Karnataka High Court
Sri S H Keshavmurthy vs M/S Karnataka Bank Limted on 3 January, 2023
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A.NO.1567/2017 (MON)
BETWEEN
SRI S H KESHAVMURTHY
S/O S V HUCHAPPA
AGED ABOUT 40 YEARS
KESHAVA TIFFIN ROOM
MANJUSHREE COMPLEX
NEHRU ROAD
SHIVAMOGGA-577201
...APPELLANT
(BY SRI R KIRAN, ADVOCATE)
AND
M/S KARNATAKA BANK LIMITED
HAVING ITS REGISTERED HEAD OFFICE AT MANGALORE
BRANCH AT BHANDIGADI COMPLE, NEHUR ROAD
SHIVAMOGGA-577 201
REP. BY ITS BRANCH MANAGER
... RESPONDENT
2
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 30.11.2011
PASSED IN O.S.NO.262/2002 ON THE FILE OF II ADDITIONAL
SENIOR CIVIL JUDGE, SHIVAMOGGA AND JUDGMENT AND
DECREE DATED 30.03.2017 PASSED IN R.A.NO.38/2012 ON THE
FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS COURT,
SHIVAMOGGA AND ETC.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the learned
counsel appearing for the appellant.
2. This appeal is filed challenging the judgment and
decree dated 30.11.2011 passed in O.S.No.262/2002 on the file
of II Additional Senior Civil Judge, Shivamogga and judgment
and decree dated 30.03.2017 passed in R.A.No.38/2012 on the
file of the II Additional District and Sessions Court, Shivamogga.
3. The respondent-Bank has filed a suit before the Trial
Court for recovery of money against appellant herein and this
appellant had raised the contention before the Trial Court that
the ornaments which have been pledged in the respondent-Bank
while borrowing the loan are the genuine ornaments and the
worth of the said ornaments is Rs.98,280/- and after deducting
the claim of Rs.47,763/- made by the respondent-Bank, the
defendant-appellant is entitled for Rs.46,935/- with interest.
Though the said counter claim was made before the Trial Court
in O.S.No.262/2002, the defendant/appellant not paid the Court
fee and hence, the Trial Court though framed the Issue No.2 in
this regard, answered the same partly affirmative and granted
decree against the defendant/appellant herein to pay the amount
which is due to the bank. Being aggrieved by the said judgment
and decree, the defendant/appellant has filed the appeal in
R.A.No.38/2012 and the First Appellate Court on re-appreciation
of both the oral and documentary evidence, considered that
whether the judgment and decree passed by the Trial Court is
capricious, not based on sound principles of law, facts and
probabilities of the case and whether the judgment of the Trial
Court requires to be interfered and answered the Points as
negative in coming to the conclusion that the judgment and
decree passed by the Trial Court not suffers from any infirmities
and confirmed the judgment of the Trial Court.
4. Now, the learned counsel appearing for the appellant
would vehemently contend that genuineness of the ornaments
which have been pledged by the appellant herein has not been
considered by the Trial Court as well as First Appellate Court and
not answered Issue No.1 in a proper perspectve inspite of
framing the same after considering the pleadings of the parties
is not correct and hence, there is a substantive question of law
to consider the material on record.
5. Having heard the learned counsel appearing for the
appellant and also on perusal of the material on record
particularly the judgment and decree of the Trial Court in
O.S.No.262/2002, while considering the claim of the
appellant/defendant, in paragraph 19 discussed that though the
counter claim was made by the defendant/appellant herein, not
paid the Court fee and also in paragraph 20, taken note of the
material on record with regard to the admitted liability on the
part of the defendant/appellant. The learned counsel appearing
for the appellant also vehemently contend that in a criminal
case, this appellant was acquitted and genuineness of ornaments
which have been pledged has not been decided and the First
Appellate Court also erroneously confirmed the judgment of the
Trial Court. Having considering the said submission and also on
perusal of the material on record, the First Appellate Court on
re-appreciation of both oral and documentary evidence raised
the points with regard to whether the Trial Court has committed
an error and given the reasoning that no such error has been
committed by the Trial Court and answered Points No.1 and 2 as
negative. The first and foremost contention of the
defendant/appellant that the genuineness of the ornaments has
not been decided. When the specific defence was taken by the
defendant/appellant that he had pledged the genuine ornaments
with the respondent-Bank and also he was prosecuted in criminal
case for pledging of fake ornaments, he would have made the
payment of Court fee and contested the matter. However, the
Trial Court framed the Issue No.2 and in order to prove the said
Issue also, the defendant/appellant has not taken any steps
either to make payment of Court fee or adduce evidence before
the Trial Court to substantiate his contention. Even he has been
examined himself as DW1, not produced any documents with
regard to his claim. When such being the material available on
record, I do not find any error committed by the Trial Court in
not accepting the contention of the defendant/appellant and the
First Appellate Court also on re-appreciation considered the
material available on record and not committed any error hence,
there is no substantive question of law to frame the same to
admit the appeal. When no document is placed with regard to
the counter claim by making the payment of Court fee to
substantiate his contention, the question of admitting the second
appeal does not arise. No case is made out to invoke Section
100 of CPC to frame substantive question of law.
6. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
SN
