Smt. Mangalada W/O Manjunath vs Smt. Kuntagoudra Bullamma
2023 Latest Caselaw 2678 Kant

                                                 -1-
                                                           RSA No. 5027 of 2011




                         IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                               DATED THIS THE 29TH DAY OF MAY, 2023

                                               BEFORE

                           THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR

                          REGULAR SECOND APPEAL NO. 5027 OF 2011 (PAR)

                    BETWEEN:
                          SMT. MANGALADA CHANNABASAMMA
                          W/O MANJUNATH
                          AGE: 38 YEARS, R/AT UTTANGI VILLAGE,
                          TQ. HADAGALI, DIST. BELLARY-583101.
                                                                    ...APPELLANT
                    (BY SMT. V. VIDYA, ADVOCATE)
                    AND:
                    1.    SMT. KUNTAGOUDRA BULLAMMA
                          W/O LATE PAMPANNA,
                          AGE: 52 YEARS,
                          R/AT UTTANGI VILLAGE,
                          TQ. HADAGALI, DIST. BELLARY-583101

                    2.    SRI. KUNTAGOUDRA MANJAPPA
        Digitally
SUJATA  signed by
SUBHASH SUJATA            S/O LATE PAMPANNA,
PAMMAR SUBHASH
        PAMMAR            AGE: 32 YEARS,
                          R/AT UTTANGI VILLAGE,
                          TQ. HADAGALI, DIST. BELLARY-583101

                    3.    SRI. KUNTAGOUDRA MAHESHAPPA
                          S/O LATE PAMPANNA,
                          AGE: 27 YEARS,
                          R/AT UTTANGI VILLAGE,
                          TQ. HADAGALI, DIST. BELLARY-583101
                                                                 ...RESPONDENTS
                    (BY SRI. MADANAMOHAN M KHANNUR, ADVOCATE)
                              -2-
                                       RSA No. 5027 of 2011




     THIS RSA IS FILED UNDER SECTION 100 OF THE CODE OF
CIVIL PROCEDURE, 1908, PRAYING TO SET-ASIDE THE
JUDGMENT AND DECREE PASSED BY THE LEARNED ADDITIONAL
SENIOR CIVIL JUDGE, HOSPET IN R.A.NO.87/2009 DATED
23.07.2010 AND RESTORE THE JUDGMENT AND DECREE PASSED
BY THE LEARNED CIVIL JUDGE (JR.DN) & JMFC, AT HUVINA
HADAGALI IN O.S.NO.86/2008 DATED 28.10.2009, ALLOW THIS
APPEAL WITH COSTS IN THE INTEREST OF JUSTICE AND EQUITY.

     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

The present Regular Second Appeal is filed under

Section 100 of the Code of Civil Procedure, 1908 (for short

"CPC") challenging the judgment and decree passed by the

Additional Senior Civil Judge, Hospet in R.A.No.87/2009

dated 23.07.2010 whereby the First Appellate Court has set-

aside the judgment and decree dated 28.10.2009 passed in

O.S.No.86/2008 on the file of the Civil Judge (Jr.Dn) and

JMFC, Huvina-Hadagali.

2. For the sake of convenience, parties herein are

referred to as per the original ranks occupied by them before

the Trial Court.

3. The brief factual matrix leading to the case are as

under:

RSA No. 5027 of 2011

That the husband of defendant No.1 and father of

defendants 2 and 3 by name Pampanna borrowed a hand

loan of Rs.14,000/- from the plaintiff on 27.01.2006 for his

domestic needs and executed a demand promissory note in

favour of the plaintiff. It is also alleged that he agreed to pay

interest @ 36% per annum. Inspite of sufficient demands,

deceased-Pampanna did not repay the said loan amount. In

the meanwhile he expired and his legal heirs did not respond

to the claim of the plaintiff. A legal notice was also issued but

the defendants did not repay the said loan amount.

Defendant No.2 in fact is a signatory to the promissory note.

Hence, the plaintiff filed a suit for recovery of sum of

Rs.14,000/- with interest @ 36% per annum from the

defendants.

4. The defendants have appeared before the Trial

Court and filed their written statement denying the

allegations and assertions made in the plaint. It is asserted

by the defendants that 11.10.2003 in fact deceased-

Pampanna borrowed hand loan of Rs.14,000/- from the

plaintiff and discharged the same and the plaintiff has

RSA No. 5027 of 2011

returned the said promissory note by canceling the same. It

is contended that the promissory note dated 27.01.2006 is a

fabricated document and there is material alteration in the

date. It is further asserted that deceased-Pampanna used to

put his signature and was not putting his LTM and the LTM

found on the promissory note is not that of deceased-

Pampanna and therefore, the defendants are no way

concerned to discharge the liability as the said promissory

note was not executed by deceased-Pampanna.

5. On the basis of the pleadings, the Trial Court

framed as many as seven following issues:

1. Whether plaintiff proves suit loan transaction dated 27.01.2006 for a sum of Rs.14,000/- to defendants?

          2. If   so,   the    plaintiff   further   proves   the
            execution     of     promissory      note   by    the

defendant in favour of plaintiff agreeing the rate of interest?

3. Whether plaintiff proves any default by the deceased Pampanna for repayment of the loan?

RSA No. 5027 of 2011

4. Whether defendant proves there is no cause of action to file the suit?

5. Whether defendant proves the alleged promissory note executed by Pampanna is forged and fabricated one?

6. Whether plaintiff is entitle to recover an amount with interest?

7. What decree or order?

6. The plaintiff got examined himself as PW1 and

two witnesses were also examined as PW2 and PW3. Further

the plaintiff placed his reliance on ten documents marked at

Ex.P1 to Ex.P10. The defendant No.1 was examined as DW1

and defendant No.2 was examined as DW2. The defendants

have placed reliance on one document marked at Ex.D1. The

Trial Court after appreciating the oral and documentary

evidence has answered issue No.1 to 3 and 6 in the

affirmative and issue No.4 and 5 were answered in the

negative and ultimately decreed the suit of the plaintiff for a

sum of Rs.29,032/- with interest @ 36% per annum.

7. Being aggrieved by this judgment and decree, the

defendants preferred appeal in R.A.No.87/2009 on the file of

RSA No. 5027 of 2011

the Additional Senior Civil Judge at Hospet. The learned

Senior Civil Judge, after re-appreciation of oral as well as

documentary evidence, allowed the appeal and dismissed the

suit filed by the plaintiff for recovery of the amount. Being

aggrieved by this divergent opinion taken by the First

Appellate Court, the plaintiff is before this Court.

8. This Court by order dated 06.02.2017 has framed

the following substantial questions of law;

1. Whether the lower appellate court is justified in eschewing of the evidence on record explaining the alteration to the suit document?

2. Whether the difference in two documents with reference to two items, i.e., the first one is bearing signature of the borrower and second one is bearing the thumb impression can be accepted as one and the same based on the evidence of defendants to the document?

9. Heard the arguments advanced by the learned

counsel for the appellant-plaintiff and the learned counsel for

respondents-defendants.

RSA No. 5027 of 2011

10. The learned counsel for the appellant would

contend that the suit is based on promissory note dated

27.01.2006 executed by the husband of defendant No.1 and

attested by defendant No.2. She would contend that PW2

and PW3 have supported the case of the plaintiff and the

Trial Court has rightly decreed the suit but the First Appellate

Court reversed the said judgment and decree without any

proper and valid reasons. She would also contend that

though notice was issued to deceased-Pampanna he did not

respond to the notice and signature was not denied by

defendant No.2 in his written statement. She would contend

that the explanation given by PW3 clearly discloses that

deceased-Pampanna used to sign as well as he used to put

his thumb mark and hence, the First Appellate Court was not

justified in reversing the judgment and decree of the Trial

Court. Hence, she would seek for allowing the appeal by

setting aside the impugned judgment and decree passed by

the First Appellate Court by restoring the judgment and

decree of the Trial Court.

RSA No. 5027 of 2011

11. Per contra, learned counsel for the respondents-

defendants would support the judgment and decree passed

by the First Appellate Court. He would contend that the

promissory note itself is forged and the admitted document

at Ex.D1 discloses that deceased-Pampanna used to sign but

the alleged promissory note at Ex.P1 bears thumb mark and

even the thumb mark is also not attested. He would also

submit that there is no explanation as to why thumb mark

was put on Ex.P1 without signing the said document. He

further invites attention of this Court regarding material

alterations of the date in the promissory note from 2005 to

2006 and asserts that this alteration is not attested by the

alleged executants and the signature of Pamnappa is not

proved and as such, the document is hit by section 87 of the

Negotiable Instruments Act, 1881. Hence, he would seek for

dismissal of the appeal by confirming the judgment and

decree passed by the Appellate Court.

12. It is the specific contention of the plaintiff that the

husband of defendant No.1 and father of defendants 2 and 3

has availed a hand loan of Rs.14,000/- from the plaintiff on

RSA No. 5027 of 2011

27.01.2006 and executed on demand promissory note as per

Ex.P1 and also agreed to pay interest @ 36% per annum. At

the first instance, the plaintiff never claims to be holder of a

money lenders licence. According to his own case, it is a

simple hand loan transaction but he has claimed interest @

36% per annum, which is highly exorbitant. The conduct of

the plaintiff itself discloses that he is exploiting the situation

without holding money lending licence.

13. The entire case of the plaintiff is based on Ex.P1,

which is on demand promissory note. Though it is dated

27.01.2006, on perusal of Ex.P1, it is evident that the year

2005 is overwritten as 2006. For having made corrections

over the date, no attestation is made either by the plaintiff

or by deceased-Pampanna.

14. The plaintiff has got examined himself as PW1

and his cross-examination reveals that at the time of

negotiation, there was no agreement regarding demand of

interest but he did not explain as to why he is claiming

interest @ 36% per annum. On the contrary, PW1 in his

cross-examination admitted that deceased-Pampanna had

- 10 -

RSA No. 5027 of 2011

initially availed loan from him and executed a demand

promissory note as per Ex.D1. However, subsequently he

repaid the loan amount and got cancelled on demand

promissory note. Ex.D1 is on demand promissory note. On

perusal of Ex.D1, it is evident that deceased-Pampanna has

signed on Ex.D1. But on perusal of Ex.P1 i.e. disputed

document in this case, it is evident that it bears thumb

impression. Though there is endorsement that it is a LTM of

Pampanna, the said thumb impression is also not identified

by either the scribe or any attesting witnesses. Much

arguments have been advanced that defendant No.2 is

attesting witness to Ex.P1, but he has denied his signature.

Hence, the burden is on the plaintiff to prove that defendant

No.2 has attested the document. But no such evidence is

forthcoming. However, in the cross-examination PW3 admits

that deceased-Pampanna used to sign and further asserts

that occasionally he used to put his thumb mark also. Even if

it is accepted that deceased-Pampanna was putting his

thumb mark, there is no explanation in Ex.P1 as to why he

put his thumb mark when he was capable of signing the

- 11 -

RSA No. 5027 of 2011

document. Though PW3 tried to give explanation in this

regard, he admitted that the same is not endorsed in Ex.P1.

Hence, when there being no material evidence on record, his

explanation in this regard cannot be accepted. Ex.D1 is

undisputedly executed by deceased-Pampanna and it is of

the year 2003. It bears signature of Pampanna. But Ex.P1

which is also alleged to have been executed by deceased-

Pampanna bears alleged thumb mark. Interestingly, the

thumb mark is also not identified by any of the witnesses.

15. Interestingly, on perusal of Ex.P1, it is evident

that the year 2005 is altered as 2006. The learned counsel

for the appellant has invited the attention of this Court to the

last line in the agreement wherein there is endorsement that

2006 is rectified. But that does not bear any signature and

PW3 admits that for having made corrections, no signatures

were obtained by way of attestation for corrections. The

parties to the agreement have not attested the corrections.

Even on perusal of Ex.P1, it is endorsed that it is written by

scribe C.J.Sangappa Uttanagi on 27.01.2006 but even it does

not bear his signature as a scribe. Only his name can be

- 12 -

RSA No. 5027 of 2011

traced in Ex.P1. PW3 for having scribed Ex.P1 document, has

not even signed on the document and it bears only his name.

Even corrections does not bear the signature of the parties.

There is no proper explanation as to why deceased-

Pampanna put his LTM in place of his signature and there is

no explanation as to why the alleged LTM of Pampanna is not

identified.

16. Further, section 87 of the Negotiable Instruments

Act, 1881 states that any material alteration of a negotiable

instrument renders the same void as against any one who is

a party thereto at the time of making such alteration and

does not consent thereto, unless it was made in order to

carry out the common intention of the original parties.

17. In the instant case, admittedly there is material

alteration regarding the year from 2005 to 2006. None of the

parties have attested this alteration. Under such

circumstances, the document is hit by section 87 of the

Negotiable Instruments Act, 1881. Admittedly, Ex.P1 is a

negotiable instrument relied upon by the plaintiff. Further,

the suit is filed on 19.12.2008. If the date of promissory note

- 13 -

RSA No. 5027 of 2011

is 27.01.2005, in that event the suit is hit by law of

limitation. But it appears that in order to bring the suit within

the limitation period, the year was altered from 2005 to

2006. Further in Ex.P1 it is endorsed that the date was

altered but this word is also inserted subsequently as the

font size of the document and this insertion are different.

Even for this alteration, as observed above, the parties did

not sign for having consented. Under these circumstances,

Ex.P1 is hit by section 87 of the Negotiable Instruments Act,

1881. Hence, Ex.P1 does not assist the plaintiff in any way to

substantiate his contention that he has advanced the loan of

Rs.14,000/- and there was agreement with regard to interest

@ 36% per annum. Learned Civil Judge has ignored all these

aspects and in a mechanical way has decreed the suit. Even

he did not bother to consider the exorbitant interest claimed

by the plaintiff which is against Section 35 of CPC. The First

Appellate Court has appreciated all these facts and

circumstances in proper perspective and has rightly set-aside

the judgment and decree passed by the Trial Court and

dismissed the appeal. The judgment and decree passed by

- 14 -

RSA No. 5027 of 2011

the First Appellate Court does not suffer from any infirmity or

illegality so as to call for any interference. As such, both the

substantial questions of law are answered accordingly in

favour of the defendants. The appeal being devoid of merits,

deserves to be dismissed and hence, I proceed to pass the

following:

ORDER

The appeal stands dismissed.

In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive

for consideration and are disposed of accordingly.

Sd/-

JUDGE

YAN,