Karnataka High Court
Sri Dr G Seenaswamy vs Smt Parvathi on 7 January, 2025
Author: K Natarajan
Bench: K Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR FIRST APPEAL NO. 1564 OF 2016
BETWEEN:
SRI. DR. G. SEENASWAMY
S/O LATE GUNDAPPA,
AGED ABOUT 50 YEARS,
R/A NO.98,
HANUMANTHAPPA BUILDING,
NAYANDAHALLI, MYSORE ROAD,
BANGALORE - 39.
...APPELLANT
(BY SMT. SHILPA RANI, ADVOCATE)
AND:
1. SMT. PARVATHI
W/O PUTTASWAMY,
AGED ABOUT 39 YEARS,
2. SRI. PUTTASWAMY
S/O SRI. NANJEGOWDA,
AGED ABOUT 54 YEARS,
BOTH ARE R/AT NO.05,
VINAYAKA LAYOUT,
OPP. NAYANDAHALLI RAILWAY STATION,
MYSORE ROAD,
BANGALORE - 39.
ALSO AT,
COFFEE POWDER FACTORY,
MANAGER, MURALI BUILDING,
1ST FLOOR, 1ST MAIN, 9TH CROSS,
VINAYAKA LAYOUT,
NEAR DHANALAKSHMI WINE STORE,
NAYANDAHALLI, BANGALORE - 39.
...RESPONDENTS
(BY SRI. PRAKASH M H., ADVOCATE)
2
THIS RFA IS FILED UNDER SEC.96 R/W ORDER XLI-A AND
XLI RULES 1 & 2 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED 22.06.2016 PASSED IN O.S NO.5893/2014 ON THE FILE OF
THE XIX ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY, (CCH 18), DISMISSING THE SUIT FOR RECOVERY OF MONEY.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 19.12.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
RESERVED FOR ORDERS ON: 19.12.2024
PRONOUNCED ON : 07.01.2025
CORAM: HON'BLE MR. JUSTICE K NATARAJAN
CAV JUDGMENT
This appeal is filed by the appellant under Section 96 R/w
Order XLI-A and XLI Rules 1 & 2 of CPC., for setting aside the
judgment dated 22.06.2016 passed in O.S. No.5893/2014 by the
XIX Additional City Civil and Sessions Judge, Bangalore, whereby
the trial Court has dismissed the suit of the plaintiff.
2. Heard the arguments of the learned counsels appearing for
the parties.
3. The appellant was the plaintiff before the trial court and
the respondents were the defendants. The rank of the parties
before the trial court is retained for the sake of convenience.
4. The case of the plaintiff before the trial Court is that the
plaintiff has filed the suit for recovery of Rs.11,65,250/- with
interest at 18% p.a. It is pleaded in the plaint that the plaintiff and
defendants are known to each other for several years, the
defendants approached the plaintiff for financial assistance to
purchase the property at Nayandanahalli. Considering the request,
the plaintiff paid Rs.8,50,000/- with interest at 18% p.a. The
defendants executed promissory note and a receipt in favour of the
plaintiff, but did not pay the amount. Hence, a legal notice was
issued by the plaintiff on 05.07.2014, but the defendants gave reply
denying the same. Hence, the plaintiff filed the suit.
5. The defendants appeared through their counsel and filed
written statement by denying the averments made in the plaint. It
is contended that the defendants are poor labour, working in
Bangalore, and the plaintiff, a doctor by profession, has filed the
false suit. The land belonged to the defendants in Ramanagara
district was acquired by Government and they received the
compensation and they saved the money. They have not obtained
any loan from plaintiff. Hence, prayed for dismissal of the suit.
6. Based upon the pleading, three issues have been framed
by the trial Court as under:
(i) Whether the plaintiff proves that the defendants
borrow a sum of Rs.8,50,000/- from the plaintiff on
20.07.2012 on agreeing to repay the same with
interest at 18% p.a. by executing anon demand pro-
note and consideration receipt ?
(ii) Whether the plaintiff is entitled for suit claim ?
(iii) What order or decree ?
7. On behalf of the plaintiff, the plaintiff himself was
examined as P.W.1 and also examined P.Ws.2 and 3 and got marked
6 documents as per Exs.P.1 to P.6. On behalf of the defendants,
themselves examined as D.Ws.1 and 2 and got marked 9
documents as per Exs.D.1 to D.9. After hearing the arguments, the
trial Court answered issue Nos.1 and 2 in the negative and finally,
dismissed the suit. Being the aggrieved by the same, the plaintiff is
before this Court.
8. The learned counsel for the appellant-plaintiff has
contended that the plaintiff is a doctor by profession, practising
Ayurveda medicine. The defendants, who are known persons to the
plaintiff, borrowed loan from the plaintiff and executed an on
demand promissory note and receipt. Ex.P.1 is promissory note and
Ex.P.2 is receipt. The trial Court has committed an error in
disbelieving these documents since the first letter of defendant No.1
is mentioned in the receipt and the remaining letters are not
available, and the signature of defendant No.2 is available on the
receipt. The trial Court has wrongly disbelieved the documents,
which is not correct. The on demand pro-note clearly reveals the
name of the defendants. The trial Court has also failed to appreciate
the evidence on record for proving the on demand note. Ex.P.1
clearly reveals that the 1st letter of defendant No.1 is appeared and
since, the revenue stamp was fell down, the remaining letters are
also not available. In Ex.P.2, both the names of defendants were
mentioned and they signed. The name of the 1st defendant
appears in Ex.P.2. Exs.P.1 and P.2 are the adjoining documents that
is promissory note/receipt and therefore, it cannot be created by
the plaintiff. The witnesses were examined as P.Ws.2 and 3 to
prove the on demand promissory note and receipt. Thereby, the
trial Court has committed an error in dismissing the suit only on the
ground that there is no paying capacity of the plaintiff. The non
declaration of the loan in the income tax cannot be a ground for
dismissing the suit of the plaintiff. The defendant claim that he is
an illiterate person and not able to sign, but executed a mortgage
deed as per Ex.P.5 where he has signed the document which reveals
that he is able to sign the document. A sale deed was also
executed by the defendants in favour of Valisha Baig as per Ex.P.6
where they signed the document and, therefore, disbelieving the
signature on the Exs.P.1 and 2 does not arise. In a cheque case,
where the respondents-defendants were acquitted, itself is not a
ground to reject the claim of the plaintiff. Hence, prayed for
allowing the appeal.
9. Per contra, learned counsel for the respondents-
defendants has contended that there is contradiction between the
evidence of the plaintiff and witnesses, where the witnesses have
stated that Rs.8,50,000/- was not paid at one stage, and it was paid
on instalment basis i.e. Rs.2.00 lakhs each for two times,
Rs.50,000/- at one time and Rs.4.00 lakhs as on the date of the
agreement. Therefore, it cannot be said that Rs.8,50,000/- was
borrowed by the defendants. The defendants are in no need to
borrow any money from the plaintiff. They received compensation in
a land acquisition matter. The plaintiff filed a suit under Section 138
of the N.I. Act, wherein the defendants came to be acquitted and
the said order has attained finality. Therefore, the trial Court has
rightly dismissed the suit. The defendants also filed a complaint
against the appellant-plaintiff for forging the signature. The
document was marked by the defendants in their evidence. A
private complaint also was filed by them as per Exs.D.6 to D.9 and
the police have issued an endorsement stating that they shall
approach the civil court and therefore, prayed for dismissing the
appeal.
10. Having heard the arguments of learned counsel for the
parties, perused the records.
11. The points that arise for consideration are:
(i) Whether the appellant- plaintiff proves that the
defendants have borrowed Rs.8,50,000/- and executed
Exs.P.1 and 2 ?
(ii) Whether the judgment of the trial Court calls for
interference ?
(ii) Whether the plaintiff is entitled for the relief sought in
the suit ?
12. On perusal of the records, the plaintiff's case is for
recovery of money. It is stated that, in the year 2012, the plaintiff
has paid Rs.8,50,000/- as loan, and the defendants have executed
Exs.P.1 and P.2. On perusal of the evidence of P.Ws.2 and 3, they
are the attesting witnesses for receiving the amount by the
defendants from the plaintiff, thereby the evidence of P.W.2 and 3
corroborates with the evidence of P.W.1 regarding the loan paid by
the plaintiff to the defendants. Of course, there is some
contradiction in respect of the payment of money by the plaintiff,
where the plaintiff has stated that he has paid Rs.8,50,000/- as on
20.07.2012. Whereas, P.Ws.2 and 3 have stated that the said
amount was not paid in one instalment, but was paid in four
instalments, i.e. Rs.2.00 lakhs each in two times, Rs.50,000/- in
one time and Rs.4.00 lakhs on 20.07.2012.The case of defendants
is total denial and they have stated that they are having the
financial capacity and there is no need to borrow any loan from the
plaintiff. But the plaintiff's case is that the defendants borrowed the
loan for the purpose of purchasing the property. The defendants'
contentions is that the signature not belonged to them and it was
forged. But, in Exs.P.1 and P.2, there is the signature and in Exs.P.5
and P.6 also, the signature of the defendants is found, which was
executed by them at an undisputed point of time. Therefore, the
contention of the defendants that they are unable to sign the
document and they are illiterate, cannot be acceptable. On the
other hand, the signature of the defendants in Exs.P.1 and P.2 is
also similar to that of the signature found in Exs.P.5 and P.6, their
own documents. Therefore, merely a police complaint was filed for
forging the signature and denial of the signature on the document
taking advantage of falling of revenue stamp on Ex.P.1, cannot be a
ground to disbelieve the evidence of P.Ws.1 to 3.
13. Apart from that, whether the amount was paid at one
time or in four instalments, is not the defence of the defendants.
Their defence is total denial and there is no defence that the
plaintiff has no capacity and there is no declaration to the income
tax authorities. Merely, not declaring the loan before the income
tax authority by the plaintiff is not a ground to disbelieve the
evidence of P.W.1 and the documentary evidence. The respondents-
defendants admit that the plaintiff is the doctor by profession.
Therefore, the capacity of the plaintiff cannot be doubted in respect
of the loan borrowed by the defendants. Merely, the respondents-
defendants filed a cheque case against some other person and that,
itself is not a ground to say that the defendants are having the
financial capacity and no need to borrow any loan. Such being the
case, the paying capacity of the plaintiff cannot be doubted. Even
otherwise, the cheque case filed by the plaintiff against defendant
No.2 which was ended in acquittal, is also not a ground to disbelieve
the evidence of the plaintiff. Therefore, I am of the view that the
trial Court has committed an error in disbelieving the evidence of
plaintiff only on the basis of the signature found in Ex.P.1 by forging
the signature of defendant No.1 available in Ex.P.2, both the
documents are the joint documents, and they are not the different
documents. It is well settled that the degree of proof in Criminal
case requires beyond reasonable doubt, whereas in civil dispute, it
is required and the preponderance of probabilities. Therefore, I
hold that the plaintiff is successful in proving the case of lending the
sum of Rs.8,50,000/- to the defendants, who have executed on
demand promissory note for repayment with interest. Therefore,
the trial Court has committed an error in dismissing the aforesaid
suit, and hence, the same calls for interference. Accordingly, point
Nos.1 and 2 are answered in the affirmative. In view of the same,
the appeal deserves to be allowed.
14. Accordingly, the following order is passed:
(i) The appeal is allowed.
(ii) The judgment of the trial Court dated 22.06.2016
passed in O.S. No.5893/2014 by the XIX
Additional City Civil and Sessions Judge,
Bangalore, is hereby set aside.
(iii) The suit of the plaintiff is decreed with costs.
(iv) The defendants are directed to repay the decretal
amount with interest at the rate of 18% p.a. till
realisation.
(v) Draw the decree accordingly.
Sd/-
(K.NATARAJAN)
JUDGE
CS
CT:SK
