Karnataka High Court

Sri Sannegowda vs Smt Ashwathamma on 13 September, 2023

Bench: Ashok S.Kinagi

                                    RSA No.299/2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 13TH DAY OF SEPTEMBER 2023

                      BEFORE

    THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

REGULAR SECOND APPEAL NO.299 OF 2015 (MON)

BETWEEN


SRI. SANNEGOWDA
S/O THIMMEGOWDA,
AGED ABOUT 60 YEARS,
R/AT HINDUGUDALU VILLAGE,
HANAGODU HOBLI, HUNSUR TALUK,
MYSORE DISTRICT-571105.
                                      ...APPELLANT

(BY SRI. SRINIVASA D C, ADVOCATE)

AND:

SMT ASHWATHAMMA
W/O H D ERAPPA,
AGED ABOUT 50 YEARS,
R/AT MARUTHI EXTENSION,
HUNSUR TONW,
MYSORE DISTRICT-571105.
                                    ....RESPONDENT

(BY SRI. N. SHANKARANARAYANA BHAT, ADVOCATE)
                                          RSA No.299/2015

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      THIS RSA IS FILED UNDER SECTION 100 OF THE
CPC AGAINST THE JUDGEMENT & DECREE DATED
27.11.2014   PASSED     IN  R.A.NO.598/2014    (OLD
NO.32/2011) ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT, HUNSUR, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGEMENT AND DECREE DATED
25.1.2011 PASSED IN OS.NO.1/2010 ON THE FILE OF THE
CILVIL JUDGE & JMFC., HUNSUR.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 18.08.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                       JUDGMENT

This second appeal is filed by the appellant

challenging the judgment and decree dated

27.11.2014, passed in R.A.No.598/2014 (Old

No.32/2011) by the Fast Track Court, Hunsur and the

judgment and decree dated 25.01.2011, passed in

O.S.No.01/2010 by the Civil Judge & JMFC, Hunsur.

2. Parties are referred to as per their ranking

before the trial Court. The appellant is the defendant

and respondent is the plaintiff.

RSA No.299/2015

3. The brief facts leading rise to filing of this

appeal are as under:

Plaintiff filed a suit for recovery of money against

the defendant. The defendant approached the plaintiff

for financial assistance. The plaintiff, considering the

need of the defendant, agreed to advance a sum of

Rs.60,000/- and the defendant agreed to pay

minimum rate of interest at the rate of 18% p.a. The

defendant executed a demand promissory note and

receipt for having received the amount. It is

contended that the defendant neither paid the

principle amount nor the interest. The plaintiff got

issued legal notice calling upon the defendant to repay

the loan amount with interest. The said notice was

served on the defendant. Inspite of service of notice,

the defendant did not repay the said loan amount.

Hence cause of action arose for the plaintiff to file the

suit for recovery of money.

RSA No.299/2015

4. Defendant filed written statement contending

that the plaintiff and her husband are notorious for

concocting documents for filing suits for recovery of

money. It is contended that the defendant has not

borrowed any amount from the plaintiff as alleged in

the plaint. It is further contended that the plaintiff

and her husband have indulged in illegal acts with the

villagers and they have filed a complaint against the

plaintiff and her husband. Rest of the allegations

made in the plaint are denied by the defendant and

sought for dismissal of the suit.

5. The Trial Court, on the basis of the above

said pleadings, framed the following issues:

1) Whether the plaintiff proves that the defendant has borrowed a sum of Rs.60,000/- @ 18% interest per annum for his legal necessities and executed alleged On demand pronote & consideration receipt on 01.12.2008?

2) Whether the plaintiff further proves that despite of several request and demands RSA No.299/2015

the defendant has not repaid the said amount?

3) Whether the plaintiff is entitled to relief as sought for?

4) What order or decree ?

6. In order to prove the case of the plaintiff,

plaintiff examined herself as PW-1 and two witnesses

as PW-2 & PW-3 and got marked 6 documents as

Exs.P1 to P6. Defendant examined himself as DW-1

and got examined one witness as DW-2 and got

marked 3 documents as Exs.D1 to D3. The trial Court

after considering the oral and documentary evidence

of the parties, answered issue Nos.1 to 3 in the

affirmative and issue No.4 as per the final order. The

trial Court decreed the suit of the plaintiff with costs.

It is ordered and decreed that the plaintiff is entitled

for claim amount of Rs.70,000/- along with interest at

the rate of 15% p.a. from the date of the suit till its RSA No.299/2015

realization and directed the defendant to pay the

decreetal amount to the plaintiff.

7. The defendant aggrieved by the judgment

and decree passed in the above said suit, filed an

appeal in R.A.No.598/2014 (old No.32/2011). The

First Appellate Court, after hearing the parties, has

framed the following points for consideration:

1) Whether the judgment and decree passed by the trial Court is erroneous, illegal, perverse and not sustainable in law and called for interference of this Court?

2) What order or decree ?

8. The First Appellate Court, on re-appreciating

the oral and documentary evidence, answered point

No.1 in negative and point No.2 as per the final order

and consequently dismissed the appeal confirming the

judgment and decree passed by the trial Court. The

defendant, aggrieved by the judgment and decree RSA No.299/2015

passed by the courts below, has filed this second

appeal.

9. This court admitted the appeal on the

following substantial question of law :

"Whether the courts could have decreed the suit for recovery of a sum of Rs.80,000/- on the basis of a pronote dated 01.12.2008, when the plaintiff had admitted during the course of cross- examination that she had paid the money to the defendant in the year 2002?"

10. Heard learned counsel for the parties.

11. Learned counsel for the defendant submits

that in view of the admission of PW-1 in the course of

cross-examination that the alleged transaction was 8

years prior to the filing of the suit, the suit filed by the

plaintiff is barred by limitation. He submits that the

courts below could have framed an issue as per

Section 3 of the Limitation Act, even though the

defendant has not taken a defence in the written RSA No.299/2015

statement. He submits that the trial Court has

committed an error in decreeing the time barred suit

and in order to buttress his arguments, he has placed

reliance on the judgment of the Hon'ble Apex Court in

the case of BOGIDHOLA TEA AND TRADING CO. LTD. &

ANR. VS. HIRA LAL SOMANI REPORTED IN AIR 2008 SC

911 and the judgment of the Co-ordinate Bench of

this Court in the case of SRI. H. D. HANUMANTHAPPA

VS. SRI. MOHAMMED SAB & ORS., REPORTED IN ILR

2010 KAR 5487. Hence on these grounds he

submits that the courts below have committed an

error in passing the impugned judgments and decrees

and prays to allow the appeal.

12. Per contra, learned counsel for the plaintiff

submits that learned counsel for the defendant merely

placing reliance on the stray sentence in the course of

cross-examination of PW-1 has submitted that the suit

filed by the plaintiff is barred by limitation. He RSA No.299/2015

submits that the said admission is a stray admission

and that the Court is required to consider the entire

evidence of PW-1. He submits that both the courts

below after considering the entire evidence of PW-1

and 2, passed the impugned judgment. He further

submits that the defendant has not raised the ground

of limitation neither before the trial Court nor the First

Appellate Court. The defendant is raising the point of

limitation for the first time before this Court. He

submits that the defendant has no right to raise a new

point in the second appeal. On these grounds, he

prays to dismiss the appeal.

13. Perused the records and considered the

submissions of learned counsel for the parties.

14. It is the case of the plaintiff that the

defendant approached the plaintiff and requested to

advance hand loan of Rs.60,000/-. The plaintiff RSA No.299/2015

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considering the need of the defendant, agreed to

advance hand loan of Rs.60,000/- and defendant

agreed to repay the amount together with interest at

the rate of 18% p.a. and the defendant executed on-

demand promissory note on 01.12.2008. Plaintiff

requested the defendant to repay the said amount.

Defendant did not repay the said amount. Plaintiff got

issued a legal notice calling upon the defendant to

repay the loan amount. Inspite of service of notice,

defendant failed to repay the loan amount. Hence

plaintiff filed the suit.

15. The plaintiff in order to prove her case,

examined herself as PW-1. She has reiterated the

plaint averments in her examination-in-chief and

produced documents i.e., Ex.P1 is the on-demand

promissory note executed by the defendant in favour

of the plaintiff for having received a sum of

Rs.60,000/- towards hand loan, Ex.P2 is the RSA No.299/2015

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consideration receipt executed by the defendant in

favour of the plaintiff for having received the amount

of Rs.60,000/-, Ex.P3 is the copy of legal notice issued

by the plaintiff to the defendant calling upon the

defendant to repay the loan amount with interest.

The said notice was served on the defendant. Ex.P5 is

the written statement filed by the defendant in the

same suit and his signature is marked as Ex.P5(a) &

(b). In the course of cross-examination, it was

suggested to PW-1 that the said amount was paid

about 8 years back and PW-1 admitted the said

suggestion. PW-1 has further admitted in the cross-

examination that she got executed a demand

promissory note and it is also admitted that since last

8 years there was no loan transaction between the

plaintiff and the defendant.

16. In order to prove the execution of Ex.P1

i.e., on-demand promissory note, the plaintiff RSA No.299/2015

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examined the attesting witness as PW-2 who has

deposed that on 01.12.2008, the plaintiff has

advanced an amount of Rs.60,000/- to the defendant

and the defendant agreed to pay interest at the rate

of 18% p.a. and Ex.P1 was executed in his presence

and he has deposed that defendant has executed

Ex.P1 and also issued an acknowledgment for having

received the loan amount of Rs.60,000/-. He

identified his signature on Ex.P1 and same is marked

as Ex.P1(b). He also identified his signature on Ex.P2

marked as Ex.P2(b) and he also identified the

signature of the defendant on Ex.P1 marked as

Ex.P1(a) and on Ex.P2 marked as Ex.P2(a). It is

suggested to PW-2 that except PW-1 to PW-3 and the

defendant, no other persons were present at the time

of execution of Ex.P1 and P2. PW-2 admits that

except the aforesaid persons, no other person was

present at the time of execution of Ex.P1 and P2.

RSA No.299/2015

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17. PW-3 is the scribe who has written Ex.P1.

He has deposed that Ex.P1 was written at the instance

of the defendant and the defendant has availed loan

of Rs.60,000/- from the plaintiff and agreed to pay

interest. He identified his signature and that of the

defendant on Ex.P1 and P2. His signature is marked

as Ex.P1(d) and Ex.P2(d). Nothing has been elicited

from the mouth of PW-2 and PW-3.

18. Defendant examined himself as DW-1 and

he denied the entire plaint averments and further

contended that the defendant has never borrowed any

amount from the plaintiff and plaintiff is in the habit of

creating documents and filing suit against the

villagers. In the course of cross-examination, Ex.P1

and P2 was confronted to DW-1. He denied his

signature on Ex.P1 and P2.

RSA No.299/2015

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19. Defendant examined one witness as DW-2.

He has reiterated the examination-in-chief of DW-1.

Defendant has produced Ex.D1 to establish that

plaintiff is in the habit of creating documents and a

criminal case was registered against the plaintiff and

her husband. DW-2 in the course of cross-

examination admitted that plaintiff and her daughter

lodged the complaint against DW-2. DW-2 is not

cordial with the plaintiff. Hence, DW-2 out of

vengeance has deposed against the plaintiff. DW-2 is

an interested witness. His evidence cannot be looked

into.

20. Perused the evidence of PW-1 to PW-3 and

DW-1 and DW-2. Plaintiff has produced Ex.P1 and P2

for having lent loan amount to the defendant. The

defendant has denied the execution of Ex.P1 and P2

and denied the signatures on Ex.P1 and P2. It is not

the case of the defendant that the defendant has RSA No.299/2015

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taken loan about 8 years prior to filing of the suit. In

the written statement, the entire written statement is

bare denial of plaint averments. Further, PW-1 in a

stray sentence has admitted that the said amount was

lent about 8 years back and got executed a pronote

and admitted that since past 8 years, there was no

loan transaction. Hence on this ground it is contended

that the alleged loan transaction was in the year 2002

and the suit is filed in the year 2008. Hence the suit

filed by the plaintiff is barred by limitation. Though

the suit is filed by the plaintiff based on Ex.P1 and P2,

from the perusal of said Ex.P1 and P2, the said

documents were executed on 01.12.2008. Prior to the

filing of the suit, plaintiff got issued legal notice to the

defendant as per Ex.P3 wherein the plaintiff has

specifically stated in the legal notice that the

defendant executed a demand promissory note on

01.12.2008, after receiving loan amount of RSA No.299/2015

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Rs.60,000/- from the plaintiff. The said fact has not

been denied by the defendant by replying to the legal

notice, Ex.P3. Not sending reply to the legal notice

asserting execution of Ex.P1 and P2, an adverse

inference has to be drawn against the defendant

under Section 114(g) of the Indian Evidence Act. The

Co-ordinate Bench of this Court in the case of

N.M.RAMACHANDRAIAH & ANR. VS. STATE OF

KARNATAKA & ORS., reported in 2007(3) KCCR 2049

held that "not sending reply to legal notice asserting

execution of document and calling upon to get it

registered leads to adverse inference." Further, the

defendant has not taken the defence in the written

statement that the said transaction was of the year

2002 and not of the year 2008. Even in the

examination-in-chief of DW-1, the defendant has not

deposed that the alleged transaction is of the year

2002 and not of the year 2008.

RSA No.299/2015

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21. As per Section 3 of the Limitation Act, even

if the defendant has failed to take a defence in the

written statement, it is the duty of the Court to

consider whether the suit instituted by the plaintiff is

within time. As observed above, though the

defendant has not taken a defence in the written

statement, the defendant merely placing reliance on

the stray sentence in the course of cross-examination

of PW-1 submits that the suit filed by the plaintiff is

barred by limitation. Section 17 of the Indian

Evidence Act defines what an admission is. It deals

with admissions which are both oral or written. An

admission, particularly in civil matters dealing with

properties, has to be clear and it has to be read in the

light of the pleadings and the other evidence available

on record. One stray sentence cannot be picked up

for holding against the plaintiff. It is well settled that

the Court is required to consider the entire material on RSA No.299/2015

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record, but cannot consider the stray sentence, in

view of the law laid down by the Co-ordinate Bench of

this Court in the case of K.S.VENKATESH VS.

N.G.LAKSHMINARAYAN & ORS., reported in 2007(3)

KCCR 1881 and the Division Bench of this Court in

the case of PUTTANNA SHETTY (D) BY LRS. & ORS. VS.

PADMA SHETTY (D) BY LRS. & ORS., reported in

2007(3) KCCR 2107, wherein at paragraph-9 it is

held as under:

"9. In AIR 1968 SC 1413 (Gopal Krishnaji Ketkar V. Mohammed Haji Latif) the Supreme Court would notice the consideration of evidence. In fact, a party in possession of best evidence has not chosen to place best evidence by way of examination of grahasta or by way of filing memo. In that situation, the Court ruled against that party who has not chosen to place the best evidence. These two judgments support the plaintiff. Even otherwise, an admission particularly in civil matter dealing with properties has to be clear and it has to be read in the light of the pleadings and the other evidence available on record. One stray sentence cannot be picked up for holding against the RSA No.299/2015