Bangalore District Court
Sathyanarayan A vs Lakshmi on 13 January, 2025
1 O.S.No.6553/2013
KABC010083782013
IN THE COURT OF THE XIV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, AT BENGALURU (CCH-28)
Present : Smt. A.M. NALINI KUMARI, B.A.L, LL.M, PGD in IR & PM,
XIV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 13th day of January, 2025
O.S.No. 6553/2013
Plaintiffs: A. Sathyanarayan,
Since dead by LRs
1. A.S. Arjun,
Aged about 68 years,
R/at Sannidhi,
Channamma Tank Bed Area,
Banashankari 2nd Stage,
Bengaluru 560 070.
2. A.S. Vishnu Bharath,
Aged about 66 years,
R/at No.450, Nandadeep,
7th Main, 4th Block,
Janayagar,
Bengaluru 560 011.
3. Hari Prasad,
Aged about 64 years,
Residing at GKS Industries,
Temple Tree Apartments,
Prycraft, Off: Hadows Road,
Nungambakam,
CHENNAI.
2 O.S.No.6553/2013
(By Sri. K.R.A.K. Advocate)
-Vs.-
Defendants: 1. Lakshmi,
Aged about 45 years,
W/o. Late Rajalingam.
2. R.S. Padma,
Aged about 43 years,
W/o. Late K. Selvam,
3. J. Komala,
Aged about 25 years,
D/o. Late K. Selvam,
4. S. Geethanjali,
Aged about 25 years,
D/o. Late K. Selvam,
5. S. Shruthi,
Aged about 20 years,
D/o. Late K. Selvam,
6. S. Sanjay,
Aged about 23 years,
S/o. Late K. Selvam,
All are r/at No.499,
Krishnappa Layout,
Near Venkateshwara Temple,
Koramangala,
Bengaluru 560 095.
D1 to 3 & 5 : By Sri. J.S.
D6 By Sri. A.N.N. Advocates
D4 : Ex-parte)
Date of Institution of the suit 6/9/2013
Nature of the suit Money suit
Date of the commencement
25/10/2014
of recording of the Evidence.
3 O.S.No.6553/2013
Date on which the judgment
13/01/2025
is pronounced.
Year/s Month/s Days
Total duration 11 04 07
JUDGMENT
1. This is a suit filed by the Plaintiff seeking the relief of
direction to the Defendant No.1 to pay the Plaintiff a sum of
Rs.67,60,000/- at the rate of 2.5% per mensem from the date of
the suit till the payment and on default of the same to direct to
register final decree proceedings and direct the sale of
Mortgaged Property with consequential relief of personal decree
against Defendant No.1 for the balance in case of sale proceeds
that are found insufficient to discharge the decretal amount and
also against Defendant No.2 to 6 out of the assets left by late
Selvam S/o. Kandaswamy and with cost and other
consequential reliefs.
2. The brief facts of the case of the Plaintiff is that, Defendant
No.1 is said to have agreed to stand as a surety to one K.
Selvam, who is her son in law to discharge the liability covered
under the dishonour of cheque by executing a mortgage deed
after K. Selvam having suffered an order of conviction in the
4 O.S.No.6553/2013
hands of the Hon’ble High Court of Karnataka, Bengaluru in
Criminal Appeal No.536/2007, wherein the matter was settled
amicably between the parties and arrived the net amount due
thereon as Rs.30,00,000/- vide order dated 28/5/2009 and as
against security for payment of the said amount with future
interest at the rate of 2.5% per mensem and the said liability was
required to be discharged within 18 months from the date of final
order dated 28/5/2009 and it is also the case of the Plaintiff that
with such a understanding that the post dated cheques issued
by late Selvam towards the said liability will be honoured within
the said period and on its failure to honour the said cheque, the
liability of the 1st Defendant under mortgage will arise. Since late
K. Selvam did not honour the said liability, therefore the liability
of mortgagor ie., Defendant No.1 is said to have arisen by virtue
of deed of Mortgage dated 28/5/2009 and that it is also the case
of the Plaintiff that Defendant No.1 is the mother in law of late K.
Selvam who is known to Sri. K.S. Vishnu Bharath, Special
Power of Attorney of the Plaintiff herein.
3. It is also contended that the 1 st Defendant is the mother-
in-law of K. Selvam, who is also known to the Plaintiff as well as
his son A.S. Vishnubharath. And Defendant No.2 to 6 are wife
5 O.S.No.6553/2013
and children of late K. Selvam, who is said to have demised
intestate on 12/6/2012 leaving behind the Defendant No.2 to 6
as his Class-I legal heirs and to succeed to the estate including
the liability under the Succession Act. And that the said
Defendants are also liable for payment of the said debts of late
K. Selvam and that said K. Selvam is said to have left huge
movable and immovable properties worth crores of rupees for
the Defendant No.2 to 6 to succeed in respect of the same. But
the Defendant No.2 to 6 who are also liable to discharge the
debt of Rs.30,00,000/- with interest at the rate of 2.5% per
mensem.
4. It is also the case of the Plaintiff that out of the relationship
between the Defendant No.1 and K. Selvam, said Defendant
No.1 is said to have executed a simple mortgage deed dated
28/5/2009 in respect of immovable Property owned and
possessed by Defendant No.1 in respect of Property bearing
No.8/1, situated at 6th Main, Tavarekere layout as security for
repayment of said Rs.30,00,000/- which was payable by said
Selvam with interest and as such, said amount was a charge on
the suit Property and the Plaintiff also relies upon a mortgage
deed dated 25/8/2009 and also contended that Defendant No.1
6 O.S.No.6553/2013
had agreed to pay the mortgage amount which includes principal
debt of Rs.30,00,000/- with interest at the rate of 2.5% per
mensem from 28/5/2009 within 18 months from the date of
mortgage and the time fixed therein was expired and the cheque
issued before the Court by K. Selvam was dishonoured, as
such the mortgage came to be enforced by virtue of the
compromise between the parties.
5. And further contended that the Defendants have not made
any payment towards the said amount due. Therefore, based
upon the cause of action that is said to have arisen on
28/5/2009, when the Defendant No.1 had executed a Registered
Mortgage Deed in favour of the Plaintiff in compliance of orders
of Hon’ble High Court of Karnataka in C.R.P. No.352 to
356/2007 dated 28/5/2009, the Plaintiffs have approached this
Court for the relief directing the Defendant No.1 to pay the
amount of Rs.67,60,000/- at the rate of 2.5% per mensem and
in default to draw a final decree directing the sale of mortgaged
Property and also to draw a personal decree against Defendant
No.1 for the balance with other consequential reliefs.
6. The Written Statement is filed by the Defendant No.1 and
7 O.S.No.6553/2013
2 and raising counter claim denying the entire averments of the
plaint and contended that the relationship between the
Defendant No.1 being the mother-in-law of K. Selvam is
admitted and further Defendant No.2 to 6 being wife and
children of late K. Selvam is also admitted and the fact that they
are the legal heirs of K. Selvam is also admitted and that they
have succeeded to his estate is also admitted and the fact that
late K. Selvam is said to have been demised on 12/6/2012 is
also admitted. But the Defendants have denied that Defendant
No.1 is not at all a necessary party to the suit and that
Defendant No.2 to 6 are under no obligation to repay the said
loan amount and further denied of Defendant having executed a
Mortgage Deed dated 20.08.02009 in respect of immovable
Property owned and possessed by the Defendant No.1 towards
security of repayment of a sum of Rs.30,00,000/- which is said to
have been due by her son-in-law is totally denied. But the fact
that the Defendant No.1 had executed a Mortgage Deed
Registered on 25.08.2019 in the office of Sub-Registrar,
Bengaluru is admitted for the limited purpose for the security of
cheques involved in the compromise only and denied the entire
averments and further contended that under para-11 it is
contended by the Defendants that K. Selvam had established
8 O.S.No.6553/2013
an Asphalts Firm under the name and style of Sri. Vigneshwara
Constructions and Asphalts at No.48/6. Kudlu Village, Sarjapura
Hobli, Anekal Taluk in the year 1988 and thereafter during the
year 2004 it was converted into a Private Limited Company
which was functioning in the name and style of S.V. Asphalt
Products Pvt., Ltd., having its office at No.9, House list No.25/1
Bertena Agrahara, Bengaluru and the said K. Selvam is said to
be the authorized signatory and Director of the Company and he
was also the dealer of Asphalt and also a builder apart from
being a Transport Operator.
7. It is also contended that, A.S. Vishnubharath is said to be
the Charted Accountant and doing audit work of ITMS Co., and
also a financier of the said Company and son of the present
Plaintiff. And that along with said Vishnubharath and one Itha
Bhakta Vatsala, who are the relatives and Power of Attorney
holder of ITMS Company, a Partnership Firm are said to have
entered into contract with K. Selvam as a dealer of Bitumen and
state wide dealer and while purchasing the Bitumen and the said
Itha Bhakta Vatsala approached K. Selvam and requested him
for som financial assistance contending that he has got the
imported shipment of Bitumen which is held up by the Customs
9 O.S.No.6553/2013
at the godown of Chennai and for payment of money to procure
the said Asphalt from M/s. PEC Ltd., he needed to pay some
amount to the Commissioner of Central Excise and Customs,
Chennai, to lift the said stored goods from the godown at
Chennai and got introduced to the Plaintiff for the said financial
assistance and that is how the said K. Selvam is come in contact
with the Plaintiff as on 19.02.2001 with a specific agreement and
condition that Itha Bhakta Vatsalam would get materials from
Customs and which he had supplied the materials to the
deceased K. Selvam and in turn to discharge the said loan
amount to the Plaintiff as per ‘Tri Party Agreement’ and a
Memorandum of Understanding Cum Agreement is said to have
been entered into between the parties as on 19/2/2001 and as
per the said Memorandum of Understanding Cum Agreement ,
K. Selvam is said to have demanded for supply of the materials,
but the Plaintiff’s son and the ITMS & Co., had informed that the
materials being seized by the Government of Karnataka of India,
were laid in the Central Excise Settlement Commission and that
they have made application for the release of the said materials
and the same is waiting for the orders from the Department and
however did not heed to the orders or demands of the said K.
Selvam. But however behind the back of said K. Selvam the
10 O.S.No.6553/2013
ITMS & Co., is said to have obtained the orders from the
Department on 17/7/2001, and executed a Power of Attorney in
favour of one Ramachandra S/o. Thathapa and the entire
material was lifted from the Customs Department to him without
supplying any materials of Bitumen to K. Selvam and later on
the Plaintiff’s son and Itha Bhaktha Vatsalam is said to have got
realized the entire amount from the sale of Bitumen which was
against to the Memorandum of Understanding Cum Agreement
dated 19/2/2001. It is also contended that as on the date of
execution of Memorandum of Understanding Cum Agreement,
the son of the Plaintiff got collected blank cheques from the said
K. Selvam and thereafter filed a case Under Section 138 of N.I.
Act, in the names of different persons of the family namely 1)
Satyanarayanan, 2) Vishnubharath 3) Chethanbharat 4) Sindhu
Bharath and Anuradha Bharath, who are the wife and sons of
present Plaintiff and thereby C.C.No.7804/2003, 7805/2003,
7816/2003, 19274/2003 and 19275/2003 came to be filed and
the said cases were dismissed by the 13th ACMM, Bengaluru on
the ground that there was no liability on the part of K. Selvam .
And based upon the said order of acquittal, the Plaintiff is said to
have filed in Criminal Appeal No.356/2007 connected with
352/2007, 353/2007, 354/2007 and 355/2007 and noting that the
11 O.S.No.6553/2013
signatures are not in dispute, a final order was passed by the
Hon’ble High Court of Karnataka as on 17/4/2008 and conviction
order was passed by the Hon’ble High Court of Karnataka as on
17/4/2008 and conviction order was passed double the cheque
amount.
8. It is also contended that, challenging the said order of
conviction, K. Selvam is said to have preferred an appeal before
the Hon’ble Supreme Court which came to be dismissed.
Therefore, taking advantage of the same, all the family members
of the Plaintiff are said to have got arrested the said K. Selvam
and was sent to judicial custody and with no other option, the
matter came to be compromised and on the basis of
compromise in the said above appeals release order was made
as on 28/5/2009 and by virtue of compromise, K. Selvam is said
to have handed over 18 cheques for his release from the judicial
custody. And out of 18 cheques 17 cheques amounting to
Rs.10 lakh each and one cheque for Rs.15 lakhs and totally it
was compromised for 1,85,00,000/- even without there being
any liability to the Plaintiff or his family members, however the
entire loan amount was paid by the deceased K. Selvam to the
Plaintiff’s family members by selling the Industrial Plot situated at
12 O.S.No.6553/2013
Mangalore during the lifetime of deceased K. Selvam . And yet,
the Plaintiffs have sent a notice claiming non compliance of the
compromise made on 27/5/2009 passed in Criminal Appeal
No.356/2007 and connected matters. It is also contended that,
the Plaintiff’s son is also said to have misused the documents of
Itha Bhaktha Vatsalam, Manjunath and I.B. Nagarathna, who
were the Partners and also the Attorney Holders of M/s. ITMS &
Co., and also the 1st party to Memorandum of Understanding
Cum Agreement dated 19/2/2001, who had filed a case against
them for same transaction in C.C.No.18360/2003 and obtained
conviction order against them to the tune of Rs.97,68,000/- and
further contended that the Plaintiff and his family members are
involved in fraudulent transactions to cheat K. Selvam in respect
of Memorandum of Understanding Cum Agreement dated
19/2/2001 and a PCR is also said to have been filed by said K.
Selvam in PCR NO.8600/2009 before the IV. ACMM Court,
Bengaluru, which is said to have been pending for consideration.
9. It is further contended that, in the said compromise
application made on 27/5/2009, the deceased K. Selvam is said
to have offered additional security of immovable Property of 1 st
Defendant in respect of the cheques issued by deceased K.
13 O.S.No.6553/2013
Selvam in respect to the compromise, the simple mortgage
came into force and the Defendant No.1 is not personally liable
for any amount as alleged by the Plaintiffs herein. Therefore, on
these and other grounds the Defendants have contended that
the Plaintiffs have misused the process of law and sought for
counter claim relief by directing the Plaintiff to execute
cancellation of simple Mortgage Deed dated 28/5/2009 in
respect of the Suit Schedule Property.
10. The Plaintiffs in counter to the counter claim have filed
their rejoinder denying the entire averments of the counter claim
and contended that the counter claim revolves in respect of
Memorandum of Understanding Cum Agreement dated
19/2/2001 which was produced in Criminal Appeal No.356/2007
and which fact is also considered in the order dated 17/4/2008
and the said compromise has become final and thus the
Memorandum of Understanding Cum Agreement is ended in the
said aspect and now the Defendant cannot raise the counter
claim on the basis of the said Memorandum of Understanding
Cum Agreement, which is hit by the principles of resjudicata
Under Section 11 and Section 115 of Evidence Act, and further
contended that K. Selvam had filed a frivolous suit against
14 O.S.No.6553/2013
Vishnubharath and his wife in O.S.No. 26839/2009 for recovery
of a sum of Rs.1,93,70,000/- based upon the said Memorandum
of Understanding Cum Agreement dated 19/2/2001 which is
pending for consideration. And therefore the same cannot be
contended in the present suit. Hence, on these and other
grounds the Plaintiffs have sought to dismiss the counter claim
raised by the Defendants.
11. Based upon the above pleadings of the parties, following
issues have been framed :
ISSUES
1. Does the Plaintiff prove Defendants to be
liable to discharge the debt vested with late K.
Selvam ?
2. Does the Plaintiff proves Defendant No.1 is
liable to pay sum of Rs.67,60,000/- (Sixty
Seven Lakh Sixty Thousand only) to the
Plaintiff?
3. What is the rate of interest to which Plaintiff is
entitled?
4. Whether Plaintiff proves to be entitled for final
decree as sought for?
5. Does the Plaintiff proves to be entitled to seek
the personal decree as sought for against
Defendant No.1?
6. Do the Defendants prove the Memorandum of
Understanding Cum Agreement dated
19/2/2001?
15 O.S.No.6553/2013
7. Doe the Defendants prove to be entitled to
seek the counter claim as sought for?
(RECASTED)
Whether the Defendant No.1 and 2 are
entitled for the Mandatory Injunction as sought
for?
8. Whether the suit is barred by limitation?
9. Whether the suit is hit by principles of
Estoppel Under Section 115 of Indian
Evidence Act?
(RECASTED)
“Whether the counter claim raised by the
Defendant is hit by the principles of Estoppel
Under Section 115 of the Indian Evidence
Act?”.
10. Whether there is cause of action to file the
suit?
11. What decree or order?
12. During the pendency of the suit, the original Plaintiff is
said to have demised and his legal heirs are brought on record.
Vishnu Bharath A.S. is said to have examined as P.W.1 and has
reiterated plaint averments. Further, by way of additional
evidence, he is again examined as P.W.2 and got marked Ex.P1
to P27. Per contra, the Defendant No.1 has examined herself
as as DW.1 and got marked Ex.D1 to D13 documents. During
the Cross-examination of DW.1 Ex.C1 to C4 were got marked.
16 O.S.No.6553/2013
13. Heard Learned Counsel for Plaintiff and Defendants.
Both the counsels for Plaintiff and Defendants have filed their
written arguments. Perused the materials available on record.
14. My findings to the above Issues are as under:
Issue No.1 .. In the Negative
Issue No.2 .. In the Negative
Issue No.3 .. In the Negative
Issue No.4 .. Not entitled
Issue No.5 .. Not entitled
Issue No.6 .. In the Affirmative
Issue No.7 .. In the Affirmative
Issue No.8 .. Suit is barred by time
Issue No.9 .. In the Negative
Issue No.10.. In the Negative
Issue No.11 .. As per final order for the following:
REASONS
15. Issue No.1,2 & 3:- These 3 issues are casted upon the
Plaintiff to prove that the Defendant is liable to discharge the
debt vested with late K. Selvam and and consequentially that the
Defendant No.1 is liable to pay a sum of Rs.67,60,000/- to the
Plaintiff with interest. Before looking into the ocular evidence, it
is necessary to look to the documentary evidence placed on
record.
17 O.S.No.6553/2013
16. Ex.P1 is the original Registered Sale Deed dated
16/2/1987 executed by G.N. Sriramu in favour of K. Vajram S/o.
Chinnaswamy in respect of the suit Property which is said to
have been mortgaged, bearing house No.8/1 of Tavarekere
Hobli, measuring 15×40 feet. Ex.P2 is the original Registered
Sale Deed dated 10.2.1993 executed by K.C. Vajram in favour of
Smt. Lakshmi the Defendant No.1 herein. Ex.P3 is the Deed of
Simple Mortgage dated 28.5.2009 executed by Smt. Lakshmi in
favour of A. Sathyanarayanan, represented by his GPA holder
A.S. Vishnu Bharath in respect of the Property bearing No.8/1,
situated at 6th Cross, Tavarekere, consisting of building in the
ground floor and two upper floors, measuring East to West 15
feet, North to South 40 feet. The recitals of the said document
needs a careful appreciation and perusal. “The mortgagor has
agreed to stand as a surety to K. Selvam, who being her son-in-
law to discharge the liability covered under dishonour of
cheques to the mortgagee and suffered conviction order in the
hands of the Hon’ble High Court of Karnataka in Criminal Appeal
No.356/2007 and the matter was settled amicably between the
parties and arrived the net amount due there on as
Rs.30,00,000/- vide order dated 28/5/2009 as against security
18 O.S.No.6553/2013
for payment of the said amount with future interest @ 2.5% per
mensem”. This deed also further reads that “the mortgagor has
agreed to pay Rs.30 lakhs to the mortgagee at his request upon
with interest @ 2.5% per mensem within 18 months”. The said
deed also bears a computerized photo printout of K. Selvam as
consenting witness to the said deed, which is marked on
confrontation to D.W. 1 and admitted as Ex.P3(a). Further the
said DW.1 ie., Defendant No.1 in her Cross-examination has
admitted her computerized photograph at Ex.P3(b) as well.
17. Ex.P4 is the notice issued by BBMP in respect of the suit
Property in favour of Defendant No.1. Ex.P5 is the khata
standing in the name of Defendant No.1 in respect of the said
mortgaged Property. Ex.P6 is the tax demand register reflecting
the name of Defendant No.1. Ex.P7 and P8 are the tax paid
receipts. Ex.P9 and P10 are the encumbrance certificates.
Ex.P11 is the office copy of the Legal Notice dated 25/7/2012,
which is addressed to Smt.Lakshmi, the Defendant No.1 herein
by the Plaintiff A. Satyanarayanan through his counsel, calling
upon the Defendant No.1 to discharge the loan amount by virtue
of the said mortgage entered into by her in favour of the Plaintiff
herein with interest @ 2.5% per mensem and thereby demanded
19 O.S.No.6553/2013
payment of Rs.58,50,000/- from the Defendant herein. Ex.P12
is the postal receipt of the same. Ex.P13 is the RPAD Postal
cover. Ex.P14 is another Legal Notice dated 9/8/2012
addressed by the Plaintiff to the Defendant No.1, drawing the
attention of the Defendant No.1 to the simple Mortgage Deed
dated 28/5/2009 executed by her in favour of the suit Property
towards security of repayment of a sum of Rs.30 lakhs. Ex.P15
is the postal receipt, Ex.P16 is the RPAD acknowledgment.
Ex.P17 is another Legal Notice dated 12/9/2012, the third and
final notice calling upon the Defendant No.1 to repay the said
amount of Rs.50,25,000/-. Ex.P18, 19 and 20 are the postal
receipts and acknowledgments of the same. Ex.P21 is the reply
notice dated 11/10/2012 issued by the Defendant No.1 through
her counsel to the counsel of the Plaintiff herein, wherein the
contents of the said reply needs a careful appreciation, which is
culled out herein for brevity.
“Our client is an illiterate lady without having any
worldly knowledge who does not know reading and writing
except putting her signature in Tamil as ‘Lakshmi’. Our
client is now aged 58 years with indifferent health
conditions and her son-in-law was the sole bread earner
20 O.S.No.6553/2013of the family of her daughter Smt. R.S. Padma”.
Further it is contended that, “Mr. Vishnu Bharath
assured and promised the daughter of our client to get her
husband released subject to signing of the documents as
directed by him both by herself and by our client for which
she had agreed and accordingly Mr. A.S. Vishnu Bharath
had got the son-in-law of our client released from the
detention on 27/5/2009”.
Further contended that “In the office of Sub-
Registrar, Vishnu Bharath had asked our client to sign on
certain papers and accordingly she had put her signature
on the said documents”.
18. And further denied of any loan or debt in favour of the
Defendant No.1 and said contents of the said reply notice is
hereby extracted for brevity.
“There is no loan or debt whatsoever availed by our
client and out client did never receive any consideration
amount from your client or from A.S.Vishbu Bharath.
21 O.S.No.6553/2013Similarly our client did never stand as a surety for and on
behalf of Mr. K. Selvam. Our client did never agreed to
pay sum of Rs.30 lakhs to your client or to pay the interest
@ 2.5% per month”.
19. Ex.P22, 23, and 24 are the cheques dated 10/2/2010,
10/3/2010 and 10/10/2010 issued by K. Selvam. Ex.P25 is the
General Power of Attorney given by the Plaintiff
Sathyanarayanan in favour of his son A.S. Vishnu Bharath to
depose in the present case. Ex.P26 is the Certified Copy of the
Judgment in Criminal Appeal No.356/2007 and connected
matters. Ex.P27 is the application Under Section 147 of the N.I.
Act. r/w. Section 482 of Cr.P.C. for compounding the matter in
Criminal Appeal No.356/2007. The contents of the said
compromise petition needs a careful appreciation, wherein the
accused/respondent namely K. Selvam is said to have come
forwarded to make payment of Rs.30 lakhs as settled and
agreed to pay the same in 3 installments comprising of first
installment of Rs.10 lakhs on or before 10/2/2010 and
subsequent installment thereof at Rs.10 lakhs vide cheque
Nos.20836, 20837, 20838 for a sum of Rs.10 lakhs each dated
10/2/2010, 10/3/2010 and 10/10/2010 respectively for a total
22 O.S.No.6553/2013
sum of Rs.30,00,000/-. Para-4 of the said compromise petition
is drawn attention to : “The Respondent has further agreed to
get security of immovable house Property bearing No.8/1,
situated at 6th Main, Cachier Layout, BTM 1st stage, measuring
600 Sft., together with building comprising of ground floor and 3
upper floors belonging to Smt. Lakshmi W/o. Late Rajalingam,
by way of simple mortgage and undertake to execute a
Registered simple Mortgage Deed in favour of the appellant
within a day or two from the date of his release for a sum of
Rs.30,00,000/- as agreed amount and bear all the expenses
thereto by him. And accordingly the said owner stood as a
surety for discharging the amount involved in this compromise
and interest liability in case of default”.
20. And therefore, on the basis of the said documents, the
Plaintiff has been successful in establishing the liability of K.
Selvam. But whereas, the compromise entered between the
said original Plaintiff and the Respondent does not bear the
signature of the present Defendant No.1 herein. The liability of
the Defendant No.1 would arise only if the Plaintiff is successful
in establishing that the cheques issued by the deceased K.
Selvam was dishonoured and that the liability of K. Selvam was
23 O.S.No.6553/2013
subsisting till the period of 18 months from the date of said
execution of said compromise petition. The said compromise
according to the contention of the Plaintiffs themselves goes to
show that the liability of K. Selvam was reflected and
highlighted as a security. It is further highlighted that the
Respondent has agreed to get a security of immovable house
Property which is in addition. Therefore, the Plaintiff was to
establish the liability of Defendant No.1 in order to establish a
claim under the present issue.
21. The Plaintiff claims that the said K. Selvam had entered
into compromise admitting his liability to pay the sum of Rs.30
lakhs, accordingly he has issued 3 cheques. Further only when
the liability under said 3 cheques would seize upon said K.
Selvam and the liability of Defendant No.1 would arise and
further it is also crucial to note that Defendant No.1 is not a
Class-I legal heir of the said deceased K. Selvam and the said
Property is not the Property of K. Selvam. As an additional
security K. Selvam has secured the Property of Lakshmi the
Defendant No.1 herein in furtherance of 3 cheques issued by
him which are dated 10/2/2010, 10/3/2010 and 10/10/2010.
24 O.S.No.6553/2013
22. It is also noted that as on 12/6/2012 the said K. Selvam is
demised, which fact was within the knowledge of the Plaintiff.
Further it is also crucial to note that there were 3 cheques issued
by the said K. Selvam which were dated 10/2/2010, 10/3/2010
and 10/10/2010. These cheques were not at all presented to the
bank during the lifetime of K. Selvam for the reasons best
known to the Plaintiff. The liability and the transaction was
between Plaintiff and K. Selvam and towards the said alleged
transaction and on the basis of compromise entered into
between the Plaintiff and the said K. Selvam, K. Selvam had
issued 3 cheques. Merely because said K. Selvam had asked
the Plaintiff not to present the said cheques for encashment, it
does not mean that the said K. Selvam had authorized the
Plaintiff to proceed as against the present Defendant No.1
herein or the Property of the Defendant No.1 herein. On perusal
of the entire transaction and entire pleadings, there is no liability
on the part of the Defendant No.1 nor the Defendant No.1 has
acknowledged any amount from the Plaintiff so as to her liability
as a mortgagee was casted upon the Defendant No.1 herein.
Therefore, all the above issues are answered in the Negative.
23. Further it is also crucial to note that the Plaintiff is claiming
25 O.S.No.6553/2013
the liability of Defendant No.1 on the basis of a Registered
simple Mortgage Deed executed by the Defendant No.1. As per
Section 68 of the Indian Evidence Act, the Deed of Mortgage is a
compulsorily attestable document. In order to establish the said
Ex.P3, the Registered deed of Mortgage the Plaintiff has not
examined any of the attesting witnesses to the said document.
For that reason also issue Nos.1 to 3 are answered in the
Negative.
24. Issue No.6 : This issue is casted upon the Defendant to
prove the Memorandum of Understanding Cum Agreement
dated 19/2/2001. In order to establish issue No.6, the
Defendant has reiterated her Written Statement / Counter claim
averments and has got marked Ex.D1 to D13 documents.
25. Ex.D1 is the true copy of the Memorandum of
Understanding Cum Agreement entered into between one Itha
Bhaktha Vatsalam and I.B. Manjunath and K. Selvam and K.
Venkatesh and A.S. Vishnu Bharath and Anuradha Bharath.
Ex.D2 is the proceedings before the Customs and Central
Excise Settlement Commission in Order No.9/2001. Ex.D3 is
the Judgment in Criminal Appeal No.356/2007 and connected
26 O.S.No.6553/2013
matters. Ex.D4 is the Judgment in CC No.18361/2003 passed
by the learned 21st Additional Metropolitan Magistrate, convicting
M/s. ITMS & Company and I.B. Manjunath and I.B.Nagarathna
and I.B.Baktha Vatsalam and Smt. Shyla for the offence
punishable under Section 138 of N.I.Act and sentence to pay a
sum of Rs.97,68,000/-. Ex.D5 is the copy of the Judgment in
CC No.7804/2004 filed by the present Plaintiff as against K.
Selvam for the offence punishable under Section 138 of N.I.Act,
wherein the accused K. Selvam is acquitted of the offence
punishable under Section 138 of N.I. Act. Ex.D6 is the plaint
copy in O.S.No. 26839/2009 filed by K. Selvam since deceased
by R.S. Padma and others as against A.S. Vishnu Bharath,
ITMS Company, one Itha Bhakta Vatsalam, I.B. Manjunath, I.B.
Nagarathna, Shyla, Vishnu Bharath, Anuradha Bharath and M/s.
Project Equipment Corporation Ltd., for the relief of recovery of a
sum of Rs.1,93,70,000/- from the Defendants. Ex.D7 is the
Written Statement filed under Order 8 Rule 1 of C.P.C. filed by
Defendant No.6 & 7 by name Vishnu Bharath and Anuradha
Bharath. Wherein the present Plaintiff at para-24 has contended
as under :-
“Plaintiff has made huge payment to PEC Ltd., ie., 8 th
27 O.S.No.6553/2013Defendant against supply of Bitumen and his grievance
against the PEC Ltd.,. On account of non supply should
be attributed to PEC Ltd., is liable and answerable for
supply of materials”.
26. Ex.P8 is the Certified Copy of documents in PCR
NO.5750/2003 Registered in CC No.7804/2003 filed by the
Plaintiff as against K. Selvam for the offence punishable under
Section 138 of N.I. Act.
27. Hence, on perusal of these documentary evidence, the
contention of Defendant is that, K. Selvam and the Plaintiff’s
son ie., Vishnu Bharath and others had entered into a
Memorandum of Understanding Cum Agreement in respect of
the said Bitumen is perused, and it is seen as per Ex.D1 the
Memorandum of Understanding Cum Agreement produced by
the Defendant. On perusal of these documents, the contention
of the Defendants that there was a ‘Tri Part Agreement’ between
the Plaintiff’s son and the said ITMS Company and with that of
said K. Selvam as contended by the Defendants at Ex.D1 to D9
documents produced by the Defendant is probabalized. Further
the Plaintiff, as the son of the original Plaintiff has admitted
28 O.S.No.6553/2013
categorically the transaction between said K. Selvam with that
of Itha Bhaktavatsalam, I.B. Manjunath and himself and
Anuradha Bharath as per the Memorandum of Understanding
Cum Agreement as well. Therefore, to that extent, the
documents probabalizes the defence raised by the Defendants
in the counter claim. Accordingly, issue No.6 stands answered
in the Affirmative.
28. Issue No. 8 : This issue is upon the Plaintiff to establish
that the suit is within time. The suit of the Plaintiff is one for the
relief of recovery of a sum of Rs.30 lakhs with interest @ 2.5%
per mensem accrued from the date of 28/5/2009 within 18
months. Whereas the Plaintiff has filed the present suit as on
6/9/2013. The suit is for recovery of a sum of Rs.30 lakhs based
upon the transactions entered into between the Plaintiff and the
said K.Selvam. The suit is filed from the date of knowledge of
refusal by Defendant No.1 to pay the said amount by virtue of
reply by Defendant No.1 from the date of transaction or from the
date of compromise between the said K.Selvam and the Plaintiff
in Criminal Appeal No.356/2007, the compromise is said to have
taken place as on 28/5/2009, the cheques were to be honoured
as on 10/2/2010 on or before 10/10/2010. Based upon the said
29 O.S.No.6553/2013
compromise which is dated 28/5/2009, the suit should have
been filed within 3 years from the date of said compromise for
the reasons that the cause of action to Plaintiff would arise by
virtue of the said compromise which is effected as on 28/5/2009,
a fresh cause of action in respect of the liability of K.Selvam is
said to have accrued as on 28/5/2009. Therefore the Plaintiff
should have filed the suit within 3 years from the said date ie.,
on or before 28/5/2012. This suit is filed after the lapse of 3
years from the date of said compromise. The entire cause of
action to the present suit is based upon the said compromise
effected between Plaintiff and said K.Selvam and further
Mortgage Deed that is said to have executed towards security of
the said amount as on 28/5/2009. Whereas the Plaintiff has not
filed the present suit within 3 years ie., even during the lifetime
of K.Selvam and further it is also crucial to note that the said
cause of action to the said suit should have been concluded
within 18 months from the date of compromise ie,. from the date
the said cheques dated 10/2/2010, 10/3/2010 or 10/10/2010
would have been defaulted if any. Therefore, the last date that
could have been accrued to the Plaintiff even for the sake of
argument were to be taken and considered would be
10/10/2010. Whereas the Plaintiff has not made any attempt to
30 O.S.No.6553/2013
secure the said amount or recover the said amount by virtue of
said cheques issued by K.Selvam during his lifetime and after
his demise the Plaintiffs have approached this Court and thereby
from the date of said compromise dated 28/5/2009, the suit is
barred by time. Accordingly the Plaintiff has failed to establish
the said suit to be within time. Accordingly, issue No.8 stands
answered as barred by time.
29. Issue No.9 : This issue is with regard to the suit of the
Plaintiff being hit by principles of Estoppel Under Section 115 of
the Indian Evidence Act. This issue needs a recasting based
upon the claim made by the Plaintiff and the issues cased upon
the Plaintiff and the counter claim raised by the Defendant and
the rejoinder raised by the Plaintiff to the same, the issue would
be,
“Whether the counter claim raised by the Defendant is hit
by the principles of Estoppel Under Section 115 of the
Indian Evidence Act?”.
30. In order to establish the said aspect the Plaintiffs
contention is that, the Defendant No.1 has executed a Mortgage
Deed in favour of the Plaintiff herein admitting the claim of
31 O.S.No.6553/2013
K.Selvam. Whereas, except for affixing her signature to the said
Mortgage Deed, the Defendant No.1 has not admitted any
liability either of K.Selvam or herself to discharge the same.
Therefore the question of Estoppel does not arise. However, the
Learned Counsel for the Defendant has relied upon the following
citation in the case of State Bank of Saurastra Vs. Chitranjan
Rangnath Raja and another reported in (1980) 4 SCC 516,
wherein it is observed as under :-
“Section 141 and 139 – Applicability – Where surety
contracts in good faith to give personal guarantee on clear
understanding about existence of another surety viz.,
pledge of goods but the pledged goods get lost owing to
the creditor’s negligence, held, the surety would be
discharged of his liability”.
31. Another citation in case of Central Bank Vs. Ali
Mohammed and another, wherein it is observed as under :-
” Variance in terms of contract between principal
debtor and creditor – Bank – Statutory rights of surety
under Section 133 or 135 could not be affected by consent
32 O.S.No.6553/2013given in advance to variance in the terms of contract –
Surety’s assent to variation must be at the time of the act
and the assent has to be simultaneous with novation –
Discharge of surety”.
Further held, acknowledgment of liability – Must
distinctly and definitely relate to liability in respect of right
claimed.
32. In the case in hand, the contention of the Plaintiff is that
though by virtue of compromise dated 28/5/2009, said K.
Selvam is said to have admitted the liability and issued 3
cheques, the Plaintiff has not taken any initiative of presenting
the said cheques on the ground that K. Selvam had informed
him not to present the said cheques which are only a verbal
assertion. So far as the Defendant No.1 is concerned, the
Defendant would have had no knowledge of this communication
that K. Selvam had instructed the Plaintiff not to present the
cheque for encashment, which is not within the knowledge of the
surety herein. And further the liability of surety would only arise if
the said cheques were dishonoured. In the case in hand, no
such attempt is made by the Plaintiff to present the cheque for
33 O.S.No.6553/2013
encashment. Whether the account of said K. Selvam had
sufficient funds or not is irrelevant. But so far as the liability of
the Plaintiff is concerned, the cause of action to the Plaintiff
would arise if the said cheques would have been dishonoured
and the said K. Selvam continued to default the payment by
virtue of other two cheques as well, only then the liability of the
Defendant No.1 would operate. This interaction between the
Plaintiff and the said K. Selvam for not presenting said cheque is
not within the knowledge of the surety, the Defendant No.1
herein. Therefore relying upon the said Judgment as well, the
concept of Defendant No.1, pleading that she had no idea of the
same will have to be accepted and further the said concept of
principles of Estoppel will not apply to the case of Defendant
No.1 herein.
33. In another case reported in (2003) 8 SCC 740 in the case
of Kashinath Vs. Jaganath, it is observed as under :-
“Order 6 Rule 1 and Order 18 Rule 2 – Pleadings and
evidence – Variance – Held, such evidence cannot be
relied upon – Further held, an adverse inference is to be
drawn when pleadings and evidence are self-
contradictory.
34 O.S.No.6553/2013
34. In another case reported in 2024 SCC Online Page 226, in
the case of Srinivas Raghavendra Rao Vs. Kumar Vamarao and
others, it is observed at para-25 as under :-
“There is no quarrel with the proposition of law that no
evidence could be led beyond pleadings”.
35. In another case reported in (1995) 1 SCC page 421 in
case of Chandra Shashi Vs. Anil Kumar Verma, it is observed as
under :-
“The stream of administration of justice has to remain
unpolluted so that purity of Court’s atmosphere may give
vitality to all the organs of the State. Polluters of judicial
firmament are, therefore, required to be well taken care of
to maintain the sublimity of Court’s environment; so also to
enable it to administer justice fairly and to the satisfaction
of all concerned”.
36. In the case in hand, safely relying upon the said Verdicts
as well and in the case in hand the Defendant No.1 has nowhere
35 O.S.No.6553/2013
admitted her liability in discharging the loan that was to be
repaid by K. Selvam. Even the loan and liability of K. Selvam is
categorically denied by Defendant No.1 herein and further
Defendant N.1 and 2 have specifically raised separate
contention by way of counter claim contending that the Plaintiff’s
son was also liable to pay to K. Selvam by virtue of the separate
suit filed by K. Selvam against the company and others vide
Ex.D9 document. Therefore, in the light of such a contention it
cannot be considered that Defendant No.1 had admitted the said
liability. Therefore the principles of liability is not applicable to
the counter claim raised by the Defendant. As such, the issue
No.9 stands answered in the Negative.
37. Issue No.4 & 5 : This issue is with regard to IF the Plaintiff
proves his/their entitled for the relief of final decree as sought for
and further if the Plaintiff proves to be entitled to seek the
personal decree as sought for against Defendant No.1. On
perusal of the entire evidence on record, the crucial aspect that
needs to be discussed in brevity are as under.
38. Firstly, whether the disputed Mortgage Deed was a deed
of Mortgage or a letter of security? On the basis of the pleadings
36 O.S.No.6553/2013
as alleged by the Plaintiff himself is that, he pleads in order to
secure the said 3 cheques issued by the deceased K. Selvam in
favour of the Plaintiff for a sum of Rs.30 lakh, in furtherance of
settlement arrived to between the Plaintiff and the said K.
Selvam by virtue of Ex.P27, the said deed of simple Mortgage
was entered into as a security. In order to better appreciate the
said pleadings, it is crucial to appreciate Ex.P3 the simple
Mortgage Deed which is dated 28/5/2009. As on the said date,
Lakshmi the Defendant No.1 herein admittedly had not borrowed
any amount from the Plaintiff and this simple Mortgage Deed at
page-2, paragraph-2 reads as under :-
“Whereas the Mortgagor has agreed to stand as a surety
to Sri. K. Selvam who being her son-in-law to discharge
the liability covered under the dishonour of cheques to the
Mortgagee and suffered Conviction Order in the hands of
Hon’ble High Court of Karnataka, Bengaluru in a Criminal
Appeal No.356/07 and the matter was settled amicably
between the parties and arrived the net amount due
thereon as Rs.30 lakhs vide order dated 28/5/2009 and as
against security for payment of the said amount with future
interest at 2.5% per mensum, this deed of simple
Mortgage is executed”.
37 O.S.No.6553/2013
39. Further at page-3, paragraph-2, as the security for
payment of the said sum with interest, the said Mortgagor do
hereby charge, assure the Mortgagee, by way of Simple
Mortgage. Therefore, the liability of the surety ie., Defendant
No.1 would arise only when the said cheques for a sum of Rs.30
lakhs was defaulted in payment by K. Selvam. And whether the
said K. Selvam defaulted payment or not would arise only if the
Plaintiff had presented the said cheque to the concerned bank
as on the stipulated date. But, herein in the case in hand, no
such attempt is made by the Plaintiff to present the said cheque.
Therefore, the Plaintiff is estopped of his claim as against the
Defendant No.1 herein. No doubt, the liability of Defendant No.2
to 5 may arise. But even in such circumstances, the Plaintiff
should have presented the cheque within the said stipulated
period. But the Plaintiff having failed to present the said
cheques for its encashment as on the date of the said cheque
and is now estopped from bringing a claim as against Defendant
No.1 to 5 after the demise of K. Selvam. And further it is
needless to say that this deed of Mortgage is a deed of security
of the said amount agreed by K. Selvam by way of a
compromise. Therefore, in the light of the said discussion, the
said Defendant No.1 is seized of her liability to pay the said
38 O.S.No.6553/2013
amount and also this Court in the light of the above discussion
and the Plaintiff having failed to prove the above issues, Plaintiff
is not entitled for the relief claimed by him. Therefore, issue
No.4 and 5 stands answered as not entitled.
40. Issue No.7 : This issue is with regard to the Defendant’s
entitlement for the relief fo Mandatory Injunction as sought for.
The Defendant No.1 and 2 being the mother-in-law and wife of
deceased K. Selvam have claimed for the relief of Mandatory
Injunction by way of counter claim seeking Mandatory Injunction
directing the Plaintiff to return of the original documents collected
by him on the date of execution of the simple Mortgage Deed. In
this regard the Plaintiff having failed to prove of Defendant No.1,
having borrowed any amount, and that the said Ex.P3 the
document titled as simple Mortgage was just a surety document
which was in security to the amount agreed by K. Selvam to be
paid by way of compromise to the Plaintiff herein by virtue of 3
cheques is concerned. In this regard the Plaintiff having not
presented these 3 cheques during the lifetime of said K. Selvam
and also even as on the date the Plaintiff has not placed any
document to show of he having presented the said cheques for
its encashment. Therefore the Plaintiff having not availed his
39 O.S.No.6553/2013
right by virtue of said cheques, he cannot be seeking the next
alternative without availing primary relief available to him.
Therefore, the Plaintiff having failed to establish the said cause
of action to the present suit by virtue of the said 3 cheques
issued by the said K. Selvam to an extent of Rs.30 lakhs, the
Plaintiff having failed to prove his entitlement in respect of the
said alleged Mortgage Deed vide Ex.P3, the Defendants No.1
and 2 are entitled for the relief of Mandatory Injunction directing
the Plaintiff to return the original documents received from the
Defendant No.1 herein by virtue of Ex.P3. It is also crucial to
note that from the date of compromise ie., 28/9/2009 the Plaintiff
had a cause of action to file the suit within 8 months from the
date of said compromise and the said Plaintiff having failed to
present the said cheques within the said period of 18 months
has now proceeded as against the Defendant No.1 by virtue of
simple deed of Mortgage Deed, which on perusal of the contents
is not at all a Mortgage Deed but it is just a document of security
and further the claim of the Plaintiff not being one for on the
basis of deed of Mortgage and in turn the said Ex.P3 being a
security document the Plaintiff should have filed the suit for
recovery of the said amount of Rs.30 lakhs within 3 years and
also noting that the claim of the Plaintiff is a time barred claim as
40 O.S.No.6553/2013
well, the Plaintiff having approached this Court as on 6/9/2013 is
not entitled for the relief as claimed by him by virtue of the said
relief being time barred as well. Accordingly, I answer issue
No.7 in the Affirmative in favour of the Defendants directing the
Plaintiff to return the said original documents.
41. In (1995) 1 SCC page 421 in case of Chandra Shashi Vs.
Anil Kumar Verma, it is observed as under :-
“The stream of administration of justice has to remain unpolluted
so that purity of Court’s atmosphere may give vitality to all the
organs of the State. Polluters of judicial firmament are,
therefore, required to be well taken care of to maintain the
sublimity of Court’s environment; so also to enable it to
administer justice fairly and to the satisfaction of all concerned”.
42. In the case in hand as well the Defendant No.1 has sought
for returning of Mortgage Deed by way fo Mandatory Injunction.
Safely relying upon the said Verdict of Hon’ble Apex Court, relied
by the Defendant’s counsel, in the case in hand, though there
was a compromise between K. Selvam and the Plaintiff herein,
bu in furtherance of the said compromise, the condition
41 O.S.No.6553/2013
precedent was that, though cheques were issued in favour of
the Plaintiff, it is also seen that 17 to 18 cheques were collected
by the Plaintiff Satyanarayana from the accused/respondent K.
Selvam. But before the Court only 3 cheques are produced.
The status of the other cheques is not reported and in the
present case, the Plaintiff has placed the above 3 cheques
before the Court as if to show that these cheques were issued
as on 10/1/2010 for a sum of Rs.10 lakhs, 103/2010 for a sum of
Rs.10 lakhs & 10/10/2010 for a sum of Rs.10 lakhs each. But
the mentioning of these cheques relating tp Rs.10 lakh is not put
forth in the said compromise entered into between the appellant
Satyanarayana and K. Selvam. As observed in the opening
para-1 of order dated 28/5/2009. And the remaining details of
the said cheques is not place on record. Apart from that there is
no material placed on record by the Plaintiff to show that the
said cheque was presented so as to give a cause of action as
against K. Selvam or as against the present Defendant No.1
herein. Therefore in the absence of the same, the claim of the
Plaintiff that the said cheques were dishonoured does not arise.
Hence, safely relying upon the above Verdict, the Plaintiff has no
right to pollute the stream of justice by making a false claim.
Therefore, for the above said reasons, the Plaintiff is not entitled
42 O.S.No.6553/2013
to for the relied claimed by the Plaintiff. And that on the other
hand the Defendant No.1 is entitled for the relief of Mandatory
Injunction as prayed for.
43. Issue No.10 : This issue is with regard to the burden
casted upon the Plaintiff to prove the cause of action to the suit.
Going by the contents of para-9 of the plaint the Plaintiff claims
the cause of action for the suit which is said to have arisen
within the jurisdiction of Bengaluru as on 28/5/2009. When the
Defendant No.1 is said to have executed a deed of Mortgage in
favour of the Plaintiff in compliance of orders of Hon’ble High
Court of Karnataka in Cr.R.P.No.352-356/2007 dated 28/5/2009.
44. It is further crucial to note that the Plaintiff has produced
only Ex.P27 which is an application Under Section 147 of
Negotiable Instruments Act, but no orders of compromise being
recorded before the Hon’ble High Court in Criminal Appeal
No.356/2007 is placed on record by the Plaintiff and though the
Plaintiff claims that there is a compromise effected between K.
Selvam and the Plaintiff herein for payment of a sum of Rs.30
lakhs is concerned, the Plaintiff has withheld the said crucial
document of compromise before the Hon’ble High Court of
43 O.S.No.6553/2013
Karnataka, alleged to have taken place in Criminal Revision
Petition No.352-356/2007 except for Ex.P27 which is an
application Under Section 147 of N.I. Act. The orders recording
the said compromise is not placed on record by the Plaintiff and
the Plaintiff has withheld the very crucial document for the
reasons best known to him and only pleaded of a compromise
effected before the Court.
45. However, a photostat copy is seen in the filed which is
dated 28.05.2009 said to have been effected in Criminal Appeal
No.356/2007 connected with Criminal Appeal No.352/2007,
353/2007, 354/2007 & 355/2007 said to have been filed by the
Plaintiff as against K. Selvam. In the said order it is order it is
observed by the Hon’ble High Court of Karnataka that
accused/respondent by name K. Selvam is said to have been
produced before the Court as on 25/5/2009, he is also said to
have signed before the Court 18 cheques out of 17 cheques,
which are for Rs.10 lakhs each and one cheque is for Rs.15
lakhs and the details are said to have been mentioned in the
application. And in furtherance of a joint memo, noting the
presence of the mother-in-law of K. Selvam, who is said to have
confirmed that surety has been furnished by way of simple
44 O.S.No.6553/2013
mortgage and a second charge is also created in favour of
Development Credit Bank by way of deposit of title deeds and
have also agreed to register simple mortgage deed in favour of
the appellant within 15 days. Further at para-18 it is crucial to
note that it is further stated in the application that in the event of
default of payment as agreed to or breach of any of the
conditions of the compromise, the appellant has the right to
reopen the case and press for conviction of the Respondent or
for imprisonment or in the alternative to exercise the mortgage
claimed before the competent Court and recover the amount
thereof along with interest at 2.5% p.m. Therefore, going by the
said Verdict of Hon’ble High Court of Karnataka as well the
condition precedent for the Plaintiff to approach this Court or in
alternatively to exercise the mortgage claim as against the
Defendant No.1 was event of default of payment as agreed. In
the case in hand, no such attempt is made by the Plaintiff to
present the said cheques as stipulated in the said plaint as
contended by the Plaintiff. The only reason assigned by the
Plaintiff is that, K. Selvam had instructed him not to present the
said cheque. Therefore, the best alternative available to the
applicant / Plaintiff herein would have been to present the
cheque and on his default only then the Plaintiff was given an
45 O.S.No.6553/2013
option to press for conviction or for imprisonment or in the
alternative to exercise the claim as against the Defendant No.1
by virtue of the said mortgage. In the case in hand, the Plaintiff
has failed to prove the basic requirement for the cause of action
to the suit in hand. Therefore, on these grounds also the Plaintiff
is not entitled for the Plaintiff.
46. And further the Plaintiff has pleaded under para-9 that,
incompliance of orders on Hon’ble High Court of Karnataka
passed against K. Selvam covered under the dishonour of
cheques for a sum of Rs.30 lakhs on 28/5/2012 then the simple
Mortgage was Registered on various occasions when the
demands were made on Defendant No.1 to pay the said amount
by virtue of notices dated 25/7/2012, 9/10/2012 and 12/9/2012
when the Legal Notices were sent demanding the payment and
subsequently on failure of Defendant No.1 to comply with the
demand of Plaintiff on 11/10/2012. According to the Plaintiff, this
is the cause of action. But the crucial cause of action to the
Plaintiff to the present suit would be when the 3 cheques issued
by K. Selvam was dishonoured. In the very pleadings of the
Plaintiff at para-9 the highlighted portion would be, “K. Selvam
covered under dishonour of cheques for a sum of Rs.30 lakhs”.
46 O.S.No.6553/2013
Here, when the cheques were not at all presented, the question
of the same being dishonoured does not arise. Therefore, the
Plaintiff having failed to present the said cheques before the
concerned bank for its encashment there could not have been
any cause of action as pleaded by the Plaintiff to proceed
against Defendant No.1 by virtue of Ex.P3 the simple Mortgage
Deed. And also this Court consciously having appreciated the
document Ex.P3 which is not the document of simple Mortgage
Deed but a document of security. This security or the liability of
surety would arise only when the principal defaults and the
default would arise only when the Plaintiff demands. In absence
of any such demand made by the Plaintiff to K. Selvam, the
Plaintiff now cannot proceed as against the LRs of the deceased
K. Selvam or Defendant No.1, who is no where liable for the
said loan amount as alleged by the Plaintiff. Hence, in the light
of the above discussion, Plaintiff has failed to prove the cause of
action to the present case. Hence, issue No.10 stands
answered in the Negative.
47. Issue No.11 : In furtherance of my findings to above
issues, I proceed to pass the following :-
47 O.S.No.6553/2013
ORDER
The suit of the Plaintiff seeking the relief of
direction directing the Defendant No.1 to pay a
sum of Rs.67,60,000/- with interest @ 2.5% per
mensem with other consequential relief is hereby
dismissed with cost.
Further the counter claim raised by the
Defendants in respect of Mandatory Injunction
directing the Plaintiff to return the original
documents in favour of Defendant No.1 is hereby
decreed.
Accordingly, the Plaintiff is directed to return
the original documents pertaining to Defendant
No.1 within 30 days from the date of decree, if
required Court fee is paid by the Defendant No.1
for the relief of Mandatory Injunction.
In terms of the above orders, office to draw a
decree accordingly.
(Dictated over Dictaphone, typed by Stenographer-G1, corrected
and then pronounced by me, in the Open Court, on this the 13th day
of January, 2025)(A.M. NALINI KUMARI)
XIV Addl. City Civil & Sessions Judge,
Bengaluru.
48 O.S.No.6553/2013
ANNEXURE
List of witnesses examined for the Plaintiff’s side:
PW.1 : A.S. Vishnu Bharath PW.2 : A.S. Vishnu Bharath
List of exhibits marked for the Plaintiff’s side:
Ex.P.1 Registered Sale Deed 16/2/1987
Ex.P.2 Registered Sale Deed dated 10/2/1993
Ex.P.3 Registered simple Mortgage Deed 28/5/2009
Ex.P.4 Notice dated 18/5/1998
Ex.P.5 Certificate
Ex.P.6 Extract
Ex.P.7 Receipt
Ex.P.8 Tax paid receipt
Ex.P.9 & 10 Encumbrance certificates
Ex.P.11 Office copy of Legal Notice
Ex.P.12 Postal receipt
Ex.P.13 RPAD cover
Ex.P.14 Legal Notice
Ex.P.15 Postal receipt
Ex.P.16 Postal acknowledgment
Ex.P.17 Legal Notice
Ex.P.18 Postal receipt
Ex.P.19 & 20 Postal acknowledgments
Ex.P.21 Reply notice
Ex.P.22 to 24 Cheques
Ex.P.25 GPA dated 5/9/2013
Ex.P.26 Certified Copy of order dated 17/4/2008 I
Crl.A.No.357/2007
Ex.P.27 Copy of compromise petition
49 O.S.No.6553/2013
List of witnesses examined on behalf of Defendant’s side:
DW.1 : Lakshmi
List of exhibits marked on behalf of the Defendant’s side:
Ex.D.1 Memorandum of Understanding Cum
Agreement
Ex.D.2 Copy of Admission order No.9/2001
Ex.D.3 Copy of Criminal appeal No.356/2007
Ex.D.4 & 5 Copy of evidence deposed by Vishnu Bharath
in CC No.18361/2003 and 15159/2004
Ex.D.6 Copy of General Power of Attorney
Ex.D.7 Copy of plaint in O.S.No. 26839/2009
Ex.D.8 to 10 Copy of notice
Ex.D.11 to 13 Copy of complaint, evidence of Vishnu
Bharath and copy of the Judgment in CC
No.7804/2003List of exhibits marked during Cross-examination of D.W.1 :
Ex.C.1 Copy of Application in Crl.A.No.356/2007
Ex.C.2 & 3 Vakalath & Written Statement
Ex.C.4 Compromise petition(A.M. NALINI KUMARI)
XIV Addl. City Civil & Sessions Judge,
Bengaluru.