Bangalore District Court
M/S. Mega Enterprises vs Sri N. Ramesh on 1 July, 2017
Govt. Of Karnataka
C.R.P.67] TITLE SHEET FOR JUDGMENT IN SUITS
IN THE COURT OF THE XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
Form Mayohall Unit, Bangalore.
No.9 (Civil)
Title sheet for
Judgment in
suits (R.P.91) Present: Sri. B.NARAYANAPPA, M.A, LL.B.,
(Name of the Presiding Judge)
OS No. 26805 / 2012
(CCH-22)
Plaintiff:- M/s. Mega Enterprises, represented
by its Prop. Sri S. Srikanth, aged
about 32 years, No.72/1, 80 feet
road, Opp. Canara Bank HAL II
stage, Bengaluru 560 008.
(Plaintiff : By Advocate Sri. N.S. Shivaprasad)
V/s.
Defendant:- Sri N. Ramesh, aged about 42
years, S/o. Late Narasimhaiah and
late P. Jayamma, R/at No.112/3, 4th
cross, Opp. Ganesha Temple, New
Thippasandra, Bangalore 560 075.
(Defendant : In person)
Date of Institution of the suit 12.09.2012
Nature of the (Suit or pro-note, suit for declaration and Money Suit
possession, suit for injunction, etc.)
Date of the commencement of recording of the 01.10.2013
Evidence.
Date on which the Judgment was pronounced. 01.07.2017
Year/s Month/s Day/s
Total duration 4 9 19
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
MAYOHALL UNIT: BANGALORE
2 O.S.No.26805/2012
JUDGMENT
The plaintiff has filed this suit against the defendant for recovery of Rs.1,28,500/- with interest at the rate of 18% p.a., from the date of suit till realization and in the event of the defendant failing to pay the sum within time, to direct sale of plaint schedule property and adjust the sale proceeds towards the satisfaction of decreetal amount and for costs.
2) The brief facts of the plaintiff's case are that:-
The defendant approached the plaintiff for financial help for his personal necessities in the month of December, 2010 and the plaintiff agreed to lend a sum of Rs.1,00,000/- as short term loan with interest at 18% p.a. on condition that the defendant should deposit title deeds of schedule 'A' property. On 23.12.2010 the plaintiff has paid a sum of Rs. 1,00,000/- to the defendant and on the same day the defendant executed registered simple mortgage deed in respect of the suit schedule property in favour of the plaintiff. The defendant did not repay the amount alongwith accrued interest even after the expiry of 10 months as per the 3 O.S.No.26805/2012 conditions of the mortgage deed and the time prescribed in the simple mortgage deed is also lapsed. The plaintiff issued legal notice on 19.7.2012 to the defendant demanding to repay the principal amount of Rs.1,00,000/- with agreed interest at Rs.28,500/-. The defendant is due to the plaintiff the sum of Rs.1,28,500/- Hence, this suit.
3) After registration of this suit, suit summons were issued to the defendant. In response to summons the defendant appeared before the court inperson but did not file his written statement inspite of grant of sufficient time and opportunity and hence this case was posted for evidence of the plaintiff. The defendant did not cross examine the evidence of PW1 nor led any defence evidence and remained absent throughout the proceedings.
4) The plaintiff in order to prove its case, got examined its proprietor Mr. S. Srikanth, by filing affidavit in the form of examination-in-chief and the same was taken as PW1 and got marked the documents at Exs.P1 to P9 and closed the side of the plaintiff.4 O.S.No.26805/2012
5) I have heard the arguments of the learned counsel for the plaintiff.
6) The Points that would arise for the consideration of this court are as follows:
(1) Whether the plaintiff proves that, it is entitled to recover the suit claim amount of Rs.1,28,500/- from the defendant with interest?
(2) Whether the plaintiff is entitled for permission to sell the plaint schedule property towards realization of the suit claim, as prayed for?
(3) What order or decree?
6. My findings to the above Points are as follows:
Point No.1: ......... In the affirmative Point No.2: ......... In the negative Point No.3: ..........As per the final order, for the following:5 O.S.No.26805/2012
REASONS
7) POINT NOS.1:- PW1 in his Affidavit evidence has reiterated and re-affirmed the contents of the plaint averments and got marked the documents at Exs.P1 to P9.
8) In this case, though the defendant appeared in person, but he has not filed written statement and not even cross examined Pw-1 nor adduced his evidence nor produced any documents on his behalf and he remained absent throughout the proceedings. Thus, it is crystal clear that, the defendant has not at all placed any contrary materials on record to discard or disbelieve the case of the plaintiff. If at all the case of the plaintiff is not correct, the defendant would have definitely appeared before the court in order to contest the case of the plaintiff, but, he has not done so and he remained absent before the court. The absence of the defendant before the court itself clearly goes to show that, he has admitted the claim of the plaintiff.
9) It is the case of the plaintiff that the defendant is well known to him. When the defendant required financial help for his personal problems, contacted the plaintiff in the 6 O.S.No.26805/2012 month of December, 2010 and sought financial help of Rs.1,00,000/-. The plaintiff agree to lend the said sum to the defendant as short term loan with interest at 18% p.a. with condition that the defendant should deposit title deeds in respect of the suit schedule property. The defendant agreed to execute the registered simple mortgage deed pertaining to the property and hence the plaintiff paid a sum of Rs.1,00,000/- on 23.12.2010 to the defendant with interest at 18% p.a. The defendant after receipt of the said loan, has executed registered simple mortgage deed in respect of the suit schedule property on 23.12.2010 agreeing to repay the loan within 10 months. But the defendant did not repay the loan amount as agreed by him, even after expiry of 10 months. The plaintiff issued legal notice to the defendant on 19.7.2012 calling upon him to pay the loan amount of Rs.1,00,000/- with interest in a sum of Rs.28,500/-. The defendant received the said legal notice, but did not comply with the same and failed to repay the loan amount. Hence on the date of suit the defendant was due to the plaintiff the sum 7 O.S.No.26805/2012 of Rs.1,28,500/-. Hence the plaintiff has constrained to file the present suit.
10) On perusal of the Ex.P1 registered simple mortgage deed, which clearly go to show that the defendant after obtaining loan of Rs.1,00,000/- from the plaintiff on 23.12.2010 has executed Ex.P1 simple mortgage deed in favour of the plaintiff, in respect of the suit schedule property towards security of the loan amount. Ex.P2 is the Khatha certificate standing in the name of the defendant, Ex.P3 is the khatha extract standing in the name of the defendant in respect of the suit schedule property. Ex.P4 is the sanction plan issued by the Bengaluru Mahanagara Palike and Ex.P5 is the licence issued by Bengaluru Water Supply and Sewerage Board in the name of the defendant. Ex.P6 is the Encumbrance Certificate, Ex.P7 is the tax paid receipt, Ex.P8 is the copy of the legal notice, Ex.P9 is the returned registered postal covers.
11) From Ex.P1 simple mortgage deed it is crystal clear that on 23.12.2010 the defendant had obtained loan of 8 O.S.No.26805/2012 Rs.1,00,000/- from the plaintiff with interest at 18% p.a. and towards security of the said loan, he had executed Ex.P1 simple mortgage deed in respect of the suit schedule property in favour of the plaintiff. So, by virtue of Ex.P1, the plaintiff has come up with the present suit for recovery of Rs.1,00,000/- towards principal amount and Rs.28,500/- towards interest, as the defendant has failed to pay the loan amount with interest within the period of 10 months from the date of availment of the loan. From Ex.P1, it is crystal clear that the plaintiff has proved that the defendant has obtained loan of Rs.1,00,000/- and executed Ex.P1 simple mortgage deed in favour of the plaintiff in respect of the suit schedule property towards security of the said loan amount. Therefore, the plaintiff has proved that the defendant has availed loan of Rs.1,00,000/- on 23.12.2010.
12) The plaintiff has sought for future interest at the rate of 18% per annum. By taking into consideration the suit claim amount, I am of the considered view that, if future interest at the rate of 18% per annum is awarded, it will over-burden the defendant. Therefore, I am of the considered view that, the 9 O.S.No.26805/2012 plaintiff is entitled to future interest at the rate of 12% per annum but he is not entitled to the future interest at the rate of 18% per annum as claimed in the suit,
13) The plaintiff has sought for permission to sell the plaint schedule property in case the defendant fails to pay the decreetal amount, towards satisfaction of the decreetal amount. The loan amount obtained by the plaintiff is Rs.1,00,000/- with interest at Rs.28,500/- as claimed by the plaintiff which appears to be meager amount, whereas the mortgaged property appears to be valuable property standing in the name of the defendant. If the plaintiff is permitted to sell the suit schedule property towards satisfaction of the decreetal amount, the defendant will definitely loose his valuable property and he will be thrown to streets. Therefore, I am of the considered view that the relief claimed by the plaintiff to sell the mortgaged suit schedule property for recovery of decreetal amount is not fit to be allowed. Hence I answer Point No.1 in the affirmative and Point No.2 in the negative.
14) POINT NO.3:- In view of the aforesaid reasons on Point Nos.1 & 2, I proceed to pass the following: 10 O.S.No.26805/2012
ORDER Suit of the plaintiff is decreed with costs.
2) The defendant is hereby directed to pay a sum of Rs.1,28,500/- [Rupees one lakh twenty eight thousand five hundred only] to the plaintiff within two months from the date of this order, with future interest at the rate of 12% per annum, from the date of filing of this suit till the date of realization.
3) The prayer sought by the plaintiff seeking permission to sell the mortgaged property i.e. suit schedule "A" property for realization of decreetal amount with costs is hereby dismissed.
4) Draw decree accordingly.
(Dictated to the Judgment Writer directly on computer system, computerized and print out taken by him and then after correction pronounced by me in the open court on this the 1st day of July, 2017).
(B.NARAYANAPPA) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.
11 O.S.No.26805/2012SCHEDULE - A All that piece and parcel of the property bearing House built in municipal New No.1/3, PID No.75-58-1/3 (Portion of old Municipal No.1&5) situated at Nandavanam 'D' street, Jogupalya, Civil Station, Ulsoor, Bangalore, measuring East to west 10 feet and North to South 29 feet, in all measuring 290 square feet, alongwith total 6.7 square house constructed with brick and cement, mosaic flooring, hone wood doors and windows with all civic amenities and bounded on:
East by Municipal ¼ belongs to N. Venugopal, West by Munihuchappa's house North by Narayanaswamy's house Soth by 'D' street Road.
SCHEDULE - B
1) Original registered will as vide
No.79/1980-81, of book III, dated
18/9/1980, volume 48, pages 14 to 17
and registered in the office of the sub- Registrar, Shivajinagar, Bnaglore 12 O.S.No.26805/2012
2) Original Khatha certificate, extract and up to date tax paid receipt.
3) Original plan sanctioned by the concerned government office, original Bengaluru Water Supply and Sewerage Board water supply order copy
4) Up to date Encumbrance Certificate (B.NARAYANAPPA) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BENGALURU 13 O.S.No.26805/2012 ANNEXURE LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
P.W.1 : Sri Suresh 1.10.2013 LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P1 : Simple mortgage deed 23.12.2010 Ex.P2 : Khatha certificate Ex.P3 : Khatha extract Ex.P4 : Sanctioned plan Ex.P5 : Licence by Bengaluru Water Supply and Sewerage Board Ex.P6 : Encumbrance Certificates Ex.P7 : Tax paid Ex.P8 : Legal notice Ex.P9 : Returned envelopes LIST OF WITNESSES EXAMINED AND DOCUMENTS MARKED FOR DEFENDANT:
NIL XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT: BANGALORE.14 O.S.No.26805/2012
01.07.2017 Pltff: NSS Judgement pronounced in the open court D: PIP (Vide separate detailed Judgement) Judgement Suit of the plaintiff is decreed with costs.
2) The defendant is hereby directed to pay a sum of Rs.1,28,500/- [Rupees one lakh twenty eight thousand five hundred only] to the plaintiff within two months from the date of this order, with future interest at the rate of 12% per annum, from the date of filing of this suit till the date of realization.
3) The prayer sought by the plaintiff seeking permission to sell the mortgaged property i.e. suit schedule "A" property for realization of decreetal amount with costs is hereby dismissed.
4) Draw decree accordingly.
(B.NARAYANAPPA) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BENGALURU