Shivappa S/O. Neelappa Jakati vs Umesh S/O. Channappa Harijan
2022 Latest Caselaw 10548 Kant

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                                      RSA No. 100420 of 2014


     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

          DATED THIS THE 08TH DAY OF JULY, 2022

                          BEFORE
           THE HON'BLE MR JUSTICE M.G.S. KAMAL
        REGULAR SECOND APPEAL NO. 100420 OF 2014
BETWEEN:

1.    SHIVAPPA S/O. NEELAPPA JAKATI
      AGE: 42 YEARS,
      OCC: AGRICULTURE,
      R/O. TAKKOD, TQ: JAMKHANDI,
      DIST: BAGALKOT-587101.

                                                ...APPELLANT

(BY SRI. SRIDHAR HIREMATH ADV. FOR
SRI.G I GACHCHINAMATH, ADV.)

AND:

1.    SRI.UMESH S/O. CHANNAPPA HARIJAN
      AGE: 32 YEARS,
      OCC: AGRICULTURE
      R/O. TAKKOD, TQ: JAMKHANDI
      DIST: BAGALKOT-587101.

                                              ...RESPONDENT

(SOLE-RESPONDENT-SERVED)

      THIS RSA IS FILED U/S.100 OF CPC, AGAINST THE
JUDGEMENT      & DECREE     DTD  28.03.2014 PASSED   IN
R.A.NO.53/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE
JAMAKHANDI, DISMISSING THE APPEAL, FILED AGAINST THE
JUDGMENT AND DECREE DTD 24.04.2013 AND THE DECREE
PASSED IN O.S. NO.208/2010 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE AT JAMKHANDI, DECREEING THE SUIT FILED FOR
RECOVERY OF MONEY.
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                                           RSA No. 100420 of 2014


    THIS APPEAL COMING ON FOR ADMISSION THIS DAY. THE
COURT DELIVERED THE FOLLOWING.
                               JUDGMENT

1. Present appeal is by the defendant against the

judgment and order dated 28.03.2014 passed in R.A.No.53/2013

on the file of the Senior Civil Judge, Jamkhandi (hereinafter

referred to as "the first appellate Court') by which the first appellate

Court dismissing the appeal filed by the defendant, confirmed the

judgment and decree passed by the Principal Civil Judge,

Jamkhandi (hereinafter referred to as 'the trial Court') in

O.S.No.208/2010 dated 24.04.2013 by which the trial Court

decreed the suit of the plaintiff for Rs.1,20,000/- to be recovered

from the defendant with interest at the rate of 6% per annum from

the date of the suit till realization.

2. Brief facts of the case are that; the defendant for the

family necessity had borrowed hand loan of Rs.1,20,000/- from the

plaintiff on 05.12.2007 and had executed 'Kaigad Patra' in favour of

the plaintiff on the same day in the presence of Bond Writer,

promising to repay the loan amount on the demand by the plaintiff.

That though the plaintiff demanded on several times, the defendant

did not repay the loan amount constraining the plaintiff to cause

RSA No. 100420 of 2014

issuance of legal notice dated 21.04.2010 calling upon the

defendant to pay loan amount with interest. That despite service of

notice, defendant neither replied nor complied with the demand

therein. Hence, the suit.

3. The defendant in his written statement denied the

plaint averments and also denied having borrowed Rs.1,20,000/-

from the plaintiff. He also denied having executed the 'Kaigad

Patra' on 05.12.2007 as contended by the plaintiff. As regard

receipt of notice, the defendant though did not deny the issuance of

legal notice but contends that since there was no money

transaction between him and the plaintiff, the question of reply to

the said notice did not arise. It is the specific case of the defendant

that earlier there was a loan transaction between him and the

plaintiff which has been closed prior to filing of the present suit.

That during the said loan transaction, plaintiff had taken some

signatures of the defendant on blank papers. That the said loan

transaction was closed and defendant had requested the plaintiff to

return all the blank forms, which were signed by him. The plaintiff

did not return the same but started demanding excess interest. The

plaintiff by misusing the said document, has filed the present suit

RSA No. 100420 of 2014

against the defendant. Since there was no loan transaction

between him and the plaintiff, there was no question of paying 18%

interest as claimed by the plaintiff. Hence, sought for dismissal of

the suit.

4. Based on the pleadings, the trial Court framed the

following issues:

1. Whether the plaintiff proves that execution of Kaigada Patra dated 05.12.2007 by the defendant in his favour?

2. If so the defendant proves that it is not supported by consideration?

3. Whether the defendant proves that the suit Kaigada Patra is of previous transaction as contended by him in his written statement?

4. Whether the plaintiff is entitled for suit claim?

5. What order or decree?

5. The plaintiff examined himself as PW1 and the Bond

Writer one Muttappa as PW2 and another witness Shanranappa as

PW3 and marked 7 documents marked as Exs.P1 to P7. The

defendant examined himself as DW1 and has not produced any

documentary evidence. The trial Court on appreciation of evidence,

decreed the suit as above.

RSA No. 100420 of 2014

6. Aggrieved by the same, the defendant filed regular

appeal before the first appellate Court. Considering the grounds

urged in the appeal, the first appellate Court framed the following

points for its consideration:

1. Whether the trial Court is justified in decreeing the suit?

2. Whether the appellants have made out any ground for this Court to interfere in the judgment and decree of the trial Court?

3. What order?

7. By the impugned judgment and decree, the first

appellate Court dismissed the appeal confirming the judgment and

decree by the trial Court. Aggrieved by the same, appellant is

before this Court.

8. Learned counsel for the appellant reiterating the

grounds urged in the memorandum of appeal submitted that the

trial Court and the first appellate Court erred in decreeing the suit

though the defendant had specifically denied the loan transaction

and also denied the execution of 'Kaigad Patra' in favour of the

plaintiff. He further submitted that PW3, the witness examined by

the plaintiff had admitted regarding the defendant having paid

Rs.1,45,000/- to the plaintiff, thereby repaying the loan of the

plaintiff. Hence, he submits that there is no appreciation of the

RSA No. 100420 of 2014

evidence by the trial Court and the first appellate Court giving rise

to substantial question of law in this matter.

9. Heard the learned counsel for the parties. Perused the

records.

10. The case of the plaintiff is that he has lent loan of

Rs.1,20,000/- to the defendant on 05.12.2007 and the defendant

had executed 'Kaigad Patra' in favour of the plaintiff in the

presence of Bond Writer-PW2 promising to repaying the loan

amount on the demand by the plaintiff. Defendant though denied

the loan transaction of he having borrowed Rs.1,20,000/- as

contended by the plaintiff, however has taken up a specific plea

that there was an earlier loan transaction which was cleared by him

and during the said loan transaction, plaintiff had obtained

signature on blank documents and that the plaintiff was misusing

the same by filing the present suit. The trial Court taking note of

these averments by the defendant and referring to Section 118 of

the Negotiation of Instruments Act has drawn inference that since

the defendant has taken up the aforesaid specific plea presumption

regarding execution of 'Kaigad Patra' for consideration was

established and that the same had to be rebutted by the defendant

RSA No. 100420 of 2014

by leading cogent evidence. As rightly taken note of by the trial

Court though the defendant has taken up the aforesaid specific

plea, has not provided the details of the earlier loan transaction,

such as the amount which he had borrowed, the rate of interest

which was agreed to be paid and the date of repayment. In the

absence of these specific pleadings and the material evidence

supporting such plea, the defendant cannot claim to have

discharged his burden of rebutting the presumption, which is

available in favour of the plaintiff. Though the submission is being

made relying upon the so called admission of PW3 of the

defendant having paid Rs.1,45,000/- to the plaintiff, in the absence

of defendant providing information as required and noted above,

the said admission if any is of no avail. No infirmity, irregularity or

illegality can be found in the judgment and decree passed by the

trial Court and confirmed by the first appellate Court. No substantial

question of law arises for consideration. Hence, the appeal is

dismissed accordingly.

Sd/-

JUDGE KGK