Bhimappa vs Arjun

Aravind Kumar, J.—This is defendant''s Revision Petition calling in question judgment and decree passed by Prl. Senior Civil Judge, Bagalkot, dated 06.09.2010 in S.C. No. 9/2009 whereunder suit filed by respondent-plaintiff for recovery of a sum of Rs. 16,000/- along with interest @ 18% p.a. by way of damages from the date of execution of loan document till realisation with costs has been decreed for Rs. 16,000/- along with interest at 12% p.a. from the date of execution of hand loan document till its realisation.

I have heard the arguments of Sri Subhash Sankad, learned counsel appearing on behalf of Sri Shivaraj P. Mudhol, for petitioner/defendant and Sri Srikanth Sattigeri, learned counsel appearing on behalf of Sri Anand R. Kolli, for respondent.

Parties are referred as per their rank in the trial Court. Plaintiff filed a suit for recovery of Rs. 16,000/- from the defendant with interest and costs, contending inter alia that defendant had borrowed the said amount for family necessities and on the date of amount being borrowed, defendant had executed a hand loan document in the presence of witnesses and on account of non-payment of said amount, legal notice came to be issued which was duly served and despite same, defendant neither repaid the loan nor replied the notice, hence, suit in question came to be filed. Defendant on service of suit summons, appeared and filed his written statement denying the averments made in plaint including execution of hand loan document and receipt of money. Plaintiff got himself examined as PW-1 and got marked three documents Ex. P.1 to Ex. P.3. Defendant got himself examined as DW-1 and no documentary evidence was tendered on his behalf. Trial court formulated the following points for its consideration:

"1. Whether the plaintiff proves that, defendant has borrowed hand loan of Rs. 16,000/- for his family necessity from the plaintiff agreeing to repay the same as and when demanded by the plaintiff?

Whether the plaintiff is entitled to the interest as averred in the plaint?

Whether the defendants prove that plaintiff is a professional money lender and has not obtained money lending license from the competent authority?

Whether the plaintiff is entitled to the suit claim?

What order or decree?"

After considering the pleadings of parties and evaluating the evidence both oral and documentary, trial Court decreed the suit for Rs. 16,000/- with interest at the rate of 12% p.a. from the date of execution of hand loan document till its realisation by judgment and decree dated 06.09.2010 which is under challenge in present revision petition.

It is the contention of Sri Subhash Sankad, learned counsel appearing for petitioner that trial Court committed a serious error in not appreciating the evidence of plaintiff in proper perspective and particularly his admission in the cross-examination and thereby resulting in an erroneous decree being passed against the defendant. He would also contend that interest awarded by the trial Court is contrary to Section 34 of the CPC and the Interest Act and as such, he prays for setting aside the judgment and decree passed by the trial Court.

Per contra, Sri Shrikanth Sattigeri, learned counsel would support the judgment and decree passed by trial Court.

Having heard the learned advocates appearing for the parties and on perusal of judgment and decree passed by the trial Court and also on perusal of records secured from the trial Court, this Court is of the considered view that following points would arise for consideration:

"i) Whether trial Court was justified in decreeing the suit for Rs. 16,000/-based on hand loan document Ex. P.1?

ii) Whether trial Court was justified in awarding interest @ 12% p.a. from the date of execution of Ex. P.1 till realisation?"

REG: POINT No. 1:

In order to prove the loan transaction, plaintiff not only got examined himself as PW-1 but also examined two witnesses PW-2 and PW-3 who are attesting witnesses to Ex. P.1 i.e., hand loan document. They have reiterated the contents of Ex. P.1. It is no doubt true that, there are stray sentences in the cross-examination of PW-2 and PW-3 which is contrary to stand of PW-1. That by itself would not wipe out their entire evidence available on record. Perusal of the signature found at Ex. P.1 when compared with the admitted signature found on the vakalatnama of respondent, it does not detain this Court too long to reject the contention of defendant that he had not affixed his signature on Ex. P.1. They are one and the same. This Court in exercise of the powers under Section 73 of the Evidence Act, has compared these two signatures and found that they are one and the same. That apart the scribe of Ex. P.1 namely Sri Chidananda Shivappa Menashinakai PW-4 has also been examined to prove the contents of Ex. P.1. Thus, when the entire evidence of PW 1 to PW 4 and the pleadings on record are read along with signature found on Ex. P.1, conclusion arrived at by the trial Court to decree the suit based on Ex. P.1 cannot be held to be a finding recorded contrary to material evidence on record. There is no material irregularity committed by the trial Court calling for exercising revisional jurisdiction by this Court. Hence, point No. 1 formulated hereinabove is answered in the affirmative i.e., against the petitioner and in favour of respondent.

REG: POINT No. 2:

Trial Court has awarded interest @ 12% p.a. from the date of execution of hand loan document till its realisation. Though plaintiff has claimed interest by way of damages @ 18% p.a., trial Court has awarded 12% interest. In Ex. P.1, there is no contract between the parties to pay any interest. On the one hand, plaintiff has contended that he is entitled for damages by way of interest on account of non-payment of money borrowed by the defendant. As against this claim, defendant has contended that plaintiff is a professional moneylender and he has not borrowed any money at all. Thus, it is oath against oath. Since this Court while answering point No. 1 has already held that defendant had borrowed money from plaintiff under Ex. P.1, only question that would arise is whether plaintiff would be entitled to interest as ordered by the trial Court and if not, at what rate and from what date? Section 34 of the CPC enables the Court to award interest, at such rate as deemed reasonable to be paid on the principal sum adjudged from the date of suit till the date of decree, in addition to any interest adjudged on principal sum whether for any period prior to the institution of the suit. In the instant case, plaintiff has not been able to demonstrate about there being any contract between the parties with regard to payment of interest. Undisputedly, plaintiff and defendant are from the same village. Defendant has borrowed the said amount according to the plaintiff for his family necessities. In other words, it was understood between the parties that there is no requirement on the part of defendant to pay any interest. In the absence of contract, Court will have to look into the attendant circumstances under which money decree is being passed to award interest. As held by the Hon''ble Apex Court in the case of Ramgopal and Another Vs. Balaji Mandir Trust and Others, , the rate of interest to be awarded would be governed by facts of each case. When said principles are applied to the facts on hand, as already noticed hereinabove, it would indicate that both plaintiff and defendant being from the same village and defendant is said to have borrowed the amount on account of his family necessities, he cannot be burdened with payment of interest as decreed by trial Court which would be excessive and exorbitant. In that view of the matter, this Court is of the considered view, if, interest is awarded @ 6% p.a. from the date of suit till date of realisation, it will meet the ends of justice. Hence, the following:

ORDER

"i) Revision petition is hereby allowed in part,

ii) Judgment and decree dated 06.09.2010 passed by the Prl. Senior Civil Judge, Bagalkot, in S.C. No. 9/2009 decreeing the suit for Rs. 16,000/- is hereby affirmed and to the extent of awarding interest @ 12% from the date of execution of Ex. P.1 is hereby modified and it is hereby ordered that defendant shall pay interest @ 6% p.a. on the principal amount of Rs. 16,000/- from the date of suit till date of realisation.

iii) Parties to bear their respective costs.

iv) Records be transmitted to jurisdictional Court forthwith.

v) Registry to draw the decree accordingly."