Allowed

Sri Shankaranarayana S v. Smt S Shanthala

Karnataka HC15 Oct 2024RFA/2351/2023

Case brief

AI extract

What is this about?

In this first appeal under Section 96 CPC, the High Court of Karnataka allowed the appeal in part, setting aside the trial court's judgment and decree in a money recovery suit. The High Court remitted the matter to the trial court for fresh consideration, granting the appellant an opportunity to cross-examine the plaintiff's witness and lead evidence.

What did the court decide?

The judgment and decree of the trial court dated 14.06.2023 in O.S.No.6328/2020 are set aside; matter remitted for fresh consideration.

Sri Shankaranarayana S Vs Smt S Shanthala — Execution and Attachment | Karnataka HC (2024)

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1 - NC: 2024:KHC:41682 RFA No. 2351 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE K.NATARAJAN REGULAR FIRST APPEAL NO. 2351 OF 2023 (MON)

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BETWEEN:

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SRI. SHANKARANARAYANA S, S/O LATE R. SRINIVASA, AGED ABOUT 49 YEARS, R/AT NO. 25, 1ST FLOOR, SRI. KALABYRAESHWARA PRASANNA, SMS LAYOUT, 20 'B' MAIN ROAD, J.P. NAGAR, BANGALORE.

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…APPELLANT

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(BY SRI. MANJUNATHA N.M, ADVOCATE)

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AND:

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Digitally signed by KAVYA R Location: High Court of Karnataka

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SMT. S. SHANTHALA, W/O S. PARAMESHWAR, AGED ABOUT 47 YEARS, R/AT NO. 11, CHIKKANNAMMA TEMPLE STREET, JORIPET, CUBBONPET, BANGALORE - 560 002.

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…RESPONDENT

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(BY SRI. NAGARAJA REDDY D, ADVOCATE)

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THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 14.06.2023 PASSED IN OS NO.6328/2020 ON THE FILE OF LXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-

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2 - NC: 2024:KHC:41682 RFA No. 2351 of 2023

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65), BENGALURU CITY., DECREEING THE SUIT FOR RECOVERY OF MONEY.

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THIS APPEAL, COMING ON FOR FURTHER ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE K.NATARAJAN

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ORAL JUDGMENT

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This appeal is filed by the appellant/defendant under Section 96 of CPC for setting aside the judgment and decree passed in O.S.No.6328/2020 dated 14.06.2023 passed by the LXIV Additional City Civil and Sessions Judge, Bengaluru (hereinafter referred to as the 'Trial Court') for having decreed the suit of the respondent/plaintiff for recovery of money.

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Though the case is posted for hearing on I.A.No.1/2024, the same will be considered along with the judgment.

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Heard the learned counsel for the appellant and learned counsel for the respondent.

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The rank of the parties detailed in the trial Court.

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3 - NC: 2024:KHC:41682 RFA No. 2351 of 2023

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The case of the plaintiff before the trial Court is that in the suit for recovery of money, Trial Court directed the defendant to pay a sum of Rs.2,60,750/- with interest of 18% per annum. It is contended that the defendant is the own brother of the plaintiff and availed financial assistance of Rs.1,00,000/- with an assurance to repay with interest of 1.5% per month. The plaintiff paid such an amount by NEFT to the bank account of the defendant on 04.10.2017 and again, on request, another Rs.70,000/has been transferred on 15.11.2017. Subsequently, the defendant has received the substantial amount of Rs.60,00,000/- with the settlement between himself and his uncle. The plaintiff started requesting him to settle the amount, but he went on postponing. Hence, notice has been issued and a reply has been given but not repaid the amount. Hence, suit came to be decreed.

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The defendant appeared through an advocate and filed a written statement by admitting the relationship with the plaintiff. But it is specific case of the defendant that the husband of the plaintiff passed away on 25.08.2017. She was under depression and requested the defendant to keep Rs.1,00,000/- with him and return back the same whenever

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4 - NC: 2024:KHC:41682 RFA No. 2351 of 2023

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she needed, and accordingly she transferred a sum of Rs.1,00,000/-, and further transferred an amount of Rs.70,000/- Thereafter, in April 2018, on the request of the plaintiff, he transferred Rs.1,00,005.90/- to the account of the plaintiff and paid Rs.70,000/- by way of cash by withdrawing the same from the bank. Therefore, the entire amount has been returned and transferred by the plaintiff. Hence, he prayed for dismissal of the appeal.

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On the basis of the pleadings, the trial Court framed

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the following issues, which reads as under:

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"1. Whether the plaintiff proves that she is entitled for judgment and decree for Rs.2,60,750/- (Rupees Two Lakhs Sixty thousand Seven Hundred and Fifty) as averred in the plaint?

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2. Whether the plaintiff further proves that she is entitled for 18% interest on the amount claimed in the plaint?

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3. Whether the defendant proves that plaintiff voluntarily transferred to the account of the defendant Rs.1,00,000/- (Rupees one lakh) on 0410-2017 and Rs.70,000/(Rupees Seventy Thousand) on 15-11-2017 as averred in his written statement?

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4. Whether the defendant proves that defendant has transferred Rs. 1,00,005.90 (Rupees One Lakh Five Rupees ninety paisa) on 05-05-2018 and has paid Rs.70,000/- (Rupees Seventy Thousand) on 05-052018 by cash to the plaintiff as averred in his written statement?

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5 - NC: 2024:KHC:41682 RFA No. 2351 of 2023

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5. Whether the plaintiff is entitled for the relief sought for?

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6. What Order or Decree?"

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To prove the case, the plaintiff examined herself as PW.1 and got marked 4 documents as Exs.P1 to Ex.P4. Since the defendant has not lead any evidence, the Trial Court after hearing the arguments, allowed the suit and directed the defendant to pay Rs.2,60,750/- with simple interest on the principal amount of Rs.1,70,000/- at the rate of 8% per annum from the date of suit till the date of decree and further interest at 6% per annum from the date of decree till realization.

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Learned counsel for the appellant has contended that the Trial Court had not given proper opportunity to the defendant for cross examining PW.1 and also not given opportunity to plead any evidence, he has failed to repay Rs.10,00,000/- to the plaintiff but was not able to adduce evidence before the Court. During the cross-examination, the matter was referred to the Lok-Adalat for settlement, the matter was not settled before the Lok-Adalat. After returning the case from the Lok-Adalath to the regular Court, the date of hearing was not informed to the defendant by his counsel, and

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NC: 2024:KHC:41682 RFA No. 2351 of 2023

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there was a communication gap between them, due to which the suit was decreed against the defendant. Therefore, defendant prayed for setting aside the judgment and seeking the opportunity to cross examine PW.1 and lead the evidence.

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Per contra, learned counsel for the respondent objects to the appeal and contended that the defendant/appellant has cross-examined PW.1 partly; thereafter, he remained absent. He has admitted that he has received the amount. Therefore, there is no need to remand back the matter and prays for dismissal.

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Having heard the arguments the only point that arises for consideration is:

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(i) Whether the appellant has made out a case for setting aside the judgment and decree passed by the trial Court and remand the matter?

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On hearing the arguments and on perusal of the impugned judgment at paragraph '14', the trial Court clearly stated that the plaintiff lead the evidence and got marked 4 documents to support her case. But the defendant has neither

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chosen to cross-examine P.W.1 nor lead any oral or documentary evidence in this regard. Therefore, the evidence of PW.1 was not contraverted, accordingly, the suit was decreed.

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13. Whereas, as per the argument of the learned counsel that it is his specific case that he has re-transferred the amount Rs.1,00,005.90/- through NEFT on 11.05.2018 upon the request of the plaintiff, the same was not taken into consideration by the trial Court. Due to the non-cross examination of PW.1 and not lead any evidence by the defendant. In view of referring the matter back to the LokAdalat subsequently, when the matter was referred back to the Court for non-settlement and there was a communication gap between counsel and the defendant/appellant. Therefore, an opportunity should have been given to the defendant/appellant by the trial Court and the same was not properly considered, which leads to decreeing the suit.

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By considering the facts and circumstances, the judgment of the trial Court is required to be set aside, and the matter is required to be remitted back for fresh consideration. Accordingly, I pass the following:

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NC: 2024:KHC:41682 RFA No. 2351 of 2023

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:: JUDGMENT ::

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i. The appeal is allowed in part.

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ii. The judgment and decree passed by the LXIV Additional City Civil and Sessions Judge, Bengaluru dated 14.06.2023 in O.S.No.6328/2020 is hereby set aside. The matter is remitted back for fresh consideration by giving an opportunity to the defendant/appellant to cross-examine PW.1 and lead any evidence.

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iii. The parties shall appear before the trial Court without expecting any further notice by 11.11.2024.

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iv. The Trial Court shall dispose of the matter within a period of six months from the date of first hearing.

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Sd/(K.NATARAJAN) JUDGE

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List No.: 1 Sl No.: 20 CT: BHK

Sri Shankaranarayana S v. Smt S Shanthala

Case brief

What is this about?

What did the court decide?

Sri Shankaranarayana S v. Smt S Shanthala

Case brief

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What did the court decide?

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