Dundappa vs Ayyappa

N. Ananda, J.—The appellant (defendant) had suffered money decree before the trial court. Therefore, he was before the I-appellate court in R.A. No. 103/2010.

The learned judge of I-appellate court on reappreciation of evidence has confirmed the findings of the trial court. Therefore, the defendant is before this court.

I have heard Sri. R.S. Lagali, learned counsel for appellant/defendant and Sri. Ameet Kumar Deshpande, learned counsel for respondent/plaintiff.

There are concurrent findings of the courts below that plaintiff and defendant were friends, both of them had worked in PWD Department and retired as Assistant Executive Engineers. After retirement, the defendant started contract work and he was also owning JCB and Tractors.

The defendant had borrowed a sum of Rs. 4 Lakhs from the plaintiff on 08.08.2006 agreeing to repay the same. The defendant had issued a cheque bearing No. 061724 dated 12.10.2006 drawn on DCC Bank, Bijapur for a sum of Rs. 4 Lakhs in favour of plaintiff. On presentation, the cheque was dishonoured. The plaintiff caused a legal notice to the defendant calling upon the defendant to pay amount of Rs. 4 Lakhs within 15 days from the date of receipt of notice. The defendant caused reply notice denying the entire transaction and also alleged that he had lost his cheque bearing no. 061724 and it had reached the hands of plaintiff and it was misused by the plaintiff to institute the suit.

The learned trial judge on appreciation of evidence has held that plaintiff has proved the suit transaction. The learned trial judge has rejected the defence theory that defendant had lost his signed blank cheque and the same had reached the hands of plaintiff and the plaintiff has misused the same.

The learned judge of I-appellate court on reappreciation of evidence has confirmed the finding of the trial court. In the reply notice, defendant has contended that his signed blank cheque was lost and it had reached the hands of plaintiff, contrary to this, defendant has deposed that he had issued a cheque in favour of plaintiff as insisted by one of his friends. The defendant had contended that he had lost signed blank cheque. The defendant not being able to substantiate the same came out with a different version that he had issued a cheque in favour of plaintiff at the instance of one of his friends. In view of inconsistent and contradictory stands taken by the defendant, the courts below were justified in recording concurrent findings on liability of defendant.

Sri. R.S. Lagali, learned counsel for appellant (defendant) relying on the judgments of Supreme Court reported in T. Nagappa Vs. Y.R. Muralidhar, and M.S. Narayana Menon @ Mani Vs. State of Kerala and Another, would submit that plaintiff has not produced documentary evidence to show that he was in possession of a sum of Rs. 4 Lakhs as on 08.08.2006 (date of alleged transaction), the trial court should not have rejected the application filed by defendant to send the disputed cheque for comparison of signature of defendant with his admitted signature.

As already stated, defendant has not disputed that plaintiff was working as Assistant Executive Engineer in Public Works Department and he had retired from service. Therefore, financial capacity of plaintiff to lend a sum of Rs. 4 Lakhs to defendant cannot be disputed.

It is not in dispute that plaintiff and defendant were good friends and they were working as Assistant Executive Engineers in Public Works Department. In the circumstances, there was no need for the plaintiff to produce documents to show that he had a sum of Rs. 4 Lakhs as on the date of suit transaction.

The defendant has not denied the signature on the disputed cheque; the defendant has not disputed that cheque was drawn by him; the defendant has pleaded peculiar circumstances for drawing and issuing cheque in favour of plaintiff. In the circumstances, appointment of handwriting expert for comparison of signature found on the cheque with the admitted signature of defendant was not necessary. Therefore, the trial judge has rightly rejected the application.

The learned counsel for appellant (defendant) would submit that the learned trial judge should not have granted interest at the rate of 18% per annum from the date of suit till the date of realisation. The plaintiff has not produced any document to show that there was an agreement to pay interest. Even according to plaintiff, it was only a friendly accommodation as the plaintiff and defendant were friends. In the circumstances, it would be proper to award interest at 12% per annum from the date of suit till the date of realisation.

In the result, I pass the following:

ORDER

The appeal is accepted in part. The rate of interest granted in impugned decree is modified. The defendant is liable to pay to plaintiff a sum of Rs. 4 Lakhs with interest at 12% per annum from the date of suit till the date of realisation. The parties to bear their costs.