Karnataka High Court
M/S Chandan Exporters vs M/S Revena Siddappa Traders on 6 November, 2024
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RFA No. 893 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
REGULAR FIRST APPEAL NO. 893 OF 2016 (MON)
BETWEEN:
M/S. CHANDAN EXPORTERS,
BY ITS PROPRIETOR
P.S.CHANDAN,
S/O. P.K.SHIVANANDAPPA,
AGED ABOUT 36 YEARS,
R/O. APMC YEARD `C' BLOCK,
DAVANAGERE-570 001. .. APPELLANT
( BY SMT.MONICA PATIL, ADVOCATE)
AND:
M/S. REVENA SIDDAPPA TRADERS,
REPRESENTED BY ITS PARTNER
Digitally signed by KORLAHALLI
BHARATHIDEVIKRISHNACHARYA
M.BASAPPA,
Location: HIGH COURT OF
KARNATAKA S/O SIDDAPPA, MAJOR,
MERCHANT AND COMMISSION AGENT
SHIMOGA ROAD, HARIHARA,
BRANCH OFFICE : APMC YARD,
`A' BLOCK,
DAVANAGERE-570 003. .. RESPONDENT
(BY SRI.R.GOPAL, ADVOCATE )
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
CPC, 1908, AGAINST THE JUDGMENT AND DECREE DATED
17.02.2016, PASSED IN O.S.NO.106/2008 ON THE FILE OF THE
II ADDITIONAL SENIOR CIVIL JUDGE, DAVANAGERE, DISMISSING
THE SUIT FOR RECOVERY OF MONEY.
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RFA No. 893 of 2016
THIS APPEAL, HAVING BEEN RESERVED FOR JUDGEMENT,
COMING ON FOR PRONOUNCEMENT THIS DAY,
UMESH M. ADIGA, J., PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
and
HON'BLE MR JUSTICE UMESH M ADIGA
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE UMESH M ADIGA)
This appeal is filed by the plaintiff in
O.S.No.106/2008, challenging the judgment and decree
dated 17.02.2016, passed by the learned II Addl. Senior
Civil Judge, Davanagere (for short `trial Court').
2. The appeals i.e., RFA.No.891/2016 and
RFA.No.893/2016 are clubbed, but on perusal of the
records, they are not interconnected. Except that, the
plaintiff is same person in both the suits, but material facts
vary. They pertain to different sale transactions, different
cause of actions and different defendant. The trial Court
also decided them separately. Hence, separate judgments
are passed.
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3. We refer to the parties as per their ranks before
the trial Court.
4. It was the case of the plaintiff that both plaintiff
and defendant are merchants and commission agents.
Both are dealing in maize business. Plaintiff is running his
business in the name and style of M/s.Chandan Exporters
at APMC Yard, Davanagere. Defendant is carrying on his
business in agricultural products at RMC Yard Davanagere.
5. The defendant approached the plaintiff to provide
financial assistance during the period from 08.10.2007 to
26.11.2007. Accordingly, between the said dates, plaintiff
paid total amount of Rs.31,10,000/- to the defendant
through eight cheques respectively. The defendant agreed
to repay the said amount with interest at the rate of
1.75% per month. From the date of loan till the date of
filing of suit, the defendant was liable to pay interest of
Rs.7,19,064/-. Including principal and interest, he was
liable to pay Rs.38,35,064/-. In spite of several requests
by the plaintiff, the defendant did not repay the loan
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amount. Therefore, plaintiff filed the suit to recover the
same.
6. Contentions of the defendant are that plaintiff
used to purchase the maize from him on credit basis.
Plaintiff purchased 4,422 bags of maize from the
defendant at the rate of Rs.740/- per quintal on credit
basis, under the credit bill bearing No.659, dated
03.10.2007. The total value of the said maize was
Rs.31,23,688/-. The maize was transported from the shop
of the defendant on 03.10.2007 to Railway goodshed yard
in 27 lorries, particulars of which were described in the
written statement. The plaintiff also agreed to pay the
interest on the said amount, if it was not paid within a
week. Plaintiff failed to pay the same within a week.
Hence, plaintiff was liable to pay interest at the rate of
18% p.a.
7. It is the further contention of the defendant that
plaintiff issued eight cheques towards part payment of
amount of Rs.31,10,000/- and still he was liable to pay
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Rs.74,422/-. To recover the same with interest,
defendant filed suit in O.S.No.222/2009. The claim of the
plaintiff is false and prayed to dismiss the suit filed by the
plaintiff.
8. The trial Court after considering the contentions of
both the parties, framed necessary issues.
9. During the trial of the case, plaintiff examined
himself as PW-1 and got marked Exs.P-1 to P-9 and
defendant examined DW-1 and got marked Exs.D-1 to
D-25.
10. The learned trial Judge after hearing both the
parties and appreciating pleadings and evidence on record,
dismissed the suit by the impugned judgment.
11. We have heard the arguments of learned
counsel for both the parties and perused the materials
placed on record.
12. The learned counsel for the appellant/plaintiff
vehemently contended that the trial Court has not
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appreciated the evidence of the parties properly. The
defendant in his written statement clearly admitted that he
received the cheques from the plaintiff and withdrew the
amount from the bank. In view of the same, there was no
need to prove it. The learned trial Judge erroneously
believed the created and concocted documents produced
by the defendant. Therefore, the said findings are
erroneous. With these reasons, she prayed to allow the
appeal.
13. The learned counsel for the respondent
vehemently contended that the trial Court properly
appreciated the evidence. The defendant has not admitted
the case of plaintiff, but admitted the receipt of cheques
from the plaintiff and withdrawal of the amount from the
bank. Plaintiff issued the said cheques not towards alleged
loan to defendant, but to pay the amount of maize
purchased by him from defendant. The plaintiff has not
produced any corroborative material to support his
contention. On the contrary, the defendant placed oral
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evidence as well as documentary evidence in support of
their contention. That was rightly believed by the trial
Court. The findings of the learned trial Judge does not call
for interference by this Court. Hence, prayed to dismiss
the appeal.
14. Following question arises for our determination:
Whether the learned trial Judge erred in not
holding that cheques given by the appellant/plaintiff
were towards payment of loan to defendant?
15. Our findings on the above point is in the negative
for the following reasons:
Plaintiff to prove his case examined himself as PW-1
and he reiterated the plaint averments. In the detailed
cross-examination, he admitted several contentions of the
defendant which were extracted in the impugned
judgment by the learned trial Judge. There is no need to
reproduce them. The suit was filed on 01.12.2008.
Defendant filed his written statement on 26.05.2009. The
trial Court disposed of the suit on 17.02.2016 and it was
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pending before the trial Court for a period of seven years.
In the cross-examination, PW-1 admits that as per APMC
Rules, he has to maintain several registers, vouchers and
accounts books in respect of the transaction of purchase
and sale made by a shop owner. Plaintiff in his cross-
examination admits that such books of accounts were
maintained by him. He also stated that he made entries in
respect of the present transactions. However, neither he
produced them nor assigned any reasons for not producing
the same. Hence, the learned trial Judge rightly took
adverse inference against the plaintiff for
non-production of relevant records.
16. The learned counsel for the respondent relied on
the judgment of Co-ordinate Bench of this Court in the
case Management of State Bank of India -vs-
V.M.Mahapurush1, wherein it is held that,
" records have not been produced without any
reason and in a case where documentary evidence
ILR 1994 KAR 2728
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throwing light on matters in issue is admittedly in
possession of the parties to the case, no such
argument can be allowed to be advanced that they
were not summoned and therefore they were not
produced, instead an adverse inference or adverse
presumption can be and should be drawn against
party having and withholding such evidence in his
possession and not producing the same for perusal
and consideration of the Court."
The facts in the present case are similar to the facts
stated in the above said case and hence the law laid down
in the above case shall be made applicable.
17. It is also pertinent to note that in the plaint as
well as in the examination-in-chief, the plaintiff stated that
he was acquainted with the defendant and both of them
are doing the same type of business, however, they had
no business transactions prior to the present loan. The
amount borrowed, according to the case of the plaintiff
was huge sum of Rs.31,10,000/-. Except the said
cheques, there are no scrap of documents to show that
defendant had borrowed from him. The said conduct of
plaintiff appears unnatural. He is not a rustic villager, but
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a businessman. Even he did not obtain receipt for
payment of said amount. Hence, it is difficult to believe
the case of plaintiff.
18. The defendant contended that he sold 4,422
bags of maize to the plaintiff at the rate of Rs.740/- per
quintal and total amount was Rs.31,23,688/-. Plaintiff had
paid part of the said amount, through six cheques referred
in the plaint. He did not pay balance amount. To recover
the same, he filed a suit. DW-1 in his evidence stated in
detail about the transportation of maize from his shop to
Railway goodshed through lorry, lorry numbers, total bags
sent in each lorry as well as total weight of the said maize
and its value. In support of his contentions, he produced
Exs.D-1, D-2 and D-6 to D-25. These documents
corroborate the case of the defendant. In his cross-
examination, nothing was brought out to discard the
documents produced by him. At no stretch of imagination,
the said contentions of defendant can be considered as
admission of the case of the plaintiff.
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19. Learned counsel for the appellant/plaintiff
submits that said documents are created by defendant.
Plaintiff filed a complaint against the purchaser of the
maize from him and failed to pay the price of product.
While filing the complaint, these documents were given to
police. Defendant obtained the same and produced them
before the Court to make false claim. Plaintiff has not led
any evidence to substantiate the said contentions. Fraud
has to be pleaded and proved. Mere making bare
allegation is not sufficient. Plaintiff failed to prove that
defendant played fraud on him. Hence, it does not help
plaintiff to disbelieve the contention of the defendant.
20. It appears that, the plaintiff wanted a decree to
be passed in his favour on the basis of weakness of the
case of defendant. Plaintiff has to stand on his own legs.
He cannot get a decree on the basis of weakness in the
case of the defendant. He could have produced materials
which were said to be available with him to prove his
contentions. He failed to produce them and hence he
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cannot make grievance against the findings of the trial
Court.
21. Appellant relied on the judgment of the Hon'ble
Apex Court in the case of Anita Rani -vs- Ashok Kumar
and others. 2 The facts of that case are totally different.
In that case, both the parties admitted their claim and
defendant had contended that part repayment was made
in full and final settlement of entire claim. Considering the
said contention, the Hon'ble Apex Court held that burden
to prove said fact was on defendant. In the present case,
defendant has not admitted that he borrowed money from
plaintiff. His contention is that towards payment of price
of maize purchased by plaintiff, said cheques were issued.
Hence, law laid down in the above cited decision is not
applicable to the facts of present case.
The learned trial Judge properly appreciated the
pleadings and evidence and came to right conclusion. We
do not find any reasons to interfere in the said findings.
(2021) 20 SCC 257
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22. For the aforesaid discussion, we pass the
following:
ORDER
Appeal is dismissed with cost.
The impugned judgment and decree dated
17.02.2016, passed by the learned II Addl. Senior Civil
Judge, Davanagere, in O.S.No.106/2008, is confirmed.
Registry to transmit the records along with copy of
this judgment to the concerned trial Court without delay.
Sd/-
(SREENIVAS HARISH KUMAR)
JUDGE
Sd/-
(UMESH M ADIGA)
JUDGE
bk/
