IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY R.F.A.No.1551 OF 2006 BETWEEN:
Sri.T.K. Nagaraja Setty, S/o T.Y.Krishnaiah Setty, Aged about 41 years C/o S.V.Food Products, Sri.Kannika Parameshwari Bldg., West Park Road, Malleswaram, Bangalore-560 003.
(By Sri.G.V.Shashikumar, for Sri. A.M.Suresh Reddy, Advocate) AND:
1. Sri. T.K.Yellaiah Raju, S/o T.Y.Krishnaiah Setty, Aged about 42 years, 2. Smt.T.Soubhyagya Lakshmi W/o T.K.Yellaiah Raju, Aged about 41 years, Both are at M/s S.V.Food Products, Opp. Ashwini Kalyana Mantapa, Uttrahalli Main Road, Uttrahalli, Bangalore, …Appellant Bangalore-560 084. (By Sri.S.Nagaraja, Advocate) **** …Respondents This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908, praying to set-aside the judgment and decree passed by the C/C. XXXI Addl. City Civil Judge, Bangalore City,(CCH-14) in O.S.No.589/2005, dated 25th February 2006, in so for as not granting an amount of `1,47,276/- interest amount and decree the suit as prayed for and award costs of the proceedings throughout and pass such other orders as this Hon’ble Court deems fit in the circumstances of the case, in the interest of justice and equity.
This Regular First Appeal coming on for Hearing this day, the Court delivered the following:
J U D G M E N T The appellant who was the plaintiff in the Court of XXXI Additional City Civil Judge, Bangalore City, (CCH No.14) (hereinafter for brevity referred to as the “Trial Court”) had instituted a Suit against the respondents/defendants who are said to be his brother and sister-in-law in O.S.No.589/2005 for recovery of a sum of `3,16,200/- with interest thereupon at `18% per annum. The said suit came to be partly decreed against the defendants and directing the defendants to pay to the plaintiff a sum of `2,55,000/- together with proportionate Court Fees. Still, the plaintiff is aggrieved by the said decree, only on the ground that the Trial Court has denied the interest claimed by him in the suit.
2. Learned counsel for the appellant/plaintiff in his argument while reiterating the contention taken up by the appellant in the memorandum of appeal, submitted that, the non-mentioning of the agreed rate of interest in the demand Promissory Note produced by the plaintiff was due to inadvertence and it was a curable defect which the Trial Court did not consider. As such, in the interest of the parties and also considering the special facts and circumstances of the case, reasonable rate of interest be directed to be paid and the decree be modified accordingly, by including some rate of interest also payable by the defendants to the plaintiff.
Learned counsel for the appellant also submits that, though the claim made in the appeal is with respect to the non-awarding of interest, but, the Court Fee paid is on the total value including the decreed amount of `2,55,000/-, which decree is in his favour. As such, the excess Court Fee paid by him also be ordered to be refunded to him under Section 67 of the Karnataka Court-Fees and Suits Valuation Act, 1958 (hereinafter for brevity referred to as the “Act”).
3. The plaintiff’s contention in the Trial Court was that, the defendants who are his brother and sister-in-law had borrowed a sum of `2,55,000/- from him on 09-04-2003 and executed four Promissory Notes of `1,00,000/-, `50,000/-, `1,00,000/-, and `5,000/- respectively. The defendants also agreed to repay the said loan amount together with interest at the rate of `8% per annum. In that regard, they had also issued four cheques as security for the repayment of the amount. Since they failed to repay the loan amount within the agreed period and also despite demand made by the plaintiff, a suit came to be instituted by him against the defendants. Despite service of summons, since the defendants failed to appear in the Trial Court, they were placed ex-parte. The said matter was proceeded placing the defendants ex-parte.
4. The plaintiff got himself examined as PW-1 and has filed his Affidavit evidence wherein he reiterated the contention taken up by him in his plaint.
5. After appreciating the evidence, the Trial Court decreed the suit in part, holding the plaintiff entitled for a sum of `2,55,000/- payable to him by the defendants. However, it did not pass any order with respect to the interest by observing that there was no material placed before it to show that the defendants had agreed to pay any rate of interest, much less, the interest column in the Promissory Notes produced by the plaintiff was left blank. As such, mere oral evidence of the plaintiff that the defendants had agreed to pay interest at the rate of `8% per annum could not be taken as a proof.
6. The fact remains that the plaintiff’s side remained un-contested since the defendants were placed ex-parte. Merely because of the fact that the defendants have been placed ex-parte, every statement made by the plaintiff with respect to the alleged loan transaction cannot be considered as a proven fact. As such, rightly the Trial Court has proceeded to consider the evidence in the light of the documents said to have been produced by the plaintiff. It is after appreciation of the oral evidence in the light of the documentary evidence produced by the plaintiff, the Trial Court has made a right observation that in none of the Promissory Notes produced by the plaintiff in support of his evidence there is any mentioning about the defendants/promissors agreeing to pay any rate of interest on the alleged loan taken by them. Had really the defendants agreed to pay any interest on the loan borrowed by them, then, nothing had prevented the plaintiff to make a mention with respect to the agreed rate of interest in the Promissory Notes. When the plaintiff could able to get four Promissory Notes executed by the defendants, it was not impossible or it was not difficult for him to get mentioned the alleged agreed rate of interest also in the same document. However, no reasons are forthcoming for not getting the alleged agreed rate of interest reflected in those four Promissory Notes. Further more, it also cannot be ignored of the fact as contended by the plaintiff himself that, the alleged borrowers/defendants are none else than the brother and sister-in-law of the plaintiff. Therefore, even though the loan is said to have been extended for business purposes of the defendants, but, merely because of the purpose of the loan was for business, it cannot be said that as a matter of right, the plaintiff is entitled for any rate of interest from the defendants. As such, the Trial Court has rightly denied any rate of interest being made as a part of the decree as payable by the defendants in favour of the plaintiff. As such I do not find any infirmity in the judgment of the Trial Court which warrants interference at the hands of this Court.
7. The appellant has also filed I.A.No.2/2006 under Order 41 Rule 27 of the Code of Civil Procedure, 1908, seeking permission to produce additional documents, which according to him are four cheques returned memo along with debit vouchers.
8. In view of the reasoning given above, since the alleged loan transaction for a sum of `2,55,000/- is found to be proven by the plaintiff in the Trial Court, which finding has been confirmed by this Court also, the documents now sought to be produced under I.A.No.2/2006 would be of no help to the appellant to improve his case. Accordingly, I.A.No.2/2006 stands dismissed.
9. With respect to the refund of Court Fee, if it were to be the case of the appellant that he has paid the excess Court Fee, registry to verify the same and in case any excess Court Fee is paid, to refund the same as per law, keeping Section 67 of the Act also under consideration.
In the light of the above findings, I proceed to pass the following:
O R D E R [i] The appeal stands dismissed.
[ii] The judgment and decree dated 25-02- 2006 passed by the XXXI Additional City Civil Judge, Bangalore City (CCH No.14) in O.S.No.589/2005 is confirmed.
Registry to consider the refund of excess Court Fee paid, if any, by the appellant in the light of the observations made above.
Registry is also directed to transmit a copy of this judgment along with the Lower Court records to the Trial Court without any delay.
Sd/-
JUDGE BMV*