Dr. Sushil B vs H. C. Yathiraj
2022 Latest Caselaw 3211 Kant

                          1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 24TH DAY OF FEBRUARY, 2022

                        BEFORE

      THE HON'BLE MR. JUSTICE N. S. SANJAY GOWDA

     REGULAR SECOND APPEAL No.1265/2019 (MON)

BETWEEN:

1.     DR. SUSHIL B,
       S/O R. BASAVARAJAPPA,
       AGED ABOUT 40 YEARS,
       M.S. ORTHO SURGEON,
       VIMS SPECIALITY,
       HOSPITAL,
       NEAR INNOVATIVE MULTIPLEX,
       OPP. HOME SHOP,
       OUTER RING ROAD,
       MARATHAHALLI,
       BENGALURU-560 037.

2.     R. BASAVARAJAPPA,
       S/O LATE OMKARAPPA,
       AGED ABOUT 72 YEARS,
       RETD. DR. BY PROFESSION,
       R/O D.NO.707/11,
       1ST STAGE, 1ST CROSS,
       SHIVAKUMARASWAMY EXTN.,
       DAVANAGERE-577 004.
                                      ... APPELLANTS

(BY SRI REVANNA BELLARY, ADVOCATE)

AND :

H.C.YATHIRAJ,
S/O CHANDRASHEKARAPPA H.G.,
AGED ABOUT 62 YEARS,
                              2


R/O SUSHEELA, 5TH CROSS,
OPP. TO RAILWAY TRACK,
RAVINDRANAGARA,
SHIVAMOGGA-577 202.
                                       ... RESPONDENT

(BY SRI G.RAVISHANKAR SHASTRY, ADVOCATE)

     THIS RSA FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGEMENT AND DECREE DTD: 20.03.2019
PASSED IN R.A.NO.68/2015 ON THE FILE OF THE
PRINCIPAL    DISTRICT    AND   SESSIONS    JUDGE,
DAVANAGERE,      DISMISSING  THE    APPEAL    AND
CONFIRMING      THE    JUDGMENT    AND     DECREE
DTD:30.04.2015 PASSED IN OS.NO.138/2013 ON THE
FILE OF THE 3RD ADDITIONAL SENIOR CIVIL JUDGE,
DAVANAGERE AND ETC.,


     THIS RSA COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                      JUDGMENT

This is an appeal by the defendants. The

1st defendant is the son of 2nd defendant. Both of them

are doctors by profession.

The respondent is the brother-in-law of 2nd

appellant. The case of the brother-in-law was that the

1st appellant had taken a loan for pursuing his MBBS

course and to the said loan, the 2nd appellant i.e., his

father and Smt. Rekha (the respondent's wife) had

stood as sureties.

2. It was his case that even after the

1st appellant had completed his MBBS course and also

his post graduation course, he had not discharged the

loan and consequently, the Bank had initiated a suit

for recovery for a sum of Rs.4,87,605/- against both

the appellants as well as his wife Smt. Rekha. In the

said suit, the appellants herein had entered

appearance through the counsel, but did not show any

interest to discharge their liability.

3. It was stated that the respondent in order

to safeguard his wife's property that had been pledged

as a collateral to the loan, proceeded to settle the

claim of the Bank and despite the fact that his wife

was missing from the year 2008, he proceeded to

discharge the total outstanding of Rs.4,25,000/- on

28.02.2012 under a "One Time Settlement" Scheme

offered by the Bank. It was stated that after the said

amount was repaid, the documents were also obtained

from the Bank. It was stated that since the

respondent had repaid the loan on behalf of the

appellants, he was entitled to recover the said sum

from the defendants who had availed the loan.

4. This suit was contested by the appellants.

It was admitted by them that the 1st appellant had

availed an educational loan from the Bank. It was also

admitted that the property standing in the name of

respondent's wife i.e., Smt. Rekha had also been

mortgaged as a collateral.

5. The appellants took the plea that the loan

amount had not been repaid by the respondent. It

was their specific assertion that they had paid the

entire loan amount to Smt. Rekha in the month of

October, 2010 for discharging the outstanding debt to

the Bank and they were, therefore, not due any

amount to the Bank. It was contended that the

respondent was in no way related to the loan

transaction and the property that was pledged was the

exclusive property of his wife i.e., Smt. Rekha and he

could not, therefore, possess any locus standi to file

the suit for recovery of money alleged to have been

paid by him.

6. The Trial Court, on consideration of the

evidence adduced, came to the conclusion that the

respondent's wife had in fact stood as surety for the

educational loan availed by the 1st appellant and she

had also deposited her title deeds as collateral to the

said loan. The Trial Court also came to the conclusion

that the bank loan was discharged by the

plaintiff/respondent by paying a sum of Rs.4,25,000/-.

7. The Trial Court held that the assertion of

the appellants that the suit was bad for non-joinder of

necessary parties and the assertion that the

respondent has no locus standi to file the suit was

without any substance. The Trial Court, accordingly,

decreed the suit and directed payment of

Rs.4,25,000/- with interest at the rate of 12% per

annum from 28.02.2012 till its realization.

8. Being aggrieved, the defendants/appellants

preferred an appeal. The Appellate Court on

re-appreciation of the entire evidence concurred with

the findings recorded by the Trial Court. It also found

that the evidence on record clearly established that

the respondent herein had discharged the entire loan

by paying a sum of Rs.4,25,000/- and this was done

in order to safeguard the property which was standing

in the name of his wife, which had been mortgaged to

the Bank. The Appellate Court found that the defence

taken by the appellants that they had paid money to

Rekha had not been established at all. Accordingly,

the Appellate Court dismissed the appeal.

9. It is as against these concurring

judgments, the present second appeal has been

preferred.

10. Sri Revanna Bellary, learned counsel for

the appellants strenuously contended that the suit

could not have been instituted by the present

respondent, since he was in no way related to the loan

transaction. He contended that there was abundant

evidence on record to establish that the appellants

had paid a sum of Rs.4,25,000/- to Rekha and

therefore, they had discharged the said loan. He also

contended that in the absence of title deeds having

been produced before the Court, it could not have

been held that the respondent/plaintiff had discharged

the loan of Rs.4,25,000/-.

11. I have considered the submission of

learned counsel for the appellants and also perused

the material on record.

12. It is not in dispute that prior to filing of the

suit, the Bank had issued several notices to the

appellants. Admittedly, no document is produced to

establish that the defendants had, in fact, paid the

entire outstanding due amount to Smt. Rekha. It is

unbelievable that despite receipt of several notices

from the Bank regarding non-payment of loan, the

appellants who were both Doctors could have gone

onto pay the money to Smt. Rekha and had not

approached the Bank for repayment of the loan

amount. The defence put up that they had paid the

entire outstanding amount to Smt. Rekha has been

disbelieved by the courts below basically on the

ground that there was nothing produced to show the

said factum of payment.

13. It is not in dispute that the appellants have

not produced any documents to show that they

possessed Rs.4,25,000/- or any other sum that they

had paid to Smt. Rekha in the month of October,

2010. The appellants being both Doctors, would

obviously have knowledge of the fact that they were

required to establish proof of payment of the loan

amount to Smt. Rekha.

14. It is also to be noticed here that in the

written statement that was filed in response to the

suit filed by the Bank, a plea of discharge through

Rekha was admittedly not taken. In the light of these

facts, the judgments rendered by both the courts

below that Rs.4,25,000/- was paid by the plaintiff to

clear the outstanding loan, which was evidenced by

Ex.P.16, cannot be found fault with.

15. The arguments of learned counsel that the

suit filed was for non-joinder of necessary parties is

one without substance. Admittedly, there is evidence

on record to establish that Smt. Rekha has been

missing since 2008 and a police complaint has also

been lodged in that regard. Further more, Ex.P.16

clearly establish that the respondent being the

husband of Smt. Rekha had voluntarily repaid the said

loan in order to secure the property of his wife.

16. In this view of the matter, in my view both

the courts below are absolutely correct in coming to

the conclusion that the plaintiff possessed the locus

standi to file the suit. As regards the contention that

the document i.e., the title deeds which had been

mortgaged to the Bank were not produced and

therefore, the claim of the plaintiff could not be

accepted is also an argument, which is rejected. It is

admittedly not the case of the defendants/appellants

that the loan that they availed from the Canara Bank

had not been repaid. The fact that the loan was repaid

has been established beyond all reasonable doubt by

the courts below by production of several documents

i.e., Ex.P.16. Whether the title deeds were obtained

by the plaintiff or not would be of no relevance for the

present suit which was filed for recovery of sum paid

by the plaintiff to close the loan amount of the

defendants/appellants.

17. I find there is no substantial question of

law arising for consideration in this second appeal.

Accordingly, appeal is dismissed.

Respondent is permitted to withdraw the amount

that has been deposited in the Executing Court

immediately.

Sd/-

JUDGE

PB