IN THE HIGH COURT OF KARNATAKA AT
DATED THIS THE 17"' DAY..0.F4MA_i{CH;::2;O6'8 V
PREsENT _% %
THE HON'BLE MR.Ju:§TI;E s.R. fiBA~mJR:i«wrH
Asv %
BETWEEN': "
H. Gbuthamachazid Dag,"
S/o|:i_agssm1la%j!;'V-.V _ ._ -
Aged '39 years, 'G§u_ta.._1T"-8a.s1kers,
R/at. No,150O_,"Ty£:garn"j.L.Road,
Mysore 5*/'(1V024'.'.= " "
I-1".--- Dh.éiTr$i§§hand,
S,'e~~!-!ara!<chand.,
x Aged'7O years, R/at No.92/2,
" .jTwfr'.1ga'r'aj Raid, iviyscra 5'r'G G2-1.
Respondent
(By Y.K. Narayana Sharma 8: Y.V. Prakash, Advs.)
This Regular First Appeal is filed
C;_PC_! reed with Qrder 4;; Rule 1 t’_ZPI;’ egeinetpflte j.!.’.I’dg.r’ne!at,V
and decree dated 29.5.2007, passeclin O.S,tte.;2B2l_2.0(iv5, ‘
on the fits of the Principal Civit iludfie; 1. {Sr.’ fJfi..},..t~.r_ivs:giréi,
decreeing the suit for recovery oftmoney. ‘
This Appeal coming oiffor adlrrilsslonigxthis”flay: A.N;l’
VENUGOPALA GOWDA, J.., ‘delivered ” the’ follougin’g:
This appeal is bythej :””i’he appellant was
the dafehdaht kilo.s.;a2;2o9si;onk tile} file of Principal Civil
Judge.(SrA.’D.h’;’);’1–:$éiy_sere,#:flled.:laythe plaintiff for recovery of
Rs.5}QO,0GEl);”V.§;«ltfs imunrast c and Court costs. The trial
~<
Court Adecreed""th"e:: tiirectlng the Liefenclent .19 pa
1:: -3 nnn: an
. . t'Gi"a"'I &a.I.£..£.uu:: H
-u
‘.-.=
. ;
,A the ciete-otvpayment. Questioning the said decree, this
. appetites filed.
I’!
3 Heed the learned c..urise| epp%..p.e .er t..e
parti” and perused the appeai “‘u’:fi:’1t”‘ “i’it’i
— -i ” ‘=..
the apoettant conteno””‘ that, th’ oiatntiu”u”ha_s’~f’ii*ff, to
prove the suit ciaim and that the~.triai Court: wifonaiir,
relying upon the interested”‘testimon§r~.df ?w.; and the
documents Exs.P1 to decreed the suit.
Learned counsel contended th’eVvetéi’des1ce of defendant
has not been”‘A;vconsi:dered:”: by Court. Learned
.’ 1orespontie1nt–~contended ‘that, the suit ciaim has been duiy
~_ orouédedidby the’..piaintIfi in the trial Court and that the trial
Courtiiis justifled in decreeing the suit. Learned counsel
it took through the evidence of plaintiff and defendant, as
as the documents at Exs.P1 to P6. Learned counsel
6. considering the rival contentions 4_
the point for consideration is, “whether.’_”the”triei°Cotirt-is” ‘ s.
justified in decreeing the suit?”
7. The piaihtirr has fi’ie:d»his aff£do’vit5 etitdence and
has been subjected cross?-e)te*rt1i_n’t§titon byvthe defendant
in the suit. There is no’ t.h.atvAAtifie.’.parties are close
relatives. meteor is else he dis;ti1tite.’_ti’?aat 2 cheques dated
encas’hed«. There]is_’aiso-».no dispute that the defendant had
i55,W.isd’ ¢;:hequeAA”v.to”‘”:Vthe plaintiff on 31.3.2003 for
r¢s;%:2-4,375/-. “‘i’h<e"t:Iaim of the plaintiff was that the said
i 'wer:e1:..issued by him to the defendant as loan and
it towards payment of interest in respect of the loan,
..Ti'iere being no other document evidencing the ioan
transaction, the defendant has contended that the piaihtirr
had borrowed the loan from him and towards the
repayment thereof, the 2 cheques were 'issued by the
\/-
piaintifi and as such he is not in due any
plaintiff. The case of the piaintmisp ce;hsiste’htld’with new
pleading, evidence and is also
There is no evidence the’
defendant, to suhs_entie_e h.!.s.ud. .eece, his ewh
tes.imehy, which is to the fiiing of
the suit the pieahttrr had”ntttde’ and had caused
the legal :_no’ticeif_t9. of which is Ex.P7
and is at Ex.P8. There is no
reply7i:o theiseidj-legal”notice by the defendant.
_ _ 8. in the ebsence”of any document showing the loan
ttghsepetionp, tAhe””‘surrounding circumstances had to be
=loolteti–v.:ivhto.:::Plaintiff admittedly was a money lender. He
.’is’_lrunning:7money lending and pawn tiroiter shop, under -he
4* it “e-teisilsn the
n._me ‘S;r!. Jain Tr..ders’ which was his proprietary concern.
‘ .
“t that the said 2 cheques were issued
‘HI
it to the defendant and that the defendant had encashed the
i said 2 cheques, plaintiff has produced the pass books
which are Exs. P1 and P2. Peruse! of the same shows that
‘i
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pass book aiso contains the_entry _.’rei’ot’i1ifeg’5:te.V
encashment of cheque for Rsi,424:,g37t5/4-d.issu’ed”Vlbyffiie
defendant to the plaintifft’V_Pteintit’i”-being
assessee, has produced for the
years ending 3.1.3.2’ii£.)..;’?i-: and ._as per Exs.P3 and
had year’ 2663.
hroduced Exs.P5 and P6
which are profit and loss account for the
yearsA”20iG3 end could be seen therefrom that
un3:iers.the14interestcolurnn, name of the defendant appears,
;.=:srie_.24,;+z5,«. hes I_:e_n shown in exnse, The
. ‘docun1ents..iet–“‘Exsj-‘3 to P6 have been rosintsined by tho
piaintifi the regular course of his business and the said
.. docuinents have come into existence earlier to the date of
‘instltuflon of the suit. The contention that the documents
at Exs.P3 to P6 are that of the plaintiff and they cannot be
relied upon on the ground that they are self serving
payment af ameunt under 2 cheques ie1.eviden§:;ed§-‘v.by.v
Exs.P1 and P2 and plaintiff _b,.ei_ng _theV’*~7Ii*ioome.rV
assessee, he has maintained the ;aceoiiiit:eri’d”‘the’.”eeid
payments are also reflectechin VthexI.T. r;etuj.i’nsmfer triei’
relevant period and the dociinaerits merited: asf%Exs.P3 to
P6, have been preparer: lithe’ regnlveirgnrse of Lausineg,
have sho_wri: returns and the
releted1_vdceiirnent’s”. the evidence of plaintiff,
except the’eelfV_ of the defendant, no
othertmaterial”V..is:’t:e.pro§i’tii5ed. If defendant had advanced
any’ “lean by him to the plaintiff and the
spawn
” « .peyrri’er=t:V%’h1ede under 2. cheques, the entries of which eeeie
er
as
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Ea.
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ran
$95. ‘
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an
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Adefen_dant’~”ought to have produced the records in proof of
.. the. eeme. Defendant in his cross examination has
*r.V1″edi5nltted that he maintains books of account, but has
failed to produce the same. The stand of the defendant
has not been established. The payments having been
made under <:..eeeee, to the defendant 5' the nieiflti"
there is presumption under- Section 118 of .the
Instrument Act, 1881. The presumption 'tevddr'.'_ef the ' ;
piaintiif and the same has not Been renutiznedu
defendant. The evidence'ef"piaintiffits coineiietent and :97
the suit. ieoai notice fiat"E3t.'§'7_:'w#sV_'sen{ed' on the defendant
and the a_eknowi:ed_genjent..ofsefrfvicei Ex.P8 which are not
in dIepui:e"."fiflbiaithe treason: of..::ti1eEp|aintlff is Incorrect, the
defendant jheyiewdrepiied to the notice at Ex.P7 which
. has notheenv denied have no hesitation in holding thet
tne defence eet. up be the defendant ts net true.
reconsideration of oral and documentary
ieyriideneerpiaced on record of the trail Court, in our view,
the tne! Ceurt is justified In dareeina the trait. The tri-at
.iCo'a~rt has not committed any error in appreciation of oral
'fend documentary evidence of PW 1, Exs. P1 to P8 and
DW 1, pieced on its record. There is no modality of
whatsoever nature committed by the trial Cou.rt in
\,
/
ing the suit. From the perusal 'f
the evid'ee.ce'. of,
the plaintiff which is supported bybltehe docurnefin'ts"et vfixstéix .
to P8, it is clear that he has esteblisghedthe1cie'ln1"i'r:ede_i«n
the suit and the defendant'«…hasVlfeiledo
defence put forth by him. edniittedvnithei receipt of
the ernount under 2 'eheques,s.:_»the'w«enceshment of which is
firov-=-'4 f-'Mn the Ant?" fit Ex-= P1f"'e-tt,.P2. the ta-..Ir..en of
discharge'_Vv;ies:fo:n._ he has f'ii'd to
hes discharged his burden of
proolf, the justified in holding that, the
plaintifi…Lhas ' defendant had borrowed the
anjount claimed in the suit. There is no error or illegality
by the trier! court in decreeing the suit end that
too, with irjit*r"t owty from 15 2 2035, even thee-an the
cans-e"ofA«1'~'ectlon for the suit has arisen eeriier, i.e. on
.. V1_9.§_;;~'.«O02 and 4.4.2003. One other contention advanced
the learned counsel for the appellant is that the suit
claim has not proved by examining any other witness. In
the facts and circumstances of the case, when the
there is no need for exmination ofany other–. by
the plalntlff. No other point viigls
counsel for the appellant. –
in the result, weglo not”fih_jtl é’r:.y_ mefit’in the appeal,
the appeal falls and lo’ costs.