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Judgment
Since common questions of facts and law arise for consideration in these appeals, both the appeals are heard together and disposed off by this
common judgment.
The case of the plaintiff is as follows:
The defendants had approached the plaintiff for a loan of Rs.20,00,000/-. The same had been paid by the plaintiff through cheques and demand
drafts. The defendants had encashed the same. After availing the loan, the defendants had repaid Rs.7,75,000/-, but failed to repay the remaining
amount. A legal notice was issued by the plaintiff, claiming an amount of Rs.20,35,095.05/- towards principal and interest from the defendants. On
service of notice, the defendants entered appearance and denied the suit claim. They contended that there are various transactions between the
plaintiff and the defendants, as a result of which it is the plaintiff who is due to pay amounts to the defendants. Based on the pleadings, the Trial
Court framed the following issues:
Whether the plaintiff prove that she had advanced a loan of Rs.20 lakhs to the defendants as alleged in para No.2 of the plaint?
Whether the defendants prove that they have paid certain sums to the plaintiff in the running account and with detailed statement of outstanding
from the plaintiff and her family company has been sent to her on 17.4.2000, which is confirmed by her and as such the question of paying any
balance to be paid out of the aforesaid sum of Rs.20 lakhs to the plaintiff does not arise at all?
Whether the plaintiff prove that the defendants are liable to pay the suit claim as prayed for?
What decree or order?
In order to prove her case, the plaintiff got herself examined as PW-1 and got marked eight documents namely, Exhibits P1 to P8 on her behalf.
The defendants examined the third defendant as DW-1 and got marked nine documents as Exhibits D1 to D9 on their behalf. By the impugned
order, the suit was partly decreed for a sum of Rs.8,97,207/- along with interest at 20% per annum from 25.10.1999 till date of suit and at 6% per
annum from date of suit till date of payment. Aggrieved by the same, defendants have filed R.F.A.427 of 2010. The plaintiff has filed R.F.A.1027
of 2010.
Learned counsel for the appellants - defendants contend that the Trial Court has misdirected itself in passing the impugned order. It has failed to
consider the relevant material produced by the defendants in support of their case. By non-consideration of the available material, the Trial Court
has proceeded to pass an impugned order. His specific case is with reference to Issue No.2, which has been dealt with by the Trial Court in
Paragraph 10 of its judgment. The Trial Court has wrongly held that the defendants have not produced any evidence to substantiate their
contention that they have made payments to the plaintiff in the running account and that no amount is due to the plaintiff. Therefore, he pleads that
the appeal be allowed by dismissing the suit.
On the other hand, the learned counsel for the plaintiff - appellant in R.F.A.1027 of 2010, defends the impugned action. He contends that the
only error committed by the Trial Court is to the extent of not having granted the decree in the suit as prayed for but instead, having misdirected
itself in deducting amounts said to have been paid by the plaintiff. Hence, he prays that the suit be decreed for the entire amount as sought for.
Heard learned counsels and examined the records.
The following points arise for consideration in this appeal:
Whether the Trial Court was justified in partly decreeing the suit?
Whether there is perversity in the order of the Trial Court that calls for interference?
The primary contention of the learned counsel for the defendants is that the burden of proving Issue No.2 was on them as to whether they had
paid certain sums to the plaintiff in the running account. In support of such a contention, one of the documents relied upon by them was Exhibit D4.
Exhibit D4 is the Photostat copy of the Statement of Accounts, as on 23.10.1999. However, in answering Issue No.2, the Trial Court has held
that the defendants have not produced the statement of accounts sent to the plaintiff on 17.04.2000 and that they have not produced any defence.
Reply of the plaintiff''s counsel to the said contention is that if at all the defendants were to claim money from the plaintiff, they should have filed a
claim for a set off or a counter claim or to have filed a separate suit seeking recovery of money. They have not done so. Therefore, no interference
is called for.
The burden to prove Issue No.2 was placed on the defendant. It was the defendant who had produced various documents, including Exhibit D4
in support of his case. The Trial Court was expected to look into the documents and record its findings on the same. The contention of the learned
counsel for the plaintiff that notwithstanding the various transactions between the parties, this sum of Rs.20,00,000/- was paid outside the
transaction, is also a matter that is required to be considered by the Trial Court, with reference to Exhibit D4. It has failed to do so. Therefore, it
has wrongly held Issue No.2 against the defendants. We have no hesitation to say that, holding the issue against the defendants even after looking
into the documents produced by the defendants, has led to miscarriage of justice. Issue No.2 would necessarily have to be answered after
considering the documents produced by the defendants. Furthermore, the Trial Court looked into Exhibit D4 for the purpose of answering Issue
No.3. Whether the defendants are justified or not, is not being gone into by us. It is sufficient to notice that while answering Issue No.2, the Trial
Court has held that no material has been produced by the defendants. While answering Issue No.3, it has relied on the very documents in support
of its findings recorded on Issue No.3. The Trial Court has misdirected itself in appreciating the material on record. It has applied one set of
documents to one issue and failed to consider it so far as other issue is concerned.
Issue No.1 is answered by holding that the Trial Court was not justified in decreeing the suit. Issue No.2 is answered by holding that there is
perversity in the order of the Trial Court, for the aforesaid reasons and therefore, interference is called for.
Under these circumstances, it is just and proper that the Trial Court reconsiders the entire material on record and thereafter passes an
appropriate order.
Consequently, R.F.A.427 of 2010 and R.F.A.1027 of 2010 are disposed off. The judgment and decree in O.S.No.15467 of 2001 dated
3.12.2009 passed by the IV Additional City Civil & Sessions Judge, Mayo Hall Unit, Bangalore (CCH-21) is set aside. The matter is remanded
to the Trial Court for a fresh decision, in accordance with law. The Trial Court is directed to consider the evidence led in by the parties and
thereafter to pass a judgment on the same.
The parties to appear before the Trial Court on 02.4.2018. Since the suit is pending since the year 2001, the Trial Court is directed to dispose off
the same within a period of three months from that date. It is made clear that the parties will not be entitled to lead any further evidence.