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TMI Blog2022 (1) TMI 1462X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff's bank statement will be produced in the next date of hearing. At the end of his examination-in-chief, in a table showing the alleged exhibits, the plaintiff has shown an on demand Promissory Note dated 19.04.2013 as a document at Ex.P1. Thus, nowhere in his examination-in-chief i.e., in his evidence in its entirety, the plaintiff has stated about the defendants executing an on demand Promissory Note while availing the loan from him. The post dated cheque, even if it is assumed that the said cheque was issued by the plaintiff on 19.04.2013, though would not matter, but what matters is if the loan is given through cheque, the plaintiff had sufficient materials, more particularly, the documentary proof like his bank pass book, statement of account, register, etc., to show the transaction of loan with the defendants. Admittedly, the plaintiff has not produced any one of them. Even though the plaintiff as PW-1 on his own in his examination-in-chief has stated that he would produce his bank statement, but he failed to produce the said bank document. In the absence of any evidence to show that the cheques at Ex.P2 to Ex.P4 were presented for realisation and the dishonou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the further case of the plaintiff that towards the repayment of the said loan amount, the defendants have repaid a sum of ₹2,00,000/- each on the dates 19.05.2013, 19.06.2013, 19.07.2013, 19.08.2013 and 19.09.2013, in all a total sum of ₹10,00,000/-. The defendants have also paid a sum of ₹1,98,000/- towards interest in favour of the plaintiff. However, the defendants failed to pay the balance principal amount of ₹10,00,000/- and interest thereupon. It is further the plaint averment that the defendants have issued three cheques dated 17.03.2014, 19.03.2014 and 24.03.2014, totaling to a sum of ₹10,00,000/- towards the repayment. However, those cheques were dishonoured when presented for realisation. The plaintiff made several request for the repayment of the loan amount, since the defendants did not repay the loan amount, the plaintiff got issued a legal notice dated 01.08.2015, to the defendants. Since the defendants did not repay the loan amount, the plaintiff was constrained to institute the suit. With this, the plaintiff has claimed a total sum of ₹14,11,500/-, which is inclusive of the principal amount of ₹10,00,000/-, the interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rate of Rs.1.90% per month? 2) Whether the plaintiff proves that as on the date of institution of the suit, the defendants are liable to pay to it jointly and severally a sum of ₹14,11,500/-? 3) Whether the suit filed by the plaintiff was barred by limitation? 4) Whether the judgment and decree under appeal warrants any interference at the hands of this Court? 10. The plaintiff as PW-1 in his examination-in-chief filed in the form of affidavit evidence has reiterated the contentions taken up by him in his plaint. In support of his contention that the defendants had borrowed the loan from him, he has produced and got marked an on demand Promissory Note dated 19.04.2013, said to have been executed by the defendant No.2 at Ex.P1. He got produced three cheques which are dated 17.03.2014, 19.03.2014 and 24.03.2014 respectively and for a sum of ₹4,00,000/-, ₹3,00,000/- and ₹3,00,000/- respectively at Exhibits-P2, P3 and P4. He also got produced a copy of the legal notice dated 01.08.2015 said to have been sent by him to the defendants and got it marked at Ex.P5. He produced two postal acknowledgement cards and two postal receipts at Ex.P6 and Ex.P7 respective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has committed an error by discarding the said document as an unstamped one and submitted that the trial Court should have considered regarding the payment of stamp duty before allowing the party to mark the said document as an exhibit and admitting it in evidence. In his support, the learned counsel relied upon a judgment of the Co-ordinate Bench of this Court in Smt. Savithramma R.C -Vs- M/s Vijaya Bank and Another reported in AIR 2015 KAR 175. In the said case, with respect to Section 33 of the Karnataka Stamp Act, 1957, this Court in paragraph No.10 of its judgment was pleased to observe that, it should be borne in mind that once a document is admitted in evidence, it cannot be called in question thereafter on the ground that it was not duly stamped. Once the Court admits a document even wrongly, said admission becomes final and cannot be reopened. Hence, the need for diligence not only the part of the opposite counsel but also on the part of the Court, having regard to the statutory obligation under Section 33 of the Karnataka Stamp Act, 1957. In the same judgment, in subsequent paragraph No. 11, the Court further observed that, if such an objection is not taken at the time of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand Promissory Note in his favour while obtaining the loan. In paragraph No.8 of his examination-in-chief in the form of affidavit evidence, the plaintiff has only stated that all the documents pertaining to suit loan transaction are produced with the plaint and the same are marked as exhibits by the plaintiff and the plaintiff's bank statement will be produced in the next date of hearing. At the end of his examination-in-chief, in a table showing the alleged exhibits, the plaintiff has shown an on demand Promissory Note dated 19.04.2013 as a document at Ex.P1. Thus, nowhere in his examination-in-chief i.e., in his evidence in its entirety, the plaintiff has stated about the defendants executing an on demand Promissory Note while availing the loan from him. As such, primarily in the absence of any pleading regarding the defendants executing any Promissory Note, much less, at Ex.P1 and secondarily in the absence of the plaintiff not even whispering about the defendants executing an on demand promissory note in his examination-in-chief, a mere production of a document calling it as demand promissory note executed by the defendant No.2 and marking it as a document at Ex.P1 woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in his plaint or in his evidence as PW-1, the plaintiff has stated as to whether the defendants were known to him. Even according to the plaintiff, the defendant No.1 is a registered company and the defendant No.2 is a Director of that Company. The loan amount is not a smaller sum, it is huge amount of ₹20,00,000/-. Therefore, any private man before issuing any loan or while lending such a huge amount of ₹20,00,000/-, would ascertain as to whether the person approaching for a loan, if were to be a company, has been authorised in a manner known to law, to avail a loan or any resolution by the Company has been passed to avail loan etc., Neither any pleading is there in that regard by the plaintiff nor any evidence in that regard. That also creates a doubt as to how come a registered company would approach the plaintiff for a loan of such a huge amount when there is no pleading regarding their acquaintance of each other and also when the plaintiff has not stated that he is a money lender having license in that regard and has been lending money to many, including the defendants. This also makes the alleged loan transaction between the parties a doubtful and unbelievable. 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h in total for a sum of ₹10,00,000/-, is taken to be as the cheques issued by the defendants to the plaintiff, to show that those cheques were presented by the plaintiff for their realisation and the same came to be dishonoured, there are no evidence except the oral statement of PW-1 to hold that those cheques were issued by the defendants to the plaintiff exclusively towards the alleged loan which is the subject matter of the suit. Since the defendant has remained ex parte, the plaint averment and the evidence of PW-1 to the extent that the defendants had issued those three cheques towards the repayment of alleged loan is taken as an undisputed statement, still the issuance of those three cheques which is in total for a sum of ₹10,00,000/-, would not lead any one, much less, this Court, to hold that the loan was more amount than the cheque amount i.e., ₹20,00,000/-. If the plaintiff intended to prove that the total loan amount was ₹20,00,000/-, he was required to produce some more corroborative evidence, including the documentary proof. Since as already observed above, the loan transaction was with a registered company involving huge amount. Therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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