IN THE COURT OF THE LXII ADDL.
CITY CIVIL AND
SESSIONS JUDGE (CCH-63) BENGALURU CITY
Dated this the 24 th day of March, 2021
:PRESENT:
Sri R. ONKARAPPA, B.Sc., LL.B.,
LXII Addl. City Civil and Sessions Judge (CCH63)
Bengaluru city.
O.S.NO: 7635/2017
PLAINTIFF : Sri. K. R. Ashok Kumar,
respondents by Kartha and
Head of the Family,
Sri. K. R. Ashok Kumar,
S/o Late K.R. Radhakrishna Setty,
R/at Flat No. 302, 3rd Floor,
R.K. Pristine Apt,
No. 34/1, 23rd 'B' Cross Road,
3rd Block, Jayanagar East,
Bengaluru-560 011
(By Subramanya Prasad, Advocate)
/Vs/
DEFENDANT : Sri. Vijaya Kumar K. R.,
S/o Kothamasu Reddappa,
Aged about 55 years,
Occ business,
Vijay Electricals,
R/at No. 31, 6th Cross,
Sampangi Rama Nagar,
Bengaluru560 027.
(By Sri. S.S.R., advocate)
2 O.S.NO: 7635/2017
Date of institution of the : 13.11.2017
suit
Nature of the suit : Money Suit
Date of commencement of : 23.01.2019
recording of the evidence
Date on which the : 24.03.2021
Judgment pronounced.
: Year/s Month/ Day/s
Total duration s
03 04 11
(R. ONKARAPPA)
LXII Addl. City Civil and Sessions Judge,
(CCH63), Bengaluru City.
JU DG M E NT
The suit has filed by the Plaintiff for recovery of
Rs.5,95,000/- (Rupees Five Lakhs Ninety Five Thousand
Only) from the Defendant together with current and future
interest at 18% per annum from the date of suit till the date
of realization of entire amount.
2. Brief facts of case of the plaintiff is that , the
defendant came in contact with the plaintiff and her
husband through his close relative Sri. B.V. Ganghdar who
3 O.S.NO: 7635/2017
is carrying business under the name and style
“Chandrakala Enterprises”. Out of said knowhow, the
defendant for his business purpose as a proprietor of Vijay
Electrical borrowed a hand loan Rs. 5,00,000/- from
plaintiff, from time to time agreeing to repay the same with
interest at 18% per annum and in token thereof, the
defendant executed On Demand Promissory Note and
consideration receipt for the said sum on 05.11.2016.
Further, defendant acknowledged the receipt of said
consideration and assured to repay the principal amount
with interest within a short period. The defendant paid
interest for one month on 09.12.2016 and duly endorsed on
the reverse of DPN and the same amounts to acknowledge of
debt and liability to pay the principal together with interest
as per Sec. 18 of Limitation Act 1963. After several requests
and repeated demands, the defendant issued a cheque
bearing No. 239474 dated 17.03.2017 for Rs. 5,00,000/-
with an assurance to honour the cheque on the due date
and confirmed issue of cheque towards discharge of above
4 O.S.NO: 7635/2017
liability under letter of balance of confirmation dated
09.12.2016. On presentation of the said cheque for
encashment through his Banker Karur Vysya Bank, it has
been dishonoured for the reason “Funds Insufficient” and
returned to the plaintiff along with plaintiff banker's Cheque
return memo dated 20.03.2017. the said fact has been
intimated to the defendant by legal notice dated 15.04.2017
sent under RPAD and the said notice has been duly received
by the authorized representative of defendant. Inspite of
receipt of the statutory notice defendant failed to reply nor
complied the demand made in the notice. In the result the
plaintiff filed a private complaint against the accused before
20th ACMM, Bengaluru in C C No. 15596/2017 arising out
of dishonour of cheque and the same is pending for
consideration. The defendant is now due a total sum of Rs.
5,95,000/-. The plaintiff is entitled to recover current and
future interest on the said amount at 18% per annum from
the date of suit till the date of realization.
5 O.S.NO: 7635/2017
3. After admitting of the suit, summons was issued
to the defendants, the defendants appeared through their
counsel and filed written statement.
4. The defendant in his written statement urged
that, the suit of the plaintiff is wholly false, frivolous and
vexatious and the same has been filed with the intention of
harassing this defendant, the suit is not maintainable either
in law or on facts. The suit of the plaintiff is barred under
the law of limitation. The suit is filed after lapses of three
years. The defendant never due any amount to the plaintiff
under any circumstances. Therefore the suit barred under
law of limitation. That the defendant never obtained any
loan from the plaintiff on 05.11.2016. the real fact that the
defendant had obtained a loan of Rs. 2,00,000/- from the
plaintiff and cleared entire loan. That at the time of
obtaining the loan of Rs. 2 lakhs the plaintiff has taken
some blank papers, on demand promissory notes along with
each one signed blank cheque of defendant and his wife as
security to the said loan transaction. Even after clearance of
6 O.S.NO: 7635/2017
the entire loan amount the plaintiff has misappropriated the
said documents and filed a false case against the defendant
and also his wife in O.S. No. 7536/2017. There is no
financial transaction between them and the allegation made
in the plaint is all false and plaintiff is put to strict proof of
the same. Though the plaintiff has suppressed material
facts, as the plaintiff also filed 138 proceedings against the
defendant and his wife. There is no cause of action,
therefore the suit of the plaintiff ought to have been
dismissed. All the averments and allegations made in the
plaint are all denied as false by the defendant. Inter alia on
these grounds the defendant prays for dismissal of the suit.
5. Inspite of opportunities given to the parties, the
parties did not turned up and address the argument. Hence
their argument taken as nil. Perused the records.
6. Based on the pleadings,followed as many as four
issues have been framed , they are;
ISSUES
7 O.S.NO: 7635/2017
(1) Whether the plaintiff proves that defendant
borrowed a sum of Rs. 5,00,000/- and
executed on Demand Promissory Note and
consideration Receipt dated 05.11.2016 by
agreeing to repay the same with interest at
18% p.a.?
(2) Whether the plaintiff proves that defendant
issued cheque dated 17.03.2017 towards the
said loan of Rs. 5,00,000/- under covering
letter dated 09.12.2016?
(3) Whether the defendant proves that suit is
barred by limitation?
(4) Whether the plaintiff is entitled for the reliefs
claimed in this suit?
(5) What Decree/Order?
7. My finding on the above points are as under:
Issue No.1 – In the Affirmative
Issue No.2 - In the affirmative
Issue No.3 - In the negative
Issue No.4 – In the affirmative
Issue No.5 - as per the order for
the following :
R E A SON S
10. Issues No.1, 2 and 4 :- In order to prove the
case of the plaintiff, the plaintiff examined himself as PW1
8 O.S.NO: 7635/2017
and got marked documents as Ex.P1 to Ex.P8. The P.W.1 in
lieu of examination in chief he filed affidavit. In his affidavit
he reiterated the averments made in the plaint that, the
defendant came in contact with the plaintiff and her
husband through his close relative Sri. B.V. Ganghdar who
is carrying business under the name and style
“Chandrakala Enterprises”. Out of said knowhow, the
defendant for his business purpose as a proprietor of Vijay
Electrical borrowed a hand loan Rs. 5,00,000/- from
plaintiff, from time to time agreeing to repay the same with
interest at 18% per annum and in token thereof, the
defendant executed On Demand Promissory Note and
consideration receipt for the said sum on 05.11.2016.
Further, defendant acknowledged the receipt of said
consideration and assured to repay the principal amount
with interest within a short period. The defendant paid
interest for one month on 09.12.2016 and duly endorsed on
the reverse of DPN and the same amounts to acknowledge of
debt and liability to pay the principal together with interest
9 O.S.NO: 7635/2017
as per Sec. 18 of Limitation Act 1963. After several requests
and repeated demands, the defendant issued a cheque
bearing No. 239474 dated 17.03.2017 for Rs. 5,00,000/-
with an assurance to honour the cheque on the due date
and confirmed issue of cheque towards discharge of above
liability under letter of balance of confirmation dated
09.12.2016. On presentation of the said cheque for
encashment through his Banker Karur Vysya Bank, it has
been dishonoured for the reason “Funds Insufficient” and
returned to the plaintiff along with plaintiff banker's Cheque
return memo dated 20.03.2017. the said fact has been
intimated to the defendant by legal notice dated 15.04.2017
sent under RPAD and the said notice has been duly received
by the authorized representative of defendant. Inspite of
receipt of the statutory notice defendant failed to reply nor
complied the demand made in the notice. In the result the
plaintiff filed a private complaint against the accused before
20th ACMM, Bengaluru in C C No. 15596/2017 arising out
of dishonour of cheque and the same is pending for
10 O.S.NO: 7635/2017
consideration. The defendant is now due a total sum of Rs.
5,95,000/-. The plaintiff is entitled to recover current and
future interest on the said amount at 18% per annum from
the date of suit till the date of realization.
11. PW1 in support to his case, he got marked on
his favour one certified copy of Demand Promissory note
dated 05.11.2016 and consideration receipt as Ex.P1.
Signature in Ex.P1 as per Ex.P1(a) and Ex.P1(b). Certified
copy of Endorsement as per Ex.P2. Signature of the
defendant in Ex.P2 is as per Ex.P2(a). Ex.P3 is the certified
copy of cheque bearing No. 239474 dated 17.03.2017.
Signature of the defendant in Ex.P3 is as per Ex.P3(a).
Ex.P4 is the certified copy of Bank return memo. Ex.P5 is
the Certified copy of letter of confirmation dated
09.12.2016. Ex.P5(a) is the signature of the defendant.
Ex.P6 is the certified copy of legal notice dated 15.04.2017.
Ex.P7 is the certified copy of Post office receipt. Ex.P8 is the
Post acknowledgment receipt.
11 O.S.NO: 7635/2017
12. Inspite of opportunities given to the defendant,
the defendant did not turned up, neither to cross examined
the PW1 nor to lead any defence evidence. Hence cross
examination of PW1 taken as nil. Further defence evidence
also taken as nil on 05.02.2021.
13. The PW1 got marked the documents which are
in secondary in form as the plaintiff have another case
against to the present defendant at before learned 20 th
ACMM, Bengaluru in CC No. 15596/2017. It is the
contention of the plaintiff that the amount covered under
Ex.P1 on demand and receipt, amount covered under Ex.P3
cheque are one and the same. Even inspite of more
opportunity granted to both the plaintiff and the defendant,
the Counsel for the plaintiff and the defendant have not
turned up and address their argument. After go through the
pleadings and oral evidence of the PW1, the defendant
availed the loan at before the plaintiff at one time only. To
realise the said loan the defendant have executed Ex.P1 on
12 O.S.NO: 7635/2017
demand Promissory note and receipt, further the defendant
have also issued one cheque as per Ex.P3. With this
pleading one thing is evident that the plaintiff have two
cases at a time for single transaction. As such, that hereby
clarified that judgment of this Suit and judgment in CC No.
15596/2017 shall run concurrently. The liability of the
defendant accrued either one of the case between the
plaintiff and the defendant.
14. The plaintiff has claimed interest at the rate of
18% from the date of the suit till realization. However after
go through Ex.P1 On demand promissory note there is
specific agreement between the plaintiff and the defendant
regarding the interest to be paid on the due amount. There
is mention of 18% interest. Admittedly the plaintiff claim 18
percent interest on the amount in which he claimed. Since
the defendant have not challenged the rate of interest that
have claimed by the plaintiff before this court, it can be said
that the plaintiff entitled the amount of 18 percent interest.
13 O.S.NO: 7635/2017
As such I am of the opinion that the plaintiff is entitled for
interest at 18% p.a. from the date of suit till complete
realization. Accordingly, I answer the Issue No. 2 in the
Affirmative.
15. Issue No. 3 : As the defendant raised a
question of law in so far point of limitation. Perused the
plaint. The plaint clearly indicates that there is a
transaction between the plaintiff and the defendant as the
defendant failed to maintain his promise to the plaintiff for
repayment of loan. According to pleading and testimony of
PW1 the loan transaction have taken place on 05.11.2016.
Further Ex.P1 on demand and receipt also speaks that the
defendant have executed the Ex.P1 on demand and receipt
on 05.11.2016. Perused the plaint, the plaintiff have filed
this suit on 13.11.2017. Ex.P1 on demand have not
challenged by the defendant neither by cross examined the
PW1 nor lead defence evidence on side of the defendant.
Therefore the contents of Ex.P1 is totally corroborate by the
oral testimony of PW1. By calculating the above all date of
14 O.S.NO: 7635/2017
events over the case, I am of the view that the suit of the
plaintiff is well in time. Further, the amount covered under
Ex.P1 on demand and receipt is also a amount recoverable
in nature as there is no nature of time barred debt.
Accordingly, I answer the issue No. 4 in the negative.
16. Issue No. 5 : In view of the above discussion
and my finding on Issue No.1 to 4, I proceed to pass the
following;
ORDER
The suit of the plaintiff is here by
decreed with costs for a sum of Rs.
5,95,000/-.
The defendants shall jointly and
severally liable to pay the decretal
amount to the plaintiff along with
interest @ 18% per annum till complete
realization.
15 O.S.NO: 7635/2017
In default, the plaintiff is at liberty to
recover the decretal amount from the
defendants in accordance with law.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed and computerized by her and
then corrected and pronounced by me in open court on this the 24 th
day of March, 2021).
(R. ONKARAPPA),
LXII Addl. City Civil and Sessions Judge (CCH63)
Bengaluru City.
A NN E X U R E
I. List of witnesses examined on behalf of :
(1) Plaintiff’s side :
P.W.1 – K. R. Ashok Kumar
(2) Defendant’s side : N I L
II. List of documents exhibited on behalf of :
(6) Plaintiff’s side :
Ex.P1 - Certified copy of Demand Promissory note
dated 05.11.2016 and consideration receipt
16 O.S.NO: 7635/2017
Ex.P1(a) & (b) - Signature in Ex.P1
Ex.P2 - Certified copy of Endorsement '
Ex.P2(a) - Signature of the defendant
Ex.P3 - Certified copy of cheque bearing No.
239474 dated 17.03.2017.
Ex.P3 - Signature of the defendant
Ex.P4 - Certified copy of Bank return memo.
Ex.P5 - Certified copy of letter of confirmation
dated 09.12.2016.
Ex.P5(a) - Signature of the defendant.
Ex.P6 - Certified copy of legal notice dated
15.04.2017.
Ex.P7 - Certified copy of Post office receipt.
Ex.P8 - Post acknowledgment Card.
(7) Defendant’s side : N I L
LXII Addl. City Civil and Sessions Judge
(CCH63), Bengaluru City.
