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2023 DIGILAW 996 (KAR)

Jayaram Reddy v. G. S. Bhat

2023-08-22

P.S.DINESH KUMAR, T.G.SHIVASHANKARE GOWDA

body2023
JUDGMENT T.G. SHIVASHANKARE GOWDA, J. In this appeal, the defendant has challenged the judgment and decree dtd. 3/3/2014 passed in O.S.No.7645/2009 on the file of the XLI Additional City Civil Judge, Bangalore (CCH No.42) (for brevity 'the Trial Court'). 2. For the sake of convenience, parties shall be referred as per their status before the Trial Court. 3. Brief facts of the plaintiffs' case are, defendant is doing Real Estate business. Plaintiffs have approached the defendant seeking his assistance for purchasing a land in and around Bangalore City. After discussion, defendant demanded Rs.13.00 lakhs from the plaintiffs to procure the lands for them and to obtain necessary permission from the Government for registration of the land. The plaintiffs reposing confidence on the defendant paid a sum of Rs.10.00 lakhs on 21/11/2006 through two cheques bearing No.371925 and 371927 each for Rs.5.00 lakhs drawn on Syndicate Bank, Jayanagar III Block Branch, Bangalore. They also paid another sum of Rs.3.00 lakhs on 22/11/2006 through a cheque bearing No.292750 drawn on Syndicate Bank, Jayanagar III Block Branch, Bangalore. The said cheques have been encashed by the defendant. After encashing the money, the defendant did not contact the plaintiffs. Plaintiffs tried to approach him on many occasions, but he was taking time on one or the other pretext. However, he failed to get the land, so also permission from the Government. Hence, they demanded for repayment of amount. On 18/8/2009, the defendant issued a cheque for Rs.50, 000.00 and another cheque for Rs.2, 00, 000.00 on 5/1/2010 drawn on Kalpatharu Grameena Bank, Huskur Branch, Bommasandra, Anekal Taluk, Bangalore. The plaintiffs have presented the cheque of Rs.50, 000.00 to the Bank, which came to be dishonoured. Therefore, after issuing a legal notice, the plaintiffs have filed a private complaint against the defendant. As the defendant failed to repay the entire amount of Rs.13.00 lakhs, they issued a legal notice dtd. 29/10/2009 demanding repayment with 18% interest per annum. He had sent evasive reply on 17/11/2009. Seeking recovery of Rs.13.00 lakhs and interest of Rs.7, 02, 000.00, plaintiffs have filed the instant suit. 4. The defendant has filed his written statement interalia admitting that the plaintiffs have approached him 10 years ago to procure them agricultural lands nearby Bangalore. 29/10/2009 demanding repayment with 18% interest per annum. He had sent evasive reply on 17/11/2009. Seeking recovery of Rs.13.00 lakhs and interest of Rs.7, 02, 000.00, plaintiffs have filed the instant suit. 4. The defendant has filed his written statement interalia admitting that the plaintiffs have approached him 10 years ago to procure them agricultural lands nearby Bangalore. It is contended that he got about 20 acres of land situated at Bagganadoddi village, Kasaba Hobli, Anekal Taluk, which forms portion of Sy.Nos.96 and 143 and the same was shown to the plaintiffs. The plaintiffs have asked him to get revenue records transferred in their name. In and around 2005, the plaintiffs have asked the defendant to assist them to bring the said lands under cultivation. When they started work in the said land, some interested persons interfered. Hence, he was asked to resolve the problem and to demarcate the survey numbers. In this regard, the defendant paid amount to the interested persons with the consent and assurance of plaintiffs that they will make good of it. The defendant took lot of interest and resolved the problems, carried out developmental works in making the said land fit for plantation by removing stones and boulders using machineries like earth moving equipments and human resources for raising Eucalyptus plantation. As the plaintiffs expressed desire to acquire 15 acres of land in Sy.No.96, defendant had paid an advance amount to its owners and the said amount has been reimbursed by the plaintiffs by means of cash. The defendant has spent Rs.15.00 lakhs to bring the land for cultivation. Towards repayment of it, the plaintiff had issued three cheques, two cheques for Rs.5.00 lakhs and another for Rs.3.00 lakhs. The plaintiffs asked the defendant to get phodi work in respect of Sy.Nos.96 and 143, which require huge money to deal with officials and persons. The defendant has travelled on many occasions and in this regard, the plaintiffs have paid him Rs.50, 000.00, but they wanted to take it back. Hence, defendant issued a cheque for Rs.50, 000.00 in favour of plaintiff No.1 and for the money spent by the defendant to make good of the expenses incurred by him, the plaintiff has issued a cheque for Rs.4, 50, 000.00 with a request to the defendant not to present it for encashment. Hence, defendant issued a cheque for Rs.50, 000.00 in favour of plaintiff No.1 and for the money spent by the defendant to make good of the expenses incurred by him, the plaintiff has issued a cheque for Rs.4, 50, 000.00 with a request to the defendant not to present it for encashment. The first plaintiff made the defendant to issue a cheque for Rs.2.00lakhs on the ground that phodi work has not been carried out properly and assured to pay the same once the work is completed properly. The defendant is not liable to pay any amount to the plaintiffs as he has not borrowed any loan from the plaintiffs; using three cheques issued in his favour, the plaintiffs are trying to brand him as a borrower. Since the defendant himself has spent huge money, the plaintiffs are liable to pay him the money, instead, they are misleading the Court. The cheques issued for Rs.50, 000.00 and Rs.2.00 lakhs by the defendant were not for clearing any debt. The plaintiffs have wrongly presented the cheque for Rs.50, 000.00 and filed a private complaint and he is not liable to pay any amount under the said cheque for Rs.13.00 lakhs as claimed by the plaintiffs nor interest at 18% per annum and sought for dismissal of the suit. 5. On the basis of the above pleadings, the Trial Court has framed the following issues: 1) Whether the plaintiffs prove that they paid a total sum of Rs.13, 00, 000.00 to the defendant for procuring land and also to obtain necessary permission from the government for registration of the land by way of issuing three cheques for Rs.5, 00, 000.00 each (2 cheques) and one cheque for Rs.3, 00, 000.00 dtd. 21/11/2006? 2) Whether the plaintiffs prove that the defendant did not kept up his promise and not get the work done to the plaintiff and did not return the above said amount to the plaintiffs inspite of repeated request made by them? 3) Whether the plaintiffs prove that the defendant issued a cheque forRs.50, 000.00 dtd. 18/8/2009 and another cheque for Rs.2, 00, 000.00 dtd. 5/1/2010 drawn on Kalpatharu Gramina Bank, Hosur Branch, Bommasandra in favour of the plaintiffs? 4) Whether the plaintiffs prove that the defendant dishonoured the above said cheques and not paid any amount to the plaintiffs? 3) Whether the plaintiffs prove that the defendant issued a cheque forRs.50, 000.00 dtd. 18/8/2009 and another cheque for Rs.2, 00, 000.00 dtd. 5/1/2010 drawn on Kalpatharu Gramina Bank, Hosur Branch, Bommasandra in favour of the plaintiffs? 4) Whether the plaintiffs prove that the defendant dishonoured the above said cheques and not paid any amount to the plaintiffs? 5) Whether the defendant proves that the plaintiff No.1 issued the above said three cheques for Rs.13, 00, 000.00 for the work carried out by the defendant in connection with the land purchased by the plaintiffs? 6) Whether the defendant proves that this defendant issued a cheque for Rs.50, 000.00 towards return of the amount to the plaintiffs to him for travelling expenses and further proves that the plaintiff issued a cheque for Rs.4, 50, 000.00 in favour of the defendant for the expenses incurred by the defendant in carrying the work of plaintiffs? 7) Whether the plaintiff is entitled for recovery of the suit amount of Rs.20, 02, 000.00 as prayed in the plaint? 8) What Decree or Order? 6. Before the Trial Court, on behalf of the plaintiffs, 3 witnesses are examined as PWs-1 to 3 and they relied upon 22 documents marked as Exs.P1 to P22. On behalf of the defendant, 4 witnesses are examined and 8 documents marked as Exs.D1 to D8. 7. The Trial Court after considering the pleadings, evidence and the arguments advanced on behalf of both parties recorded its positive finding in respect of issue Nos.1 to 4 and 7, negative finding in respect of issue Nos.5 and 6 and decreed the suit with costs directing the defendant to pay Rs.20, 02, 000.00 with interest @ 6% per annum. Aggrieved by the same, defendant has filed this appeal on various grounds. 8. We have heard the arguments of Smt.Vidya Selvamoni, learned Counsel on behalf of Sri.P.M.Karthik for the appellant/defendant and Sri.M.Madhvachar, learned Counsel for respondents/plaintiffs. 9. Aggrieved by the same, defendant has filed this appeal on various grounds. 8. We have heard the arguments of Smt.Vidya Selvamoni, learned Counsel on behalf of Sri.P.M.Karthik for the appellant/defendant and Sri.M.Madhvachar, learned Counsel for respondents/plaintiffs. 9. Following are the contentions raised by the learned counsel for defendant: (i) Amount of Rs.13.00 lakhs paid by the defendant was to secure the agricultural lands for the plaintiff; (ii) Defendant has paid said money to the land owners in Sy.Nos.96 and 143; (iii) The defendant has spent more than Rs.15.00 lakhs to bring the said agricultural land suitable by using earth moving equipments and human resources; (iv) The defendant has spent more than Rs.50, 000.00 towards conveyance charges that has been paid by the first plaintiff to him. Since there is variation in phodi work, the plaintiffs raised the objections and demanded the defendant to return Rs.50, 000.00 paid, for which the defendant issued a cheque for Rs.50, 000.00 and another cheque for Rs.2.00 lakhs under which a cheque of Rs.50, 000.00 was presented and a private complaint has been filed against him. (v) Plaintiffs themselves have issued a cheque for Rs.4, 50, 000.00 in favour of the defendant towards the expenses incurred by him towards development of land; (vi) The Trial Court has not appreciated the admissions elicited in the cross-examination of the plaintiffs and their witnesses and also the evidence placed in support of the defence and erroneously came to the conclusion that the defendant is owing debt and is liable to discharge the same. 10. Per contra, learned counsel for the plaintiffs has urged the following grounds: (i) The defendant is doing real estate business; (ii) The plaintiffs and defendant came in contact with each other. The plaintiffs expressed their willingness to purchase certain lands; to procure the land, the defendant asked them to pay for which two cheques for Rs.5.00 lakhs each and one cheque for Rs.3.00 lakhs, amounting to Rs.13.00 lakhs were issued, which was encashed by the defendant. The defendant has been giving false assurances that he would secure the land. But he has not secured any land nor returned the money. When the plaintiffs requested the defendant to return money, he has issued two cheques, one for Rs.50, 000.00 and another for Rs.2.00 lakhs drawn on Kalpatharu Grameena Bank, Huskur Branch, Bommasandra, Anekal Taluk, Bangalore. The defendant has been giving false assurances that he would secure the land. But he has not secured any land nor returned the money. When the plaintiffs requested the defendant to return money, he has issued two cheques, one for Rs.50, 000.00 and another for Rs.2.00 lakhs drawn on Kalpatharu Grameena Bank, Huskur Branch, Bommasandra, Anekal Taluk, Bangalore. The cheque for Rs.50, 000.00 was dishonoured on its presentation, on notice of dishonour, a private complaint has been filed, which is registered in C.C.No.827/2010 and the defendant was convicted under Sec. 138 of the Negotiable Instruments Act, imposing fine of Rs.80, 000.00 and this has been questioned by the defendant in Criminal Appeal No.825/2014 on the file of the FTC-I, Bengaluru city, which came to be dismissed, thereby the liability on the part of the defendant to pay money to the plaintiffs has been established. (iii) Nothing has been brought out in the cross- examination of plaintiffs and their witnesses, so also no evidence is placed to show as to who are the persons who had agreed to sell the land in Sy.Nos.96 and 143 and to whom the advance is paid. When the defendant received Rs.13.00 lakhs from the plaintiffs to get the land, he has to place evidence that he discharged his obligation. The Trial Court after appreciating the evidence has rightly fastened the liability on the defendant to pay by decreeing the suit and thus, he supported the impugned judgment. 11. We have given our anxious consideration to the arguments addressed on behalf of both parties and perused the records. 12. In the light of the rival contentions urged on both parties, the points that arise for our consideration are: (i) Whether the defendant is liable to pay Rs.20, 02, 000.00 with future interest at 6% per annum to the plaintiffs? (ii) Whether the impugned judgment calls for our interference? Reg. Point No.1: 13. The undisputed fact enumerating from the materials on record is, the defendant is doing real estate business, he came in contact with the plaintiffs in the year 2006. He has received a sum of Rs.13.00 lakhs through cheques for the purpose of procuring the agricultural lands in and around Bangalore City. Reg. Point No.1: 13. The undisputed fact enumerating from the materials on record is, the defendant is doing real estate business, he came in contact with the plaintiffs in the year 2006. He has received a sum of Rs.13.00 lakhs through cheques for the purpose of procuring the agricultural lands in and around Bangalore City. Dispute started between the plaintiffs and the defendant regarding identification of land, completion of sale transaction, whereas defendant contends that he has identified lands in Sy.Nos.96 and 143, he has spent more than Rs.15.00 lakhs for the development of said land by using earth moving equipments and human resources, bought 4 lakhs Eucalyptus saplings from Malur and planted them in the land and some interested persons interfered and by paying money at the instance of the plaintiffs, he has resolved the problems and a sum of Rs.50, 000.00 given to the defendant towards travelling expenses was returned through cheque, which was being treated as a debt. 14. In the witness box, both plaintiffs have reiterated the said facts and they have been cross- examined on behalf of the defendant. Defendant has also entered into witness box reiterating his pleadings. DWs-2 to 4 are the witnesses examined on behalf of the defendant to explain that the defendant has developed the land on behalf of the plaintiffs and he has spent huge money and he had performed his part of duty. Evidence of these witnesses is not going to probabalise the defence as they are only labours and coolies and not part of the transaction between plaintiffs and defendant. 15. It is the specific case of the defendant that he got more than 15 acres of land in Sy.Nos.96 and 143. He also contended that interested persons have interfered and with the assurance of the plaintiffs to reimburse the expenses, dispute has been resolved. In view of this, the questions that arise against the defendant are: (i) Who is the real owner of Sy.Nos.96 and 143; (ii) What was the sale consideration the defendant negotiated with its owner; (iii) What was the advance that was paid by the plaintiffs. iv) What are all the documents that the defendant entered into with the real owners of the property for acquiring the land? 16. According to the defendant, Rs.13.00 lakhs received from the plaintiffs was utilized towards acquiring the land. iv) What are all the documents that the defendant entered into with the real owners of the property for acquiring the land? 16. According to the defendant, Rs.13.00 lakhs received from the plaintiffs was utilized towards acquiring the land. He also claims that Rs.15.00 lakhs has been spent for development of the land. If that is so, the total money spent by the defendant was more than Rs.28.00 lakhs. If really the defendant was acting as a mediator, how is it possible for him to spend so much of money? The defendant has not brought the owners of Sy.Nos.96 and 143 before the Court and he has no answer for the questions raised supra. He claims that Rs.50, 000.00 was received towards travelling expenses from plaintiff No.1. On demand, he has issued the cheque for Rs.50, 000.00 for which he has been convicted under Sec. 138 of N.I.Act and his conviction has been confirmed in Criminal Appeal No.825/2014 by the Sessions Court, Bangalore. The conviction of the defendant has reached finality as he has not challenged the order of confirmation of conviction. Thus, it is very clear that the liability on the part of the defendant is in respect of cheque of Rs.50, 000.00. 17. As disclosed from the materials on record, the evidence establishes that in the year 2006, the defendant has received Rs.13.00 lakhs through three cheques, two cheques each for Rs.5.00 lakhs and one cheque for Rs.3.00 lakhs and the same has been encashed by him through his Bank account. The claim of the defendant that he has identified lands in Sy.Nos.96 and 143 has not been established. The evidence of witnesses DWs-2 to 4, who are coolies, will not substantiate the transaction between the plaintiffs and defendant. When the defendant accepts Rs.13.00 lakhs from the plaintiffs, he has to place positive evidence in support of defence. The real witnesses, who can speak about acquisition of land, are the owners of Sy.Nos.96 and 143, their identity is not disclosed nor are they brought before the court. It is not his case that the plaintiffs have obtained sale deed, they are in cultivation and enjoyment of the said lands, ultimately what happened to the land in Sy.Nos.96 and 143 is also not explained. It is not his case that the plaintiffs have obtained sale deed, they are in cultivation and enjoyment of the said lands, ultimately what happened to the land in Sy.Nos.96 and 143 is also not explained. Hence, defence of the defendant that he has procured the land for the plaintiffs by paying advance amount and developed the said land by investing more than Rs.15.00 lakhs has not been substantiated. We do not find any force in the argument canvassed on behalf of the defendant. Accordingly, we answer point No.1 in favour of the plaintiffs and against the defendant. Reg. Point No.2: 18. We have carefully perused the impugned judgment. The Trial Court has appreciated the factum of payment of Rs.13.00 lakhs to the defendant through cheques on 21/11/2006 and 22/11/2006; the defendant paying cheque for Rs.50, 000.00 in favour of the plaintiffs, which was dishonoured, due to which the defendant has been convicted under Sec. 138 of N.I.Act, which has been confirmed in the appeal. Defendant has not placed any evidence to show that he has procured land for the plaintiffs, he has developed the said land spending more than Rs.15.00 lakhs and he has returned the money given by the plaintiffs through a cheque for Rs.50, 000.00 issued in favour of the plaintiffs, which was dishonoured. Defendant has not brought before the Court, the real owners of Sy.Nos.96 and 143. The Trial Court has even recorded a finding that there is no clarity in the evidence of the defendant, whether the lands in question were belonging to Indluvadi village or Bagganadoddi village. The evidence of witnesses examined on behalf of the defendant was not reliable as they are coolies. The Trial Court is of the opinion that there is no evidence on behalf of the defendant to substantiate the defence. On the contrary, the evidence on record establishes the liability of the defendant to pay Rs.13.00 lakhs received from the plaintiffs, and ultimately the Trial Court has decreed the suit. On re-appreciation of the evidence on record and consideration of contentions taken on both sides, we do not find any error in the findings recorded by the Trial Court in decreeing the suit. Hence, there is no ground to interfere with the findings recorded by the Trial Court. Accordingly, issue No.2 in answered in favour of the plaintiffs. 19. On re-appreciation of the evidence on record and consideration of contentions taken on both sides, we do not find any error in the findings recorded by the Trial Court in decreeing the suit. Hence, there is no ground to interfere with the findings recorded by the Trial Court. Accordingly, issue No.2 in answered in favour of the plaintiffs. 19. In the light of above discussion, we are of the considered opinion that the appeal is devoid of merits. In the result, the following: ORDER Appeal is dismissed with costs. The impugned judgment is hereby confirmed.