of the material placed before the Court, the following points arise for my consideration:- [1] Whether the plaintiffs have proved that the defendant had executed an Agreement dated 17-12-2004 in favour of deceased D. Byappa Reddy, agreeing to repay a sum of Rs. 1,50,000/- to him within a period of three months? [2] Whether the judgment and decree under appeal warrants any interference at the hands of this Court? 10. PW-1 - Sri.D. R. Bhaskar Reddy who is plaintiff No.2, in his Examination-in-chief has reiterated the contentions taken up by the plaintiffs in their plaint. He has stated that, expressing his inability to repay the advance amount received under the Agreement of the year 1999, the defendant had executed an Agreement on 17-12-2004 in favour of late Sri. D. Byappa Reddy, agreeing and undertaking to repay him a sum of Rs. 1,50,000/-. He got produced and marked the said document at Ex.P-1. The witness was subjected to a detailed cross-R. examination, wherein he adhered to his original version. He has also stated that after the death of his father, i.e. late Sri.D. Byappa Reddy on 19-06-2005, the plaintiffs, on several occasions, had demanded the defendant to clear the liability, still, the defendant did not accede to their request, which constrained them to institute a suit against the defendant. He has also stated that after the death of his father, i.e. late Sri.D. Byappa Reddy on 19-06-2005, the plaintiffs, on several occasions, had demanded the defendant to clear the liability, still, the defendant did not accede to their request, which constrained them to institute a suit against the defendant. PW1 also stated that, though the alleged principal amount was Rs. 1,50,000/- only, adding interest to the said amount till the date of institution of the suit, the plaintiffs have claimed a sum of Rs. 2,00,000/- together with future interest at Rs. 18% per annum thereupon from the defendant. 11. PW-2 - Sri.Y.C. Channa Reddy is admittedly the brother of the plaintiff No.1. He in his Examination-in-chief in the form of Affidavit evidence has stated that, he knows both the parties to the suit as well late Sri.D. Byappa Reddy. He has stated that Agreement dated 17-12-2004 was entered into by late Sri.D. Byappa Reddy and Sri.A. Wahab Khan - the defendant, in his presence, wherein, Sri. A. Wahab Khan had agreed to refund a sum of Rs. 1,50,000/- to late Sri.D. Byappa Reddy. The witness has also stated that he was present when an Agreement in that regard was entered into and himself joined by one K. Javaraiah have subscribed their signatures to it as witnesses. The witness was subjected to a detailed cross-examination and several attempts were made to shake the credibility of the witness. However, the witness adhered to his original version. 12. The defendant as DW-1 in his Examination in-chief in the form of Affidavit Evidence has reiterated the contentions taken up by him in his Written Statement. However, except denying the alleged Agreement dated 17-12-2004, the witness has stated that, initially, on 09-11-1995 there was an Agreement entered into between himself and late Sri.D. Byappa Reddy, wherein the sale consideration of a sum of Rs. 1,00,000/- was paid to him. The witness has also stated that subsequently for the same consideration, one more Agreement for sale of the suit property was entered into between late Sri.D. Byappa Reddy and himself on 04-10-1999. However, he contended that he had paid back the entire sale consideration shown in the said Agreement of the year 1999 to late Sri.D. Byappa Reddy, as such, he is in no way liable to the plaintiffs, in any manner. He called the suit Agreement dated 17-12-2004 at Ex.P-1 as a concocted one. However, he contended that he had paid back the entire sale consideration shown in the said Agreement of the year 1999 to late Sri.D. Byappa Reddy, as such, he is in no way liable to the plaintiffs, in any manner. He called the suit Agreement dated 17-12-2004 at Ex.P-1 as a concocted one. He was also subjected to a detailed cross-examination wherein he adhered to his original version. The witness got marked two alleged Agreements, one dated 04-12-1995 and another 04-10-1999 at Exs.D-1 and D-2 respectively stating that, there were only two Agreements which the defendant had entered into with late Sri. D. Byappa Reddy/the plaintiffs. 13. In the light of the above, the argument of the learned counsel for the plaintiffs/appellants is that, even if it is accepted that late Sri.D. Byappa Reddy had entered into an Agreement as per Ex.D-2 with the defendant, by the last endorsement made in Ex.D-2 showing the acknowledgement of late Sri. D. Byappa Reddy receiving back the advance amount was not that of late Sri.D. Byappa Reddy. Learned counsel for plaintiffs/appellants also submitted that, when the signature of deceased late Sri.D. Byappa Reddy is not established in Ex.D-2, the same cannot be relied upon. On the other hand, the evidence of PW-1 regarding execution of Agreement at Ex.P-1 since is corroborated by the evidence of PW-2, the execution of Agreement at Ex.P1 and the outstanding liability of the defendant therein towards the plaintiffs, have stood proved. However, he submitted that, the Trial Court by itself comparing the signature of late Sri.D. Byappa Reddy, arrived at an opinion that he has received back the sale consideration in its entirety and proceeded to dismiss the suit of the plaintiffs, which is erroneous. 14. Learned counsel for the respondent/ defendant in his argument submitted that late Sri.D. Byappa Reddy was not well since he had a stroke, as such, the available medical records were not produced by the plaintiffs. The plaintiffs who claim to be in possession of the Agreement of the year 1999 did not produce the same. On the contrary, the said Agreement was produced by defendant in the Court below. As such also, it clearly goes to show that the defendant had repaid the advance sale consideration and collected back the Agreement of the year 1999. The plaintiffs who claim to be in possession of the Agreement of the year 1999 did not produce the same. On the contrary, the said Agreement was produced by defendant in the Court below. As such also, it clearly goes to show that the defendant had repaid the advance sale consideration and collected back the Agreement of the year 1999. He further submitted that the signature of late Sri.D. Byappa Reddy on the alleged document which is at Ex.P-1 is not proved. Lastly, stating that the plaintiffs have not shown as to how come they arrived at an amount of Rs. 1,50,000/- in Ex.P-1, when in fact, as per Ex.D-2, the alleged outstanding amount was only a sum of Rs. 1,18,000/-, the learned counsel submitted that the case of the plaintiffs is suspicious, as such, rightly the Trial Court has dismissed the suit of the plaintiffs. 15. The evidence of the parties goes to show that, the parties have admitted that, deceased late Sri.D. Byappa Reddy who is the husband of plaintiff No.1 and father of plaintiff No.2 was a known person to Sri. A. Wahab Khan the defendant. It has come in the cross-examination of PW-1 that deceased late Sri.D. Byappa Reddy was doing real estate business also. However, the very same PW-1 says that the agreement to purchase the land from the defendant by his father late Sri.D. Byappa Reddy was for his personal use. Though the plaintiffs initially have not stated about the existence of the alleged first Agreement dated 04-12-1995, and have spoken only about the alleged second Agreement dated 04-10-1999, even in their plaint as well in their evidence, however, their own document at Ex.P-1 refers to both the earlier Agreements, i.e. Agreements dated 04-12-1995 and 04-10-1999. Admitting that Ex.P-1 refers to two previous Agreements, still, plaintiffs contend that the defendant is liable to pay them the suit claim by virtue of the subsequent Agreement dated 17-12-2004 at Ex.P-1. 16. PW-1 in his cross-examination, though has stated that, he was not present when the Agreement dated 04-10-1999 was entered into, but has specifically stated that the subsequent Agreement dated 17-12-2004 was executed in his presence. In order to show that the said Agreement at Ex.P1 was executed by the defendant agreeing to repay the amount shown therein to the plaintiffs, the plaintiffs have got examined PW-2. In order to show that the said Agreement at Ex.P1 was executed by the defendant agreeing to repay the amount shown therein to the plaintiffs, the plaintiffs have got examined PW-2. The said witness though has revealed that, he is the brother of plaintiff No.1, still, he has stated that he was present when the defendant executed the Agreement at Ex.P-1 on 17-12-2004 agreeing to repay the amount of Rs. 1,50,000/- in favour of late Sri.D. Byappa Reddy. PW-2 is admittedly a relative of the plaintiffs. As such, though he may be called as an interested witness, but, by the said aspect alone, his evidence cannot be discarded when it is shown that his evidence is reliable and it imbibes confidence to believe in it. 17. PW-2 was subjected to a detailed cross-examination wherein he has given some more details about the alleged transaction and more particularly the defendant executing Ex.P-1 in his presence on 17-12-2004. He has also given the details as to what were the terms that were agreed and when and where the Agreement was entered into. He has also stated that apart from him, there was one more person by name Sri.K. Javaraiah who has also signed the Agreement at Ex.P-1 as a witness. He has stated that the said Javaraiah was a neighbour of the plaintiffs. The witness has stated that the Agreement was entered into in the afternoon of the said day at about 4:00 p.m. He has also given a detailed account as to what transpired in the session where Ex.P-1 was said to have been executed by the defendant in favour of late Sri.D. Byappa Reddy. The said details given by PW-2 as to when they assembled and how the execution of Agreement at Ex.P-1 took place is corroborated by the evidence of PW-1. He has also stated that negotiation with respect to Ex.P-1 Agreement started at about 4:00 p.m. and completed on the same day. Thus, the details regarding execution of Ex.P-1 given by both PW-1 and PW-2 goes hand in hand and gives no scope to suspect the credibility of the evidence of PW-2. The said PW-2 has further identified his signature in Ex.P-1 marked at Ex.P-1(a). The said aspect has not been denied in his cross-examination. Therefore, the evidence of PW-2 when read along with the evidence of PW-1, it inspires confidence to believe in it. The said PW-2 has further identified his signature in Ex.P-1 marked at Ex.P-1(a). The said aspect has not been denied in his cross-examination. Therefore, the evidence of PW-2 when read along with the evidence of PW-1, it inspires confidence to believe in it. As such, merely the non-sending of the disputed signature of late Sri.D. Byappa Reddy to a handwriting expert for his opinion, cannot by itself, lead to suspect Ex.P-1. 18. According to plaintiffs, Ex.P-1 came into existence because the defendant did not honour his commitment under Ex.D-2 which is an Agreement dated 04-10-1999. The defendant who initially denied the execution of the very same Agreement, later, he himself has come up by stating that, all his liability under Ex.D-2 has been cleared by repaying the amount to late Sri.D. Byappa Reddy. Thus, according to the defendant, it is not that he was in no manner liable to late Sri.D. Byappa Reddy, but, it is his case that he has cleared his liability by repaying the entire sale consideration back to late Sri.D. Byappa Reddy. 19. In that regard, the attention of this Court to an endorsement in Ex.D-2 in the last page was drawn where it has been written that "I, Sri. D. Baiyappa Reddy S/o. Sanjeeva Reddy received entire sale consideration from Mr. Wahab Khan on this day 26/6/2003. There is no balance. This document has been cancelled." By writing the said endorsement, the signature of late Sri.D. Byappa reddy is shown to have been obtained, which according to the defendant, is that of late Sri.D. Byappa Reddy. Interestingly, when the defendant has got marked the other alleged signature of late Sri.D. Byappa Reddy in the very same document more particularly at Ex.D-2(a), nothing had prevented him from getting marked the alleged disputed signature of late Sri.D. Byappa Reddy also which is shown to be below the said endorsement in Ex.D-2. The said signature has remained un-exhibited without any marking as an Exhibit. More than that, it is worth to notice that, nowhere in the cross-examination of PW-1, the defendant had shown the said alleged signature of late Sri.D. Byappa Reddy in the last page bottom at Ex.D-2 to the witness and confronted the same to him. The said signature has remained un-exhibited without any marking as an Exhibit. More than that, it is worth to notice that, nowhere in the cross-examination of PW-1, the defendant had shown the said alleged signature of late Sri.D. Byappa Reddy in the last page bottom at Ex.D-2 to the witness and confronted the same to him. Had really the defendant repaid the entire amount to the plaintiffs, he was expected to show the endorsement in Ex.D-2 to PW-1 and PW-2 and also, at least, suggested them to the effect that, late Sri.D. Byappa Reddy after having received the amount made that endorsement and subscribed his signature at the bottom of the said endorsement. No attempt/effort was made in that direction from the defendant's side. Further, the said endorsement, as already observed above, only says that late Sri.D. Byappa Reddy has received the entire sale consideration from the defendant. But what is the quantification of the sale consideration, i.e. how much of money was received by late Sri.D. Byappa Reddy as refund of sale consideration is also not shown in the said document. That also further develops a doubt/suspicion that has crept in Ex.D2. Thus, the attempt of the defendant that he had cleared the alleged liability towards late Sri.D. Byappa Reddy by paying him the amount and by taking an endorsement in Ex.D-2, does not inspire confidence to believe in it. 20. Though learned counsel for the respondent vehemently submitted that a naked-eye comparison of the admitted signature of late Sri.D. Byappa Reddy in Exs.D1 and D2- with that of his signature at Ex.P-1 makes out a lot of difference and that the alleged disputed signature of late Sri.D. Byappa Reddy in Ex.P-1 was not referred to a handwriting expert, but the same is not warranted for the reason that, even according to the defendant, deceased late Sri.D. Byappa Reddy was suffering with health ailments and was paralytic and there was variation in his signature. However, PW-1 has denied the same. Still, the fact remains that the defendant since could not able to prove that he has repaid the amount to late Sri.D. Byappa Reddy under Ex.D-2, to which finding, this Court has come after the above discussion, the fact remains that the defendant was owing money as claimed by the plaintiffs. However, PW-1 has denied the same. Still, the fact remains that the defendant since could not able to prove that he has repaid the amount to late Sri.D. Byappa Reddy under Ex.D-2, to which finding, this Court has come after the above discussion, the fact remains that the defendant was owing money as claimed by the plaintiffs. In the said circumstance, when the entire evidence led by the plaintiffs' side is analysed, as observed above, the evidence of PW-1 and PW-2 that they were present when the defendant executed Ex.P-1 cannot be ignored. More particularly, PW-2 as an independent witness, when has given the details as to when the said Agreement was executed and at what time and place, the said evidence of PW-2 shows that it can be believed and relied upon. As such, merely non-referring of the document at Ex.P-1 for handwriting expert's opinion, would by itself not prevent this Court to arrive at a conclusion that the plaintiffs even otherwise also, have proved the liability of the defendant towards the plaintiffs. 21. Lastly, the conduct of the defendant is also required to be considered. As already observed above, the defendant in his Written Statement has taken a contention that, he had entered into only one Agreement with late Sri.D. Byappa Reddy on 09-11-1995 where under he had received an advance sale consideration of a sum of Rs. 1,00,000/- from late Sri.D. Byappa Reddy. The defendant, however, contends that, in the year 1996, he paid back the entire amount to said late Sri.D. Byappa Reddy and the Agreement was cancelled. However, the very same defendant in the very same Written Statement, at a later paragraph, after denying the execution of the Agreement dated 17-12-2004, has stated that, he has paid back the amount due in the year 1999 itself and the entire sale transaction had already come to an end. Thus, what had been denied earlier by the defendant, now, he has not only admitted and accepted the Agreement of the year 1999, but simultaneously contended that, he has cleared his liability under the said Agreement of the year 1999, stating that the full amount has been paid back to the plaintiffs. Thus, by such a kind of inconsistency in his Written Statement and without taking a proper stand, the defendant has kept the matter uncertain. This leads to suspect the conduct of the defendant. Thus, by such a kind of inconsistency in his Written Statement and without taking a proper stand, the defendant has kept the matter uncertain. This leads to suspect the conduct of the defendant. On the other hand, the very consistent pleading and the evidence of the plaintiffs that, at the time of execution of the Agreement dated 17-12-2004 as per Ex.P-1, the defendant had collected back the previous Agreement dated 04-10-1999 (Ex.D-2) would clear the doubt of the defendant/respondent, as to how come the said Agreement at Ex.D-2 came into the hands of the defendant, had the defendant not repaid the amount to late Sri.D. Byappa Reddy. Thus, when the plaintiffs have made out their case and proved that the defendant was liable to pay them the amount shown in Ex.P-1, the Trial Court without appreciating the evidence and materials placed before it in its proper perspective, has by itself comparing the signature of deceased late Sri.D. Byappa Reddy with that of his signatures at Exs.P-1 and Exs.D-1 and D-2, has come to a conclusion that, Ex.P-1 was not reliable. Since the said conclusion arrived at by the Trial Court is now proved to be an erroneous conclusion, the impugned judgment and decree passed by the Trial Court deserves to be set aside. 22. However, though the plaintiffs are entitled to a decree of the suit filed by them, but, in the absence of any specific material to show that the plaintiffs are entitled for interest at the rate of Rs. 18% per annum claimed by them and also considering the fact that the suit transaction is not a commercial transaction, I am of the view that the awarding of rate of interest could be confined only at Rs. 6% per annum from the date of suit till its realisation. Accordingly, I proceed to pass the following: ORDER [i] The appeal is allowed; [ii] The impugned judgment and decree dated 27-03-2012 passed by the learned XXXI Additional City Civil Judge, Bangalore City (CCH-14), in O.S.No.9697/ 2007, is hereby set aside; [iii] The suit of the plaintiffs is decreed with costs; [iv] The plaintiffs are entitled to and the defendant is liable to pay to the plaintiffs a sum of Rs. 2,00,000/- together with interest there upon at the rate of Rs. 6% per annum, from the date of suit till realisation of the amount. Draw the modified decree accordingly. 2,00,000/- together with interest there upon at the rate of Rs. 6% per annum, from the date of suit till realisation of the amount. Draw the modified decree accordingly. Registry to transmit a copy of this judgment together with the Lower Court records to the Court below without delay. .