Sri K R Kalyanappa vs Sri T Marulasiddappa
2023 Latest Caselaw 2797 Kant

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                                                                 RSA No. 281 of 2021




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 2ND DAY OF JUNE, 2023

                                                BEFORE

                              THE HON'BLE MS. JUSTICE JYOTI MULIMANI

                         REGULAR SECOND APPEAL NO.281 OF 2021 (MON)

                      BETWEEN:

                      SRI K R KALYANAPPA
                      R/O REVANNA,
                      AGED ABOUT 58 YEARS,
                      OCC: AGRICULTURIST,
                      R/O KANCHUGAL VILLAGE,
                      K BIDARE POST, KADUR TALUK,
                      CHIKMAGALUR DISTRICT.
                                                                        ...APPELLANT
                      (BY SRI. NISHAN UNNI P., ADVOCATE)

                      AND:

                      SRI T MARULASIDDAPPA
                      S/O T K RUDRAPPA SHETTY,
                      AGED ABOUT 68 YEARS,
Digitally signed by
THEJASKUMAR N         OCC: AGRICULTURIST,
Location: HIGH        R/O K.BIDARE VILLAGE AND POST,
COURT OF
KARNATAKA             SINGATAGERE HOBLI, KADUR TALUK,
                      CHIKMAGALUR DISTRICT.
                                                                       ...RESPONDENT

                             THIS   REGULAR   SECOND    APPEAL    IS   FILED   UNDER

                      SECTION 100 OF CPC., SEEKING CERTAIN RELIEFS.


                             THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY,

                      THE COURT DELIVERED THE FOLLOWING:
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                                           RSA No. 281 of 2021




                          JUDGMENT

Sri. P. Nishan Unni., learned counsel for the appellant has

appeared in person.

2. This is an appeal from the Court of Principal District

Judge, Chikmagalur.

3. For the sake of convenience, the parties are

referred to as per their status and rankings before the Trial

Court.

4. The brief facts are these:

It is stated that on 08.10.2002, the defendant borrowed a

sum of Rs.40,000/- (Rupees Forty Thousand only) from the

plaintiff and agreed to repay the same with interest at the rate

of 21% per annum and accordingly executed an on-demand

promissory note and cash consideration receipt in favor of the

plaintiff. It is said that despite repeated demands the defendant

did not repay the amount. Hence, the plaintiff issued a legal

notice on 01.09.2004 asking the defendant to repay the

amount, but in vain. Hence, the plaintiff was constrained to

RSA No. 281 of 2021

take shelter under the Court of law and initiated action for

recovery of money.

After the service of the suit summons, the defendant

appeared through his counsel and filed a written statement.

The defendant denied the plaint averments. He contended that

he never borrowed the amount from the plaintiff and never

agreed to repay the same. According to the defendant, the

plaintiff and other members conducted a chit fund at

Singatagere Village, Kadur Taluk. He is also a member of the

Chit Fund and the Chit fund consisted of 25 members. He also

contended that during the Chit Fund scheme, the plaintiff and

other members used to obtain his signature on blank papers.

Hence, it was sought to contend that the plaintiff made use of

the signatures on the blank papers and filed the suit. Among

other grounds, he prayed for the dismissal of the suit.

5. Based on the above pleadings, the Trial Court

framed the following:

RSA No. 281 of 2021

ISSUES

1. Whether the plaintiff proves that the defendant

borrowed Rs.40,000/- from him on 18.10.2002

for his family necessity agreeing to repay the

same with interest at 21% per annum and

executed on-demand promissory note and

consideration receipt?

2. Whether the defendant proves that the plaintiff

had obtained his signatures on blank papers in

the chit fund business at Singatagere and has

concocted the documents?

3. Whether the plaintiff is entitled to recover

Rs.56,900/- from the defendant?

4. What decree or order?

To substantiate the claim, the plaintiff examined himself

as PW1 and two witnesses as PW2 & 3 and produced four

documents which were marked at Exs.P.1 to P4. On the other

hand, the defendant examined himself as DW1 and a witness

as DW2 and produced three documents which were marked at

Ex.D.1 to Ex.D.3.

RSA No. 281 of 2021

On the trial of the action, the Trial Court decreed the suit

and held that the defendant is liable to pay an amount of

Rs.56,900/- (Rupees Fifty-Six Thousand and Nine Hundred

only) with future interest at 6% per annum from the date of

suit till recovery of the amount. Aggrieved by the Judgment and

Decree of the Trial Court, the defendant preferred an appeal.

On appeal, the First Appellate Court confirmed the Judgment

and Decree of the Trial Court. Hence this regular second

appeal is filed under section 100 of CPC.

6. Sri. P. Nishan Unni., learned counsel for the

appellant submits that the Judgments and Decrees of the Trial

Court and the Appellate Court are contrary to the law and the

evidence on record, hence the same are liable to be set aside.

Next, he submits that the Courts have failed to appreciate

that an issue ought to have been framed regarding the

applicability of the provisions of Karnataka Money Lenders Act,

1961.

A further submission is made that the Courts have not

considered the defense of the defendant as raised in the written

RSA No. 281 of 2021

statement. It is also contended that the plaintiff had no

financial capacity to lend the money.

Learned counsel also submits that there is a delay of

2926 days in filing the appeal. The delay is neither wanton nor

with any malafide intention. No loss or prejudice will be caused

to the other side if the delay is condoned.

Lastly, he submits that viewed from any angle, the

Judgments and Decrees of the Trial Court and the First

Appellate Court are unsustainable in law. Hence, this Regular

Second Appeal raises substantial questions of law. Counsel,

therefore, submits that the delay of 2926 days in filing the

appeal may be condoned and the appeal may be admitted.

Learned counsel placed reliance on the decision of

H.R.HALAPPA & OTHERS VS. H.DEVARAJU - 2009 (AIR)

KAR 29.

7. Heard, the contentions of learned counsel urged on

behalf of the appellant and perused the application filed under

section 5 of the Limitation Act for condonation of delay and the

Judgments and Decrees of the Trial Court and the First

Appellate Court.

RSA No. 281 of 2021

In the present case, the suit is filed for recovery of

money. The base for the claim is on-demand promissory notes

and cash consideration receipts. Plaintiff in order to establish

his claim has produced Exs.P.1 & 2 i.e., on-demand promissory

note and cash consideration receipt.

Suffice it to note that the defendant specifically denied

the transaction. An attempt was made on behalf of the

appellant to contend that the plaintiff and other members were

running a chit fund business and the defendant is also a

member of the Chit Fund Scheme, and in that connection, he

used to sign on blank paper and hence plaintiff has misused the

signatures.

Sri.P.Nishan Unni., learned counsel for the appellant in

presenting his argument strenuously urged that the Trial Court

has failed to frame the necessary issue with regard to the

applicability of the provisions of the Karnataka Money Lenders

Act, 1961 to the facts and circumstances of the present case.

He also drew the attention of the Court to the evidence of PW1

and contended that the plaintiff has specifically admitted that

he is running a chit fund business and he is carrying money

RSA No. 281 of 2021

lending business. He also argued by saying that both courts

have failed to appreciate the applicability of the provisions of

the Karnataka Money Lenders Act, 1961.

I have considered the submission about the applicability

of the provisions of the Karnataka Money Lenders Act, 1961

with utmost care.

The claim of the plaintiff is based on the on-demand

promissory note and cash consideration receipt. An attempt is

made to contend that the applicability of the provision of the

Karnataka Money Lenders Act is overlooked by the Trial Court

as well as the First Appellate Court. It is pivotal to note there is

no pleading about the applicability of the provisions of the

Karnataka Money Lenders Act. Even otherwise also, the plaintiff

based his claim on the on-demand promissory note and cash

consideration receipt. I may venture to say that the Trial Court

and the First Appellate Court in extenso referred to the material

on record and concluded that the plaintiff has successfully

proved that defendant has taken money by executing an on-

demand promissory note and cash consideration receipt.

RSA No. 281 of 2021

Hence, the contention about the applicability of the provisions

of the Karnataka Money Lenders Act is satisfactorily hopeless.

Furthermore, there is a delay of 2926 days in filing the

appeal. Sri.K.R.Kalyanappa - appellant has sworn to an

affidavit narrating the reasons to condone the delay.

Perused the contents of the application and also the

affidavit. The reasons accorded in the affidavit for

condonation of delay are not satisfactory and the same is not

acceptable by this court. Hence, I find no justification to

condone the delay. Accordingly, I.A.No.1/2021 is dismissed.

The Trial Court and the First Appellate Court in extenso

referred to the material on record and decreed the suit. Hence,

I find no grounds to interfere with the Judgments and Decrees

of the Trial Court as well as the First Appellate Court.

Counsel for the appellant has placed reliance on the

decision of this Court in H.R.HALAPPA & OTHERS VS.

H.DEVARAJU reported in 2009 AIR (KAR) 29, but I do not

think that the law is in doubt. Each decision turns on its facts.

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RSA No. 281 of 2021

The present case is also tested in light of the aforesaid

decisions.

The Regular Second Appeal does not raise any substantial

questions of law. Accordingly, it is dismissed at the stage of

admission itself.

Sd/-

JUDGE

TKN