IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.15/2012 BETWEEN:
SMT SAFHIYABI W/O MUSTHAFA, AGED ABOUT 40 YEARS R/A D.NO.3246, MOHAMMED SAIT BLOCK LASHKAR MOHALLA MYSORE -570 001 ..APPELLANT (BY SRI S SUBHASH, ADVOCATE) AND:
1. P MAHAVEERCHAND JAIN S/O B PARASMAL, AGED ABOUT 38 YEARS OCC:PAWN BROKER SHIVAYOGI SWAMI MAIN ROAD GANDHINAGAR, MYSORE-570 2.S PRAKASH SURANA AGED ABOUT 30 YEARS GOVT. APPROVED AUCTIONEER AUCTION OFFICER: K-50 BANUMAIAH CHOWK MYSORE-570074 ..RESPONDENTS (BY SRI CHETHAN B, ADVOCATE FOR R-1, R-2-SERVED) THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 14.09.2011 PASSED IN R.A.NO.763/2009 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-I, MYSORE, PARTLY ALLOWING THE APPEAL IN PART AND MODIFYING THE JUDGMENT AND DECREE DATED:03.02.2005 PASSED IN O.S.NO.699/2002 ON THE FILE OF THE PRINCIPAL I CIVIL JUDGE (JR.DN) MYSORE.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Appeal is directed against the Judgment and decree dated 14.09.2011 passed in R.A.No.763/2009 by the Presiding Officer, Fast Track Court-I, Mysore, wherein the appeal came to be partly allowed and the Judgment and decree dated 03.02.2005 passed in O.S.No.699/2002 by the Principal First Civil Judge(Jr.Dn.), Mysore came to be modified and suit of the plaintiff is decreed against first defendant for Rs.2,080/- with interest at the rate of 21% p.a. from 21.10.2002 to till the date of realization. Against said decree this second appeal is preferred by plaintiff.
2. In order to avoid confusion and overlapping the parties are referred to in terms of their status in the original suit.
3. Earlier original suit No.699/2002 was filed by one Safhiyabi, wife of Musthafa wherein she sought declaration to declare notice dated 11.01.2002 issued by 2nd defendant as null and void and for consequential relief of mandatory injunction against the defendants to return the pledged ornaments, for court costs. Suit came to be dismissed with cost on 03.02.2005.
4. Learned counsel for appellant would submit that initially a gold chain weighing 45 gms was pledged with the first defendant for a sum of Rs.6,000/- to secure the repayment of debt. Due to unforeseen circumstances and domestic problems the plaintiff could not mobilize the amount required for redemption and requested the defendant for sometime and despite the request, refused the extension of time with a malafide intention to sell the pledged ornament through 2nd defendant who is said to be official auctioneer to sell the pledged gold.
5. Learned counsel for appellant would submit that the first defendant has no right to sell the gold chain in auction. The plaintiff caused a legal notice on 31.01.2002 calling upon the 2nd defendant to stop the public auction, advice the first defendant to receive the amount within a period of three months. Inspite of notice defendant did not reply. Thus, learned counsel would further submit that interest rate being charged at 21% p.a. is in violation of Section 6 of the Karnataka Pawn Brokers Act, 1966.
6. In the meantime after issuance of notice, original suit was filed by plaintiff seeking direction against the defendants to return of gold pledged. Defendant has not returned the gold chain but went ahead with auction and sold the ornament.
7. Learned trial Judge observed that amount of loan and interest was not clear even on the date of filing of the suit and loan stood not discharged. Further the suit ended in dismissal. In regular second appeal challenging the Judgment and decree passed by learned trial Judge, appeal was partly allowed wherein it was decreed against first defendant wherein he was directed to pay an amount of Rs.2,080/- with interest @ 21% p.a. and suit against defendant No.2 was dismissed.
8. Learned appellate Judge has found that defendant No.1 still had the amount of Rs.2,080/-
with him being the balance amount after appropriating debt amount and interest.
9. However, appeal is not preferred by defendant No.1 against said direction and it was upto the plaintiff to go in for executing the decree for recovery of Rs.2,080/- as ordered in first appeal. The plaintiff has filed the suit for declaration but without redeeming the gold chain by paying the necessary pledge amount with interest to defendant No.1.
Appeal fails to highlight the substantial questions of law. Appeal stands rejected.
Sd/- JUDGE SBN