Karnataka High Court
Basawaraj vs Sidramappa And Ors on 8 January, 2024
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RSA No. 200067 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.200067 OF 2018 (INJ)
BETWEEN:
BASAWARAJ
S/O KOTREPPA HAYYA,
AGED ABOUT 47 YEARS
OCC : EX-CONDUCTOR KSRTC
& AGRICULTURE,
R/O VILLAGE KHANAPUR (S.H),
TALUKA SHORAPUR,
DISTRICT YADGIRI-585224.
...APPELLANT
(BY SRI. V.S.PATIL, ADVOCATE)
AND:
SIDRAMAPPA
S/O AMARAPPA HAYYAL,
SINCE DECEASED BY HIS LRS,
Digitally signed
by SACHIN 1)
Location: HIGH SMT. SANGAMMA W/O SIDRAMAPPA,
COURT OF AGE: 80 YEARS, OCC : AGRICUALTURE,
KARNATAKA
R/O VILLAGE KHANAPUR(S.H),
TQ. SHORAPUR, DIST. YADGIRI - 585224
2. NAGAMMA W/O BASAVARAJ,
D/O SIDRAMAPPA,
AGE: 60 YEARS OCC: AGRICULTURE,
R/O VILLAGE KHANAPUR(S.H),
TALUKA SHORAPUR, DIST: YADGIRI-585224.
3. GIRIJA W/O SANGANGOUDA,
D/O SIDRAMAPPA,
AGE: 57 YEARS,
-2-
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RSA No. 200067 of 2018
OCC: AGRICULTURE,
R/O TEACHERS COLONY, JEWARGI
TALUKA JEWARGI, DIST: KALABURAGI-585310.
4. AMARNATH S/O SIDRAMAPPA,
AGE: 51 YEARS,
OCC: AGRICULTURE,
R/O VILLAGE KHANAPUR(S.H),
TALUKA SHORAPUR,
DISTRICT: YADGIRI-585224.
...RESPONDENTS
(BY SRI. SANJAY A.PATIL, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE
JUDGMENT AND DECREE DATED 07.04.2017 PASSED BY THE
DISTRICT JUDGE AT YADGIRI, IN R.A. NO.04/2013 BY
CONFORMING JUDGMENT AND DECREE DATED 21.01.2013
PASSED BY THE SENIOR CIVIL JUDGE AT SHORAPUR IN
O.S NO.37/2011, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the defendant challenging the
judgment and decree dated 07.04.2017 passed in
R.A.No.4 of 2013 on the file of the District Judge, Yadgiri,
allowing the appeal and enhancing the interest awarded by
the trial Court by its judgment and decree dated
21.01.2013 in O.S.No.37 of 2011 on the file of Senior Civil
Judge, Shorapur.
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2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and
ranking before the trial Court.
3. The plaint averments are that the plaintiff has
filed suit against the defendant, seeking recovery of
money and to create charge over the suit schedule
property with consequential relief of injunction. It is the
case of the plaintiff that the defendant has borrowed loan
of `2,18,000/- from the K.G.B. Bank, Shorapur to
purchase Mahindra Mini Bus on 23.03.1996 and the
plaintiff was guarantor to the said loan. In this regard,
plaintiff has mortgaged his land bearing Sy.No.22/A
measuring 06 acres, 16 guntas, situated at Khanapura as
Security to the loan. As the defendant failed to repay the
loan amount to the Bank, the said KGB Bank, filed suit,
against the plaintiff and defendant for recovery of money
in O.S.No.70/2000 and the said suit was decreed.
Thereafter Execution Petition No.57/2007 was filed for
recovery of the decreetal amount and as such, the land
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belonging to the plaintiff was sold in court auction for
`5,08,000/-. One Dandappa Navadagi was the heighest
bidder and he has deposited the above amount and
possession of the land was given to said Dandappa. It is
the case of the plaintiff that the land belonging to the
plaintiff is fertile and has been sold for meager amount in
the auction. It is the case of plaintiff that, the defendant
had borrowed the amount from Bank, and was capable of
discharging the same, however, the defendant and Bank
have colluded with each other to sell the property
belonging to the plaintiff. Hence, the plaintiff filed suit for
recovery of `5,08,000/- with interest at the rate of 18%
per annum in O.S.No.37 of 2011.
4. After service of summons, the defendant
entered appearance and filed detailed written statement
seeking dismissal of the suit.
5. On the basis of the rival pleadings, the trial
Court has formulated issues for its consideration.
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6. In order to establish the case, plaintiff was
examined himself as PW1 and got marked 43 documents
as Exs.P1 to P43. On the other hand, defendant was
examined himself as DW1 and no documents were
produced.
7. The trial Court, after considering the material
on record, by its judgment and ecree dated 21.01.2013
allowed the suit of the plaintiff in part, directing the
defendant to pay `5,08,000/- to the plaintiff with interest
at the rate of 10% per annum and being aggrieved by the
reduction of interest, the plaintiff has preferred Regular
Appeal in R.A.No.4 of 2013 on the file of First Appellate
Court and the said appeal was resisted by the defendant.
The First Appellate Court after re-appreciating the facts on
record, by its judgment and decree dated 07.04.2017
allowed the appeal and as such, enhanced the interest at
the rate of 18% per annum and modified the judgment
and decree passed by the trial Court in O.S.No.37 of 2011.
Being aggrieved by the same, defendant/ appellant has
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preferred this Regular Second Appeal under Section 100 of
Code of Civil Procedure.
8. This Court by order dated 05.01.2014 has
formulated the following substantial questions of law for
its consideration :
i) Whether the Trial Court has committed
error in awarding interest ?
ii) What order ?
9. I have heard Sri V.S.Patil, learned counsel
appearing for the appellant and Sri Sanjay A.Patil, learned
counsel appearing for the respondent.
10. Sri V.S.Patil, learned counsel for the
defendant/appellant contended that, the interest raised by
the First Appellate Court from 10% to 18% is incorrect and
accordingly, sought for interference of this court.
11. Sri Sanjay A.Patil, learned counsel for the
respondent sought to justify the impugned judgment and
decree passed by the Court below.
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12. On careful perusal of the judgment and decree
passed by the Courts below, it is not in dispute that the
defendant availed loan of `2,18,000/- from KGB Bank,
Shorapur, to purchase Mahindra Mini Bus and plaintiff
stood as gurantor to the said loan and as such, plaintiff
mortgaged the land bearing Sy.No.22/A measuring 06
acres, 16 guntas, situate at Khanapura village, Shorapur
Taluk. The said bank filed O.S.No.70 of 2000 before the
Trial Court seeking recovery of money, against the plaintiff
and defendant and the said suit was decreed. The KGB
Bank, Shorapur, filed E.P.No.57 of 2007 for recovery of
decreetal amount of `5,74,111/-. In the said execution
proceedings the land belonging to the plaintiff, which was
mortgaged, was sold to realize the loan to the KGB Bank.
Thereafter the plaintiff filed O.S.No.37 of 2011, seeking
recovery of sum of `5,08,000/- with interest at the rate of
18% per annum. The Trial Court after considering the
material on record decreed the suit, by directing the
defendant to pay `5,08,000/- to the plaintiff with interest
at the rate of 10% per annum. Feeling aggrieved by the
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reduction of the interest, the plaintiff has filed R.A.No.4 of
2013, seeking enhancement of interest.
13. It is pertinent to mention herein that, the
defendant has not challenging the judgment and decree
passed by the Trial Court. The grievance of the plaintiff is
with regard to reduction of the interest. Admittedly, being
a guarantor to the loan availed by the defendant the
plaintiff has lost the land in the execution proceedings. It
is also to be considered that, the loan availed by the
defendant from the bank is for the purpose of purchase of
Mahindra Mini Bus, which would have been used for
commercial purpose. In that view of the matter, the grant
of interest at the rate of 18% by the First Appellate Court
is just and proper and awarding interest by the Courts
below is discretionary in nature and based on the facts
and circumstances of the case. Taking into consideration
over all facts on record, I am of the opinion that the First
Appellate Court, rightly awarded interest at rate of 18%
per annum and therefore no interference is called for in
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this appeal. Hence, the substantial questions of law
framed above favours the plaintiff and the judgment and
decree passed by the First Appellate Court is to be
confirmed. In the result, the appeal dismissed.
Sd/-
JUDGE
SN
