High Court Karnataka High Court

Sri M S Ramu S/O Late Subbaiah vs V Varalakshmi W/O Late O R … on 7 July, 2009

Karnataka High Court
Sri M S Ramu S/O Late Subbaiah vs V Varalakshmi W/O Late O R … on 7 July, 2009
Author: K.N.Keshavanarayana
IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 7TH SAY OF JULY 2509

BEFORE

THE H0N*BLE MR JUSTICE K N KEsHAVANAR;&YAb;,é.f:   

R.S.A. No. 2351 OF 2006

3ET"WEEN:

1

SR: M s RAMU
s/0 LATE SUBBAIAH
4517123, PROPRIETOR    =
HARIHARA FOOD PR_ODUCT.S§'~._ 
coN:mMENT MERC§iANTS" ' ; 
NO 3796, 15 CROSS," ~ -  
TILAK "NAG/AR,  _  '
MYS{)RE~ 5m-:)V12.   ~ 

 .  'VAEPELLANT

(BY SR1: GANGADi1*44§;2A:A'H,T:ADVOCATE FOR

AND :

SR1. N;}§AVIN13RA1'IATH"Y;A?«&AT}i,ABV' )

v%.iiARALAKs}iMi %%%% " "

"wm«0 R VENKATARAMANA SETTY

   AGE1;::«._A§€>:}T.. 56 YRS
. Ego :::1~:Q3s2, VEENE SI-IAMANNA

'2_4LINE.N::--;W SAYYAJI mo ROAD
MYSGRE "----5?0 012.

3 = MGARAJA SE'I"I'Y
. S/gr LATE cg: R VENKATARAMMQA SETTY

 AGED ABOUT 50 was

 R/G D NO 382, VEENE SHAMANNA

" 2 LINE NEW SAYYBJI RAO ROAD

MYSQRE -~5?'{} G 12,

K?



3 RAVINDRA
S/0 LATE 0 R VENKATARAMANA SETTY
AGED ABOUT 43 YRS
R/() 1:) NO 382, VEENE SHAMANEJA
2 LINE NEW SAYYAJI RAG ROAD 

MYSORE -- 570 012.   . 

4 SREERAMA   %  * - =
53/0 LATE 0 R vENKATARAM_ANA'3E'm'Y  =
AGED ABOUT 46 YRS ~    '  "

R/O :3 NO 382, VEENE SHAMANNA
2 LINE NEW sAYYA.;i.gA0¢.§:cA:> 
MYS{)RE-- 570 012.  ' %  »   "

5 BABE]    *

3/0 VI.-ATEV"Q_ R SETTY
AGED Algcmfr 34 %
R/() 1) we 382;j*azEE,NEA S-HAMANNA
2 LINE' NEW SAYYAJI*~ Rom
MYSORE; 520 012., % . 

.   " '.    '  RESPONDENTS

 (Ev sré§:':'Ti»~I«: RA.:3-HUESTHY, ADVOCATE )

 "'1?§?II'.3:::V'i?;S:'§V'-~I§iLED 21/ s. 100 3:2' C17-'C AGAINST THE
JUDGE;MEN'F."_"--..&,e DEGREE 1:;~'r.14.2:2oos PASSED IN

u """vR.A.N(}..'180;'i%(}{3'% ON THE FELE (3? THE ?RESIDING~

OFFICER; V:i?';{'C-IV, MYSORE, ALLOWING THE AFPEAL AND

"' 5iv*'v'SE'TTING A3193 THE JUDGMENT mp DEGREE m*.3.s.:995
 'P.{\;SSEi£)..AIN O.S.NO.1323/1994 on THE FILE 0? THE I ABDL.

E MUE€'«SII4'F, MYSORE.

  V:' _,__;§TI~IIS RSA COMING 9:»: ma AQMISSION 'THIS DAY,

V  A  _ "';'{"}iI;E COURT DELIVERED THE FOLLOWING:

/3



JUDGMENT

This second appeal is directed against

finding of the Courts below. The.;a.;:)pei1aIit”

defendant in 0.3. 1323/1994» 01). ttvie fiie {if éfi1e”~I.j’A§§{§’1_’ti(3:f:*;a.1

Munsiff at Mysere. One OR. t1’1e’:-

plaintiff in the suit. Res1:;endex}t_’_L: te’ ST-{he Legal
Representatives of the Shetty, who
appears to have by the trial
Court and beff;I”e”‘ before the Lower
Appellate Q, ‘V . ‘ 1

2. filed the suit against the

defendant f0I;’ree0ve§}z s9;~– of Rs.-44,450/– inclusive of

_vinmresi_j the d§é1’tev——ef”suii:, inter aiicz contending that on

borrowed a sum of Rs.3O,(}00/—

: V’ ‘»…»,from agreeirfg to repay the said amount with imerest at

– 3.2 396 pa iiowards the repayment ef the said amouni, the

issued the Cheque bearing N0. 5643426 in faveur

‘ plaintiff and requested the plaihtiff to eneash the

“‘eEieque afier the imimation from him. Hewever, the

w

4
defendant did not intimate the plaintiff as to on what date he

should present the cheque for encashment and thereafter, in

spite of the repeated demands made by the “the

defendant failed to repay the amount, as such,

is liable to pay the prineipa} amou::t”‘0f~ a

sum of Rs. 14,450/– towards ‘1nterest’.;__

3. The defendant upQ;1’~~.,_<i:j}:3 ap"pearant:eVVdV"eef6re the

triai Court, denied the caeepf .conte'Ird'i;Vng that at
110 point of time he at.1§}" muchless

Rs.30,00Q/- :10': issued cheque in question

in favour the repayment of the said

emeuat; ' 'Aecordflzgdte the defendant, there was no monetary

V. ?.bet'w.een him and the plaintiff at any time. He

_ that he had borrowed a sum of

V§:e.30,"5Ot) frdm the son of the plaintiff by hypotheeating

jt ee heeeebearmg Ne.3?96 on 25.09.1939 and at that time,

he iaaddddefivered the eheque ix": question to the son of the

V _ witheut mentionirag the payaee'e name and

thereafter, the said cheque has been misused by the plainfifl

5
by entering his name as Payee and thereby a false claim has

been made in the suit. p

4. The trial Court on the basis of the the
parties, framed the following three issues:– it

i) Whether the plaintiff ;5ro~:*e_s’–, that” «_ .
defendant borrowed a Sumgfefe’ RS,30;0OO]«.-__
from him on 01.10.1992 a.I_1dl_ pa},-{V
interest at the rate of %.1% pa? V ”

ii) Whether the defendant “proves thatthe son 1′
the plaintifi ‘_ the Cheque
No.564-3426 for. “__E:gS.:.30′,'{}QO}I».-j without

consideration as”a11e”_’ed P_a1fa~3 of the

w1’itten_statem.eiit?’~. .’ ‘ .

iii) iigvhat aecgsess a;ge=ii9mr?

5, .1′ ” Aftef led evidence, the triai Court on

IA’aseee3:i1e:jitVA.;:=f4VA’tl’1e oral and deeumentary evidence, by its

jud’geiii1eI§t” d_et_ed;”‘(38.08.1995 answered issue Ne.1 in the

vnegatiiiée Iedeue Ne.2 in the affirmative by heiding that the

. V ‘A failed to prove that the defendant borrewed a

V”7″=,_s%me@5ftR$.30,o0o/~ from him on 01.10.1992 and towards

‘ _ ‘repayment ef the said amemit, the cheque in question

was issued. The trial Court further heid that the defendant

/7

fig/”

6
has preved that the cheque in question was delivered to the

son of the plaintiff Without consideration, and therefereewthe

plaintiff is not entitled fer the decree as soiight,

of the matter, the trial Court dismissed the’S1*1it:; = .

by the said judgement and decree, the

of the enema p1aintifi’ filed eppeaz RA, eeNe;.1e%%t13o,z320%o4fe

before the District Court, ~:Ti1e Ptesittiitigvefbificer of
the Fast Tract Court-IV at appeal was
made ever, heard the parties jtidffietitent and decree
dated 14.o2.2eo7 femettge et the trial Court and
held t1;at the p;eeeeeeee[tjAemee that the defendant had

borrowed a frem him on 01.10.1992

e.egreei:_1§,te_tA’repaj,.é ” amount with interest and that

tewaerdee of the said amount the defendant

issued. ‘the in question to the plaintifi’. The Lower

_ further held that the defendant has failed to

Veatisfaetexily that there was no monetary fiensaction

him and the plaintifi’ and that the cheque in

tpjesfion haé been éeiivered te the son of the plaintifi

0

e

7
without entering the name of the payee and that the said

cheque has men mis-used by the plaintiff. In that View of

the matter, the Lower Appellate Court allowed fleet

aside the judgement and decree passed by V’

dismissing the suit and decreed the :’5tiit’fe1f ‘

interest at 6% p.a. on the Said sum

date of the suit tiil the date of by’

the said judgement and d’:ee1ee_«ef._{V4evJer Afigiellete Court,
the defendant has filed thie

6. learned counsei
appearing die’: ” the and perused the judgments

under appeel. counsel vehemently centended

I-Vj’11;}.1fl:5tt CI.’Q§«ggeIfV’;%ppelAieFt’e Court is not justified in auowing the

a§pea1e%e:1ee’e¢¢§egi:ag the suit of the p1aintifi’ by setting aside

V”L?1e jdd–geme;1e”‘ end decree of the trial Court. it is his

‘ ‘,5gh£eflfi0nV”=that the finding of the Lewer Appellate Court is

sdte the evidence on record and the Lewef Appellate

T has not properiy appreciated the oral and

‘ hdeemuemaxy evidence. He aiso eeniended that the Lower

6&9»

defence of the defendant that there was no mefietary

transaction between the plaintifi’ and the defendafit

be accepted. ; The Lower Appellate Court

since the defendant has admitted 3.es1:;e:’1A<jj:e".oof

EXP} and receipt of money of'f%s.30;OQ'G/– ,

fact that he has failed to was no
monetary transaction the case
of the p1ai;i1tifi'with.Vrgartjleeto..bott"o}t:ei.'ot'Vf€e;;§0,O00/- by the
defendant towards
repayment_o_f be accepted. The
Lower Aptsellate held that merely because

the p1ai1'1tifi' }:uta5V%notV'seIit_V cheque for encashment and did

_.~:3.~ot .Vbeneiitvv«.!.mder Section. 138 of the N3. Act, it

cannot the cheque in question was not issueti in

V V . V . V favo1 1r__o§'

8. *~ Vvtfiaving regard to the facts anti circumstances of

the evidence as referred to by the Courts below,

. V’ of the considered opinion that the Lower Appellate

court was juseeee in decreeiug the suit of the plaintiff and

10
the findings of the Lower Appellate Court are ix} accordance

with the excel and documentary evidence. Hence, the said
findings of the Lower Appeiiate Court does not warrant

interference by this Ceiiri: in the second appeal.

9. As noticed above, the defendant

issued cheque in question. His defence waeiiitfiei» t1’1e_’ A ‘

cheque was delivered to. the son

mentioriing the pa}/ee’s nameiieiiai theit.__che€1i;e”:..;hae V L’

misused by the plaintiff. leis t1f;e*–defe1§dg1ntei’fu:*th.e§r defence

that there A1120 -I trérimetion between him and

the : ‘_EX.§:’VS”V:.ie:me.”eefL:.i1i:er–f0i1 of the cheque. The

cheque piaintifi’ and the counter– foil

(Al-a?:1tevi.§3O.Ox9é.”1’d3«’8’9, en the reverse side of Ex.P5, the

his sigiature. This cheque

. …,.._\¢.,¢appee11$fte ,.E3%a}'<,fe'iV;1)ee1"2 issued in the name of the defendant

' " 'fer-»»}Rfs.30;O{§{)/~. EXJP6 is a cheque issued by the defendant

'i.r1r'V'f2xzzo{ir of the plaintiff for a sum of Rs.1,500/– 0:1

ee..e§. 1990. The defendant has admitted this fact. Thus,

" '§£em Exs. P5 and P6, it is clearly eetabiiehed that the

11
defendant had monetary transaction with the plaj;n.tifi’ ever:

prior to 91.10.1992, on which date he has issued the

CheqL’ze~Ex.P1. It is under these CiI’C11IIiSIi£lIlC6S

light of this evidence, the Lower Appellate

that the defence of the defendam” “1’hat”._ he ‘

monetary transacfien between him

he accepted and the said eeurld’

with the evidence on

10. The son of the l lees examined as

PW2, Whg eréiwevfiltiehce [has clearly stated that the

cheque in cl1me’etien’–w”ae ntetttlléiesued to him ané that it was

issued” “his fathezti V’Not:hiI1g has been elicited in the cross-

“exa’mi:1;atieIi_ef.2 to Show that the cheque in question

‘ wae~de’1ivei*’e{.l’_4:e’ Without mentiening the payaee’s name.

01:1 the4″etf;§,er”i};and, the Lower Appellate Gem’: notices that

éefegldent has not placed any evidence to Show that the

ehehtiueflirx question related to the year 1989 and not 1992.. If

‘V V feelly the transaction in question related to the year 1989

with the son of the plaihtifi’ as alleged by him, it was not

(W

12

difficuit for him to prove the same. However, no evideiiee is

produced by the defendant in this behalf.

11. Having regard to the facts and V’0:’–.

the ease, the Lower Appellate fey’:

rightly held that the trial ileai’ ii .

dismissing the suit of the _» View of ihe
matter, there is no mei’ithinA and it does not
involve any questieri pf iaw’ question of
law. In fact, ganted the relief

to the __by j directing decree only fer

Rs.3o,0o0/i-1 with 5% p.a, from the date of the

suit ii11_;f’i”ea1isaVti€>;f:i.L V’ other words, the Lower Appeiiate

in claim for the interest fi’o;:1:1 the date of

fiajfment at the rate claimed by the

V . these circumstances, the appeal is rejected

« V ‘veitht;iIt4_.beifig admitted.

e » ‘.. e:»:{::1-2%

561/ -5
Judge’