Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Judgment in Commercial Suit 160/2019
Lodged on : 05.10.2019
Admitted on : 24.10.2019
Decided on : 06.01.2023
Duration : Y M D
3 3 1
COMMERCIAL SUIT NO. 160 OF 2019
CNR NO. : MHCC010109472019
Exh.29
Smt. Laxmi Rama Gadge,
Age 32 years, Indian Inhabitant,
residing and carrying business at
Room No. 119, Gouri Shankar Nagar,
Masrani Lane, Halaw Paul, Kurla
West, Mumbai – 400 070. ... Plaintiff
Versus
Shri. Balkrishna Pralad Bhosale,
an adult, working for gain at Kurla
Bus Depot LBS Marg, Kurla West,
Mumbai – 400 070 and residing at
Ali dada Estate, Nehru Nagar,
Near Kurla Station, Mumbai 400 024. ...Defendant
Appearance:
Adv. Mr. B.S. Patil for the Plaintiff.
Adv. Angela Singha for Defendant.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 6th January 2023
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J U D G M E N T
(Delivered on :06.01.2023)
This is a Suit filed by the plaintiff for the recovery of the
amount of Rs.6,74,100/ from the defendant along with interest at the
rate of 18% per annum on the principal amount from the date of filing
of the suit till its realization.
The brief facts of the plaintiff's case is as under:
2. The plaintiff is residing at Kurla (West), Mumbai. The
plaintiff advanced to the defendant a sum of Rs.6,00,000/ on
15.06.2018 in cash with interest at the rate of 18% per annum for
which the defendant had executed Demand Promissory Note in favour
of the plaintiff. The plaintiff on several occasions orally demanded from
the defendant the repayment of the said amount of Rs.6,00,000/, but
the defendant failed and neglected to pay the same. Hence, the plaintiff
by his Advocate's notice dated 31.12.2018 finally called upon the
defendant to pay the outstanding amount, but the defendant failed and
neglected to pay the said sum. Now there is due and payable by the
defendant to the plaintiff a sum of Rs.6,74,100/. Hence, the plaintiff
prayed that the defendant be ordered to pay the sum of Rs.6,74,100/
to the plaintiff along with interest at the rate of 18% per annum over
the principal amount from the date of filing of the suit till its
realization.
3. The defendant appeared before the Court and submitted
his Written Statement at Exh.7 and resisted the suit. The defendant
submitted that the suit filed by the plaintiff is throughly misconceived
and devoid of any merits. The plaintiff has filed the suit in collusion
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with her husband for their personal unlawful gain. The defendant and
Mr. Rama Gadge, the husband of the plaintiff were working for gain in
BEST and during the course of their service, they were having friendly
relations amongst them. In the month of December, 2017, for the
purpose of performing function, the defendant was in need of some
amount. Therefore, he requested Mr. Rama Gadge to lend him an
amount of Rs. 2,00,000/. The defendant decided to take the loan of
Rs.2,20,000/ and return immediately an amount of Rs.20,000/
therefrom to the plaintiff, to which the defendant agreed and thus, she
issued a cheque of Rs.2,20,000/ which credited in the account of the
defendant on 11.12.2017 and thereafter, by withdrawing the sum of
Rs.20,000/, the defendant has repaid the plaintiff, as initial interest on
the aforesaid sum of Rs.2,20,000/. Though the aforesaid amount was
paid by the plaintiff, time and again, the defendant repaid the same
along with interest thereon. As of now, nothing is due and payable by
the defendant to the plaintiff. At the time of advancing the loan amount
of Rs.2,20,000/, the plaintiff and her husband took signature of the
defendant on two blank papers and upon being asked by the defendant
the reasons thereof, they informed that they would fill up the amount of
Rs.2,20,000/ in two parts on two said papers. However, after going
through the contents of the plaint, to his utter shock and surprise, the
defendant realized that by forging his signature, the plaintiff and her
husband in collusion with each other created fake Demand Promissory
Note. It is pertinent to note that though the amount of Rs.2,20,000/
the plaintiff given by cheque and thus, it is highly improbable and
inconceivable that such huge amount as claimed by the plaintiff is paid
by her in cash. The defendant do not aware about issuance of any
notice. Since the date of availing the loan amount of Rs.2,20,000/, the
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defendant is regularly paying interest and therefore nothing is due and
payable by the defendant to the plaintiff.
4. It is contended by the defendant that the suit is filed by the
plaintiff in collusion with her husband by suppressing material facts. It
is submitted that the suit filed by the plaintiff is throughly misconceived
and devoid of any merits and therefore the said suit is liable to be
dismissed. Lastly, the defendant prayed for dismissal of the suit with
costs.
5. From the rival contention of the parties in the pleading, my
Learned Predecessor has framed following issues at Exh.9 and I have
recorded my finding against each of them with the reasons to follows:
ISSUES FINDING
1) Does the plaintiff prove that the
plaintiff advanced Rs.6,00,000/ at
the rate of 18% per annum to the
defendant?
In the affirmative.
2) Whether the plaintiff proves that
the defendant has executed the
promissory note in favour of
plaintiff?
In the affirmative.
3) Whether the defendant proves
that the husband of the plaintiff
advanced Rs.2,20,000/ towards
loan to him and he immediately
repaid Rs.20,000/ to the husband
of the plaintiff?
In the negative.
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4) Whether the defendant proves
that defendant has repaid the entire
amount to the husband of the
plaintiff?
In the negative.
5) Whether the plaintiff is entitled
for recovery of the amount of
Rs.6,74,100/? If yes, at what rate
of interest and on what amount?
Yes. Plaintiff is entitled to recover
an amount of Rs.6,74,100/
together with interest @ 18% p.a.
on Rs. 6,00,000/
6) What order and decree? As per final order.
6. In support of the pleading, the plaintiff examined her
Power of Attorney holder namely Mr. Rama Malku Gadge at Exh.10.
The plaintiff filed on record Original Demand Promissory Note at
Exh.14, copy of Form No. 10 at Exh.15, Demand Notice at Exh.16, copy
of Money Lending License at Exh.17, extract of Cash Book at Exh.18,
extract of Ledger at Exh.19, copy of Power of Attorney at Exh.20. The
evidence closure pursis of the plaintiff is at Exh.21. In the rebuttal,
D.W.1 Balkrishna Bhosale is examined at Exh.13. The defendant filed
the documents along with list Exh. 26. The defendant filed original copy
of letter of the bank at Exh.27. The evidence closure pursis of the
defendant is at Exh.28.
R E A S O N S
7. Heard Learned Advocate B.S. Patil for the Plaintiff and
Learned Advocate Angela Singha for the Defendant at length.
Defendant also filed written argument in this suit.
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As to issue nos. 1 and 2
8. Both these issues are interconnected with each other.
Hence, in order to avoid repetition of evidence, I discussed both the
issues simultaneously. It is averred by the plaintiff that the defendant
approached to the plaintiff on 15.06.2018 for the loan of Rs. 6,00,000/
with interest at the rate of 18% per annum, which the plaintiff has
advanced in cash of the said amount of Rs.6,00,000/ o n the same day
on executing the Demand Promissory Note by the defendant. The
defendant also signed the Demand Promissory Note dated 15.06.2018
in his presence and delivered to the plaintiff. The defendant also signed
the Form No. 10 acknowledging that he has received the amount of Rs.
6,00,000/ in cash by way of loan. According to the plaintiff, the
defendant failed to pay the due amount to the plaintiff. According to
the plaintiff, an amount of Rs.6,74,100/ is outstanding from the
defendant. On the contrary, it is the contention of the defendant that in
December 2017, the defendant was in need of money for his son's
wedding. The defendant shared his problems with the husband of the
plaintiff and the husband of the plaintiff agreed to advance the said
amount to the defendant. According to the defendant, the husband of
the plaintiff handed over the cheque of Rs. 2,20,000/ in his favour. He
further contended that he was constantly paying interest on the
principal amount for 16 months in cash. He further contended that at
no point of time he met to the plaintiff. The defendant further
contended that at the time of advancing the loan amount of
Rs.2,20,000/, the plaintiff and her husband took his signature on two
blank papers. The defendant realized that by forging his signature, the
plaintiff and her husband created fake Demand Promissory Note.
According to the defendant, he has repaid the entire amount to the
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husband of the plaintiff.
9. In support of the pleading, the plaintiff examined her
Power of Attorney holder namely Mr.Rama Gadge at Exh.10. P.W.1
Mr.Rama Gadge deposed that the defendant approached the plaintiff on
15.06.2018 for a loan of Rs.6,00,000/ along with interest at the rate of
18% per annum and the plaintiff advanced the said amount of
Rs.6,00,000/ on the same day and the defendant executed Demand
Promissory Note in favour of the plaintiff. The defendant signed
Demand Promissory Note in his presence and delivered to the plaintiff.
He further deposed that the said Demand Promissory Note and Form
No. 10 bears the signature of the defendant. He further stated that the
entire loan transaction took place in his presence. The plaintiff
demanded the loan amount and accrued interest repeatedly from the
defendant, but the defendant failed to pay the accrued interest amount.
P.W.1 Mr.Rama Gadge further testified that the defendant failed to pay
the amount to the plaintiff and hence the plaintiff through his Advocate
sent notice to the defendant on 31.12.2018. The said demand notice is
at Exh.16. The oral evidence of P.W.1 Mr.Rama Gadge is well supported
by the documentary evidence filed at Exh.14 to 19. The plaintiff has
placed on record the original Demand Promissory Note at Exh.14,
which shows that on 15.06.2018 the defendant has executed the said
Demand Promissory Note in favour of the plaintiff and the defendant
agreed to pay sum of Rs.6,00,000/ to the plaintiff alongwith 18%
interest. The said Demand Promissory Note bears the signature of the
defendant. It also bears the thumb impression of the defendant. The
copy of Form No. 10 at Exh.15 shows that on 15.06.2018, the
defendant has obtained the loan of Rs.6,00,000/ from the plaintiff and
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the defendant has executed the Demand Promissory Note in favour of
the plaintiff. The Form No. 10 at Exh.15 also bears the signature of the
plaintiff as well as defendant. The copy of Cash Book at Exh.18 and 19
also shows that on 15.06.2018, the defendant has obtained the loan of
Rs.6,00,000/ from the plaintiff and executed a Demand Promissory
Note in favour of the plaintiff and agreed to repay the loan amount with
interest at the rate of 18% per annum. Thus, the Demand Promissory
Note as well as Form No. 10 goes to show that the plaintiff advanced a
loan of Rs.6,00,000/ in favour of the defendant and the defendant
executed a Demand Promissory Note on 15.06.2018 in favour of the
plaintiff and agreed to pay the loan amount to the plaintiff. The
defendant in his Written Statement has specifically admitted his
signature on the Demand Promissory Note. The defendant also admitted
in his cross examination that the Demand Promissory Note at Exh.14
bears his signature. The defendant further admitted that the husband of
the plaintiff did not force him to sign on the paper. Thus, the document
i.e. Demand Promissory Note shows that the defendant after receiving
the loan amount of Rs.6,00,000/ has signed the Demand Promissory
Note and agreed to pay the loan amount with interest to the plaintiff.
The oral as well as aforesaid documentary evidence tendered by the
plaintiff was not shaken in cross examination. The defendant took the
crossexamination of the plaintiff, but failed to obtain any admission
from the plaintiff. In my view, the oral evidence of the plaintiff is not
shattered in crossexamination. Therefore, the said evidence cannot be
disbelieved.
10. The oral evidence of the plaintiff is supported by
documentary evidence. The documentary evidence tendered by the
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plaintiff goes to show that the plaintiff has advanced a loan of
Rs.6,00,000/ in favour of the defendant on 15.06.2018 and
accordingly the defendant has signed Form No. 10 under Bombay
Money Lenders Act and thereby acknowledged that he has received the
amount of Rs.6,00,000/ in cash by way of loan with interest from the
plaintiff. The Demand Promissory Note at Exh.14 goes to show that the
plaintiff advanced a loan of Rs.6,00,000/ to the defendant and
defendant executed the Demand Promissory Note in favour of the
plaintiff on 15.06.2018 and agreed to repay the loan amount with
interest.
11. It is the contention of the defendant that the plaintiff has
obtained his signature on two papers while lending a sum of
Rs.2,20,000/. According to the defendant, the plaintiff and her
husband has created fake Demand Promissory Note. In the present case,
the defendant in his oral evidence has admitted his signature on the
Demand Promissory Note. The plaintiff was well within its power to fill
up the Demand Promissory Note and on the basis of completed
Promissory Note entitled to sue for the recovery of money due under
the Note. Once the execution of the document is admitted and the
defendant takes a plea that the Demand Promissory Note was an
inchoate Negotiable Instrument, it is for him to prove the failure of
consideration. A person signing the instrument or an inchoate in
Negotiable Instrument thereby gives an authority to the holder of the
instrument to fill up the same, make a Negotiable Instrument and sue
upon it. The Hon'ble Supreme Court in the case of Bharat Barrel and
Drum Manufacturing Company Vs. Amin Chand Payrelal : AIR 1999
SC 1008 in which it is held that when the defendant takes a plea that
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the Promissory Note was executed for a collateral security and not for
consideration received, it is for the defendant to prove absence of
consideration and onus cannot be shifted on to the plaintiff. Applying
aforesaid principles of law to the present case, it appears that the
defendant failed to prove that the Promissory Note was not executed for
consideration. The defendant failed to prove the absence of
consideration.
12. Once the signature in the Promissory Note is admitted, the
plaintiff i.e. the holder of the Promissory Note is entitled to fill up the
same and sue upon it in view of Section 20 of the Negotiable
Instruments Act. Section 20 of the Negotiable Instruments Act reads as
under :
“20. Inchoate stamped instruments – Where one person
signs and delivers to another a paper stamped in accordance
with the law relating to negotiable instruments then in force
in, and either wholly blank or having written thereon an
incomplete negotiable instrument, he thereby gives prima
facie authority to the holder thereof to make or complete, as
the case may be, upon it a negotiable instrument, for any
amount specified therein and not exceeding the amount
covered by the stamp. The person so signing shall be liable
upon such instrument, in the capacity in which he signed the
same, to any holder in due course for such amount :
provided that no person other than a holder in due course
shall recover from the person delivering the instrument
anything in excess of the amount intended by him to be paid
thereunder.”
13. The position of law which emerges is that once execution of
the promissory note is admitted, the presumption under Section 118(a)
would arise that it is supported by consideration. Such a presumption is
rebuttable. The defendant can prove the nonexistence of consideration
by raising a probable defence. If the defendant is proved to have
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discharged the initial onus of proof showing that the existence of
consideration was improbable or doubtful or the same was illegal, the
onus would shift to the plaintiff who will be obliged to prove it as a
matter of fact and upon its failure to prove would disentitle him to the
grant of relief on the basis of the negotiable instrument. The burden
upon the defendant of proving the nonexistence of the consideration
can be either direct or by brining on record the preponderance of
probabilities by reference to the circumstances upon which he relies. In
such an event the plaintiff is entitled under law to rely upon all the
evidence led in the case including that of the plaintiff as well. In case,
where the defendant fails to discharge the initial onus of proof by
showing the nonexistence of the consideration, the plaintiff would
invariably be held entitled to the benefit of presumption arising under
Section 118(a) in his favour. The Court may not insist upon the
defendant to disprove the existence of consideration by leading direct
evidence as existence of negative evidence is neither possible nor
contemplated and even if led is to be seen with a doubt. The bare denial
of the passing of the consideration apparently does not appear to be any
defence. Something which is probable has to be brought on record for
getting the benefit of shifting the onus of proving to the plaintiff. To
disprove the presumption the defendant has to bring on record such
facts and circumstances, upon consideration of which the court may
either believe that the consideration did not exist or its nonexistence
was so probable that a prudent man would, under the circumstances of
the case, shall act upon the plea that it did not exist.
14. The presumption under Section 118 of the Negotiable
Instrument Act is one of law, and thereunder, the Court shall presume
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that the Promissory Notes were made for consideration. When there is a
statutory presumption in favour of the plaintiff, it has to be rebutted by
proof and not by a bare explanation. Once statutory presumption is
raised, onus of proving absence of consideration is on the executant.
The defendant has not led any evidence in order to prove absence of the
consideration. The plaintiff has right to fill up the suit Promissory Note
under Section 20 of the Negotiable Instruments Act, whereupon the
holder is authorized to fill up the blanks and to negotiate the
instrument for a certain amount. The oral evidence of the defendant is
too far away from the statutory presumption under Section 118 of the
Negotiable Instruments Act. Once the defendant has not disputed his
signature on the Promissory Note, he cannot challenge that the
document is forged one. Learned Advocate for the plaintiff has rightly
submitted ruling of the Hon'ble High Court of Judicature at Madras in
the case of Narayanan Vs. Ravi (Supra) wherein it is observed that
there is statutory presumption created under Section 118 of the
Negotiable Instruments Act in favour of the plaintiff. It is for the
defendant to have dislodged the said presumption by letting in cogent
evidence to show absence of consideration. The plaintiff also rightly
submitted the ruling of the Hon'ble Madras High Court in the case of R.
Barathbaran & Ors. Vs. R. Nallathambi in S.A. No. 142 of 2012
dated 02.03.2022 wherein it is observed that the holder is authorized
to fill up the blanks and to negotiate the instrument for a certain
amount and the “execution” of cheque and “issuance” of cheque.
15. It is contended by the defendant that by forging his
signature, the plaintiff and her husband created a fake Demand
Promissory Note. However, the defendant has not adduced any
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evidence in order to prove that the said Demand Promissory Note was
fake one and the plaintiff has forged his signature. If the plaintiff or her
husband has forged the signature of the defendant and created a fake
Demand Promissory Note, in that case, the defendant could have
approached to the Police Station and lodged report. However, in the
present case, no written complaint was filed by the defendant against
the plaintiff on the ground that the plaintiff has created a fake Demand
Promissory Note and forged his signature. The defendant himself
admitted in the crossexamination his signature on the Demand
Promissory Note. Once the defendant himself has admitted his signature
on the documents, then he cannot challenge that the said document is
fake one or forged one.
16. In the present case, the oral evidence coupled with the
documents i.e. Demand Promissory Note and copy of Form No. 10 goes
to show that the plaintiff advanced a loan of Rs.6,00,000/ in favour of
the defendant. The plaintiff by leading oral and documentary evidence
sufficiently proved that the plaintiff advanced an amount of
Rs.6,00,000/ in favour of the defendant. The plaintiff also sufficiently
proved that the defendant also executed Demand Promissory Note in
favour of the plaintiff.
17. It is submitted by Learned Advocate for the defendant that
the Power of Attorney holder of the plaintiff cannot depose for the
plaintiff. Hence, according to the defendant, PW1 cannot depose on
behalf of the plaintiff. Hence, the defendant submitted that the evidence
led by the Power of Attorney holder of the plaintiff cannot be relied
upon. In support of her submission, she placed reliance on the ruling of
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the Hon'ble Supreme Court in the case of Janki Vashdeo Bhojwani &
Anr. Vs. Indusind Bank Ltd. & Ors. : (2005) 2 SCC 217 wherein it is
observed by the Hon'ble Supreme Court that, “the Power of Attorney
holder cannot depose for principal in respect of matters of which
only principal can have personal knowledge and in respect of which
principal is liable to be cross examined”.
18. I have gone through the aforesaid ruling. There cannot be
dispute about the propositions laid down in the aforesaid ruling.
However, in the present case, it appears that the plaint is signed by the
Power of Attorney holder of the plaintiff. Therefore, the Power of
Attorney holder of the plaintiff is having personal knowledge about the
averments made in the plaint. The plaintiff's Power of Attorney holder is
having personal knowledge about the suit transaction. Therefore, he
can depose on behalf of the plaintiff. Therefore, I find no substance in
the submission of Learned Advocate for the defendant that the Power of
Attorney holder of the plaintiff cannot depose in place of plaintiff. So
far as ruling submitted by the defendant is concerned, the facts of the
reported case and the present case are not similar. In the present case,
the Power of Attorney holder of the plaintiff is having personal
knowledge in respect of present suit transaction and hence he can
depose on behalf of the plaintiff.
19. It is further submitted by the Learned Advocate for the
defendant that in the plaint it is nowhere mentioned that the
transaction took place in presence of husband of plaintiff. It is argued
that for the first time the Power of Attorney holder of the plaintiff has
stated that the transaction took place in his presence. According to the
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defendant, in absence of pleading evidence, if any, cannot be
considered. In support of this submission, she placed reliance on the
ruling of the Hon'ble Supreme Court in the case of Bacchaj Nahar Vs.
Nilima Mandal & Anr. : (2008) 17 SCC 491 wherein the Hon'ble
Supreme Court stated about the object and purpose of pleadings and
issues.
20. There cannot be dispute about the propositions laid down
in the aforesaid ruling. In the present case, the suit is filed by the Power
of Attorney holder on behalf of the plaintiff. Therefore, the plaintiff's
Power of Attorney holder is having knowledge about the suit
transaction. P.W.1 deposed in the matter on behalf of the plaintiff. The
transaction is also taken place in his presence. Merely because it is not
mentioned in the plaint that the transaction took place in presence of
husband of the plaintiff, only on that count, the entire evidence of the
plaintiff's Power of Attorney cannot be rejected. In my view, there is no
need to mention in the plaint that the husband of the plaintiff was
present at the time of alleged transaction. As per the averments in the
plaint, the transaction took place between the plaintiff and the
defendant. Therefore, I find no substance in the contention of the
Learned Advocate for the defendant that evidence led by P.W. No. 1 be
rejected as he was not present at the time of transaction. So far as the
ruling of Bacchaj Nahar (Supra) case is concerned, in that case new
case was made out at the time of deciding second appeal. In that case,
the Hon'ble High Court has converted the suit for title into the suit for
enforcement of easementary right. However, in the present case, the
suit was not converted. Therefore, the facts of the reported case and the
facts of the present case are not similar. Hence, the ruling submitted by
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the Learned Advocate for the defendant is not helpful for the defendant.
21. It is further argued by the Learned Advocate for the
defendant that the burden lies upon the plaintiff to establish his case on
the basis of material available and the plaintiff cannot rely on the
weaknesses of the defendant. It is submitted that the plaintiff has not
established his case. Therefore, the plaintiff is not entitled to claim the
relief, against the defendant. In support of her submission, she placed
reliance on the ruling of the Hon'ble Supreme Court in the case of
Rangammal Vs. Kuppuswami & Anr. : (2011) 12 SCC 220 wherein it
is observed as follows:
“Evidence Act 1872 S.101 Burden of proof – Genuineness of a
document – Burden lies on the party who relies on validity of a
document to prove its genuineness – Only then onus will shift
on the opposite party to dislodge such proof and establish that
the document is sham and bogus – Fraud/Forgery/Mala Fides –
Civil Procedure Code, 1908 – Or.6 R.4 – Transfer of Property
Act, 1882, Ss.7 and 8.”
22. I have gone through the aforesaid ruling. There cannot be
dispute about the propositions laid down in the said ruling. In that case,
the sale of land was effected by de facto guardian on behalf of the
minors. In that case, the genuineness of a document was challenged.
However, in the present case there was no transaction of sale between
the parties. The facts of the reported case and the facts of the present
case are not similar. Hence, the said ruling is not helpful for the
defendant. In the present case, the plaintiff by leading oral as well as
documentary evidence sufficiently proved that she advanced amount to
the defendant. The burden of proving the suit transaction is discharged
by the plaintiff. Now the onus is upon the defendant to prove that the
Demand Promissory Note is bogus one. No such evidence was adduced
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by the defendant. Hence, I find no substance in the argument of
Learned Advocate for the defendant that the plaintiff has not positively
proved the suit transaction.
23. In the present case, the plaintiff by leading oral and
documentary evidence sufficiently established that the plaintiff has
advanced the loan of Rs.6,00,000/ to the defendant with interest at the
rate of 18% per annum. The plaintiff also sufficiently proved by leading
documentary evidence i.e. Demand Promissory Note that defendant
executed the Demand Promissory Note in favour of the plaintiff and
agreed to repay the amount with interest. Hence, I answer issue nos. 1
& 2 in the Affirmative.
As to issue no. 3
24. It is contended by the defendant that in the year 2017 he
was in need of money for his son's wedding. Therefore, he approached
to Mr.Rama Gadge i.e. husband of the plaintiff and he offered his help
by way of advancing an amount of Rs.2,00,000/ with 10% interest.
The defendant further contended that the plaintiff's husband informed
him that in order to make advance for the amount of Rs.2,00,000/, he
will have to make immediate payment of interest of Rs.20,000/ and
therefore, he advised him to apply for loan amount of Rs.2,20,000/.
The defendant further contended that Mr.Rama Gadge handed over the
cheque of Rs. 2,20,000/ in favour of the defendant. The defendant
further contended that he has immediately repaid Rs.20,000/ to the
husband of the plaintiff. In support of this pleading, the defendant
namely Mr. Balkrishna Bhosale has deposed that in the month of
December 2017, he was in urgent need of money for his son's wedding.
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The husband of the plaintiff handed over the cheque of Rs.2,20,000/ in
his favour and defendant deposited the said cheque in his bank account
of Abhudaya Coop. Bank, Nehru Nagar Branch. He further deposed
that the said cheque has been honoured and they received an amount of
Rs.2,20,000/. He further stated that he had handed over interest of
Rs.20,000/ to Mr. Rama Gadge, as agreed between the parties.
However, except the above oral evidence of the defendant, there is
absolutely no documentary evidence on record to show that in the year
2017, the defendant has obtained the loan of Rs.2,20,000/ from the
husband of the plaintiff and the defendant immediately paid
Rs.20,000/ to the husband of the plaintiff. There is no documentary
evidence on record to show that in December 2017 the transaction took
place between the husband of the plaintiff and the defendant for
advancing the loan of Rs.2,20,000/. Admittedly, the suit transaction is
of the year 2018 i.e. 15.06.2018. The averment of the plaint is not
showing that in the year 2017, the amount of Rs.2,20,000/ is advanced
to the defendant by the husband of the plaintiff. If really the defendant
has repaid the amount of Rs.20,000/ to the husband of the plaintiff, in
that case, the defendant could have obtained the receipt from the
plaintiff. However, no receipt is placed on record showing that the
amount of interest of Rs.20,000/ was paid to the husband of the
plaintiff. In my view, there is absolutely no documentary evidence to
show that the husband of the plaintiff advanced the loan of
Rs.2,20,000/ to the defendant and immediately the defendant repaid
the amount of interest of Rs.20,000/ to the husband of the plaintiff.
The defendant has not examined any witness to prove the alleged
transaction of the year 2017. In short, there is absolutely no evidence
on record to show that the husband of the plaintiff advanced the loan of
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Rs.2,20,000/ to the defendant and the defendant paid the amount of
interest of Rs.20,000/ immediately to the husband of the plaintiff.
Hence, I hold that the defendant has failed to prove that the husband of
the plaintiff advanced the loan amount of Rs.2,20,000/ to the
defendant and the defendant immediately repaid the amount of
Rs.20,000/ towards interest to the husband of plaintiff. Hence, I
answer issue no. 3 in the negative.
As to issue no. 4
25. It is contended by the defendant that he has paid the entire
amount to the husband of the plaintiff. The total loan amount of
Rs.2,20,000/ was paid by the defendant and no amount is due from
him to the plaintiff. To that effect, the defendant Balkrishna Bhosale is
examined at Exh.13. He has reiterated the contents of his Written
Statement. However, except the oral evidence, there is absolutely no
evidence on record to prove that the defendant has repaid the entire
amount to the husband of the plaintiff. The bank statement of the
defendant is not showing that the amount of Rs.2,20,000/ was
transferred in the account of plaintiff. There is no receipt on record in
order to prove the repayment was made by the defendant to the
plaintiff. In short, except the bare words of the defendant, there is
absolutely no evidence on record to prove that the defendant has repaid
the entire amount to the husband of the plaintiff and no amount is due
from him to the plaintiff. Hence, I hold that the defendant failed to
prove his contention that he has repaid the entire amount to the
husband of the plaintiff and no amount is due from him to the plaintiff.
Hence, I answer issue no. 4 in the negative.
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20 Judgment in Commercial Suit 160/2019
As to issue no. 5
26. The plaintiff has proved the advancement of the loan of
Rs.6,00,000/ to the defendant and the defendant has executed the
Demand Promissory Note in favour of the plaintiff. The plaintiff
sufficiently proved that an amount of Rs. 6,74,100/ is outstanding from
the defendant. Therefore, the plaintiff is entitled to recover the said
amount from the defendant. The defendant failed to prove his
contention that he repaid the entire amount to the husband of the
plaintiff. Therefore, the plaintiff is entitled to recover the outstanding
amount from the defendant.
27. The plaintiff has claimed interest at the rate of 18% per
annum from the date of filing of the suit till realization. The suit is
based upon the Demand Promissory Note. I am of the view that in
Demand Promissory Note defendant has admitted to repay the loan
amount along with interest at the rate of 18% per annum and hence the
plaintiff is entitled to charge interest at the rate of 18% per annum on
the principal amount. Hence, the plaintiff is entitled to recover the
outstanding amount of Rs.6,74,100/ along with interest at the rate of
18% per annum from the date of filing of the suit till its realization.
Hence, I answer issue no. 5 accordingly.
28. In the light of foregoing discussion, it is concluded that the
plaintiff has sufficiently proved her claim. Hence, she is entitled to
recover the amount from the defendant. Hence, suit needs to be
decreed. Therefore, I proceed to pass the following order :
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21 Judgment in Commercial Suit 160/2019
ORDER
1. Commercial Suit No. 160 of 2019 is decreed with costs.
2. The defendant do pay to the plaintiff an amount of
Rs.6,74,100/ (Rs. Six Lakhs Seventy Four Thousand
and Hundred only) alongwith interest at the rate of
18% per annum on the principal amount of
Rs.6,00,000/ from the date of filing of the suit till
realization within three months from the date of this
decree.
3. Decree be drawn up accordingly.
(Judgment dictated and pronounced in open Court.)
Dated : 06.01.2023 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 06.01.2023
Typed on : 12.01.2023
Checked & Signed on : 27.01.2023
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22 Judgment in Commercial Suit 160/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
01.02.2023 1.40 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Shri. A.S. Salgar
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
06.01.2023
Judgment/order signed by P.O on 27.01.2023
Judgment/order uploaded on 01.02.2023
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