IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF APRIL 2019 PRESENT THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD R.F.A.No.907 OF 2018(MON) BETWEEN:
Sri. R.K.Surendra Aged about 57 years Residing at No.419, 7th Cross 20th Main, I Sector HSR Layout, Bangalore-560 102. …. Appellant (By Sri.Sundaresh H.C., Advocate) AND Smt. K.Meena D/o Late B.N.Kamalanabha Reddy Aged about 45 years Residing at No.K-101 Pourva Far Mount, 24th Main, II Sector HSR Layout, Bangalore-560 102. … Respondent (By Sri.G.Papi Reddy, Advocate ) This RFA is filed under Section 96 of CPC, against the judgment and decree dated: 06.10.2016 passed in OS.No.1037/2014 on the file of the XX Additional City Civil and Sessions Judge, Bangalore City, decreeing the suit for recovery of money.
This RFA, coming on for admission, this day, NAGARATHNA J., delivered the following:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. For the sake of convenience, the parties shall be referred to in terms of their status before the Trial Court.
3. The defendant in O.S.No.1037/2014 has filed this appeal, being aggrieved by the judgment and decree passed by the XX Additional City Civil and Sessions Judge, Bangalore City, dated 06.10.2016. The respondent – plaintiff filed the suit seeking recovery of a sum of Rs.20,00,000/-. By the impugned judgment and decree, the suit has been decreed with cost, directing the defendant to pay a sum of Rs.20,00,000/- along with interest at the rate of 6% p.a. from the date of filing of the suit till the date of realization.
4. The respondent – plaintiff filed the suit stating that he and the defendant were known to each other for over a decade and that the defendant had borrowed a loan towards his real estate business; that in February 2011 defendant had approached the plaintiff and asked for a loan of Rs.20,00,000/- to be utilized for his business; that the plaintiff paid a sum of Rs.20,00,000/- on 02.02.2011. The defendant did not repay the said amount, but went on postponing repayment on one pretext or the other. Finally, on 11.03.2013, defendant issued a cheque for Rs.20,00,000/- drawn on Chartered Sahakri Bank Niyamita, Koramangala, Bangalore. The cheque was presented on 12.03.2013 but was returned with the endorsement ‘funds insufficient’. Plaintiff got issued a legal notice demanding the defendant to pay the amount. According to the plaintiff, defendant sent a false and untenable reply on 03.05.2013. Therefore, plaintiff was constrained to file the suit.
5. In response to the suit summons and court notice, defendant appeared and filed his written statement inter alia, contending that the suit was not maintainable and that the plaintiff has already initiated proceedings before the 13th Additional Chief Metropolitan Magistrate Court, Bangalore with regard to the dishonour of the cheque, he could not initiate the suit proceedings against the defendant and sought for dismissal of the suit.
6. Based on the rival pleadings, the Trial Court framed the following issues for its consideration:
“1. Whether the plaintiff proves that she has advanced hand loan of Rs.20 lakhs to the defendant on 02.02.2011?
2. Whether the plaintiff further proves that the defendant had issued post dated cheque dated 11.03.2013 on 02.02.2011 for Rs.20 lakhs towards the discharge of the hand loan?
3. Whether the plaintiff further proves that the cheques issued by the defendant were returned with endorsement of insufficient of funds and the defendant has not repaid the loan amount?
4. Whether the plaintiff is entitled for the suit claim?
5. What decree or order? “ 7. In support of her case, plaintiff examined herself as PW1. She produced seventeen documents marked as Exs. P1 to P17. But the defendant neither cross-examined the plaintiff nor let in any evidence on his behalf. The arguments were heard and the Trial Court answered issue Nos. 1 to 4 in the affirmative and decreed the suit directing the defendant to pay a sum of Rs.20,00,000/- along with interest at the rate of 6%p.a.
from the date of filing of the suit till the date of realization. Being aggrieved by the ex-parte judgment and decree of the Trial Court, defendant has preferred this appeal.
8. We have heard learned counsel for the appellant and learned counsel for the respondent and perused the material on record.
9. Appellant’s counsel contended that the judgment and decree of the Trial Court is one sided. It is an ex parte decree, as defendant – appellant herein, did not participate in the suit proceedings after the filing of the written statement. He contended that the defendant did not cross-examine the plaintiff and as a result, the evidence of the plaintiff has not been tested. He further submitted that the defendant has not let in his independent evidence in the matter. There has been no contest of the plaintiff’s case. Therefore, the ex parte judgment and decree of the Trial Court is in violation of the principles of natural justice as the defendant had no opportunity to put forth his case before the Trial Court. Therefore, this Court may set aside the judgment and decree of the Trial Court and remand the matter so as to enable the defendant to cross-examine the plaintiff and to also let in his evidence. He submitted that since plaintiff also filed criminal proceedings before the Criminal Court with regard to the dishonour of his cheque, filing of the suit was unnecessary, hence not maintainable.
10. Per contra, learned counsel for the respondent – plaintiff supported the judgment and decree of the Trial Court and contended that the plaintiff cannot be prejudiced on account of non-participation of the defendant before the Trial Court. He contended that the defendant appeared through his counsel. He filed his written statement. It was the duty of the defendant to cross-examine the plaintiff and to let in his evidence.
But the same not having been done, cannot cause any prejudice or hardship to the respondent – plaintiff. He submitted that the Trial Court has examined the evidence on record and has rightly decreed the suit and that there is no merit in the appeal.
11. Having heard learned counsel for the respective parties, the following points would arise for our consideration:
(1) Whether the judgment and decree of the Trial Court would call for any interference in the matter?
(2) What order?
12. The detailed narration of facts would not call for any reiteration except highlighting the fact that the impugned judgment is virtually an ex parte one. Although defendant – appellant herein, in the suit, filed his written statement, he did not participate in the suit proceedings. The evidence let in by the respondent – plaintiff went unchallenged as the defendant did not cross-examine the plaintiff. Further, the defendant did not let in his evidence to rebut the case of the plaintiff and to establish his defence in the suit. In the circumstances, the ex parte judgment and decree, being an untested one, is in the absence of the defendant participating in the suit proceedings. Although the defendant ought to have participated in the suit proceedings, nevertheless the ex parte judgment and decree has been passed by the Trial Court without hearing the defendant. On that short ground alone, the impugned judgment and decree is set aside.
13. The matter cannot end here. As already noted, defendant – appellant herein, having filed his written statement had to cross-examine the respondent – plaintiff and also to let in his evidence. The same not having been done by him has lead to an ex parte judgment and decree being passed against the defendant. Since we are setting aside the same, we deem it proper that the respondent – plaintiff ought to be compensated for the same.
14. In the circumstances, on setting aside the impugned judgment and decree and by allowing the appeal and remanding the matter to the Trial Court, we direct the appellant – defendant in the suit, to pay a cost of Rs.15,000/- to the respondent – plaintiff. Since the parties are represented by their respective counsel, they shall appear before the Trial Court on 10.06.2019, without expecting any notices from the said Court. On or before 10th June 2019, appellant shall pay cost to the respondent – plaintiff.
15. This Court by an interim order dated 13.02.2019 had directed the appellant to deposit a sum of Rs..13,00,000/- and it is stated by the appellant ‘s counsel that a sum of Rs.13,10,000/- has been deposited before the Executing Court, which has been permitted to be withdrawn by the Executing Court. Since we have set aside the judgment and decree of the Trial Court in this appeal, the respondent – plaintiff shall redeposit the said amount before the Trial Court on or before 10th June 2019. The Trial Court shall invest the said amount in any Fixed Deposit Account in any Nationalized Bank, for an initial period of one year with automatic renewal.
Accordingly, appeal is allowed and disposed off in the aforesaid terms.
Sd/- JUDGE Sd/- JUDGE Cm/-