Allowed

R Gopala Krishna v. the Karnataka State

Karnataka HC17 Nov 2023RFA/452/2008

Case brief

AI extract

What is this about?

The Single Judge allowed the appellants' first revision appeal, set aside the lower court's dismissal of the suit, and remanded the matter to the original trial court for fresh disposal on a time-bound basis upon the respondents' interest of justice application.

What did the court decide?

Impugned judgment dismissed; matter remitted to Trial Court for fresh disposal on or before 30.04.2024.

R Gopala Krishna Vs the Karnataka State — Execution and Attachment | Karnataka HC (2023)

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NC: 2023:KHC:41209 RFA No. 452 of 2008

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA REGULAR FIRST APPEAL NO. 452 OF 2008 (DEC)

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BETWEEN:

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R. GOPALA KRISHNA, S/O LATE N.S.RAMACHANDRA, SINCE DEAD BY LR'S.

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1(A). SMT.HEMALATHA, W/O LATE R.GOPALA KRISHNA, AGED ABOUT 66 YEARS, R/AT NO.78, 7TH CROSS, R.K.LAYOUT, 1ST STAGE, BANGALORE - 560 070.

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1(B). MRS.RASHMI KUROODI, AGED ABOUT 43 YEARS, R/AT NO.2809, FOR RUN DRIVE PLAINS BURROW, NEW JERSY 08536 U.S.A.

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Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA

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1(C). RAM.G., S/O LATE R.GOPALA KRISHNA, AGED ABOUT 37 YEARS, R/AT P-8-3, MANDALAY LINES, BANASWADI GARISSON, CHIKKABANSAWADI, M.S.NAGAR POST, BENGALURU - 560 043.

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…APPELLANTS

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(BY SRI.G.BALAKRISHNA SHASTRY, ADVOCATE)

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2 - NC: 2023:KHC:41209 RFA No. 452 of 2008

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AND:

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THE KARNATAKA STATE FINANCIAL CORPORATION, 1/1, THIMMAIAH ROAD, BANGALORE - 560052. REP BY ITS MANAGING DIRECTOR.

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THE BRANCH MANAGER, THE KARNATAKA STATE FINANCIAL CORPORATION, HOSAMANE EXTENSION ROAD, CHIKMAGALUR - 577 101

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…RESPONDENTS

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(BY SRI.P.S.MALIPATIL, ADVOCATE)

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THIS RFA IS FILED U/S.96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:13.03.2008 PASSED IN O.S.NO.2567/2000 ON THE FILE OF THE XVI ADDL. CITY CIVIL AND SESS. JUDGE, BANGALORE (CCH-12), DISMISSING THE SUIT FOR DECLARATION AND INJUNCTION.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE

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COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Heard Sri.G.Balakrishna Shastry, learned counsel for the appellant.

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The present appeal is filed challenging the validity

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of the judgment and decree passed in O.S.No.2567/2000

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NC: 2023:KHC:41209 RFA No. 452 of 2008

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dated 13.03.2008 on the file of XVI Additional City Civil

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and Sessions Judge, Bangalore City (CCH-12).

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A suit for declaration and injunction came to be filed by plaintiff, who is a guarantor for the loan transaction made by the principal borrower -

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Sri.P.K.Muttu.

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Brief facts of the case which are utmost necessary for disposal of the appeal are as under:

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Sri.P.K.Muttu who is not a party to the suit, obtained

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a loan for purchase of a rig which is mounted on a lorry from Karnataka State Financial Corporation (for short 'KSFC'). The very rig which was purchased by Sri.P.K.Muttu was given as a guarantee and an additional guarantee of the plaintiff was taken by KSFC and thereafter, released the loan in favour of Sri.P.K.Muttu. Additional guarantee was in the form of mortgage of house property of plaintiff in favour of KSFC, guaranteeing the loan transaction of Sri.P.K.Muttu in KSFC and mortgage amount was only to the extent of Rs.17,00,000/-. Being

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NC: 2023:KHC:41209 RFA No. 452 of 2008

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satisfied with the execution of the documents, loan was sanctioned in favour of Sri.P.K.Muttu. During the subsistence of loan period, Sri.P.K.Muttu sold the rig in favour of Smt.Rathnamma, who in turn sold the rig in favour of another purchaser in the State of Maharastra. In respect of the outstanding loan account, proceedings were initiated by KSFC and recovery certificate was obtained by KSFC by initiating necessary proceedings. Matter stood compromised as subsequent purchaser paid sum of Rs.18,00,000/- to KSFC and lis between KSFC and

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principal borrower came to an end. Admittedly, plaintiff was not a party to any such proceedings.

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For the remaining dues, in the said loan account

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when KSFC wanted to proceed against plaintiff who mortgaged his loan for loan transaction, a suit came to be filed by plaintiff seeking that his guarantee got discharged by virtue of subsequent events that has taken place keeping the plaintiff in dark. Plaintiff contended that there is a variation of terms of original contract resulting in

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5 - NC: 2023:KHC:41209 RFA No. 452 of 2008

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annulling the guarantorship of plaintiff and therefore, KSFC is not entitled to proceed against plaintiff for recovery of remaining dues.

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Suit on contest came to be dismissed as not maintainable and plaintiff approached this Court in RFA No.586/2001. A Division Bench of this Court by order dated 22.01.2008 allowed the appeal filed by the plaintiff

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and remitted to the Trial Court for fresh disposal in accordance with law.

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Post remand, learned Trial Judge again recorded the evidence of plaintiff and there was no contest by defendants either in cross examining the plaintiff's witness or adducing any evidence on defendant's side. Learned Trial Judge thereafter heard the matter and again dismissed the suit on the ground that suit is not maintainable.

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Being aggrieved by the same, present appeal came to be filed.

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NC: 2023:KHC:41209 RFA No. 452 of 2008

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When the appeal was pending before this Court,

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I.A.No.2/2011 was filed by respondents. I.A.No.2 is supported by the affidavit. The prayer in I.A.No.2 reads as under:

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"For the facts and reasons stated to in the accompanying affidavit of the authorized officer of the Respondent corporation, this Hon'ble Court be pleased to remand the matter to the Trial Court to enable the respondents herein to conduct cross examination of the Plaintiff/PW-1 in O.S.No.2567/2000 in the ends of Justice.

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Hence, the application in the interest of justice."

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Admittedly, suit came to be disposed of by the

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judgment dated 13.03.2008 without there being any contest, inasmuch as, defendants failed to cross examine P.W.1 and also failed to adduce any evidence on record. Further, it is noticed that already the Division Bench of this Court in RFA No.586/2001 recorded a categorical finding stating that suit is maintainable and dismissal of the suit

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NC: 2023:KHC:41209 RFA No. 452 of 2008

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by Trial Court again on the ground that suit is not maintainable, has resulted in grave injustice.

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Since, I.A.No.2/2011 is filed by KSFC seeking for an opportunity to be provided for defendants to adduce evidence and meet the case of the plaintiff on merits, it is just and necessary for this Court to set aside the impugned judgment and remit the matter to the Trial Court for fresh disposal in accordance with law in a time bound manner as the suit is of the year 2000.

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Accordingly, without further discussing on the merits of the matter, by recording a finding that suit is maintainable in terms of the order passed by Division Bench of this Court in RFA No.586/2000, the impugned judgment needs to be set aside and matter needs to be remitted to Trial Court. Accordingly, following:

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ORDER

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i. I.A.No.2/2011 is allowed.

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ii. Consequently, appeal is also allowed.

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NC: 2023:KHC:41209 RFA No. 452 of 2008

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iii. Impugned judgment and decree passed in O.S.No.2567/2000 dated 13.03.2008 is hereby set aside.

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iv. Matter is remitted to the Trial Court for fresh disposal in accordance with law.

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v. Parties shall appear before the Trial Court without further notice on 05.12.2023.

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vi. However, since there is no representation on behalf of respondents herein in this appeal, who has filed I.A.No.2, if the respondent - KSFC does not appear on 05.12.2023, Trial Court may issue Court notice to respondent No.2.

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vii. Taking note of the fact that suit is of the year 2000; Trial Court shall dispose of the matter in accordance with law on or before 30.04.2024.

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viii. It is needless to emphasize that parties shall co-operate for disposal of the suit.

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9 - NC: 2023:KHC:41209 RFA No. 452 of 2008

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ix. Since, the matter is remanded, appellant is entitled for refund of Permissible Court fee.

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x. Appellant is entitled to obtain return of documents filed along with I.A.No.1/2019 and re-file the same before the Trial Court.

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Sd/JUDGE

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KAV List No.: 1 Sl No.: 47

R Gopala Krishna v. the Karnataka State

Case brief

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R Gopala Krishna v. the Karnataka State

Case brief

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