Partly allowed

Shri K v. Vinay v Smt Vidya Manjunath

Karnataka HC18 Dec 2024RFA/679/2022

Case brief

AI extract

What is this about?

Defendant appealed a partly decreed suit for recovery of Rs.7,85,000 loan with interest. Since double the cheque amount had been deposited under the NI Act conviction and the plaintiff relinquished the principal, the court confirmed the decree but reduced the decreetal amount to Rs.84,265 payable to the respondent.

What did the court decide?

Decree confirmed; decreetal amount modified — appellant to deposit Rs.84,265 with Executing Court and Rs.9,81,250 with Magistrate Court within six weeks.

Shri K v Vinay Vs Smt Vidya Manjunath — Contract and Commercial Disputes | Karnataka HC (2024)

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NC: 2024:KHC:52567 RFA No. 679 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE K.NATARAJAN REGULAR FIRST APPEAL NO. 679 OF 2022 (MON)

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BETWEEN:

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SHRI K.V. VINAY S/O LATE K.G. VENKATESH, AGED ABOUT 39 YEARS, R/AT NO.7 AND 7/1, 2^ND CROSS, SIDDAPURA, LALBAGH WEST GATE, JAYANAGAR, BENGALURU - 560 011

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…APPELLANT

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(BY SRI. SACHIN V.R., ADVOCATE)

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AND:

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Digitally signed by VEDAVATHI A K Location: High Court of Karnataka

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SMT. VIDYA MANJUNATH AGED ABOUT 60 YEARS, R/AT NO.424, 7^TH B MAIN ROAD, 30^TH CROSS, IV BLOCK, JAYANAGAR, BENGALURU - 560 011.

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…RESPONDENT

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(BY SRI. RAMESH ANANTHAN, ADVOCATE)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 23.02.2022 PASSED IN OS No.242/2010 ON THE FILE OF THE 17TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, PARTLY DECREEING THE SUIT FOR RECOVERY OF MONEY.

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NC: 2024:KHC:52567 RFA No. 679 of 2022

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THIS APPEAL, COMING ON FOR 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 by the City Civil and Sessions Judge, Bengaluru in O.S.No.242/2010 dated 23.02.2022.

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Notice is served on the respondent who appeared for respondent in the Executing Court and he has appeared before this Court.

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Heard the arguments of learned counsel for the appellant as well as respondent.

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The appellant was defendant and respondent was plaintiff before the Trial Court.

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The case of the plaintiff before the Trial Court is that the defendant borrowed a loan of Rs.7,85,000/- from the plaintiff with an assurance to repay the same and also issued cheque

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bearing No.807061 in favour of the plaintiff which was presented before the Bank and was dishonoured by the Bank on 27.11.2009. A complaint under Section 138 of the Negotiable Instruments Act was also filed by the plaintiff against the defendant. Meanwhile, the plaintiff also filed O.S.No.242/2010 for recovery of the loan amount of Rs.7,85,000/-. In that case, notice has been issued to the defendant to appear and file written statement. The defendant appeared and pleaded in the written statement that there was family dispute between the members of the family and denied the loan amount received by him and prayed for dismissing the suit.

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Based upon the pleadings, the Trial Court framed four issues as under:

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1. Whether the plaintiff proves that the defendant had borrowed loan of Rs.7,85,000/from the plaintiff by agreeing to repay the same with interest @ 2% per annum from 19.05.2008 as contended?

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2. Whether the plaintiff proves that for discharge for the debt, defendant had given

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cheque and the same was dishonoured for insufficient funds?

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3. Whether the plaintiff is entitled for recovery of Rs.10,85,000/- with interest from the defendant as prayed in the suit?

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4. What decree or order?

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The plaintiff got herself examined as P.W.1 and got marked 10 documents as per Ex.P1 to Ex.P10 and the defendant has not examined any witnesses. However, he has got marked six documents as per Ex.D1 to Ex.D6 in respect of the earlier civil suits and the criminal case filed by the plaintiff against him under Section 138 of the Negotiable Instruments Act. After hearing arguments, the Trial Court answered Issue

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Nos.1 and 2 in the affirmative and Issue No.3 partly in the affirmative and finally decreed the suit of the plaintiff with a direction to pay a sum of Rs.7,85,000/- along with interest at the rate of 9% p.a. However, the plaintiff was directed to relinquish the right of the sum of Rs.7,85,000/-. Therefore, the appellant is before this Court.

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Learned counsel for the appellant has contended that the plaintiff has already filed a criminal case where the Magistrate acquitted the appellant in C.C.No.37546/2010. Subsequently, the respondent filed appeal before this Court in Criminal Appeal No.578/2017 and this Court reversed the Judgment of the Trial Court and convicted the accused/appellant directing to pay double the cheque amount within eight weeks, failing which, the accused was directed to undergo S.I for a period of one year. It is further contended that being aggrieved by the same, the appellant approached the Hon'ble Supreme Court in SLP Crl.No.1342/2021. The Hon'ble Supreme Court dismissed the SLP. Accordingly, the appellant has contended that the amount of Rs.5,88,750/- on 18.12.2020 as per the direction of the Hon'ble Supreme Court has been deposited and the cheque amount is Rs.7,85,000/-. Execution Petition has been filed by appellant for recovery of a sum of Rs.10,65,515/- and he also admits foregoing the remaining amount. Learned counsel for the appellant submits that no prejudice would be caused to the respondent, whereas it would amount to double jeopardy if amount as claimed in the Execution Petition is ordered to be paid.

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NC: 2024:KHC:52567 RFA No. 679 of 2022

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9. Having heard the arguments, the points that arises for consideration in this appeal is:

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i) Whether the Judgment of the Trial Court calls for

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interference?

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ii) What order?

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It is an admitted fact that the plaintiff filed suit in O.S.No.242/2010 for recovery of Rs.7,85,000/- alleged to be borrowed by the defendant/appellant. It is an admitted fact that a cheque was issued by the respondent/plaintiff and the same was presented before the Bank and dishonoured. C.C.No.37546/2010 was filed before the Trial Court and the accused was acquitted. Aggrieved by the same, complainant filed Criminal Appeal No.578/2017 before this Court and the co-ordinate Bench has allowed the appeal and convicted the accused and directed to pay double the cheque amount, which amounts to Rs.15,70,000/- with default sentence of one year S.I. The appellant/defendant approached the Hon'ble Supreme Court. The Hon'ble Supreme Court dismissed the SLP and directed the defendant to deposit 50% of the fine amount. Thereafter, an application was filed under Order XXIII Rule 1 of

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CPC by plaintiff abandoning her claim on the principal amount, but retaining the claim with respect to the interest part. Therefore, the appellant was directed to pay only interest at the rate of 9% on a sum of Rs.7,85,000/- instead of Rs.15,70,000/-. The appellant has deposited a sum of Rs.5,88,750/- before the Magistrate Court as per the direction on the Hon'ble Supreme Court. Execution Petition is filed for Rs.10,65,515/-. Thus, the difference amount is calculated as under:

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EP - Rs.10,65,515 - Rs.9,81,250 = Rs.84,265

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Double the cheque amount = Rs.15,70,000

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Deposited amount (-) Rs. 5,88,750 ----------------Balance Rs. 9,81,250 -----------------

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The amount deposited before the Magistrate Court is Rs.5,88,750/-. Double the cheque amount comes to Rs.15,70,000/-. Thus, difference amount comes to Rs.9,81,250/- (Rs.15,70,000 - Rs.5,88,750). Execution Petition is filed for Rs.10,65,515 minus Rs.9,81,250 comes to Rs.84,265/-.

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It is clearly admitted by the respondent that the amount of Rs.5,88,750/- has already been deposited by the defendant before the Magistrate Court. The respondent has relinquished

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the right of Rs.7,85,000/- in the decree. Therefore, only interest amount is payable by the appellant to the respondent. Therefore, only a sum of Rs.84,265/- is payable by the appellant to the respondent by way of Demand Draft.

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Considering the same, I am of the view that the Judgment and Decree of the Trial Court has to be confirmed, subject to modification of the decreetal amount. In the result, the following:

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ORDER

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i) The appeal is allowed in part.

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ii) The Judgment and decree passed in O.S.No.242/2010 by the XVII Addl. City Civil

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and Sessions Judge, at Bengaluru is confirmed.

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iii) However, the decreetal amount is modified as under:

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The appellant is liable to deposit a sum of Rs.84,265/- before the Executing Court within a

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NC: 2024:KHC:52567 RFA No. 679 of 2022

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period of six weeks from today. The appellant is liable to deposit a sum of Rs.9,81,250/- before the Magistrate Court in the criminal case within

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a period of six weeks from today.

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Sd/(K.NATARAJAN) JUDGE

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BNV List No.: 1 Sl No.: 7

Shri K v. Vinay v Smt Vidya Manjunath

Case brief

What is this about?

What did the court decide?

Shri K v. Vinay v Smt Vidya Manjunath

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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