S.MANJUNATH Vs. VIJAYA SHASTRY

JUDGEMENT

(1.) The suit of the present appellant in his capacity as plaintiff filed before the Court of the XXXI Additional City Civil Judge, Bangalore City (CCH No.14) (hereinafter for brevity referred to as "Trial Court") for recovery of a sum of Rs.2,38,000/- together with costs and interest at the rate of Rs.2% per month there upon from the present respondents - defendants came to be dismissed by the Trial Court, by its impugned judgment and decree dated 12th November, 2009 passed in O.S.No.2625/2003. Challenging the said judgment, the plaintiff in the Court below has preferred this appeal.

(2.) The summary of the case of the plaintiff in the Trial Court was that, the first defendant is the wife, second defendant is the son and the third defendant is the daughter of late Sri. D.S. Shastry, who died on

(3.) -02-2003, leaving behind the defendants as his legal heirs to succeed his estate and the defendants are in custody and possession of all the assets, both movable and immovable properties of deceased D.S. Shastry. The plaintiff has contended that late Sri.D.S. Shastry had borrowed a loan of a sum of Rs.1,50,000/- from him on 20-10-2000 and executed three On-Demand Promissory Notes, each for a sum of Rs.50,000/- in favour of the plaintiff, agreeing to repay the same with interest at the rate of Rs.2% per month. The deceased D.S. Shastry had also executed consideration receipts along with the Promissory Notes. However, the said Sri.D.S. Shastry did not repay the loan amount and the interest there upon inspite of repeated requests made by the plaintiff. Therefore, the plaintiff approached the said Sri.D.S. Shastry in the first week of January 2003 and requested him to make payment of the loan amount. At that time, Sri.D.S. Shastry issued three post-dated cheques bearing Nos.972939, 972940 and 972942, all dated 01-02-2003 for a sum of Rs.50,000/- each drawn in favour of the plaintiff. When those cheques were presented for encashment, they were returned with banker's endorsement 'funds insufficient'. The plaintiff has further contended that he also got issued legal notice dated 19-02-2003 to late Sri. D.S. Shastry calling upon him to pay the loan amount. The notice was returned. It is only thereafter the plaintiff came to know that Sri.D.S. Shastry was dead on 03-02-2003. Thereafter, the plaintiff issued one more legal notice to the defendants on 21-03-2003 calling upon them to pay the principal sum with interest. Since the defendants were in possession and custody of all the assets left by deceased Sri.D.S. Shastry and since the defendants did not repay the loan amount and also the interest, the plaintiff was constrained to file the present suit against them for recovery of money. 3. In response to the summons served upon them, the defendants who appeared through their counsel, have filed their Written Statement in the Trial Court contending that, the suit of the plaintiff was not maintainable. They denied that late Sri.D.S. Shastry had borrowed a sum of Rs.1,50,000/- from the plaintiff and had executed three Promissory Notes and consideration receipts. The defendants also denied that the deceased Sri.D.S. Shastry had agreed to pay interest and also issued three post-dated cheques to the plaintiff. They pleaded their ignorance that those three cheques were presented for realisation and the same came to be dishonoured, for which the plaintiff had issued a legal notice. The defendants further contended that deceased Sri.D.S. Shastry was working in the Commercial Department of Air Force Division of M/s. Hindustan Aeronautics Limited, Bangalore (hereinafter for brevity referred to as "M/s. HAL"). The plaintiff had been one of the regular supplier of rice and other items on regular basis to M/s. HAL. The plaintiff used to meet the said Sri.D.S. Shastry at M/s.HAL seeking official favours. The said Sri.D.S. Shastry being an honest and upright Officer, never entertained the plaintiff nor budged to the pressure tactics of the plaintiff. The defendants further contended that Sri.D.S. Shastry had the habit of keeping the signed blank cheques in his table drawer of his office. The plaintiff has lifted the cheques signed and kept by Sri.D.S. Shastry at his office with the connivance of the staff members who were hand-in-glove with the plaintiff and misused the same in order to take revenge against Sri.D.S. Shastry. It is only to harass the defendants after the demise of Sri.D.S. Shastry, the plaintiff has instituted a false suit against them. With this, they prayed for dismissing the suit with costs.