Gopal Krishnaji Kekar v. Mohamed Haji Latif and otherc

THE HONOURABLE SRI JUSTICE N. TUKARAMJI APPEAL SUIT No.2558 of 2000 JUDGMENT The Appeal Suit has been filed aggrieved by the judgment and decree dated 20.12.1999 passed in O.S.No.26 of 1997 on the file of the Senior Civil Judge at Huzurabad.

2. I have heard Sri E. Ajay Reddy, learned counsel for the appellant and Sri P. Ravi Kiran, learned counsel for the respondent.

3. The appellant is defendant before the trial Court and the suit is for recovery of Rs 1 ,04,963/- with interest @ 24% per annum

4. The case of respondenVplaintiff in brief is that on 03.08.1995 he advanced an amount of Rs.65,000/- to the appellanUdefendant with an agreement to repay the said amount with interest @ 2o/o per month within one year and accordingly a bond/Ex.A1 was executed. As the appellanVdefendant failed to repay the interest and upon knowing that defendant is selling away his house property, the respondenUplaintiff got issued legal notice dated 11.12.19971Ex.4-2 under acknowledgmenUEx.A3 for which reply notice/Ex.A4 has been issued. As the suit amount remained unpaid, the respondenUplaintiff presented the suit. 2

5. The appellanudefendant in wriften statement contended that he never availed any loan from the respondenUplaintiff as pleaded in the plaint. The specific defence was that himself and the respondenuplaintiff are running a firm under the name and styb of M/s.Surya Theja lnvestments and Share Consultancy' at Huzurabad, in stock trading. During 1995-96 for execution of partnership deed, the respondenUplaintiff obtained his signatures on a blank stamp paper with the assistance of an income tax consultant and it was fabricated styling it has to be bond i.e., Ex.A1 for iltegal gain. That apart, the plaintiff has no money lending licence as such the tramaction is vitiated, thus the appeal is liable to be dismissed. Hence the fraudulent claim in the suit is liable to be dismissed.

6. On the rival pleadings the trial Court has framed the following tssues: a) Whether the suit bond was executed by the defendant by bonowing Rs.65,000/- from the plaintiff? b) Whether the suit based document is a moftgage4eed? lf so, whether the suit for rccovery of debt is not maintainable? c) To what relief?

7. Having regard to the material evidence, the trial Court has held that the documenUEx.Al is bond and as the document has been properly impounded, it is a valid document. Further by observing that tle I respondenUplaintiff has established the signature and preliminary aspects - 3 of the plaint claim and as the appellanudefendant failed to make out the defence that the suit documenUEx.Al was fraudulently obtained and as the presumptions are in favour of the respondenUplaintiff, decreed the suit for principal amount of Rs.65,000/- with interest @ 12% per annum from the date of document till the date of decree, and thereon @ 60lo per annum on the PrinciPal amount.

8. Learned counsel for the appellanUdefendant would contend that the kial Court has failed to properly appreciate his pleadings that his signature was deceptively obtained for execution of partnership deed whereupon by creating false entries fabricated the bond/Ex.A1 Further contended that the trial Court ought to have considered that no consideration was passed under the bond/Ex.Al and the plaintiffs evidence is falling short to establish the suit claim. Therefore shifting onus on the defendant to prove the contested aspects is improper. Learned counsel for the appellant has cited an authority "Gopal Krishnaji Kekar Vs. Mohamed Haji Latif and otherc1" and pleaded that the Hon'ble Apex Court has held that if the party withholds important documents best evidence in his possession an adverse has to be drawn. Thus, the trial Court ought to have considered considering the fact that the plaintiff has not placed any evidence to disprove the contention of fabrication and d ism the suit. ' t968 scc online sc 63 I I I I i 4

9. I have carefu{ly consitlered the submissions of learned counsel for the appel{ant and perused the material on record.

10. ln spite of due notice and listing the matter for orders, the respondent did not choose to appear

11. The point that arises for determination whether the trial Court was proper in considering the facts and law in decreeing the suit?

12. The pleadings in the written statement are explicil that the appellanVdefendant had admitted his signature on the Bond/Ex.A'l however, contested that it was obtained in different circumstances, than mentioned in the plaint. Therefore, it can be safely concluded that the signature on Ex.Al is of the appellanUdefendant. A reading of the entries in Ex.A1 are demonstrating that within specific period, if the appellanUdefendant fails to clear the dues under the bond, unconditionally the respondenUplaintiff would be at liberty to take the house property.

13. Having regard to these aspects the trial Court has concluded that the document/Ex.A-1 is a bond and as the material ingredients are qualifying drawn presumption in favour of the plaintiff.

14. On the other hand, the appellanVdefendant d isputed the document on the ground that his signature was obtained for execution of the '-- partnership deed. B * I l 5

15. Section 101 of the lndian Evidence Act (lEA)/Section 1 04 of Bharatiya Sakshya Adhiniyam (BSA) states that burden of proof of a fact lies on the party, whoever seeks a Court's judgment based on facts they assert and Section 102 of the lEA,/Section 105 of the BSA clarifies that, the burden of proof lies on the person who would fail to prove their case, if no evidence was presented on either side.

15. ln the instant case as the appellant/defendant pleaded fabrication of bond/Ex.A-1 and if this fact is not established, his defence fails and in turn has to lose the suit. Thus the burden of proof would be on him. ln regard to the defence claim except the pleading no legally accepted material has been placed by the appellanUdefendant to prove the asserted fact. 17 . lt is pertaining to note that attestator of Ex Al categorically supported the plaintiff case and this aspect is further strengthening the suit claim.

18. On the other hand, as per the DW.2/defence witness the appellanVdelendant gave information about the partnership business between himself and the plaintiff and that Rs.100l stamp paper was signed by him for the purpose of registration. Therefore, it is clear that the evidence of the DW-2 is hear say and cannot be relied to deduce any fact. 5

19. Thus, in the factual and evidence on record, this Court is of the considered view that the trial Cou( has rightly considered the facts and law in drawing conclusions and in decreeing the suit, m. ln the absence of any impropriety in the impugned judgment, this appeal is liable to be dismissed.

21. ln the result, the appeal suit is dismissed. No costs. As a sequel, miscellaneous applications, pending if any, shall stand closed To, I SD/. MOHD.ISMAIL D PUTY REGISTRAR //TRUE COPY// I TION OFFICER

1. The Senior Civil Judge, Huzurabad, Karimnagar District(With records, if l any)

2. One CC to SRI E AJAY REDDY, Advocate IOPUCI 3. One CC to SRI P RAVI KIRAN, Advocate IOPUCI 4. Two CD Copies ADK/PSL v HIGH COURT DATED:1 710212025 JUDGMENT +DECREE AS.No.2558 of 2000 2 DRAFTS SIAT E \ \.- a) 'J 16 6) 2t $tl * i Qs SP'd DISMISSING THE APPEAL SUIT WITHOUT COSTS v/ % t32171 IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD MONDAY, THE SEVENTEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE N.TUKARAMJI APPEAL SUIT NO: 2558 OF 2000 Between: Pedapati Ramesh, S/o Ratnaiah, Occ: Business R/o H.No.10-49, lndira Marg locality, Huzurabad Mandal, Proper of Karimnagar District. ...Appellant AND Bhupathi Krishna Murthy, S/o Narayana, R/o H.No.11-17, lndira Marg Locality, Huzurabad Mandal, Karimnagar District. ...Respondent Appeal under section 96 of C.P.C against the Judgment and Decree Dated 30-12-1999 made in O.S.No.26 of '1997 on the file of the Court of the Senior Civil Judge, Huzurabad, Karimnagar District. This appeal coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Lower.Court and the material papers in the Suit and upon hearing the arguments of SRI E AJAY REDDY, Advocate for the Appellant and of SRI P RAVI KIRAN, Advocate for the Respondent. This Court doth Order and Decree as follows:

1. That the Appeal suit be and hereby is dismissed; 2. That there shall be no order as to costs in this appeal. SD/- MOHD.ISMAIL DEPUW REGISTRAR u .: E To, //TRUE COPY// CTION OFFICER

1. The Senior Civil Judge, Huzurabad, Karimnagar District 2. Two CD Copies ADK/PSL 0 HIGH COURT DATED:171O2t2025 DECREE AS.No.2558 ,cf 2000 DISMISSING THE APPEAL SUIT WITHOUT CI)STS ,^/-%