Karnataka High Court
Srinivas vs Dhanapal S on 9 September, 2024
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2024:KHC:36799
RFA No. 1029 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 1029 OF 2015 (MON)
BETWEEN:
1. SRINIVAS,
SINCE DECEASED BY HIS LRS
1(A). SMT. SHOBHA,
W/O LATE SRINIVAS,
AGED ABOUT 42 YEARS
1(B). KUM. SWATHI
D/O LATE SRINIVAS,
AGED ABOUT 22 YEARS
1(C). KUM. AMULYA
D/O LATE SRINIVAS,
AGED ABOUT 21 YEARS
Digitally
signed by
MALATESH 1(D). SRI. ASHIK,
KC CORRECT NAME IS AKSHITH S.,
Location: S/O LATE SRINIVAS,
HIGH AGED ABOUT 19 YEARS
COURT OF
KARNATAKA
2. SRI. RAJESH
S/O LATE KRISHNAPPA K.S.,
AGED ABOUT 46 YEARS,
3. SMT. LAKSHMAMMA
W/O LATE KRISHNAPPA.K.S.
AGED ABOUT 65 YEARS,
-2-
NC: 2024:KHC:36799
RFA No. 1029 of 2015
ALL ARE R/AT #442, KUVEMPU ROAD,
NEAR KENGERI BUS STOP,
BENGALURU-560 060
...APPELLANTS
(BY SRI. A KUMARAVEL, ADVOCATE)
AND:
DHANAPAL S.,
S/O SAGADEVA NAIDU,
AGED ABOUT 68 YEARS,
R/AT #113, 6TH 'C' MAIN ROAD,
REMCO LAYOUT,
VIJAYANAGAR II STAGE
BENGALURU-560 040
...RESPONDENT
(BY SRI. RAMESHA H.E., ADVOCATE)
------
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 12.03.2015 PASSED IN
O.S NO.274/2001 ON THE FILE OF THE XXX ADDL. CITY CIVIL
JUDGE, BENGALURU, DECREEING THE SUIT FOR RECOVERY OF
MONEY.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
-3-
NC: 2024:KHC:36799
RFA No. 1029 of 2015
ORAL JUDGMENT
Heard Sri A Kumaravel and Sri Ramesh H E, for the
parties.
2. The LRs of one Krishnappa, who are the
defendants in O.S.No.274/2001, are the appellants
challenging the validity of the judgment and decree passed
in O.S.No.274/2001 on the file of XXX Additional City Civil
Judge, Bengaluru.
3. Facts in brief which are utmost necessary for the
disposal of the present appeal are as under :
Plaintiff filed a suit for recovery of money of
Rs.1,25,000/- and interest thereon, in all a sum of
Rs.1,55,916/- by contending that plaintiff is an employee
of Bharath Heavy Electricals Limited ('BHEL' for short)
working as a Technician in department of SC and PV,
Bengaluru. One Krishnappa was also working in Electronic
Division in BHEL as Artisan in SC and PV department
bearing staff no.3761733.
NC: 2024:KHC:36799
3.1 Plaintiff and Krishnappa being the close friends,
Krishnappa took voluntary retirement in the month of
August 1999. It is the specific case of the plaintiff that
Krishnappa borrowed a sum of Rs.1,75,000/- as under :
1. 09.10.1999 : Rs.40,000/-
2. 12.10.1999 : Rs.35,000/-
3. 03.11.1999 : Rs.50,000/-
4. 11.11.1999 : Rs.50,000/-
---------------
Total : Rs.1,75,000/-
----------------
3.2. Plaintiff further contended that to meet the
family necessities, Krishnappa borrowed the aforesaid
amount and to set up TV show room business for his
second son Rajesh, he borrowed the amount with an
agreement to pay interest at 24% p.a. Plaintiff further
contended that a sum of Rs.50,000/- was repaid by
Krishnappa on 9.12.1999 and balance amount of
Rs.1,25,000/- was still due from Krishnappa to the
plaintiff. It is the specific case of the plaintiff that towards
the repayment, he issued two post dated cheques dated
NC: 2024:KHC:36799
31.1.2000 and 15.2.2000 in a sum of Rs.50,000/- and
75,000/- respectively.
3.3. It is further case of the plaintiff that since
Krishnappa had borrowed money for the purpose of family
necessities, legal representatives of Krishnappa, who are
also possessing the assets left behind by deceased
Krishnappa, are liable to pay the suit claim.
3.4. It is further case of plaintiff that the cheques
could not be presented to the Bank for collection on
account of death of Krishnappa on 9.1.2000. Legal notice
came to be issued when there was no repayment by the
legal representative of Krishnappa. The said legal notice
was replied by a reply notice dated 27.11.2000 denying
the averments made in the legal notice. Therefore, plaintiff
was constrained to file the suit for recovery of sum of
Rs.1,55,916/-.
3.5. Pursuant to the suit summons, defendants
appeared before the Court and denied the plaint
NC: 2024:KHC:36799
averments in toto. Learned trial judge based on the rival
contentions raised following issues :
1. Does plaintiff prove that he had advanced
loan of Rs.1,75,000/- to late Krishnappa?
2. Does plaintiff further prove that
Rs.1,25,000/- was die towards principal by said
late Krishnappa?
3. Is plaintiff entitled to the suit claim? If so,
what is the extent of liability of the defendant?
4. What order ?
3.6. In order to prove his case, plaintiff got himself
examined as PW.1 and placed on record 10 documents
which are exhibited and marked as Exs.P.1 to P.10.
3.7. The detailed cross examination of PW.1 did not
yield any positive material so as to disbelieve the case of
the plaintiff in lending the amount nor repayment of
Rs.50,000/- by Krishnappa during his life time.
3.8. As against the evidence placed by plaintiff, first
son of Krishnappa by name Srinivas was examined as
NC: 2024:KHC:36799
PW.1 and since he also died before he could be cross
examined, Krishnappa's second son by name Rajesh was
cross examined as DW.2. On record, defendants placed a
document which is a sale deed marked as Ex.D.1.
3.9. In the cross examination, DW.2 denies that
Krishnappa had borrowed the money and the cause of
action to the suit is proper.
3.10. On conclusion of recording of evidence of
parties, the learned trial Judge heard the parties in detail
and by judgment dated 12.3.2013 decreed the suit of
plaintiff with interest at 24% p.a. The same is called in
question in this appeal on the following grounds by the
defendants.
4. Sri A.Kumaravel, learned counsel for the
appellants, reiterating the grounds urged in the appeal
memorandum contended that Exs.P.1 and P.2, which are
the original cheques, were not presented to the Bank at
all. Therefore under Section 64 of the N.I.Act, defendants
are not legally bound to pay the amount covered under
NC: 2024:KHC:36799
the cheques inasmuch as there is no presentation of
cheques. Hence, there is no liability on Krishnappa or for
that matter on the appellants herein. Therefore, decreeing
the suit of the plaintiff by the Trial Court is incorrect.
4.1. He further pointed out that there is no cause of
action to file the suit and therefore, the cause of action as
is alleged by the plaintiff in the suit is imaginary in nature
and therefore, sought for allowing the appeal and
dismissing the suit.
4.2. He also contended that when Krishnappa took
voluntary retirement in the month of August 1999, he had
sufficient finance with him and therefore, the story built up
by the plaintiff that for meeting the family necessities,
Krishnappa borrowed a sum of Rs,1,75,000/-, repaid only
a sum of Rs.50,000/- and therefore, plaintiff is entitled to
the suit claim in a sum of Rs.1,55,916/- is incorrect and
sought for allowing the appeal by dismissing the suit.
4.3. He also emphasised that the learned Trial Judge
has awarded exorbitant interest inasmuch as in the
NC: 2024:KHC:36799
operative portion, it is mentioned that rate of interest is
ordered at the rate of 24% p.m. and by filing an
application under Section 152 CPC, the same was got
corrected as 24% p.a., which clearly shows that the suit
has been disposed of by the learned trial Judge in a very
casual manner and therefore, sought for allowing the
appeal.
5. Per contra, learned counsel for respondent
supports the impugned judgment.
6. Having heard the parties, following points arise for
consideration :
1) Whether the plaintiff has made out a case for
recovery of sum of Rs.1,55,916/- as claimed in
the suit ?
2) Whether the plaintiff further made out a case
that payment Interest at 24% p.a. ?
3) Whether the impugned judgment is suffering
from legal infirmity or perversity?
4) What order ?
- 10 -
NC: 2024:KHC:36799
7. In the case on hand, Krishnappa being the
employee bearing badge No. 3761733 working in BHEL
along with plaintiff is not in dispute. So also Krishnappa
taking voluntary retirement in August 1999 is also not in
dispute. However, in respect of the loan transaction
between plaintiff and Krishnappa, Exhibits P.1 and P.2 has
been relied on by the plaintiff. Admittedly, Exs.P.1 and
P.2 are the cheques belonging to Krishnappa drawn on
Co-operative Apex Bank Limited is not in dispute.
However, signature of Krishnappa in Ex.P.1 and P.2 is
disputed by the legal representatives of Krishnappa i.e.,
the defendants. Matter was referred to the hand writing
expert before the trial court insofar as the signature of
Krishnappa on Exs.P.1 and P.2 is concerned.
8. However, the opinion of the expert was that he
was incapable of furnishing any opinion. The Bank
Manager was not summoned nor any other efforts were
made to show that signatures found in Exs.P.1 and P.2 are
not that of Krishnappa.
- 11 -
NC: 2024:KHC:36799
9. It is pertinent to note that it is the legal
representatives of Krishnappa who had taken such a stand
and as such, burden was on them to establish that the
signature found on Exs.P.1 and P.2 are not that of
Krishnappa. Further, when once the negotiable instrument
is drawn, the plaintiff enjoys the presumption as is
contemplated under Section 118 of the N.I.Act. The said
presumption would go to show that the cheque was in
order and it is drawn for consideration.
10. No doubt in the case on hand, both the cheques
were not presented for collection, inasmuch as even before
the date mentioned in the cheques for presentation to the
Bank, Krishnappa died. Ex.P.2 is dated 31.1.2000 and
Ex.P.1 is dated 15.2.2000. Admittedly, Krishnappa died on
9.1.2000. Therefore, cheques could not be presented for
collection is the explanation offered by the plaintiff.
Assuming that the cheques were presented, it would have
been dishonoured with an endorsement that 'drawee is no
more'. Be it what it may, fact remains that Exs.P.1 and
- 12 -
NC: 2024:KHC:36799
P.2 are relied upon by plaintiff for the purpose of showing
that Krishnappa borrowed the money as against the
guarantee of two post dated cheques. It is also pertinent
to note that plaintiff is independently claiming money on
the basis of hand loan. The contention of defendant that
plaintiff has concocted the cheques to have an unlawful
gain against the defendants cannot be accepted, as the
plaintiff would not have pleaded in the plaint that a sum of
Rs.50,000/- was repaid by Krishnappa in the month of
December i.e., on 9.12.1999.
11. The very fact that the plaintiff has pleaded in the
plaint that as against the sum of Rs.1,75,000/- borrowed
by Krishnappa, he had repaid a sum of Rs.50,000/- on
9.12.1999 itself shows that plaintiff has approached the
Court with clean hands and with true facts. It is the
defendants who have denied the entire averments made in
the plaint.
12. Plaintiff in order to establish his case as an
incidental or corroboratory evidence, placed reliance on
- 13 -
NC: 2024:KHC:36799
Exs.P.1 and P.2 which are the cheques drawn by deceased
Krishnappa. Ex.P.3 is the visiting card of the show room
of DW.2. It is the specific case of the plaintiff that for
establishing a TV show room, Krishnappa borrowed money
and he had assured the plaintiff that soon after his
retirement benefits are received, he would repay the
amount and therefore he had issued two post dated
cheques which are at Exs.P.1 and P.2.
13. As against the said overwhelming evidence
placed on record by the plaintiff, DW.2 goes to the extent
of deposing in examination-in-chief itself that Krishnappa
got the retirement benefits and has spent the money and
squandered the money.
14. It is pertinent to note that DW.2 did not possess
any independent income to establish the show room.
After taking necessary help from his father, taking
advantage of the death of his father, DW.2 went to the
extent of making allegations against his dead father with
an intention of avoiding liability. Such an oral testimony
- 14 -
NC: 2024:KHC:36799
is sought to be relied upon to deny the claim of the
plaintiff, who has genuinely given deduction to payment of
Rs.50,000/- made by Krishnappa during his life time on
9.12.1999. These aspects of the matter has been rightly
considered by the learned trial Judge while decreeing the
suit of the plaintiff.
15. Having held thus, it is to be noted that the oral
transaction of contractual rate of interest at 24% has been
paid by the plaintiff and decreed by the trial court. When
admittedly Exs.P.1 and P.2 are the cheques which is being
treated as an incidental document for the purpose of
establishing the loan transaction and in the absence of any
other document to establish the rate of interest that has
been agreed upon by the parties, the learned trial Judge
ought not to have granted 24% p.a. future interest.
16. Any way by considering the provision of law
stated under Section 80 of the N.I. Act, this Court is of the
considered opinion that 18% future interest should have
been granted by the trial Court and not 24% p.a.
- 15 -
NC: 2024:KHC:36799
Accordingly, the award of interest at the rate of 24% p.a.
by the trial Court needs interference by this Court in this
appeal.
17. On re-appreciation of material evidence, this
Court is of the opinion that the impugned judgment is just
and proper and except for the rate of interest and the
impugned judgment is not suffering from any legal
infirmity or perversity.
18. Accordingly, point no.1 is answered in the
affirmative and point nos.2 and 3 partly in the affirmative.
19. Re.point No.4 :-
In view of the finding of this Court on point nos.1 to
3, following order is passed.
ORDER
i) The Appeal is allowed in part;
ii) The impugned judgment and decree passed by the
trial court is hereby modified as under :
- 16 -
NC: 2024:KHC:36799
iii) Plaintiff is entitled to decree in a sum of
Rs.1,55,916/- with interest at 18% p.a. on the principal
sum of Rs.1,25,000/- from the date of suit till realization
with costs throughout.
Office is directed to draw the modified decree.
Sd/-
(V SRISHANANDA)
JUDGE
rs
