Back
IN THE HIGH COURT OF KARNATAKA
H.B. Prabhakara Sastry, J.
S. Manjunath - Appellant
Vs.
Vijaya Shastry - Respondent
Regular First Appeal No. 565 of 2010
Decided On : 14-06-2019
Negotiable Instruments Act, 1881 - Section 118 - Payment of loan amount - Plaintiff claim - Plaintiff agreeing to repay same with interest at rate month deceased had also executed consideration receipts along with Promissory Notes - However did not repay loan amount and interest there upon repeated requests made by plaintiff- Therefore plaintiff approached said first week and requested him to make payment of loan amount- At that time issued three post-dated cheques bearing all each drawn in favour of plaintiff- When those cheques were presented for encashment they were returned with bankers endorsement funds insufficient –Held, Statement as well in cross-examination - According to defendants deceased had habit of keeping his Cheque Book Pass Book etc in drawer of table of his office and used to keep blank cheques duly signed- Plaintiff had lifted blank cheques signed and kept by deceased drawer of table of his office with connivance of staff plaintiff is said to have been in possession of three cheques by that itself it cannot be inferred that deceased had availed hand loan of a sum from him and apart from signing Promissory Notes at a later stage deceased had also given plaintiff those three cheques- Had really deceased issued those three cheques towards repayment of said loan amount then being an employee of a large company and expected to have sufficient knowledge he would have collected Promissory Notes back non-collection of Promissory Notes back by deceased from plaintiff when considered in light of circumstance of case and more particularly in light of evidence would go to show that neither Promissory Notes were executed by deceased in favour of plaintiff nor cheques were issued by deceased plaintiff - Plaintiff is also not a money lender or a financier- As already observed plaintiff also has failed to establish that deceased was person acquainted with him and that deceased was in need of money which compelled him to avail loan from plaintiff- Thus plaintiff has failed to prove that deceased had borrowed a sum from him loan and in that direction he had executed Promissory Notes and consideration receipts and had also issued cheques - Trial Court after appreciating evidence led before it and materials placed before it in its proper perspective since has arrived at a proper conclusion and dismissed suit of plaintiff court do not find any error in or any circumstance - Appeal dismissed
JUDGMENT :
H.B. Prabhakara Sastry, J.
The suit of the present appellant in his capacity as plaintiff filed before the Court of the XXXI Additional City Civil Judge, Bangalore City (CCH No.14) (hereinafter for brevity referred to as "Trial Court") for recovery of a sum of Rs.2,38,000/- together with costs and interest at the rate of Rs.2% per month there upon from the present respondents - defendants came to be dismissed by the Trial Court, by its impugned judgment and decree dated 12th November, 2009 passed in O.S.No.2625/2003. Challenging the said judgment, the plaintiff in the Court below has preferred this appeal.
2. The summary of the case of the plaintiff in the Trial Court was that, the first defendant is the wife, second defendant is the son and the third defendant is the daughter of late Sri. D.S. Shastry, who died on 03-02-2003, leaving behind the defendants as his legal heirs to succeed his estate and the defendants are in custody and possession of all the assets, both movable and immovable properties of deceased D.S. Shastry.
The plaintiff has further contended that he also got issued legal notice dated 19-02-2003 to late Sri. D.S. Shastry calling upon him to pay the loan amount. The notice was returned. It is only thereafter the plaintiff came to know that Sri.D.S. Shastry was dead on 03-02-2003. Thereafter, the plaintiff issued one more legal notice to the defendants on 21-03-2003 calling upon them to pay the principal sum with interest. Since the defendants were in possession and custody of all the assets left by deceased Sri. D.S. Shastry and since the defendants did not repay the loan amount and also the interest, the plaintiff was constrained to file the present suit against them for recovery of money.
3. In response to the summons served upon them, the defendants who appeared through their counsel, have filed their Written Statement in the Trial Court contending that, the suit of the plaintiff was not maintainable. They denied that late Sri. D.S. Shastry had borrowed a sum of Rs.1,50,000/- from the plaintiff and had executed three Promissory Notes and consideration receipts. The defendants also denied that the deceased Sri. D.S. Shastry had agreed to pay interest and also issued three post-dated cheques to the plaintiff. They pleaded their ignorance that those three cheques were presented for realisation and the same came to be dishonoured, for which the plaintiff had issued a legal notice.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
