Karnataka High Court
Ashok S Kulli vs Smt Thayaramma on 8 August, 2024
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NC: 2024:KHC:31790
RFA No. 2178 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE UMESH M ADIGA
REGULAR FIRST APPEAL NO. 2178 OF 2010 (MON)
BETWEEN:
ASHOK S KULLI,
S/O SHANKARAPPA,
AGED ABOUT 50 YEARS,
RESIDING AT NO.1,
4TH MAIN,
BYRAVESHWARANAGAR,
BENGALURU-40.
...APPELLANT
(BY SRI. R. SHIVACHARAN., ADVOCATE)
AND:
SMT. THAYARAMMA,
W/O VEERASWAMY,
AGED ABOUT 56 YEARS,
RESIDING AT NO.80,
70TH MAIN, 7TH A CROSS,
Digitally signed by KORLAHALLI
BHARATHIDEVIKRISHNACHARYA
NEW COLONY, RPC LAYOUT,
Location: HIGH COURT OF
KARNATAKA BENGALURU - 40.
...RESPONDENT
(BY SRI. NISAR SAB AND SRI. UMAKANTH., ADVOCATES)
THIS RFA IS FILED U/S 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 30.10.2010 PASSED IN
O.S.NO.7955/2003 ON THE FILE OF THE XXXI ADDL. CITY
CIVIL JUDGE, BANGALORE, DISMISSING THE SUIT FOR
RECOVERY OF MONEY.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2024:KHC:31790
RFA No. 2178 of 2010
CORAM: HON'BLE MR JUSTICE UMESH M ADIGA
ORAL JUDGMENT
Heard learned counsel for the appellant.
2. This appeal is by plaintiff-appellant challenging the
impugned judgment and decree passed in O.S.No.7955/2003
dated 30.10.2010 by the XXXI Additional City Civil Judge,
Bengaluru city(CCH.No.14), (hereinafter for short 'trial Court').
3. The parties are referred to as per their ranks before
the trial Court.
4. Brief facts of the case of both the parties before the
trial Court are as under:
It is the case of the plaintiff that the plaintiff and
defendant were neighbors for a period of 13 years prior to filing
of the suit. The defendant was availing loans from the plaintiff,
whenever she was in need of finance. The defendant borrowed
a sum of Rs.2,00,000/- (Rupees Two Lakh only) from the
plaintiff on 24.08.2001. At the insistence of plaintiff, the
defendant deposited the title deeds, khatha extract etc. with
plaintiff for security purpose. The defendant did not repay the
said amount inspite of repeated requests. Hence, plaintiff was
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constrained to file the suit and prayed the relief to direct the
defendant to pay of Rs.2,00,000/-, being the principle sum with
interest on the said amount, up to the date of filing of the suit
at the rate of 18% per annum and also future interest at the
said rate from the date of suit till realisation.
5. The defendant in the written statement denied the
contentions of the plaintiff-appellant. she has contended that
there were some money transactions between the plaintiff and
defendant during the year 1996 and 1997 and whatsoever
amount she borrowed from the plaintiff, were repaid. There was
no need for the defendant to borrow a sum of Rs.2,00,000/- as
stated in the plaint averments. She had properly replied to the
notice given by the plaintiff.
6. It is further contention of the defendant that she is
innocent and illiterate lady. The plaintiff with an intention to
gulp the property belonging to the defendant, obtained
documents belonging to her property. With these reasons,
prayed to dismiss the suit.
7. The trial Court framed the following issues:
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i. Whether the plaintiff proves that on 24.08.2001 he
paid Rs.2,00,000/- to the defendant on her executing
mortgage by deposit of title deeds?
ii. Whether the plaintiff is entitled to interest at the
rate of 18% p.a?
iii. What decree or order?
8. The plaintiff to prove his case examined PWs.1
and 2 and got marked documents at Exs.P1 to P7 and
closed his evidence. The defendant examined DW-1 to 3.
After hearing both the parties and appreciating the
evidence available on record, the trial Court dismissed the
suit by the impugned judgment and decree dated
30.10.2010. Being aggrieved by the same, the plaintiff
preferred this appeal on the ground mentioned in the
appeal memorandum.
9. I have heard the arguments of learned counsel
for the appellant.
10. Learned counsel for the appellant has
vehemently contended that the trial Court has not
considered about the possession of the original documents
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along with Khatha extract of the property belonging to
defendant's property. The trial Court disbelieved the
evidence of PWs-1 and 2. Without any reasons, the suit
was dismissed only on the ground that there was no
documents on record. The said finding is erroneous.
Therefore, prayed to set aside the same.
11. The following points emerges for my
determination:
i. Whether the trial judge is justified in
holding that the plaintiff has failed to prove that
he lent sum of Rs.2,00,000/- on 24.08.2001, to
defendant.
ii. Whether the finding of the trial Court
needs any interference by this Court?
iii. What Order?
12. It is not in dispute that plaintiff and defendant
were neighbors. PW-1 in his evidence has reiterated the
plaint averments. In his cross-examination, he has stated
that defendant had financial transactions with him during
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the year 1996 and 1997. The defendant used to
acknowledge receipt of loan amount and after re-payment
of the same, he used to tear the said receipts.
13. The cross-examination of PW-1 reveals that
even the defendant had acknowledged receipt of smallest
amount of loan of Rs.4,000/-, by issue of receipt.
However, neither in the plaint averments nor in the
evidence, PW-1 has disclosed the reasons for not obtaining
of the receipt for lending amount Rs.2,00,000/- against
the practice followed by him so far. The plaintiff examined
PW-2, who had given Rs.50,000/- to plaintiff for lending of
Rs.2,00,000/- to defendant and PW-2 says that in his
presence the said amount was given to defendant. There
are no materials to prove that he paid Rs.50,000/- to the
plaintiff or plaintiff has paid the same to defendant as well
as his presence at the time of payment of Rs.2,00,000/- to
defendant.
14. The contention of the plaintiff is that as security
to the loan obtained by the defendant, he had collected
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the original title deeds of the property of the defendant
along with khatha extract etc. When the plaintiff knew
that the amount should be secured by the document then
why he did not obtain any receipt to corroborate the said
fact is not explained.
15. It is pertinent to note that according to
evidence of plaintiff, he was working in BHEL. Even he did
not disclose from where he collected a sum of
Rs.1,50,000/-, apart from Rs.50,000/- said to be paid by
PW-2. Even he has not produced Bank account to show
that he had an amount of Rs.1,50,000/- to pay to
defendant. Under this circumstances, the plaintiff has
failed to prove that he had sum of Rs.2,00,000/- to lend to
defendant.
16. The learned trial judge dismissed the suit on
the ground that plaintiff failed to prove that he has lent
Rs.2,00,000/- to defendant. Even in the cross-
examination of DW-1, no admission was taken by the
plaintiff in respect of the said loan transaction. Therefore,
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I do not find any fault in the finding of the trial Court to
interfere with the said finding.
17. For the above said reasons, I answer point
Nos.1 and 2 in the negative and pass the following:
ORDER
i. The appeal is dismissed.
ii. The impugned judgment and order in
O.S.No.7955/2003 dated 30.10.2010
passed by XXXI Additional City Civil Judge,
Bengaluru City (CCH.No.14) is confirmed.
iii. Registry is directed to send back the
trial Court records along with the copy of
the judgment.
Sd/-
(UMESH M ADIGA)
JUDGE
AG
