Back
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.P. SANDESH, J.
Smt. Shakuntala Gupta, W/o D.P. Gupta – Appellant
Versus
Mr. Kiran Bhartia, S/o Late. Kashi Prasad Bhartia – Respondent
RFA.No.1091 of 2007(MON)
Decided on : 11-12-2019
Evidence Act - Section 73 - Transaction - Promise to repay amount with interest - Whether plaintiff proves that she gave a loan to defendant an On Demand Pro-note and consideration receipt - Whether the plaintiff proves that defendant has agreed to repay the loan with interest at 2% p.m. - Whether the plaintiff proves that defendant executed an On Demand Pro-note and consideration receipt - Whether plaintiff is entitled to the relief as prayed - What Order– Held, Case on hand power of attorney holder is none other than husband plaintiff - It is his case that he is having acquaintance with transaction - It is also case of plaintiff that in presence only amount was paid to defendant and during that time attesting witnesses were also present - It is specific case of plaintiff that only after availing loan amount defendant executed - In cross-examination though an attempt is made that signatures available on not belongs to defendant nothing is elicited with regard to same - Claims that in his presence only amount was paid are signed by defendant - No doubt in cross examination is elicited that he also filed suit against defendant Court below taking note fact that had filed suit against defendant has come to conclusion that he cannot be an independent witness - It is pertinent to note that during cross-examination is elicited that defendant is also having acquaintance with he is no stranger to parties - It is evident that Court below has committed an error in dismissing suit taking into consideration pendency number of cases filed against defendant and it is duty of defendant to explain as to what circumstance she executed said documents and same has not been done except making general denial that signatures are forged signatures and not his signature - Defendant did not probable his case sending documents to Handwriting Expert when plaintiff pro babied case plaintiff by examining as well as voluminous documents are produced to prove admitted signatures of defendant - Appeal allowed
JUDGMENT :
This appeal is filed challenging the judgment and decree of dismissal dated 13.12.2006 passed in O.S.No.4198/1993, on the file of the VI Additional City Civil Judge, Bangalore (CCH-11).
2. The parties are referred to as per their original rankings before the Court below to avoid the confusion and for the convenience of the Court.
Brief facts of the case:
3. A suit was filed by the appellant – plaintiff for recovery of a sum of Rs.29,250/with interest at 24% per annum contending that the defendant No.1 had purchased the flat from the defendant No.2 and he was in short fall of the amount. Hence, he approached the plaintiff for an amount of Rs.17,500/- on 4.1.1990. The defendant No.1 executed the promissory note and consideration receipt with a promise to repay the amount with interest at 24% per annum. The defendant No.1 failed to repay the amount. Hence, legal notice was issued on 1.4.1993. Inspite of the issuance of the legal notice, the defendant No.1 did not pay the amount and also did not give any reply to the notice. With interest at 24% per annum from 4.10.1990 to 4.7.1993, the defendant No.1 is liable to pay a sum of Rs.29,250/-. Hence, the plaintiff filed the suit for recovery of the same.
4. In pursuance of the suit, the defendant No.1 appeared and filed the written statement contending that neither he approached the plaintiff for loan nor he has borrowed any amount from the plaintiff, much less Rs.17,500/and the plaintiff is a total stranger to defendant No.1. Defendant No.1 contended that he has not executed any promissory note or consideration receipt. It is believed that the plaintiff has forged the promissory note and the consideration receipt for the purpose of filing this case. It is also contended that no legal notice was served on him. A person who has money, he will purchase the premises of flat and the person who does not have the money, he will never purchase the flat. Defendant No.1 has not borrowed any money from the plaintiff for making payment in favour of defendant No.2. Defendant No.1 had purchased the portion of the land from defendant No.2 for a total consideration of Rs.1,40,800/and the said amount was paid before May 1990. He has given the details of payment. Defendant No.1 in the written statement contended that the plaintiff in this case is a benami person. The person behind her, who got the suit filed is one Sri D.P. Gupta, who is carrying on business under the name and style of M/s. Madhu Steel Corporation. For the purpose of record, his wife Shankuntala Gupta is the Proprietor. Totally eight suits are filed based on the fabricated documents by Sri D.P. Gupta under different names. In one case, his wife is the plaintiff and in another case, his employee by name Narasimhan is the plaintiff. In other six cases, six persons who have nothing to do with the suit have filed the suit at the instance of Sri D.P. Gupta. On close scrutiny of the documents i.e., legal notice, promissory note and the plaint averments and advocate for the plaintiff in all the cases, will contemplate and demonstrate that one single person is behind all these cases and all the documents have been forged, fabricated and concocted. Hence, prayed the Court to dismiss the suit.
5. Based on the pleadings of the parties, the Court below framed the following issues:
1. Whether the plaintiff proves that she gave a loan of Rs.17,500/- to the defendant No.1, under an On Demand Pro-note and consideration receipt?
2. Whether the plaintiff proves that defendant No.1 has agreed to repay the loan with interest at 2% p.m.?
3. Whether the plaintiff proves that the defendant executed an On Demand Pro-note and consideration receipt?
4. Whether plaintiff is entitled to the relief as prayed?
5. What Order?
6. The plaintiff in order to substantiate her case, examined her husband, who is the power of attorney holder of the plaintiff as P.W.1 and got marked the documents at Exs.P.1 to 41. On the other hand, the defendant No.1 examined himself as D.
SupremeToday
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
