Sri. Nagaraj Shetty Vs Sri. Gururaj Acharya

THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 03.03.2021 PASSED IN OS.NO.10406/2015 ON THE FILE OF THE XXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE, PARTLY DECREEING THE SUIT FOR RECOVERY OF MONEY.

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

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NC: 2025:KHC:39750 RFA No. 1865 of 2021

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

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ORAL JUDGMENT

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This appeal by the defendant in O.S. No.10406/2015 is directed against the impugned judgment and decree dated 03.03.2021 passed by the XXV Additional City Civil and Sessions Judge, Bengaluru, whereby the said suit filed by the respondent - plaintiff against the appellant - defendant was decreed by the trial Court directing the appellant - defendant to pay a sum of ₹.2,24,000/- to the respondent - plaintiff together with interest at the rate of 6% per annum from the date of the suit till realisation.

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Heard learned counsel for the appellant and learned counsel for the respondent and perused the material on record.

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A perusal of the material on record would indicate that the respondent has instituted the aforesaid suit against the appellant for recovery of a sum of ₹.2,24,000/- along with interest at 12% per annum from the date of transaction till the date of payment. The said suit having been contested by the

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NC: 2025:KHC:39750 RFA No. 1865 of 2021

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HC-KAR

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appellant - defendant, the trial Court framed the following issues -

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" (1) Whether the plaintiff proves that at the request of defendant and out of friendship, he has paid Rs.2,00,000/- to the defendant in the month of November 2012?

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(2) Whether the plaintiff proves that for the repayment of Rs.2,00,000/- the defendant has issued two cheques as mentioned in para No.4 of the plaint ?

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(3) Whether the plaintiff is entitled for interest at the rate of 12% per annum ?

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(4) Whether the defendant proves that the chqeus shown in the plaint are of stolen cheques as contended by him in para No.9 of his written statement ?

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(5) Whether the defendant proves the contents of para No.11 and 12 of his written statement ?

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(6) Whether the suit of the plaintiff is barred by limitation?

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(7) Whether the plaintiff is entitled for the reliefs as sought by him?

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(8) What order or decree?"

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The plaintiff examined himself as PW1 and one witness as PW2 and documentary evidence at Exhibits P1 to P7 were marked. The defendant examined himself as DW1 and documentary evidence at Exhibits D1 to D6 having been marked, the defendant did not tender himself for crossexamination and the same was discarded and eschewed from

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4 - NC: 2025:KHC:39750 RFA No. 1865 of 2021

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HC-KAR

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consideration pursuant to which the trial Court heard the arguments of respondent - plaintiff and noted the absence of the appellant - defendant and proceeded to pass the impugned judgment and decree in favour of the respondent - plaintiff against the appellant - defendant who is before this Court by way of the present appeal.

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Learned counsel for the appellant submits that on account of demise of the appellant's mother and due to the prevailing COVID-19 pandemic, the appellant was not in a position to tender himself for cross examination as DW1 and also contest the suit further after his examination in chief was recorded or address the arguments on merits. It is submitted that the inability and omission on the part of the appellant - defendant to contest the suit after his examination in chief was recorded was due to bonafide reasons, unavoidable circumstances and sufficient cause and as such, it is necessary that the impugned judgment and decree passed by the trial Court is set aside and the matter is remitted back to the trial Court for reconsideration afresh in accordance with law.

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5 - NC: 2025:KHC:39750 RFA No. 1865 of 2021

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HC-KAR

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Per contra, learned counsel for the respondent - plaintiff would support the impugned judgment and decree and submit that there is no merit in the appeal and the same is liable to be dismissed.

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The only point that arises for consideration in the present appeal is, whether the impugned judgment and decree passed by the trial Court warrants interference in the present appeal ?

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A perusal of the material on record would indicate that various contentious issues and disputed questions of law and facts arise for consideration between the parties as can be seen from the material on record comprising of the pleadings of the parties, issues and evidence on record. However, it is relevant to state that the trial Court took note of the undisputed fact that the appellant - defendant did not tender himself for crossexamination and consequently eschewed/discarded his evidence from consideration and proceeded to pass the impugned judgment and decree in favour of the respondent - plaintiff against the appellant - defendant. Under these circumstances, in view of the specific assertion on the part of

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HC-KAR

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the appellant that his inability and omission to tender himself for cross-examination and contest the suit, subsequent to the examination in chief being recorded was due to bona fide reasons, unavoidable circumstances and sufficient cause and due to prevailing COVID-19 pandemic and the demise of his mother, I deem it just and appropriate to adopt justice oriented approach and in order to provide one more opportunity to the appellant, set aside the impugned judgment and decree and remit the matter back to the trial Court for reconsideration afresh in accordance with law by issuing certain directions in this regard.

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In the result, the appeal is hereby allowed . The impugned judgment and decree dated 03.03.2021 is hereby set side subject to the appellant paying a sum of ₹.15,000 (Rupees Fifteen Thousand only) by way of cost to the respondent on the date of their appearance before the trial Court.

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The matter is remitted back to the trial Court for reconsideration afresh in accordance with law. The appellant and respondent undertake to appear before the trial Court on 03.11.2025 without awaiting further notice from the trial Court.

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NC: 2025:KHC:39750 RFA No. 1865 of 2021

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HC-KAR

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The appellant is directed to tender himself for crossexamination either on 03.11.2025 or any other date tobe fixed by the trial Court.

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Liberty is reserved in favour of the parties to adduce additional oral and documentary evidence in support of their respective claims. The trial Court is directed to reconsider the

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matter afresh and dispose of the suit in accordance with law within a period of three months from 03.11.2025.

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12. All rival contentions between the parties on all aspects

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of the matter are kept open and no opinion is expressed on the merits/demerits of the rival contentions.

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The registry of this Court is directed to refund the entire Court fee paid on the memorandum of appeal back to the appellant forthwith without any delay.

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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YKL CT-SG List No.: 1 Sl No.: 2

Sri. Nagaraj Shetty v. Sri. Gururaj Acharya

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Sri. Nagaraj Shetty v. Sri. Gururaj Acharya

Case brief

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