SAVITHA THEATRE BANGALORE Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS civil revision under Section 18 of Karnataka Small Causes Courts Act arises from the judgment and decree dated 15-9-1993 given in SC 6465 of 1988 decreeing the claim made by the claimants-opposite parties for a sum of Rs. 8,825/- against defendant-revisionist with interest at the rate of 10% p. a. from the date of suit till realisation with costs.

(2.) PLAINTIFFS case has been that defendant 1 had purchased a National Savings Certificate of seven years II Issue from the plaintiff of face value of Rs. 17,500/ -. Out of the above said National Savings Certificate, one National Savings Certificate (II Issue) bearing No. 7ns/h. O. 437797, dated 29-12-1978 of value of Rs. 5,000/- is in the name of 2nd defendant. Remaining National Savings Certificate were in the name of 1st defendant. Plaintiff averred that after maturity 1st defendant presented the same before the plaintiff for its encashment together with interest accrued thereon. Plaintiffs case is that due to clerical error excess amount has been paid to the defendants as against the actual amount of Rs. 26,250/- payable to the defendant a sum of Rs. 35,000/-has been paid. During the course of audit, this excess payment had come to the notice and was brought to the notice of the defendants vide letter dated 16-6-1987. But the defendants instead of repaying the excess amount received by them, got issued a legal notice dated 11-7-1987 through their Counsel and denied excess payment. They asserted that the amount as per maturity value of the National Savings Certificate was paid and nothing was paid in excess. As such, plaintiff filed the suit for recovery of Rs. 8,750/- as according to the plaintiff, defendant did not pay of that excess amount. Plaintiff therefore filed this suit for recovery of amount of Rs. 8,750/- with interest at the rate of 10% p. a. The plaintiffs suit was contested by the defendants i. e. , revisionists-petitioners and it was averred that the suit was not maintainable and barred by time. It was further asserted that it is wrong to say that a sum of Rs. 8,750/- was paid in excess to the defendants. Defendants asserted that plaintiff in order to cover up their misappropriation has tried to fasten unlawful liability on the defendants. Defendants asserted that defendants have not been paid any amount in excess to the amount as exhibited and shown in the National Savings Certificate. They further averred that certificates were surrendered on 30-12-1985. Defendants asserted that taking full advantage of their signature on the blank form, entry was made by the clerk and he played fraud by fabricating that entry. It has been averred that probably when the fraud was exposed in the audit, the officials of the plaintiff have thrown the blame on the defendants. Defendants denied their liability to pay the amount.

(3.) ON behalf of the plaintiff, P. W. 1 and P. W. 2 have been examined. P. W. 1 has been the Assistant Superintendent of Post Office on the date of presentation of said National Savings Certificate by the defendants. Paintiff has not produced Srinivas-postal clerk who is alleged to have made the entries on the back side of the National Savings Certificate. P. W. 2 is the person who was Sub-Postmaster at the relevant point of time. The Small Causes Court Judge opined that as the documents namely Ex. P-1 to Ex. P-10 have been signed by the defendants, then they must have been paid excess amount by the plaintiffs clerk with their seal. The Court opined that D,w. 1 being an Engineering graduate and also one of the partners of 2nd defendant's firm, as such, there could not have been any semblance of negligence on the part of the D. W. 1. The Trial Court observed that in view of this discussion and regard being had to the evidence of P. W. 1 and P. W. 2 coupled with Ex. P-l to ex. P-10, he had no hesitation to say that the plaintiff had made excess payment to the tune of Rs. 8,750/- taking the National Savings Certificate as V Issue instead of II Issue and thus decreed the plaintiffs suit. Feeling aggrieved, the defendants have come up before this Court in revision under Section 18 of the Karnataka Small Causes Courts Act.