IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT R.S.A.No.267/2013 (MON) BETWEEN:
SRI. NAGARAJU AGED 63 YEARS S/O MARAIAH R/O MANGALORE ROAD MADIKERI- 571 201 KODAGU DISTRICT.
(BY SMT. BHARATHI M., ADV. FOR SRI. VENKATESH R BHAGAT, ADV.) AND:
SRI. M. MAHADEVAIAH AGED ABOUT 63 YEARS WORKING AT HRO RMSQ DIVISION RMS BHAVAN BANGALORE -560026.
(SERVICE OF NOTICE TO RESPONDENT H/S V/O DT:28/05/2019) ... APPELLANT …RESPONDENT THIS RSA. FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT & DECREE DATED 08.10.2012 PASSED IN R.A.NO.22/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE, MADIKERI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 07.03.2009 PASSED IN OS.NO.5/2008 ON THE FILE OF THE PRL.CIVIL JUDGE (JR.DN) MADIKERI AND ETC.
THIS RSA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The plaintiff’s second appeal under Section 100 of CPC aggrieved by the judgment and decree dated 07.03.2009 in O.S.No.5/2008 on the file of the Principal Civil Judge (Jr.Dn.), Madikeri and judgment dated 08.10.2012 in R.A.No.22/2009 confirming the judgment and decree passed by the trial Court on the file of the Senior Civil Judge, Madikeri.
2. Appellant is the plaintiff and respondent is the defendant. Parties to this appeal would be referred to as they stand before the trial Court.
3. The plaintiff filed the suit for recovery of a sum of Rs.1,45,900/- with interest at 12% p.a. It is stated that the plaintiff and defendant knew each other. In the month of October 2005, at the request of defendant and for his legal necessities, the plaintiff had lent a sum of Rs.1,15,000/- in cash to the defendant. The defendant executed an on demand pronote, promising to repay the said amount along with interest at the rate of 12% p.a. Further, during October 2007 it is stated that the plaintiff was in need of money and the plaintiff orally demanded the defendant to repay the said loan amount with interest at 12% p.a. But, the defendant failed to pay the same. Hence, the plaintiff got issued a legal notice dated 30.10.2007 demanding the payment of loan amount. In spite of legal notice, the defendant failed to make payment which resulted in filing of the suit for recovery of money.
4. The defendant on service of suit summons filed written statement denying the plaint averments and also denying the loan transaction between the plaintiff and the defendant.
5. The plaintiff got examined himself as P.W.1 and also examined two witnesses as P.W.2 and P.W.3 apart from marking documents as Ex.P1 to Ex.P5. The respondent examined himself as D.W.1 and also examined two other witnesses as D.W.2 and D.W.3 apart from marking the documents as Ex.D1 to Ex.D.8(a).
6. The trial Court, based on the pleadings of the parties framed the following issues for its consideration.
(i) Whether the plaintiff proves that on 13.10.2005 the defendant borrowed a loan of Rs.1,15,000/- from him and executed an on demand pronote promising to repay the said amount with interest at 12% p.a.?
(ii) Whether the plaintiff is entitled for Rs.1,45,900/- with current and future interest at 12% p.a., from the date of suit till realization with cost as prayed for?
(iii) What order or decree?
7. Both the issues were answered in the negative.
The trial Court recorded a finding that the plaintiff had indulged in financial transaction with several persons and the plaintiff who is a Government servant had not filed returns to the Department as required under law, with regard to the loan advanced to the defendant. Thus, dismissed the suit of the plaintiff. Aggrieved by the same, the plaintiff preferred R.A.No.22/2009 under Section 96 of CPC. The Appellate Court considering the grounds urged by the appellant, framed the following points for its consideration:
(i) Whether the plaintiff proved that the defendant has borrowed a sum of Rs.1,15,000/- on 13.10.2005 from him as loan and an executed on demand pronote and for its repayment agreed to pay interest at the rate of 12% p.a.?
(ii) Whether the plaintiff is entitled for the reliefs as prayed for?
(iii) Whether the Judgment and decree passed by the trial Court is required to be interfered with?
8. The First Appellate Court answered the above points in the negative and dismissed the appeal. Aggrieved by the concurrent findings of facts by the courts below, the plaintiff is in appeal under Section 100 of CPC.
9. Under Section 100 of CPC, the second appeal would be maintainable only if the appeal involves any substantial question of law. In the instant case, no substantial question of law would arise for consideration. The plaintiff is before this Court against the concurrent finding of fact by the trial Court as well as the Appellate Court. The trial Court had framed the issue with regard to whether the plaintiff proves that on 13.10.2005, the defendant had availed loan of Rs.1,15,000/-. The said issue has been answered in the negative. The trial Court has specifically recorded a finding that the appellant has not shown transaction in the annual returns in respect of the amount lent to the defendant. It has also recorded a finding that the plaintiff had financial transactions not only with the defendant but with several other persons. On the material available on record, the trial Court has come to the conclusion that there is cloud of doubt in the transaction between the plaintiff and defendant and has come to the conclusion that the transaction between the plaintiff and defendant is an illegal transaction and against the public policy. The plaintiff being a Government servant could not have entered into a financial transaction with the defendant.
10. The First Appellate Court based on the evidence on record confirmed the judgment and decree passed by the trial Court. The Appellate Court was of the view that the plaintiff has to prove his case on the strength of his own evidence which the plaintiff has failed to do. The Appellate Court has also observed that the plaintiff has to prove that as on 13.10.2005, he had money to lend to the defendant, which he has failed to prove. The First Appellate Court was also of the opinion that the transaction, was without any license, which is required as per Section 5 of the Karnataka Money Lenders Act, 1961. Thus, I am of the view that no substantial question of law would arise for consideration in this appeal. Hence, the appeal stands dismissed.
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JUDGE mpk/-* CT:bms