Karnataka High Court
Smt. K. Shyamala vs Sri. Channappa on 16 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1605 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1605 OF 2023 (MON)
BETWEEN:
1. SMT. K. SHYAMALA,
W/O K.L.KRISHNAPRASAD,
AGED ABOUT 53 YEARS,
R/AT NO.M-25,
MANASA GANGOTHRI,
UNIVERSITY QUARTERS,
MYSURU CITY,
MYSURU DISTRICT-570006.
...APPELLANT
(BY SRI. PANCHAM R.D., ADVOCATE)
AND:
Digitally signed 1. SRI. CHANNAPPA,
by DEVIKA M S/O CHANNAIAH,
Location: HIGH AGED ABOUT 54 YEARS,
COURT OF
KARNATAKA R/AT NO.121, NGO COLONY,
CHAMALAPURADAHUNDI,
NANJANGUD TOWN,
MYSURU DISTRICT-571301.
...RESPONDENT
(BY SMT. PREREET JAIN B., ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 18.07.2023
PASSED IN R.A.NO.42/2022 ON THE FILE OF SENIOR CIVIL
JUDGE AND JMFC, NANJANGUD, DISMISSING THE APPEAL
AND CONFIRMED THE JUDGMENT AND DECREE DATED
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RSA No. 1605 of 2023
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16.04.2022 PASSED IN O.S.NO.537/2015 ON THE FILE OF
IST ADDITIONAL CIVIL JUDGE AND JMFC, NANJANGUD.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission. Heard the learned
counsel for the appellant and the learned counsel for the
respondent.
2. This second appeal is filed against the concurrent
finding.
3. The factual matrix of the case of the plaintiff
before the Trial Court is that the plaintiff and the defendant
being well acquainted with each other, the defendant
demanded money for immediate necessity and hence the
plaintiff lent a sum of Rs.1,25,000/- and got On Demand
Promissory Note executed with Consideration Receipt from the
defendant and the defendant agreed to pay interest at the
rate of 1.50% per month. The defendant having borrowed the
money, not paid the interest or principal amount and hence
the suit was filed.
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4. The defendant on receipt of the suit summons
appeared and filed the written statement denying the
execution of On Demand Promissory Note and Consideration
Receipt. It is contended that she did not purchase the stamp
paper and the signatures are forged and created, but the legal
notice was received and the same did not contain the
signature of the advocate. Further, the plaintiff has not
shown the source of income to lend the alleged money. The
plaintiff is not a money lender to lend for interest and no
decree can be passed.
5. The Trial Court having considered the pleadings of
the parties, framed the issues whether the plaintiff proves
that the execution of On Demand Pronote and Consideration
Receipt dated 28.10.2013? And if so, does the defendant
prove that it is not supported by consideration? The plaintiff
to substantiate his case examined himself as P.W.1 and also
examined two witnesses as P.W.2 and P.W.3 and got marked
the documents at Exs.P.1 to 6. On the other hand, the
defendant got examined herself as D.W.1, but did not mark
any documents. The Trial Court having considered both oral
and documentary evidence placed on record, comes to the
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conclusion that when specific defence was taken in the written
statement that On Demand Promissory Note and
Consideration Receipt are created and forged, no steps were
taken to send the documents to the handwriting expert.
When the notice was issued, the defendant being the
employee of the Mysore University, having received the
notice, not given any reply. Though taken the defence that
the notice did not contain the signature of the advocate, did
not produce the notice before the Court as to whether the
same contains the signature or not and the reason assigned is
that the notice did not contain the signature of the advocate
and hence not given any reply. The Trial Court having
considered the material on record, particularly the execution
of the documents Exs.P.1 and 2, service of notice and no
reply was given and no documents were placed on record by
the defendant to substantiate the contention that the
signatures available in Exs.P.1 and 2 not belongs to the
defendant, comes to the conclusion that the very execution of
the documents of Exs.P.1 and 2 is suffice and there is no
requirement to prove the source of income and decreed the
suit with a direction to pay the interest of 18% per annum
and 6% per annum on the principal amount of Rs.1,25,000/-.
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6. Being aggrieved by the said judgment and decree,
an appeal is filed before the Appellate Court and the Appellate
Court having considered the grounds urged in the appeal,
formulated the point whether the Trial Court committed an
error in coming to the conclusion that the plaintiff has proved
the case. Having re-assessed the material available on
record, in paragraph No.16 comes to the conclusion that the
present suit is based on promissory note and consideration
receipt said to be executed by the defendant in favour of the
plaintiff at Ex.P.1. The defendant has disputed her signature
found in Ex.P.6 notary register as well as the signature on
Exs.P.1 and 2. The plaintiff examined the witness,
particularly the scribe of the documents Exs.P.1 and 2 i.e.,
P.W.3. P.W.2 who is one of the witnesses to Exs.P.1 and 2
also deposed that he had signed Exs.P.1 and 2 and that the
plaintiff had paid the amount of Rs.1,25,000/- to the
defendant and the defendant on 28.10.2013 executed the
pronote in favour of the plaintiff. Having taken note of the
answers elicited from the mouth of P.W.1 to P.W.3, accepted
the evidence of the plaintiff and comes to the conclusion that
the Trial Court not committed any error in granting the relief
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as sought and it does not require and interference and
confirmed the judgment of the Trial Court.
7. Being aggrieved by the concurrent finding, the
present second appeal is filed before this Court.
8. The learned counsel for the appellant would
vehemently contend that both the Courts committed an error
in coming to the conclusion that Exs.P.1 and 2 were duly
executed by the appellant, when the e-stamp was not
purchased either in the name of the appellant or the
respondent and also for a transaction which is otherwise than
for the execution of On Demand Pronote Note and
Consideration Receipt , when the signature of the appellant
and execution thereof has been seriously disputed by the
appellant. The learned counsel would contend that the Trial
Court comes to the conclusion that no need to compare the
signatures of the appellant and the respondent by invoking
Section 73 of the Evidence Act and shifting of burden on the
defendant is erroneous and hence this Court has to frame the
substantial question of law by admitting the appeal.
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9. Per contra, the learned counsel for the respondent
would vehemently contend that the loan was taken for
construction of the house and the fact that the house was
constructed is admitted by the defendant. The learned
counsel would contend that when the documents of Exs.P.1
and 2 are denied that the same are forged, the person who
takes such a defence must prove the same by sending the
document to the handwriting expert and the same has not
been done. Apart from that, nothing is placed on record
before the Trial Court that the defendant was not having any
acquaintance with the plaintiff and the very admission is very
clear that house was constructed. But the case of the plaintiff
is that for immediate need and necessity, the same was
borrowed. The Trial Court and the Appellate Court taken note
of that the notice was acknowledged, but no reply was given
and the reason assigned for not giving the reply is that the
notice does not contain the signature of the advocate, but not
produced the notice which the defendant has received. All
these aspects were taken note of by the Trial Court and the
Appellate Court and hence not committed any error.
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10. Having heard the learned counsel for the appellant
and the learned counsel for the respondent and also taking
note of the document of Ex.P.1 On Demand Promissory Note,
no doubt, description of the document is mentioned as Article
4 Affidavit and first party is Suresh Advocate and Notary and
second party name is not mentioned and stamp duty paid by
is also Suresh Advocate and Notary. Though the defendant
denies the signature in Exs.P.1 and 2, but did not send the
documents to the handwriting expert when the defence was
taken that the signature was forged. The defence of forgery
ought to have been proved by the appellant and the same is
not proved. Apart from that, when the notice was issued, the
same was acknowledged and the appellant would contend
that the notice did not contain the signature of the advocate.
However, admits before the Court that Ex.P.3 contains the
signature and also not denies the receipt of the notice in
terms of Exs.P.4 and 5 and categorically admitted that notice
was served on both the addresses i.e., University address,
wherein she was working and also the residence. Apart from
that, the notary register is also marked before the Trial Court,
which was maintained by P.W.3, who is a notary. When such
being the case, ought to have produced the notice, if really
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the notice issued to the appellant did not contain the
signature of the advocate and no such document is produced.
There is a clear admission regarding the receipt of notice and
also the acknowledgment, but admits that Ex.P.3 contains the
signature and the notice which was given to the appellant
does not contain the signature of the advocate. The fact that
she is working in Mysore University as a Clerk from last 26
years is admitted, but contend that she is not having any
acquaintance with the plaintiff and what made to execute the
documents of Exs.P.1 and 2, no explanation and the same is
also not proved though denied the very execution.
11. The fact is that the stamp paper is purchased in
the name of the notary i.e., Suresh Advocate and she says
that she did not go to the office of the notary. The notary
register is also produced before the Court. The defendant
admits that in July 2013 house was constructed at
Chamalapura. The promissory note executed by the appellant
is on 26.10.2013 and 28.10.2013 and all these documents
clearly discloses that both the Trial Court and the Appellate
Court considered the material available on record. When
there was no any reply to the notice and when the defence
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was taken that Exs.P.1 and 2 were forged and not sent the
documents to the handwriting expert, hence both the Courts
have not committed any error in relying upon the documents
of Exs.P.1 and 2 as well as the evidence available on record.
When both the Trial Court as well as the Appellate Court
considered the material on record, I do not find any perversity
in coming to such a conclusion and the First Appellate Court
also considered the presumption in case of execution of
document of On Demand Promissory Note and Consideration
Receipt and taken note of question of fact and question of
law. When such being the case, no grounds to admit the
appeal and frame substantial question of law.
12. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MD
