Dismissed

Sri K R Kalyanappa v. Sri T Marulasiddappa

Karnataka HC2 Jun 2023RSA/281/2021

Case brief

AI extract

What is this about?

The Second Appeal filed under Section 100 of CPC regarding a money recovery suit was dismissed at the threshold because the court refused to condone the delay of 2926 days. Subsequently, the appeal was rejected as it raised no substantial question of law.

What did the court decide?

Application for condonation of delay dismissed; Regular Second Appeal dismissed at the stage of admission.

Sri K R Kalyanappa Vs Sri T Marulasiddappa — Execution and Attachment | Karnataka HC (2023)

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RSA No. 281 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI

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REGULAR SECOND APPEAL NO.281 OF 2021 (MON)

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BETWEEN:

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SRI K R KALYANAPPA R/O REVANNA, AGED ABOUT 58 YEARS, OCC: AGRICULTURIST, R/O KANCHUGAL VILLAGE, K BIDARE POST, KADUR TALUK, CHIKMAGALUR DISTRICT.

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…APPELLANT

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(BY SRI. NISHAN UNNI P., ADVOCATE)

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AND:

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Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA

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SRI T MARULASIDDAPPA S/O T K RUDRAPPA SHETTY, AGED ABOUT 68 YEARS, OCC: AGRICULTURIST, R/O K.BIDARE VILLAGE AND POST, SINGATAGERE HOBLI, KADUR TALUK, CHIKMAGALUR DISTRICT.

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…RESPONDENT

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THIS REGULAR SECOND APPEAL IS FILED UNDER

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SECTION 100 OF CPC., SEEKING CERTAIN RELIEFS.

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THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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RSA No. 281 of 2021

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JUDGMENT

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Sri. P. Nishan Unni., learned counsel for the appellant has appeared in person.

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This is an appeal from the Court of Principal District Judge, Chikmagalur.

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For the sake of convenience, the parties are referred to as per their status and rankings before the Trial Court.

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4. The brief facts are these:

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It is stated that on 08.10.2002, the defendant borrowed a sum of Rs.40,000/- (Rupees Forty Thousand only) from the plaintiff and agreed to repay the same with interest at the rate of 21% per annum and accordingly executed an on-demand promissory note and cash consideration receipt in favor of the plaintiff. It is said that despite repeated demands the defendant did not repay the amount. Hence, the plaintiff issued a legal notice on 01.09.2004 asking the defendant to repay the amount, but in vain. Hence, the plaintiff was constrained to

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RSA No. 281 of 2021

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take shelter under the Court of law and initiated action for recovery of money.

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After the service of the suit summons, the defendant appeared through his counsel and filed a written statement. The defendant denied the plaint averments. He contended that he never borrowed the amount from the plaintiff and never agreed to repay the same. According to the defendant, the plaintiff and other members conducted a chit fund at Singatagere Village, Kadur Taluk. He is also a member of the Chit Fund and the Chit fund consisted of 25 members. He also contended that during the Chit Fund scheme, the plaintiff and other members used to obtain his signature on blank papers. Hence, it was sought to contend that the plaintiff made use of the signatures on the blank papers and filed the suit. Among other grounds, he prayed for the dismissal of the suit.

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Based on the above pleadings, the Trial Court framed the following:

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RSA No. 281 of 2021

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ISSUES

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Whether the plaintiff proves that the defendant borrowed Rs.40,000/- from him on 18.10.2002 for his family necessity agreeing to repay the same with interest at 21% per annum and executed on-demand promissory note and consideration receipt?

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Whether the defendant proves that the plaintiff had obtained his signatures on blank papers in the chit fund business at Singatagere and has concocted the documents?

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Whether the plaintiff is entitled to recover Rs.56,900/- from the defendant?

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What decree or order?

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To substantiate the claim, the plaintiff examined himself

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as PW1 and two witnesses as PW2 & 3 and produced four documents which were marked at Exs.P.1 to P4. On the other hand, the defendant examined himself as DW1 and a witness as DW2 and produced three documents which were marked at Ex.D.1 to Ex.D.3.

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RSA No. 281 of 2021

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On the trial of the action, the Trial Court decreed the suit and held that the defendant is liable to pay an amount of Rs.56,900/- (Rupees Fifty-Six Thousand and Nine Hundred only) with future interest at 6% per annum from the date of suit till recovery of the amount. Aggrieved by the Judgment and Decree of the Trial Court, the defendant preferred an appeal. On appeal, the First Appellate Court confirmed the Judgment and Decree of the Trial Court. Hence this regular second appeal is filed under section 100 of CPC.

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Sri. P. Nishan Unni., learned counsel for the appellant submits that the Judgments and Decrees of the Trial Court and the Appellate Court are contrary to the law and the evidence on record, hence the same are liable to be set aside.

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Next, he submits that the Courts have failed to appreciate that an issue ought to have been framed regarding the applicability of the provisions of Karnataka Money Lenders Act, 1961.

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A further submission is made that the Courts have not considered the defense of the defendant as raised in the written

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RSA No. 281 of 2021

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statement. It is also contended that the plaintiff had no financial capacity to lend the money.

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Learned counsel also submits that there is a delay of 2926 days in filing the appeal. The delay is neither wanton nor with any malafide intention. No loss or prejudice will be caused to the other side if the delay is condoned.

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Lastly, he submits that viewed from any angle, the Judgments and Decrees of the Trial Court and the First Appellate Court are unsustainable in law. Hence, this Regular Second Appeal raises substantial questions of law. Counsel, therefore, submits that the delay of 2926 days in filing the appeal may be condoned and the appeal may be admitted.

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Learned counsel placed reliance on the decision of

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H.R.HALAPPA & OTHERS VS. H.DEVARAJU - 2009 (AIR)

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KAR 29 .

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Heard, the contentions of learned counsel urged on behalf of the appellant and perused the application filed under section 5 of the Limitation Act for condonation of delay and the Judgments and Decrees of the Trial Court and the First Appellate Court.

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RSA No. 281 of 2021

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In the present case, the suit is filed for recovery of money. The base for the claim is on-demand promissory notes and cash consideration receipts. Plaintiff in order to establish his claim has produced Exs.P.1 & 2 i.e., on-demand promissory note and cash consideration receipt.

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Suffice it to note that the defendant specifically denied the transaction. An attempt was made on behalf of the appellant to contend that the plaintiff and other members were running a chit fund business and the defendant is also a member of the Chit Fund Scheme, and in that connection, he used to sign on blank paper and hence plaintiff has misused the signatures.

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Sri.P.Nishan Unni., learned counsel for the appellant in presenting his argument strenuously urged that the Trial Court has failed to frame the necessary issue with regard to the applicability of the provisions of the Karnataka Money Lenders Act, 1961 to the facts and circumstances of the present case. He also drew the attention of the Court to the evidence of PW1 and contended that the plaintiff has specifically admitted that he is running a chit fund business and he is carrying money

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RSA No. 281 of 2021

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lending business. He also argued by saying that both courts have failed to appreciate the applicability of the provisions of the Karnataka Money Lenders Act, 1961.

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I have considered the submission about the applicability of the provisions of the Karnataka Money Lenders Act, 1961 with utmost care.

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The claim of the plaintiff is based on the on-demand promissory note and cash consideration receipt. An attempt is made to contend that the applicability of the provision of the Karnataka Money Lenders Act is overlooked by the Trial Court as well as the First Appellate Court. It is pivotal to note there is no pleading about the applicability of the provisions of the Karnataka Money Lenders Act. Even otherwise also, the plaintiff based his claim on the on-demand promissory note and cash consideration receipt. I may venture to say that the Trial Court and the First Appellate Court in extenso referred to the material on record and concluded that the plaintiff has successfully proved that defendant has taken money by executing an ondemand promissory note and cash consideration receipt.

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RSA No. 281 of 2021

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Hence, the contention about the applicability of the provisions of the Karnataka Money Lenders Act is satisfactorily hopeless.

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Furthermore, there is a delay of 2926 days in filing the appeal. Sri.K.R.Kalyanappa - appellant has sworn to an affidavit narrating the reasons to condone the delay.

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Perused the contents of the application and also the affidavit. The reasons accorded in the affidavit for condonation of delay are not satisfactory and the same is not acceptable by this court. Hence, I find no justification to condone the delay. Accordingly, I.A.No.1/2021 is dismissed .

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The Trial Court and the First Appellate Court in extenso referred to the material on record and decreed the suit. Hence, I find no grounds to interfere with the Judgments and Decrees of the Trial Court as well as the First Appellate Court.

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Counsel for the appellant has placed reliance on the decision of this Court in H.R.HALAPPA & OTHERS VS. H.DEVARAJU reported in 2009 AIR (KAR) 29 , but I do not think that the law is in doubt. Each decision turns on its facts.

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10 -

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RSA No. 281 of 2021

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The present case is also tested in light of the aforesaid decisions.

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The Regular Second Appeal does not raise any substantial questions of law. Accordingly, it is dismissed at the stage of admission itself.

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Sd/JUDGE

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TKN List No.: 2 Sl No.: 27

Sri K R Kalyanappa v. Sri T Marulasiddappa

Case brief

What is this about?

What did the court decide?

Sri K R Kalyanappa v. Sri T Marulasiddappa

Case brief

What is this about?

What did the court decide?

What the court decided

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