Karnataka High Court
Sri R Raju vs Sri C Lokesh on 22 November, 2023
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RSA No. 1499 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 1499 OF 2016 (MON)
BETWEEN:
SRI R RAJU
S/O RUDRAPPA,
AGED ABOUT 58 YEARS,
R/AT D.NO. 115, 2ND STAGE,
NEAR SANKRANTHI CIRCLE,
HEBBAL, MYSURU - 570001.
...APPELLANT
(BY SRI. PRAKASH M PATIL, ADVOCATE)
AND:
SRI C LOKESH
S/O CHINNASWAMY,
Digitally AGED ABOUT 48 YEARS,
signed by
CHAITHRA A R/AT ERAPPANA KOPPALU, ILLAVALA HOBLI,
Location: MYSURU TALUK - 570 001.
HIGH ...RESPONDENT
COURT OF (BY SRI. GIRISHA N R & SRI.S M LOHITH, ADVOCATES FOR
KARNATAKA C/R)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 26.04.2016 PASSED IN
RA.NO.138/2013 ON THE FILE OF THE VII ADDL. DISTRICT
JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 18.03.2013 PASSED IN
OS.NO.10/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE,
NANJANAGUDU.
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RSA No. 1499 of 2016
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by unsuccessful
defendant who has questioned the concurrent judgments of the
Courts below wherein the plaintiff's suit seeking refund of
earnest money paid under the agreement to sell is decreed by
the trial Court and confirmed by the appellate Court.
2. For the sake of convenience the parties are referred
to as per their rank before the trial Court.
3. The facts of the case are as under:
The plaintiff instituted a suit seeking recovery of a sum of
Rs.5,00,250/- with interest at 18% per annum. Plaintiff
contended that defendant who is known to him availed hand
loan from him to meet the expenses for construction of house
at Hebbal and also to perform marriage of his daughter. The
plaintiff further contended that defendant requested for
financial assistance of Rs.10 lakhs from the plaintiff. Having
received Rs.5 lakhs, the defendant requested to give further
amount of Rs.5 Lakhs and offered to sell the agricultural land
bearing Survey No.107/3 measuring 2 acres and in lieu of hand
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loan for a sum of Rs.4,50,000/- defendant executed an
agreement to sell on 10.5.2010. The defendant having entered
into an agreement to sell, however tried to alienate the suit
schedule property. The plaintiff also contended that having
offered to sell the suit land for having availed hand loan of
Rs.4,50,000/-, the defendant however refused to perform his
part of contract and therefore, suit is filed for refund of earnest
money paid under the agreement with interest at 18% per
annum.
4. The defendant tendered appearance and filed
written statement and stoutly denied the entire averments
made in the plaint. The defendant on the contrary contended
that he had availed hand loan of Rs.5,00,000/- from plaintiff's
father in the month of June 2010 and he had offered two blank
cheques and also two blank stamp papers containing the
signatures, which was offered by way of security for having
availed hand loan from plaintiff's father. Therefore, defendant
has alleged that plaintiff has misused the stamp papers inspite
of the fact that defendant has repaid Rs.5,00,000/- hand loan
availed by him from plaintiff's father on 16.1.2011.
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5. The plaintiff and defendant to substantiate their
respective claim have let in oral and documentary evidence.
The plaintiff to substantiate that he had lent hand loan of
Rs.4,50,000/- produced the agreement which is marked as
Ex.P6 and has also examined three witnesses to the
agreement.
6. The trial Court having examined the oral and
documentary evidence and more particularly, the evidence of
witnesses to the suit agreement answered issues framed in the
affirmative and against defendant and decreed the suit
directing the defendant to repay the amount of Rs.5,00,250/-
with interest at the rate of 10% per annum.
7. Feeling aggrieved by the judgment and decree of
the trial Court, defendant preferred an appeal before the
appellate Court. The appellate Court as a final fact finding
authority has independently assessed the entire evidence on
record. The appellate Court while examining the agreement to
sell which is marked at Ex.P6 and payment of consideration
amount of Rs.4,50,000/- has also taken cognizance of the oral
evidence of P.Ws.2 to 4 who have supported the plaintiff. On
re-appreciation of the evidence on record, the appellate Court
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was also of the view that the agreement vide Ex.P6 is proved
and if due execution is proved, then the payment of
Rs.4,50,000/- under the suit agreement also stands
established. The appellate Court was of the view that there is
no rebuttal evidence let in by the defendant to counter Ex.P6.
8. The defence set up by defendant was also not
accepted by the appellate Court. While examining the defence
of defendant that two blank cheques and blank stamp papers
are misused by the plaintiff, the appellate Court has drawn an
adverse inference against the defendant for having not initiated
any action against the plaintiff to substantiate that blank stamp
papers were misused. The appellate Court has also taken
cognizance of Ex.P2-cheque, which was returned unpaid for
want of sufficient funds in the account of defendant. It is in
this background, the appellate Court was of the view that
plaintiff's case is corroborated by the oral evidence of P.Ws.2 to
4 and in absence of rebuttal evidence, the appellate Court has
proceeded to concur with the reasons and conclusions recorded
by the appellate Court. Consequently, the appeal is dismissed.
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9. Heard the learned counsel for the plaintiff and
perused the concurrent findings recorded by both the Courts
below.
10. Plaintiff's claim that he had lent Rs.4,50,000/- by
way of hand loan to defendant who in turn has agreed to sell
the land for having availed loan of Rs.4,50,000/- and further
that the total sale consideration was fixed at Rs.8,00,000/- is
successfully substantiated. Though plaintiff could have
enforced the contract by filing the suit for specific performance,
noticing the conduct of the defendant has confined his relief to
seek refund of the amount paid under the suit agreement. The
plaintiff to substantiate his claim has produced the suit
agreement, which is marked at Ex.P6 and has examined three
witnesses to the agreement. To demonstrate that the amount
of Rs.4,50,000/- was paid by the plaintiff, the plaintiff has also
placed on record Ex.P2, which is the cheque returned for want
of sufficient funds in the account of the defendant. This
clinching evidence clearly substantiates the case of the plaintiff.
11. However, the theory of concoction set up by the
defendant is not substantiated. Except producing the invitation
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of house warming ceremony and the marriage invitation card,
the defendant has not chosen to lead rebuttal evidence to
counter plaintiff's case. In absence of rebuttal evidence, both
the Courts were justified in decreeing the plaintiff's suit.
Therefore, no substantial question of law arises for
consideration. I do not find any infirmities in the findings and
conclusions recorded by both the courts.
12. The appeal is devoid of merits and accordingly,
stands dismissed.
13. The amount deposited by the defendant with
accrued interest shall be transmitted to the trial Court to enable
the plaintiff to withdraw the amount.
Sd/-
JUDGE
ALB
