IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO REGULAR FIRST APPEAL NO.726/2006 BETWEEN:
Sri Shivarudrappa S/o. Rudraiah, Aged about 57 years, Occupation: Agriculturist, Resident of Nayakanahatti, Challakere Taluk, Chitradurga District-577 522 (BY SRI B.M. SIDDAPPA, ADVOCATE) AND 1. Smt. Jayalakshmi, W/o. Late Thimmappa, Aged about 48 years 2. Sri T. Manjunath, Aged about 28 years 3. Sri T. Obalaiah, Aged about 19 years ... APPELLANT 4. Sri Vishwanatha, Aged about 16 years Defendants 2, 3 and 4 are sons of Late Thimmappa, Defendant No.4 being minor Represented by his mother All are residents of Kapleland, Talak Road, Nayakanahatti Challakere Taluk, Chitradurga District-577 522 ... RESPONDENTS (SERVED) THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41 RULE 1 R/W. SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DTD.10.01.2006 PASSED IN O.S. NO.57/2003 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), CHALLAKERE, DISMISSING THE SUIT FOR RECOVERY OF MONEY.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Counsel for the appellant is absent. No representation. Matter is posted for further hearing.
Considering the age and stage of the case and also considering the fact that substantially the matter was heard on previous occasion, it is taken up for disposal.
2. The appeal is directed against the judgment and decree passed in O.S. No.57/2003 dated 10.01.2006 on the file of the Civil Judge (Sr.Dn.) Challakere, wherein, the suit for recovery of money came to be dismissed. Being aggrieved by the said judgment and decree, the plaintiff has come up in this appeal.
3. In order to avoid overlapping, the parties are referred in accordance with their respective ranks before the trial Court.
4. The original suit in O.S. No.57/2003 was filed by one Shivarudrappa S/o. late Rudraiah on 26.05.2003. The substance of the case of the plaintiff is as under:
The plaintiff is a resident of Nayakanahatti Village in Challakere Taluk. One Thimmappa S/o. Dasara Thippaiah borrowed a loan of Rs.1,00,000/- from the plaintiff on 04.05.2000 and for having borrowed the loan executed promissory note in the presence of witnesses and agreed to repay the amount together with interest at the rate of 24% per annum. The said Thimmappa who borrowed money from the plaintiff died on 01.12.2000 living behind the defendants/respondents, as his exclusive legal heirs. They are (1) Smt. Jayalakshmi (2) T. Manjunatha (3) T. Obalesha and (4) Viswanatha T.
5. The plaintiff further contends that he has been requested the defendants to settle the amount. They do not respond. However, T. Manjunatha defendant No.2 on 16.04.2003 paid an amount of Rs.20,000/- to the plaintiff and made an endorsement on the promissory note executed by his father and subsequently the defendant became defaulter. The plaintiff caused a legal notice on 22.05.2003 that was duly served, but the defendants have not complied with the said notice. Thus, the plaintiff filed the suit.
6. Defendants appeared and filed their written statement denying the plaint averments. They contended that suit of the plaintiff is not genuine, plaintiff is the money lender and lending money without obtaining licence.
7. The learned trial Judge adjudicated the matter considering aspects on execution of pro-note, entitlement of plaintiff for receiving the decree for payment of Rs.20,000/- by defendant No.2 – Manjunatha, regarding left over properties if any by the defendants and whether the suit was bad for violation of the Karnataka Money Lending Act.
8. The learned trial Judge on the basis of oral and documentary evidence on both sides, dismissed the suit holding that the endorsement made by paying Rs.20,000/- on 16.04.2003 is not reliable and also regarding execution of promissory note, it is answered in the negative so also the entitlement of the plaintiff for the suit claim. The additional issue raised regarding material alteration is answered as does not arise.
9. The claim of the plaintiff in the suit is that he lent Rs.1,00,000/- to the said Thimmappa on 04.05.2000. Incidentally the suit was filed on 26.05.2000. The witnesses examined on behalf of the plaintiff are PW.1 – Shivarudrappa plaintiff himself, PW2 – Lakshmipathi he is one of the attester and he has stated that he has signed the promissory note as Ex.P1(c). PW.3 G.T. Viswanatha is another witness to Ex.P1 and the plaintiff has asserted that the Thimmappa executed the promissory note. In this connection, it is necessary to record that the suit document stands as promissory note is note on regular paper for which the revenue stamps are fixed. On the other hand it is a stamp paper of Rs.10/-. In this connection, learned counsel has relied on the following decision:
AIR 1987 KARNATAKA 285 – in the case of Gujjala Hanumanthappa and others - Petitioners v.
S. Bala Rangaiah – Respondent 10. Insofar as Ex.P15 is concerned, it is a Hypothecated Sale Deed in favour of Arundathi W/o. Thippeswamy. This document is also stated to have been deposited by the said Thippeswamy. The PW3 – G.T. Viswanath is examined to the effect of Thippeswamy had deposited the registered Sale Deed in respect of immovable property, marked as Ex.P15. The said deed is in respect of property measuring 2 acres and 35 guntas of land in Survey No.190/1 of Nayakanahatti Village. However, the present suit is filed purely on the basis of promissory note and the plaintiff does not speak regarding any mortgage or otherwise. Considering the evidence on record, the execution of promissory note dated 04.05.2000 is acceptable. Insofar as execution of promissory note is concerned, I find that the reasons assigned by the learned trial Judge in respect of Ex.P1 and the evidence of PWs.1 and 2 are not satisfactory. Thus the said issue invariably requires to be held in favour of the plaintiff/appellant.
11. Further, the endorsement called as acknowledgement, the same is stated to have been made by defendant No.2-Manjunath, which is stated to be on 16.04.2003. It is signed by Manjunath. However, it is denied. Its contents speak that on 04.05.2000 for legal necessity his father Thimmappa had borrowed loan on 01.12.2000 and on 16.04.2003 the said Manjunath pays Rs.20,000/- and his signature is also marked as Ex.P1(a). It is necessary to mention that according to the plaint, the loan was borrowed on 04.05.2000, which is loud and clear. Even in the judgment, it is mentioned as 04.05.2000. The very document Ex.P1 states it is on 04.05.2000, but while writing the acknowledgment, the date is mentioned as 01.12.2000. Even if it is considered to be typographical error, it is necessary to make a mention that as per the promissory note, the amount was borrowed on 04.05.2000 and invariably it gets barred by limitation on 04.05.2003. The suit is filed on 26.05.2003, which is about 22 days subsequent to the limitation prescribed in it. For this, the answer by learned counsel for the appellant is that defendant No.2 – Manjunatha made an endorsement on 16.04.2003, i.e. one month 10 days earlier to the date of filing of the suit. The defendants are not Firm or Company giving representation status to defendant No.2. If he has owned responsibility, he cannot bind other defendants. Moreover defendant Nos.3 and 4 are stated to be minor as on the day of filing of the suit and I do not find any reliable material or credibility in the endorsement Ex.P1(a), even made by defendant No.2, he cannot bind the other defendants. Though execution of the document dated 04.05.2000 is established, insofar as the recovery of amount by the plaintiff, he fails utterly on the ground of acknowledgement of that and its binding nature. Further, promise to pay a time barred debt may be an exception to the rule of consideration. But it is neither pleadings nor the evidence. Insofar as if the suit was in time, then also plaintiff should have been proceeded on the property left behind by Thimmappa and there cannot be a personal liability on the defendants, who are no doubt legal heirs, but would have been liable only to the extent of property inherited by them from the estate of deceased Thimmappa.
12. Later counsel for appellant present and submits on proving execution of promissory note, acknowledgement and liability of the respondents. However, the points urged by the learned counsel are discussed above.
13. In the circumstances of the case, suit fails on the ground of limitation and also bar liability on the defendants. I do not find, there is need to interfere with the judgment and decree passed by the learned trial Judge.
The appeal is dismissed.
Sbs* Sd/- JUDGE