Sreekanth Jois vs K. Ragavendran

N. Kumar, J.—This is a defendant''s regular first appeal challenging the judgment and decree of the Trial Court, which has decreed the suit of the plaintiff for a sum of Rs. 20,00,000/- with interest at 18% p.a. from the date of the suit till realization. The suit of the plaintiff for mandatory injunction to return the shares has been dismissed.

For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

The plaintiff was an employee of INFOSYS and was working as Branch Manager. Therefore, he was given shares of the Company approximately worth Rs. 50,00,000/-. The plaintiff resigned his job in the year 1989 in the month of November-December and the dividend itself was enough to maintain his family. The plaintiff was a devotee of Lord Krishna and used to go to Kundapura Vyasaraja Mutt, which is at Hanumantha Nagar, atleast once or twice in a week and he used to go to Abbur where the branch of the said Mutt is situated. The defendant is a dealer in shares. He is also a devotee of Lord Krishna and used to come to Mutt situated in Hanumanthanagar and Abbur. Hence, friendship developed between them. The plaintiff had an ambition, dream and desire in his life to make and donate a gold cradle to Lord Krishna and expressed his desire to the defendant whom he believed to be a great devotee of Lord Krishna. The defendant by taking undue advantage of the same, induced the plaintiff to transfer the shares to him since the defendant is well versed in the share market. The plaintiff transferred totally 11,950 shares of INFOSYS to the defendant on various dates which are described in ''A'' schedule to the plaint. The defendant in order to gain the plaintiff''s complete confidence had executed an agreement of loan as an evidence of transfer of shares and also thereby trying to prove himself to be a thorough gentlemen, and he had issued a cheque for Rs. 20,00,000/- to the plaintiff as the amount being the interest for using the shares and further agreed to return the shares within 31.03.2010. After the expiry of the term specified in the agreement, the plaintiff demanded the defendant to return the shares or the amount which he had taken by pledging the shares. Therefore, the plaintiff presented the cheque for encashment which was returned dishonoured for ''insufficient funds'' in the account of the defendant. The said fact was brought to the notice of the defendant who refused to pay the money. The said shares were the only means of livelihood of the plaintiff. The defendant by detaining the shares with him was getting ample income out of it. Since the defendant neither paid the interest amount nor returned the shares as agreed upon under the contract, the plaintiff filed a suit for recovery of Rs. 20,00,000/- with interest and for a mandatory injunction for return of the shares mentioned in the ''A'' schedule to the plaint.

After service of suit summons, the defendant entered appearance. He filed a detailed written statement denying all the plaint averments. It is the specific case of the defendant that he has already paid the entire share amount, which was settled by one Sri. Raghavendra Rao who had got released some of the shares pledged by the plaintiff in I.C.I.C.I. Bank. At that time, the transaction was also entered into and agreement was entered into between the plaintiff and said Raghavendra Rao. The cheque of Rs. 20,00,000/- was issued by the defendant in favour of the plaintiff for security purpose only at the time of transferring the shares. The plaintiff has misused the said cheque and without any prior permission of the defendant, the plaintiff presented the same for encashment. Since the agreement was entered into between the plaintiff and Raghavendra Rao, the said Raghavendra Rao, is also necessary party to the dispute. The defendant has paid Rs. 26,00,000/- [through HDFC Bank cheque] as per the direction of the plaintiff to Rajalakshmi Gold Palace since the plaintiff had got prepared gold cradle to Lord Krishna. The defendant has paid the entire amount to the plaintiff and therefore, the question of attaching or alienating ''B'' schedule property does not arise. The plaintiff has created a story to get the mercy from the Court for his claim of Rs. 20,00,000/-.

On the basis of the aforesaid pleadings, the trial Court framed 5 issues as under;

1) Whether the plaintiff proves that the defendant is due and liable to pay the suit claim of Rs. 20,00,000-00 as prayed for?

2) Whether the plaintiff proves that the defendant is also liable to pay the interest as claimed?

3) Whether the suit is bad for non-joinder of necessary and proper party?

4) Whether the plaintiff is entitled for a judgment and decree as sought for?

5) To what order or decree?

The plaintiff to substantiate his claim, examined himself as P.W. 1 and also examined a witness - T. Venkateshmurthy as P.W. 2 and produced 16 documents, which are marked as Exs. P1 to 16. On behalf of the defendant, he examined himself as D.W. 1 and produced 2 documents, which are marked as Exs. D1 and 2.

The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that the plaintiff has proved that the defendant is due and liable to pay a sum of Rs. 20,00,000-00. Further the plaintiff has also proved that the defendant is liable to pay interest at 18% p.a. on the amount of Rs. 20,00,000-00 and the suit is not bad for non-joinder of necessary party. The plaintiff is entitled to only a sum of Rs. 20,00,000-00 with interest and the suit for mandatory injunction was dismissed. Aggrieved by the said Judgment and Decree of the trial Court, the defendant preferred this appeal.

Learned counsel for the appellant assailing the impugned Judgment and Decree contended that the defendant is not due any amount to the plaintiff as he has paid the entire amount. He is not liable to pay any money in lieu of cheque, which was issued and which was subsequently dishonoured as no amount was payable under the said instrument. The plaintiff has suppressed the fact of payment of Rs. 19,00,000-00 to Raghavendra Rao and a sum of Rs. 26,00,000-00 due to the jewellery for making the cradle for Lord Krishna and rest of the amount was paid by way of cash and therefore, he submits that the decree passed by the trial Court is not supported by any legal evidence. He further submits that the interest at 18% p.a. is also illegal and requires to be set aside.

In the light of the aforesaid facts and rival contentions, the point that arises for our consideration in this appeal is as under;

Whether the decree passed by the trial Court for a sum of Rs. 20,00,000-00 with interest at 18% p.a. is not supported by any legal evidence?

The suit of the plaintiff is one for recovery of money based on dishonour of the cheque. He has not mentioned in the plaint the payment of Rs. 19,00,000-00 to one Raghavendra Rao. He has also not referred the payment of Rs. 26,00,000-00 through HDFC Bank to Sri Rajalakshmi Gold Palace. However, his claim cannot be negatived solely on the ground that the said two facts are not set-out in the plaint. However, in the evidence he has categorically admitted that the payment of Rs. 19,00,000-00 by the defendant to Reghavendra Rao and payment of Rs. 26,00,000-00 through HDFC Bank to Sri Rajalakshmi Gold Place. However, he has set-out in the plaint that the relationship between the parties, the shares at INFOSYS which were owned by him. An agreement was entered into between the plaintiff and the defendant under which his INFOSYS shares were handed over to the defendant and it is in that context, the cheque in question has been issued and the fact that he has handed over 11,950 shares of the INFOSYS to the defendant on various dates, which are set-out in "A"-schedule to the plaint. It is in this background, if we look into the evidence on record, it is clear that the defendant in unequivocal terms has admitted that 11,050 shares were handed over to him by the plaintiff. According to the plaintiff the value of the share was at Rs. 1,300-00 per share. But, according to the defendant it was Rs. 1,200-00 per share. According to the defendant, all these 11,050 shares were sold and the total value of the shares would be Rs. 1,32,60,000-00. Out of it, Rs. 1,32,60,000-00 payable by the defendant to the plaintiff, he has paid Rs. 19,00,000-00 to Raghavendra Rao and Rs. 26,00,000-00 to Sri Rajalakshmi Gold Palace. It is the specific case that the remaining amount is to be paid by way of cash to the plaintiff and no amount was due to him. It is argued that as the plea is one of discharge the burden of proof is squarely upon the defendant, absolutely no evidence is adduced to substantiate the said defence. When the shares were sold and the amount was paid through the bank, the case that the balance amount was paid by way of cash is difficult to accept. The particulars of the cash payment, the date on which the payments were made and the amount which was paid are not forthcoming.

On the contrary, an attempt is made to contend that whatever the value of the shares has been given to Raghavendra Rao to discharge the bank loan in ICICI Bank, the said amount is only Rs. 19,00,000-00. Therefore, in the light of the aforesaid admissions, nearly a sum of Rs. 87,00,000-00 is not accounted so far. May be both of them are not speaking the truth because, both of them are devotees of Lord Krishna. But, the fact remains that execution of the cheque, dishonour of the cheque and non-payment of the cheque is not in dispute. In these circumstances, the trial Court has committed no illegality in decreeing the suit of the plaintiff and fully justified in refusing to issue a mandatory injunction to handover the shares. According to the defendant, all the shares have been sold and the persons whom the shares were sold are not made parties to the suit. In these circumstances, we do not see any error or illegality in the impugned Judgment and Decree of the trial Court.

Hence, the appeal is dismissed. In the circumstances, I.A. No. 1/2014 filed for stay does not survive for consideration and the same is accordingly rejected.