Karnataka High Court

Smt Manjula vs Sri G Gopala Krishna on 8 January, 2021

Author: B.Veerappa And Chandangoudar

      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 8TH DAY OF JANUARY, 2021

                        PRESENT

          THE HON'BLE MR. JUSTICE B. VEERAPPA

                          AND

     THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

         REGULAR FIRST APPEAL NO.1787/2012 (MON)

BETWEEN:

1.     SMT. MANJULA
       W/O LATE H.T. NARAYANA GOWDA,
       AGED ABOUT 45 YEARS,
       HINDU,
       R/AT NO.C-35, 2ND CROSS,
       SEEMIPURA, KEMPE GOWDANAGAR,
       BANGALORE-560 018.

2.     N. NAVEEN
       S/O LATE H.T. NARAYANA GOWDA,
       AGED ABOUT 25 YEARS,
       HINDU,
       R/AT NO.C-35, 2ND CROSS,
       SEEMIPURA, KEMPE GOWDANAGAR,
       BANGALORE-560 018.
                                          ...APPELLANTS

(BY SRI M.K. SANDEEP, ADVOCATE)
                                 2




AND:

SRI G. GOPALA KRISHNA
S/O LATE GANGAIAH,
AGED ABOUT 50 YEARS,
HINDU, R/AT NO.46
PATTANAGERE,
RAJARAJESHWARINAGARA,
BANGALORE-560 098.
                                                 ...RESPONDENT

(BY SRI M.N. UMASHANKAR, ADVOCATE)

     THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 READ WITH ORDER 41 RULE 1 OF THE CODE OF CIVIL
PROCEDURE,      1908,    AGAINST     THE    JUDGMENT
AND     DECREE     DATED    18.08.2012    PASSED    IN
O.S.NO.3842/2009 ON THE FILE OF THE XIX ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BANGALORE, DECREEING
THE SUIT FOR RECOVERY OF MONEY.

    THIS REGULAR FIRST APPEAL COMING ON FOR
HEARING THIS DAY, B. VEERAPPA, J., DELIVERED THE
FOLLOWING:
                   JUDGMENT

This is defendants' regular first appeal against the

judgment and decree dated 18.08.2012 passed in

O.S.No.3842/2009 on the file of the XIX Additional City Civil

and Sessions Judge, Bangalore (CCH - 18) decreeing the suit of

plaintiff for recovery of money of Rs.16 lakhs together with costs

and current interest thereon at the rate of 10% p.a. from the

date of suit till the date of realization of the entire decretal

amount.

2. For the sake of convenience, the parties are referred

to as they are referred to in the original suit before the Trial

Court.

3. The plaintiff filed the suit in OS No.3842/2009 for

recovery of Rs.16 lakhs together with interest at the rate of 25%

p.a. till the realization of the entire said loan amount from the

defendants, contending that the defendants jointly approached

the plaintiff in the first week of November 2008 and requested

him to advance a loan of Rs.16 lakhs for the purpose of meeting

their family commitments. They voluntarily agreed to repay the

same within three months and also agreed to execute on

demand promissory note, consideration receipt and also a loan

agreement dated 12.11.2008 in favour of the plaintiff. Upon

repeated requests of the defendants, and since they are relatives

of plaintiff and since the defendants agreed to repay the said

loan amount within three months, the plaintiff has agreed to

advance the entire said loan amount to the defendants without

any sort of interest. Accordingly, on 12.11.2008 the plaintiff

agreed to lend the entire loan amount of Rs.16 lakhs and gave

the same to defendants on 12.11.2008 and the defendants

executed on demand promissory note, consideration receipt

dated 12.11.2008 and executed loan agreement in favour of the

plaintiff for having received the entire loan amount of Rs.16

lakhs by affixing their signatures voluntarily in the aforesaid

loan agreement in the presence of the witnesses viz:

1) R Shivanna, 2) H T Srinivasa Gowda and 3) N Shashidhar,

who are all attestors.

4. It was further averred that the defendants inspite of

repeated requests, not repaid the loan amount to the plaintiff as

agreed. Thereafter, after expiry of the period mentioned in the

agreement, the plaintiff having no other alternative issued a legal

notice dated 3.4.2009. The defendants replied to the legal notice

dated 9.4.2009. The cause of action arose when the defendants

received the said entire loan amount on 12.11.2008.

Accordingly, the suit came to be filed for the relief sought for.

5. The 1st defendant alone filed written statement

denying the plaint averments. The 2nd defendant adopted the

written statement filed by the 1st defendant. The defendants

contended that they have never executed any loan agreement

and on demand promissory note, consideration receipt in favour

of the plaintiff at any time by receiving the amount from the

plaintiff. It was further contended that on 12.11.2008, the

plaintiff came to the defendants' house along with 25 to 30

gundas and made galata and abused them in a filthy language

and gave threat of life to them and demanded/coerced the

defendants to sell the property containing 13 houses measuring

20x78 in favour of plaintiff, for which, defendants protested as

the said house made by late H T Narayana Gowda, the husband

of the 1st defendant and father of the 2nd defendant is their only

source of livelihood. It was further contended that plaintiff

forced the defendants to execute an agreement of loan for Rs.16

lakhs without paying any money to the defendants. It was

further contended that the plaintiff insisted the defendants to

execute a promissory note, consideration receipt in favour of

plaintiff in support of the agreement of loan by giving threats of

life. It was contended that the signatures of defendants on all

those documents are created, bogus and forged signatures.

Hence, there is no legal sanctity to those documents. The

defendants are put in fear for their lives by the plaintiff without

paying any money to them.

6. The defendants further contended that on 25.3.2009,

the plaintiff came to the house of defendants along with 5 to 6

gundas and demanded the defendants to immediately pay the

loan amount of Rs.16 lakhs, failing which, he threatened them

with dire consequences. The defendants filed a complaint to the

jurisdictional police on 28.4.2009 and also filed a private

complaint before the 1st ACMM, Bengaluru in PCR

No.9210/2009. The defendants have denied all the averments

made in the plaint and sought for dismissal of the suit.

7. Based on the aforesaid pleadings, the Trial Court

framed the following issues:

1. Whether the plaintiff proves that the defendants have borrowed Rs.16 lakhs from him and executed the on demand promissory note - consideration receipt and also the loan agreement both dated 12.11.2008 in his favour as alleged?

2. Whether plaintiff proves that there is cause of action?

3. Whether defendants prove that suit is not maintainable?

4. Whether defendants prove the contentions taken up in paras 13, 14 and 15 of the written statement?

5. Whether the plaintiff is entitled for the decree sought?

6. What order or decree?

On 25.11.2009, the Trial Court recasted issue No.1.

1. Whether the plaintiff proves that the defendants have borrowed Rs.16 lakhs from him and executed the on demand promissory note and consideration receipt and also the loan agreement both dated 12.11.2008 in his favour as alleged?

8. In order to prove his case, plaintiff got examined

himself as PW1 and another witness as PW2 and marked the

documents as Exs.P1 to 4. On behalf of defendants, defendant

No.1 was examined as DW1 and document Exs.D1 to D13 were

marked.

9. Considering the oral and documentary evidence on

record, the learned Sessions Judge framed four points for

consideration and recorded a finding that the plaintiff has

proved the execution of loan agreement dated 12.11.2008 as per

Ex.P1 for receiving Rs.16 lakhs by defendants and further

recorded a finding that defendants failed to prove the suit as not

maintainable and also failed to prove the contentions taken at

paras-13 and 14 of the written statement. Accordingly, the Trial

Court by the impugned judgment and decree decreed the suit for

Rs.16 lakhs together with costs and current interest thereon at

the rate of 10% p.a. from the date of suit till the date of

realization of the entire decretal amount. Hence, the present

appeal is filed by the defendants.

10. We have heard the learned counsel for the parties to

the lis.

11. Sri H K Sandeep, learned counsel for the defendants

vehemently contended that the impugned judgment and decree

passed by the Trial Court is illegal and contrary to the material

on record. He further contended that the loan agreement was

obtained by the plaintiff from the defendants forcibly and Ex.P1,

loan agreement is a concocted document. The Trial Court ought

not to have relied upon the said document. He further

contended that the Trial Court erred in decreeing the suit

holding that the defendants have put the signature on Ex.P1

though the defendants have specifically contended in the written

statement that the signatures were obtained by giving threats to

their life through coercion. It is further contended that the Trial

Court failed to notice the case pleaded by the defendants that

the plaintiff had obtained the alleged loan agreement through

threat and coercion and the same was not executed voluntarily

by the defendants.

12. It was further contended that the Trial Court has not

considered the voluminous documents produced at Exs.D1 to

D4. He further contended that out of three witnesses in Ex.P1,

one witness was examined and other witnesses have not been

examined. He further contended that the plaintiff has no

capacity to lend Rs.16 lakhs to the defendants and the interest

awarded by the Trial Court is exorbitant. Therefore, he sought

to allow the appeal.

13. Per contra, Sri Umashankar, learned counsel for the

plaintiff sought to justify the impugned judgment and decree

passed by the Trial Court. He contended that in the cross-

examination, DW1 admitted that Ex.P1(g) to Ex.P1(i) are her

signatures and Ex.P1(m) to Ex.P1( r) are the signatures of

defendant No.2. She also admitted about intervention of 25 to

30 gunda elements who made galata and gave threat of life.

DW1 in her examination has categorically stated that she has

not lodged any complaint to the jurisdictional police against the

plaintiff on the date of agreement. He further contended that

the Trial Court considering the entire material on record has

rightly decreed the suit. Absolutely, there is no ground made

out by the defendants to interfere with the impugned judgment

and decree by this Court in the present appeal, exercising the

powers under Section 96 of CPC. He further contended that

there is specific averment in the agreement with regard to rate of

interest. The interest awarded by the Trial Court is justified.

Therefore, he sought for dismissal of the appeal.

14. In view of rival contentions urged by the learned

counsel for the parties, the points that arise for our

consideration in the present appeal are:

i) Whether the defendants have made out any case to interfere with the impugned judgment and decree passed by the Trial Court decreeing the suit of the plaintiff for recovery of Rs.16 lakhs?

ii) Whether the defendants have made out a case to reduce the interest awarded by the Trial Court in the facts and circumstances of the present appeal?

15. We have given our anxious consideration to the

arguments advanced by the learned counsel for the parties and

perused the entire material including the original records

carefully.

16. The substance of the case of the plaintiff is that

plaintiff and defendants are relatives. The defendants jointly

approached the plaintiff requesting the plaintiff to advance a

loan amount of Rs.16 lakhs. At the inception, plaintiff was not

willing to advance the said loan amount. Ultimately, he paid

Rs.16 lakhs by way of cash on 12.11.2008 in the presence of

witnesses. Accordingly, defendants have executed Ex.P1, i.e.

loan agreement dated 12.11.2008 and defendants executed an

on demand promissory note, consideration receipt dated

12.11.2008 for having received the entire loan amount of Rs.16

lakhs and agreed to repay the same within three months from

the date of agreement. Inspite of repeated demands and issuing

a legal notice, the defendants have not paid the loan amount.

17. The substance of the case of the defendants in the

written statement is that neither the defendants executed the

agreement of loan nor executed any on demand promissory note,

consideration receipt alleged by the plaintiff. It is further

contended that the plaintiff obtained the signatures of

defendants in the presence of 25 to 30 gundas on Ex.P1, loan

agreement as well as consideration receipt.

18. The plaintiff (PW.1) in the examination-in-chief while

reiterating the averments made in the plaint, has deposed that

he has paid the loan amount of Rs.16 lakhs to the defendants on

the request made by them and they agreed to repay the said

loan amount within three months. Accordingly, defendants

executed Ex.P1, loan agreement and further on demand

promissory note, consideration receipt in the presence of the

witnesses viz: R Shivanna, H T Srinivasa Gowda and

N Shashidhara, who are all attestors in the above document.

Inspite of repeated requests, defendants have not paid the loan

amount.

19. In the cross-examination, the plaintiff has

categorically deposed denying the suggestion that on

12.11.2008, he has forcibly obtained the signatures of the

defendants on Ex.P1 towards discharge of the loan availed by

Narayanagowda. The plaintiff denied the suggestion that the

defendants have not borrowed any loan from him. He also

denied the suggestion that the defendants had filed a police

complaint against the plaintiff in that connection. He admitted

that he was enquired by the police once regarding the suit

transaction. The plaintiff has categorically stated that he paid

Rs.16 lakhs in the denomination of Rs.1,000/- and Rs.500/-

and defendants signed Ex.P1 after collecting the money from the

plaintiff. He denied the suggestion that the plaintiff has not paid

any amount to the defendants and he has concocted Ex.P1 with

the help of PW2.

20. PW2, Sri H T Srinivasa Gowda, who was the witness

No.2 in Ex.P1 marked through the plaintiff, deposed on par with

PW1 that the plaintiff paid the amount of Rs.16 lakhs in

denominations of Rs.1,000/- and Rs.500/-. Both defendants

have counted the money. He further stated that he did not

know the other witnesses. He further denied that the

defendants have not borrowed any loan from the plaintiff in his

presence. He further denied the suggestion that PW2 colluded

with the plaintiff to create Ex.P1. Nothing has been elicited in

the evidence of PW2 to disprove the case of the plaintiff.

21. The 1st defendant was examined as DW1. She has

reiterated the averments made in the written statement filed by

her. In the examination-in-chief, she has categorically admitted

that Ex.P1(g) to Ex.P1(l) are her signatures and Ex.P1(m) to

Ex.P1( r) are the signatures of the 2nd defendant. She further

admitted that she has not lodged any complaint against the

plaintiff as on the date of agreement said to have been executed

on 12.11.2008.

22. Though the contentions raised by the learned

counsel for the defendants that the plaintiff has no capacity to

pay the amount of Rs.16 lakhs to the defendants, and the

plaintiff entered the house of the defendants with 25 to 30

gundas and obtained their signatures, he has admitted in the

cross-examination that defendants have not lodged any

complaint against the plaintiff as on the date of agreement.

Since there is no pleading in the written statement or the

evidence adduced by DW.1, the contention raised by the learned

counsel for the appellant before this Court cannot be accepted.

It is not in dispute that if really there was threat on the date of

agreement in the presence of 25 to 30 gundas, the reasons

which prevented the plaintiff to lodge a complaint is not

forthcoming as admitted by her in the cross-examination. In the

cross-examination of DW1, she has deposed that she has not

lodged any complaint before the jurisdictional police and has not

chosen to examine any of the neighbours for the reasons best

known to DW1. Though she has stated subsequently that she

lodged a complaint in the year 2009, but admittedly the police

officer has not been examined. The material on record clearly

depicts that plaintiff paid the loan amount of Rs.16 lakhs in the

denomination of Rs.1,000/- and Rs.500/- and the same was

received by the defendants jointly on 12.11.2008 after due

verification and upon executing an on demand promissory note,

consideration receipt and also a loan agreement in favour of

plaintiff for having received the entire loan amount.

23. Though the learned counsel for the defendants

contended that the plaintiff has not proved his capacity to lend

the loan amount of Rs.16 lakhs and he is not an income tax

assessee, admittedly there are no such pleadings in the written

statement nor in the cross-examination. The said aspect has

been considered by the Trial Court in the impugned judgment.

The defendants admitted the signatures on Ex.P1, loan

agreement for having received the loan amount of Rs.16 lakhs

in the denomination of Rs.1,000/- and Rs.500/- and the same is

not disputed.

24. Learned counsel for the appellant contended that one

of the witness to Ex.P1 is not examined out of three witnesses.

The provision of Section 68 of the Evidence Act reads thus:

"68. Proof of execution of document required by law to be attested.- if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the

purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

(Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908(16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.)

In the present case, one of the witnesses to Ex.P1 has been

examined as PW2. Hence, the said contention cannot be

accepted. Learned counsel further contended that the interest

on the loan amount of Rs.16 lakhs awarded by the Trial Court is

exorbitant. There is some force in the argument of the learned

counsel for the appellant. In the agreement, it is stated that in

default of payment of loan amount, the plaintiff shall be entitled

to initiate appropriate legal proceedings for the recovery of the

said loan amount together with interest and damages from the

date of initiation of the legal proceedings and also seek for

attachment of movables or immovable properties in the said

legal proceedings although it has not stated the rate of interest.

25. In the plaint at para-3, it is stated by the plaintiff

that on 12.11.2008, he agreed to advance the entire said loan

amount to the defendants without any sort of interest and

accordingly on 12.11.2008, the plaintiff arranged the entire loan

amount of Rs.16 lakhs and paid the same in the presence of

witnesses. The Trial Court awarded interest at the rate of 10%

p.a. from the date of suit till the date of realization of the entire

decretal amount though the rate of interest is not prescribed in

the agreement - Ex.P1. Taking into consideration the facts of

the case and the provisions of Section 34 of CPC, we are of the

considered opinion that the interest awarded by the Trial Court

at the rate of 10% p.a. from the date of suit till the date of

realization of the decretal amount is exorbitant and without any

basis, the same requires modification. We are of the considered

opinion that the plaintiff is entitled for interest at the rate of

5% p.a.

26. In view of the above reasons, the impugned

judgment and decree passed by the Trial Court requires

modification only in respect of awarding of interest. The

respondent/plaintiff is entitled to the interest at the rate of 5%

per annum as against 10% per annum awarded by the Tribunal.

27. The Trial Court considering the oral and

documentary evidence has come to the conclusion that the

plaintiff has proved the execution of Ex.P1, loan agreement for

having paid the amount of Rs.16 lakhs in the presence of

witnesses and also recorded a finding that the defendants have

not disputed the signatures on Ex.P1 and also admitted in the

cross-examination for not lodging the complaint against the

plaintiff.

28. For the aforementioned reasons, we answer the

points raised in this appeal as follows:

The 1st point raised in the present appeal is answered in the negative holding that the

defendants have not made out any case to interfere with the impugned judgment and decree passed by the Trial Court decreeing the suit of the plaintiff for recovery of Rs.16 lakhs. Accordingly, the Trial Court is justified in decreeing the suit of the plaintiff for recovery of Rs.16 lakhs.

The 2nd point raised in the present appeal is answered in the affirmative holding that the defendants have made out a case to reduce the interest awarded by the Trial Court, in the facts and circumstances. Accordingly, the interest awarded by the Trial Court at the rate of 10% per annum is modified and the plaintiff is entitled for interest at the rate of 5% per annum from the date of the suit till the date of realization of the entire decreetal amount.

29. In view of the above, we pass the following:

JUDGMENT

(i) The Regular first appeal is allowed in part.

(ii) The judgment and decree dated 18.08.2012

passed in O.S.No.3842/2009 on the file of the XIX

Additional City Civil and Sessions Judge, Bangalore

(CCH - 18) decreeing the suit of plaintiff for recovery

of money of Rs.16 lakhs together with costs is hereby

confirmed.

(iii) The interest awarded by the Trial Court at the

rate of 10% p.a. is modified and the plaintiff is

entitled only at the rate of 5% p.a. from the date of