Karnataka High Court
Shashidhar Alabur vs Mallikarjun Kambalyal on 17 February, 2025
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NC: 2025:KHC:7025
RFA No. 762 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
REGULAR FIRST APPEAL NO. 762 OF 2020 (MON)
BETWEEN:
SHASHIDHAR ALABUR
AGED ABOUT 64 YEARS,
MANAGING DIRECTOR
SYNECTIC TELECOM EXPORT PVT. LTD.,
NO.196, I MAIN, 3RD STAGE,
4TH SECTOR, BASAVESHWARA NAGAR,
BENGALURU - 560 079.
...APPELLANT
(BY SRI. ASHWIN KUMAR H., ADV. FOR
SRI. T. V. VIJAY RAGHAVAN., ADV.)
AND:
MALLIKARJUN KAMBALYAL
PROPRIETOR
SUBSHURBH RENEWABLES AND
Digitally signed by
LAKSHMINARAYAN RESEARCH CENTER,
N
Location: High Court
A BLOCK, IT PARK
of Karnataka OPP: GLASS HOUSE,
HUBBALLI - 580 029.
...RESPONDENT
(RESPONDENT - SERVED AND UNREPRESENTED.)
THIS RFA IS FILED UNDER SECTION 96 OF THE CPC,
AGAINST THE JUDGMENT AND DECREE DATED 21.11.2019
PASSED IN O.S.NO.5886/2019 ON THE FILE OF THE VII ADDL.
CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING
THE SUIT FOR RECOVERY OF MONEY.
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RFA No. 762 of 2020
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE G BASAVARAJA
ORAL JUDGMENT
Plaintiff-appellant has preferred this appeal against
the judgment and decree dated 21.11.2019 passed in
OS.No.5886/2019 by the Court of VII Addl. City Civil &
Sessions Judge, Bengaluru (CCH-19) (hereinafter referred
to as 'Trial Court' for short).
2. For the sake of convenience, the parties in this
appeal are referred to as per their status and rank before
the Trial Court.
3. The brief facts leading to this appeal are that:
The plaintiff-appellant has filed suit for recovery of
amount of Rs.12,70,211/- (Rupees Twelve lakh seventy
thousand two hundred and eleven only) from the
defendant-respondent along with interest at the rate of
9% p.a. from the date of suit till realization. In pursuance
of summons issued by the Trial Court, the defendant-
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respondent has appeared through his counsel and has not
filed his written statement within a prescribed time.
Therefore, the Trial Court without, recording any evidence,
dismissed the suit by invoking the provisions under Order
VIII Rule 10 of Code of Civil Procedure, 1908. Being
aggrieved by the said judgment and decree, the appellant-
plaintiff has preferred this appeal. Despite service of
notice to the respondent-defendant, he remained absent
and unrepresented.
4. Learned counsel for appellant would submit that
the judgment and decree of the trial Court is arbitrary;
there is error apparent on the face of record, tainted with
legal infirmities and hence, liable to be set aside. The trial
Court has not provided any opportunity to the plaintiff-
appellant to adduce his evidence. Further, he would
submit that, in the plaint it is clearly stated that the cause
of action for the suit arose on 08.09.2010, 22.09.2010,
14.02.2013 and 13.2.2013 and on 20.02.2017 when the
defendant-respondent issued letter of acknowledgment of
liability on 01.06.2019 and when the complainant made
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the payment of Rs.50,000/- through demand draft dated
11.04.2019 which was reported in CC No.4899/2018.
Hence, the suit is filed in time. Without considering the
same, the trial Court has dismissed the suit, which is
opposed to law. The trial Court has not provided any
opportunity to adduce evidence also submit his arguments
and has passed the impugned judgment, which is not
sustainable under law. On all these grounds, he sought to
allow this appeal and to remand the case for fresh disposal
in accordance with law by providing an opportunity to
adduce his evidence.
5. Having heard the arguments of the learned
Counsel appearing for the appellant and on perusal of the
impugned judgment, the following points would arise for
my consideration:
1. Whether the appellant has made out a
ground to remand the case to the trial Court
to provide an opportunity to adduce his
evidence?
2. What Order?
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6. My answer to the above points are:
Point No.1: in the affirmative;
Point No.2: as per final order.
Regarding Point No.1:
7. I have carefully examined the averments of the
plaint. Plaintiff has filed a suit for recovery of amount of
Rs.12,70,211/- from the defendant along with interest at
the rate of 9% per annum from the date of suit till
realisation. It is stated in the plaint that the plaintiff and
defendant having acquainted with each other since school
days, defendant approached plaintiff for financial help to
acquire a plot from KSSIDC at Belgaum which was allotted
to him. Considering the request of the defendant, plaintiff
assisted the defendant financially in his personal capacity
in a sum of Rs.8,46,720/- between the period from
08.09.2010 to 14.02.2013, i.e. Rs.87,500/- by way of
Demand Draft drawn on Canara Bank on 08.09.2010,
Rs.59,220/- by bank transfer from HDFC Bank on
22.09.2010, Rs.4,00,000/- by Bank transfer from Citi Bank
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on 13.02.2013 and Rs.3,00,000/- by bank transfer dated
14.02.2013.
8. It is further averred that the defendant received
the total sum of Rs.8,46,720/- from the plaintiff with an
understanding that the defendant would repay the same
along with interest at 9% per annum effective from the
date of receipt of the said amount. Since April 2013, the
plaintiff has been seeking for return of the said amount
and on repeated demand, the defendant finally issued a
letter of acknowledgment of liability dated 20.02.2017
promising to repay the said amount with agreed rate of
interest within 40 to 60 days from the aforesaid letter
dated 20.02.2017. In spite of such acknowledgement of
liability executed by the defendant assuring to repay the
amount with interest, the defendant failed to repay the
same. Again, considering the repeated request of the
plaintiff, defendant issued a Cheque bearing No.229606
for Rs.50,000/- dated 30.05.2018 in favour of the plaintiff.
When the plaintiff presented the said cheque for
encashment, the same was returned as "funds
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insufficient". Having left with no option, plaintiff filed
private complaint against the defendant in CC No.4899 of
2018 for dishonour of cheque. The plaintiff also issued
demand notice calling upon the defendant to pay the
amount received along with interest. However, when
defendant failed to repay the amount, the plaintiff
constrained to file the suit. On all these grounds, it was
sought for decree the suit.
9. The defendant appeared before the Court
through his Counsel, but has not filed written statement
within the prescribed time. Hence, the written statement
was taken as "not filed" and the trial Court dismissed the
suit invoking the provisions of Order VIII Rule 10 of Code
of Civil Procedure.
10. At paragraph No.12 of the plaint, it is stated as
under:
"The cause of action for the suit arose
on 08.09.2010. 22.09.2010, 14.02.2013
and 13.2.2013 and on 20.02.2017 when
the defendant issued the letter of
acknowledgment of liability and on
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01.06.2019 when the complainant issued
the payment of Rs.50,000/- by demand
draft dated 11.04.2019 which was reported
in CC No.4899/2018. Hence, the suit is in
time".
11. The Trial Court has not discussed about the
cause of action alleged in the plaint. It ought to have
provided an opportunity to the plaintiff-appellant to
adduce his evidence before passing the judgment under
the provisions of Order VIII Rule 10 of Code of Civil
Procedure.
12. The trial Court has observed that in view of
Provisions of Section 18 of the Limitation Act, the
acknowledgment of liability accepted must relate to a
subsisting liability as the Section requires that it must be
made before the expiration of the period prescribed under
the Limitation Act. An acknowledgement of liability does
not create a new right of action, but merely extends the
period of limitation. It is further observed that according
to plaint averments, plaintiff has paid the amount between
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08.09.2010 to 14.02.2013 and even if three years
limitation is calculated from the date of last payment i.e.
14.02.2013, the period of limitation comes to an end on
14.02.2016. Whereas, the letter of acknowledgement of
liability dated 20.02.2017, relied upon by the plaintiff, has
been executed by the defendant after the expiry of the
limitation period of three years. The said letter is in
respect of time-barred debt and the plaintiff is not entitled
for any relief under the said letter of acknowledgement of
liability dated 20.02.2017. Accordingly, the trial Court has
dismissed the suit holding that the suit is barred by Law of
Limitation.
13. The trial Court has not provided any
opportunity to the plaintiff/appellant to adduce his
evidence before passing the impugned judgment under the
provision of Order VIII Rule 10 of Code of Civil Procedure.
At least, the trial Court could have provided an opportunity
to the plaintiff to submit his arguments as to the point of
limitation which is not done and the same is opposed to
the principles of natural justice. At the time of
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presentation of the plaint, the Office also has not raised
any objection on the point of limitation. Under the given
set of circumstances, it is just and proper to provide an
opportunity to the plaintiff-appellant to adduce his
evidence and proceed with the case in accordance with
law. Hence, the appellant-plaintiff has made out a ground
to remand the case. Accordingly, I answer point No.1 in
the affirmative.
Regarding Point No.2:
14. For the aforestated reasons, I proceed to pass
the following:
ORDER
i. Appeal allowed.
ii. The judgment and decree dated 21.11.2019
passed in OS.No.5886/2019 by the Court of
VII Addl. City Civil & Sessions Judge,
Bengaluru (CCH-19) is set aside.
iii. Without expressing any opinion on the
merits, the case is remitted back to the trial
Court with a direction to provide opportunity
to the plaintiff-appellant to adduce his
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evidence. Thereafter, the Trial Court shall
proceed with the case. in accordance with
law.
iv. The Trial Court is also directed to give one
more opportunity to the defendant-
respondent to file his written statement, if
any.
v. The Trial Court is directed to issue notice to
both the parties to appear before the Trial
Court.
vi. The Court fee shall be refunded to the
plaintiff-appellant as per Section 64 of the
Karnataka Court Fees and Suits Valuation
Act, 1958.
vii. The Trial Court is also requested to dispose
of the suit as early as possible since the suit
is of the year 2019.
Sd/-
(G BASAVARAJA)
JUDGE
SSD
