At, High Court of Karnataka
By, THE HONOURABLE DR. JUSTICE H.B. PRABHAKARA SASTRY
For the Appellant: R. Gopal, Advocate. For the Respondent: S.V. Prakash, Advocate.
(Prayer: This Appeal is filed under section 100 of CPC against the Judgment and Decree dated: 28.7.2011 passed in R.A.No.1/2009 on the file of the Senior Civil Judge & JMFC., Sagar, allowing the appeal and setting aside the judgment and decree dated:3.10.2008 passed in O.S.No.34/2007 on the file of the Prl. Civil Judge (Jr. Dn.) & JMFC, Sagar.)
1. The appellant herein was the plaintiff before the Principal Civil Judge (Jr.Dn.) & J.M.F.C., Sagar, (henceforth for brevity referred to as the `Trial Court' for short), who had instituted a suit in O.S.No.34/2007 against the present respondent for recovery of money.
2. The summary of the case of the plaintiff in the Trial Court is that the defendant had borrowed a sum of Rs.25,000/- from him on 6.11.2004 and had executed a On-demand Promissory Note agreeing to repay the said loan amount along with interest thereupon @ 18% per annum. Despite the demand, the defendant did not repay the loan amount, which made him to issue a legal notice to him on 12.9.2005. The defendant neither responded to the legal notice nor repaid the loan amount. Hence, the plaintiff was constrained to file suit for recovery of a sum of Rs.25,000/- with accrued interest thereon.
3. The defendant contested the matter by filing his written statement wherein he denied the entire plaint averment with respect to the alleged loan transaction except admitting that the plaintiff was a person known to him. The defendant has categorically and specifically denied the alleged loan transaction much less the one dated 6.11.2004 for a sum of Rs.25,000/-.
4. Based on the pleadings of the parties, the Trial Court framed the following issues:
1) Whether the plaintiff proves that on 6- 11-04 the defendant borrowed a sum of Rs.25,000/- and agreeing to repay the same at the rate of interest 18% per annum and the defendant executed on Demand Pronote on the same day in favour of the plaintiff?
2) Whether the plaintiff has entitled to relief as sought for?
3) What order or decree?
5. The plaintiff got himself examined as PW-1 and got marked three documents at Exs.P-1 to P-3. Defendant neither chose to lead evidence
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from his side nor produced any document as exhibits. After hearing both side and analyzing the material placed before it, the Trial Court by answering issue Nos.1 and 2 in the affirmative proceeded to decree the suit of the plaintiff by its judgment and decree dated 3.10.2008.
6. Being aggrieved by the judgment and decree of the Trial Court, the defendant preferred an appeal before the Senior Civil Judge and J.M.F.C., Sagar, (henceforth for brevity referred to as `First Appellate Court'), in R.A.No.01/2009 and the said Court framed the following points for its consideration:
1) Whether the appellant/defendant establishes that the trail Court had erred in come to the conclusion that he had executed On Demand Promissory Note and put the signature and received the consideration amount and also agreed to pay the interest as alleged by the respondent?
2) Whether the appellant further establishes that the Judgment rendered by the learned trial Judge is not at all in accordance with the law and against to the evidence?
3) Whether the appellant further establishes that the Judgment and Decree rendered by the learned trial Judge is perverse arbitrary not sustainable under law and calls for interference?
4) What Order?
7. After hearing both sides and perusing the material placed before it, the First Appellate Court answered issue Nos.1 to 3 in affirmative and by its judgment and decree dated 28.7.2011, allowed the appeal and dismissed the suit of the plaintiff.
8. It is against the said judgment and decree of the First Appellate Court, the plaintiff before the Trial Court has preferred this appeal.
9. For the sake of convenience, the parties would be referred to henceforth with the ranks they are holding respectively in the courts below.
10. In response to the notice, the respondent is being represented by his Counsel.
11. The lower court records were called for and the same are placed before the Court.
12. While admitting this appeal, this Court framed the following substantial question of law:
"Whether the Lower Appellate Court had erred in law in holding that Ex.P1 - On demand Pronote was not proved in accordance with law?"
13. Heard the arguments from both sides.
14. Learned counsel for the appellant/plaintiff in his argument submitted that, non-marking of the signature of the defendant in Ex.P1 is for the reason that, marking of Ex.P1 had taken place before the defendant could file his written statement. Since the defendant did not choose to contest the matter and to file written statement, his evidence was already recorded, as such, he could not mark the signature of the defendant in Ex.P1. However, the said document has been marked as an exhibit and stated that the same was the document by the defendant.
Learned Counsel further submitted that the finding of the First Appellate Court that the courts need not have to compare the hand-writing of the signature of the parties is unknown to law and the Trial Court had rightly held that the court can compare the disputed signature with the admitted one and that it had rightly compared the signatures and arrived at a conclusion that the defendant had signed the Promissory Note, which finding could not have been set aside by the First Appellate Court.
Learned Counsel further argued that the observation of the First Appellate Court that Section 68 of the Evidence Act, 1872 warrants an examination of at least one of the witnesses to prove the document was also not applicable and not called for in the instant case. Since the document in question was neither a Will nor a Gift deed, but it was only a Promissory Note, while mentioning about the alleged conduct of the defendant, learned Counsel for the appellant submitted that, inspite of the specific allegation made by the plaintiff that the defendant had borrowed hand-loan and also executed a Pronote as per Ex.P1, the defendant did not choose to enter the witness box and to lead his