Karnataka High Court
Sri. Ranappa S/O Shiddappa Konanatali vs Sri. Basavanneppa S/O Nagappa Tavaragi on 13 February, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BEN CH
DATED THIS THE 13 T H DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR.J USTICE AS HOK S. KINAGI
R.S.A .No .100936/ 2017 ((Rcvry. Of money)
BETWEEN
SRI. RANAPPA S/O SHIDDAPPA KONANATALI
AGE: 53 YEARS, OCC: EMPLOYEE,
R/O KEMBHAVI, BHOGANNAVAR,
HIGH SCHOOL, BHOGAVI,
TQ: HIREKERUR, DIST: HAVERI.
..... APPELLANT
(BY SRI S M KALWAD, ADV.)
AND
SRI. BASAVANNEPPA S/O NAGAPPA TAVARAGI,
AGE: 70 YEARS, OCC: RETIRED EMPLOYEE,
R/O: KODIHALLI, TQ: HIREKERUR,
DIST: HAVERI,
..... RESPONDENT
(BY SRI N P VIVEKMEHTA, ADV.)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC
1908 AGAINST THE JUDGMENT AND DECREE DATED
05.09.2017 PASS ED IN R.A.NO.17/2015 ON THE FILE OF
THE SENIOR CI VIL JUDGE AN D JMFC, HIREKERUR,
DISMISSING THE APPEAL AND CONF IRMING THE JUDGMENT
AND DECREE DATED 27.02.2015, PASS ED IN
O.S .No.301/ 2010 ON THE FI LE OF THE PRINCIPA L CIVIL
JUDGE AND JMFC, HIREKERUR, PA RTLY DECREEING THE
SUIT FILED FOR RECOVERY OF MON EY.
THIS APPEAL COMING ON F OR ADMI SSION, THIS DAY,
THE COURT DELIV ERED THE F OLLOW ING:
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JUDGMENT
This appeal is filed by the defendant challenging the judgment and decree passed in O.S.No.301/2010 dated 27.02.2015 passed by the Prl. Civil Judge and J.M.F.C., Hirekerur confirmed the same in R.A.No.17/2015 by judgment and decree dated 05.09.2017 by the Senior Civil Judge and J.M.F.C., Hirekerur.
2. The parties are referred to as per their rankings before the trial Court.
3. Brief facts of the case that the plaintiff and defendants are friends. Defendant was in need of money. Accordingly, he approached the plaintiff and requested to advance a loan of Rs.2,00,000/- on 23.11.2007 for his legal necessity. The plaintiff considering the need of the defendant, advanced a sum of Rs.2,00,000/- on 23.11.2007. Accordingly, the defendant after received the amount, executed a promissory note in favour of plaintiff. Further the -3- defendant agreed to pay the interest at the rate of 12% p.a. In spite of several requests made by the plaintiff to repay the loan amount, the defendant went on postponing for one or other reason. Hence, the plaintiff constrained to file a suit.
4. The defendant appeared and filed written statement. The defendant denied that he has borrowed a sum of Rs.2,00,000/- from the plaintiff and he also denied the execution of promissory note in favour of the plaintiff. It is further contended that one Narayan Roopsingh Rathod and A. Hanumanthappa were working in the School where the defendant was working and the above persons were in need of personal assistance as such the defendant brought the said persons to the plaintiff and plaintiff advanced a sum of Rs.50,000/- each in favour of the said persons for which the defendant has received a cheque and also obtained signature of defendant on the blank paper. Since both the above said persons could not repay the loan -4- amount, plaintiff filed a criminal case against the said N.R. Rathod for the offence punishable under Section 138 of N.I. Act. Thereafter the said N.R. Rathod and the plaintiff entered into compromise in the said case and N.R. Rathod returned entire loan amount received by him to the plaintiff. Since another person viz. A. Hanumanthappa could not repay the loan amount to the plaintiff, the plaintiff has used the said blank bond paper singed by the defendant converted into the promissory note and filed the present suit. It is contended that the defendant has not at all received any cash or any hand loan from the plaintiff at any point of time. The promissory note relied upon by the plaintiff is false and created one. Hence, he prayed to dismiss the suit.
5. The trial Court based on the pleadings, framed the following issues:
1. Whether the plaintiff proves that, he advanced Rs.2,00,000/- (Two lakhs) to the defendant on -5- executing on demand promissory note dated 23.11.2007?
2. Whether the defendant proves that the plaintiff has obtained his signature on the blank stamp paper and created the same as demand promissory note?
3. Whether the defendant proves that, on demand promissory note is created, sham and bogus?
4. Whether the plaintiff is entitled for the suit amount with interest at the rate of 12% per annum?
5. What order or decree?
6. In order to prove his case, the plaintiff got examined himself as PW-1 and got marked documents as Exs.P-1 to P-4. The defendant No.1 got examined himself as DW-1 and examined one witness as DW-2 and has not produced any records. The trial Court after considering the pleadings oral and documentary evidence held that the plaintiff has proved that the plaintiff has advanced a loan amount of Rs.2.,00,000/--6-
to the defendant on executing a demand promissory note dated 23.11.2007. Further the defendant has failed to prove that the plaintiff has obtained his signature on the blank bond paper and created a demand promissory note and held that the plaintiff has entitled for suit amount with interest at 12% p.a. Accordingly, the trial Court decreed the suit of the plaintiff. The defendant aggrieved by the judgment and decree, filed an appeal.
7. The first appellate Court framed the following points for consideration:
1. Whether the Trial Court has erred in come to the conclusion that the defendant has borrowed the loan from the plaintiff?
2. Whether the judgment and decree of the Trial Court is capricious, devoid of merits, erroneous and warrants for the interference by the instant court?
3. What order?-7-
8. The first appellate court after re-appreciating the oral and documentary evidence and judgment passed by the trial Court has held that the trial Court has not committed any error in coming to the conclusion that defendant has borrowed a loan from the plaintiff and further held that the judgment and decree passed by the trial Court is not perverse, frivolous and erroneous and consequently, dismissed the appeal confirming the judgment and decree of the trial Court. The defendant being aggrieved by the judgment and decree passed by the Courts below, has filed this second appeal.
9. Heard learned counsel for the appellant and respondents.
10. Learned counsel for the appellant submits that he was a guarantor for the loan obtained by Narayan Rupsingh and A. Hanumanthappa, a blank bond paper was signed by the defendant and the plaintiff has -8- misused the same. He further submits that promissory note was not proved in accordance with law.
11. Per contra, learned counsel for the respondent supports the impugned judgment and decree passed by the Courts below.
12. Perused the judgment and decree of the courts below and perused the records.
13. It is the case of the plaintiff that the defendant has borrowed a sum of Rs.2,00,000/- and agreed to pay interest. He has also executed a promissory note in favour of the plaintiff. When the plaintiff requested to repay the loan amount, the defendant failed. Hence, the plaintiff has constrained to file the suit.
14. Plaintiff examined himself as PW-1. He deposed that he had advanced a sum of Rs.2,00,000/- to the defendant and the defendant executed a promissory note in his favour. He has produced the -9- said document as Ex.P-1. The defendant admits his signature on Ex.P-1. It is the contention of the defendant that he has signed on the blank bond paper but except the oral evidence of defendant, the defendant has not examined Narayan Rathod as well as A. Hanumanthappa to show that defendant stood as guarantor for the loan obtained by the above said persons. Even if the contention of the learned counsel for the appellant is considered that the defendant stood as a guarantor for the loan obtained by the said persons, the defendant is equally responsible for payment of loan obtained by the above said persons as he being the guarantor as per Section 128 of Indian Contract Act, 1872 which reads as under:
128. Surety's liability.--The liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract.
15. In the present case, even if the case of the defendant is considered that he was the guarantor that he is coextensively liable with that of the principal
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debtor. Considering the above Section 128, the defendant is liable to pay the amount of Rs.2,00,000/- to the plaintiff.
16. Further, the defendant in his cross- examination has clearly admitted before the trial Court that he had certain loan transaction with the plaintiff and he has received the loan from the plaintiff for Narayan Rathod and A. Hanumanthappa. In view of the admission of defendant that he has borrowed loan from the plaintiff, the contention of the appellant/defendant that he has not borrowed loan from the plaintiff and he has not executed any promissory note, cannot be accepted for the reasons discussed above. I do not find any grounds to interfere with the impugned judgment passed by the Courts below and do not find any substantial question of law. Accordingly, the appeal is dismissed.
Sd/-
JUDGE Naa