Karnataka High Court
K G Srinivas vs M/S Akshaya Financiers on 16 August, 2011
Author: Aravind Kumar
Bench: Aravind Kumar
Hs, BR BOE OR FM at & ; LLU E Lr LOM MALO Pig LAPP U8 SBP Doe PTE LR EE eth MSF BEFORE. THE HON'BLE MR. JUSTICE ARAVIND KUMAR BETWEEN 1. K.GSRINIVAS, °° S/O.V.GOVINDAPPA,. > AGED ABOUT 28 VEARS, -- GANGANAMIDDE, CHICKABAL é TR TALUK, WGOVIN DARPA, 0. G/O.VENKATASHAMOPPA, MM era aS tok APPELLANTS % (BY SRLG.R. VENKATESH, ADVOCATE} "AND . M/S. AKSHAYA FINANCIERS, -EPIGHNA TALKIES ROAD, . HICKABALLAPUR- 562 161 ~ REPRESENTED BY ITS B AGING ce os oC ee. De 7 "admitted the ab Ce a ee ee ee ee ee ee ir " RSA No.130/20 O06 , 1. 'DECREE tO.L D IN x A. 0.104] 03 On BILE OF: THE. GYIE- ° (SENIOR DIVISION] AND. IMEC. See oo FAL _& i : ASIDE THE OMENT AND DEC ARE TED 13.03. 2003 PASSED ie. GS. NO.46/2000 ON 2 ELE OF ' CIVIL. DGE LOR, DN) AND eee. C, CHG a THIS APPEAL COMING This 18 'Defendan ve sevord 8 sppeal queation 260 in RA Ho. 104) 2008 by Chil Judge (Senior 2. This Ceurt by order dated 29.07.2010, he ' Ye : i a substential question of law: be OURYT OF KARNATAKA Mb cn a CAGURT OF KARNATAMA HIGH ¢ e¢pen) ere as under azel ne _ om the dete Ph Retr ELT AE" OARS LAR TTT PUNE GP UMAR Mita WOU P OF RORNATAIA MEE 4 RSA No 130) 2006 rt was justified tr: reversing 7 i decree passed by ine trial Court by recewing the money tending cence. Wither a wg sh, by Jearaed coninsel tor tne appellant. Though. respondent served 'end represented it sel, there is ne representation on behell of the reanorkiont. 4. The facts in mutehell leading i filing of this 8 are relerred to ag per their rank appearing in the Triel Court. Fad a. Maint instituted & @Uil ior recovery of (he money abe for @ eum of Re.26,690/- together with current amc fiture nvierest at Cee rate of 22% ger e . arr arg) with the coat of the eutt. t was contercled by the plaintiff, that firet defendant wae Principal borrower ari eecord deferviant wae co- obligant/surety 4 ee ee a ee ee ee er ee ee ee ee ree ae re wae ee ee ee vee ok AS a SPP second defend im, au Gee ae rl ee --
fan ce al oy oo as ar they hed borrowed sum of Rs.16,000/~ from: the plaintil for purposes of firet defen nts Busniese, witerest at 22356 per erirum are 2 in conticies ation for ha r reocived the amour ae. On de omens prom 4 aipt cemme to be Delendants have alse Undertaken" ear within 04.07.1997, _and ineyite "of several d defendants « tid fast repay: the debt, as such suit came to bee Dewi, secicing recovary of the amount of Re 26,690) - with interest at 2 22% 6 per annum. . 6 Defindants were se with suit surmmens, ured and Gied ther written statement arul entire Kengalore. The second delencart was « benee with gente frm @arier to tse cause of the eotien B pr z to repay the amount on dems mark, togetiaer with | SH RESELL heee
--
AA H # QURT OF KARNAT * papers: It was den borrowed inam arid
- res) Smuount cue to the pls _eonterided obtained from the defen BEE NENARERS SEE BESO IEEE PEG SASUKE BHP RARMATARA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH gor on be decumierits and asdd they would refues the loan ec nt ior axel aa they were in dire r cunt fbr agricultiiral improvements second & cure. It was etated that, | 2 signed as surety on the ined on blanie documenta, but nie cignatues were ob d that, on 25.03.1907, they Frenveacry aote end corns that lean berréwed cartier had be paged om eerker blank docwume teutt is fled with ialse end frivolous grourvis. ae Yet 2 PAPE ELAS OER RISES a ee . marked as Ex Dl to Ex.D.14. oe pha pee ee a if eh poate fag ca bd a fot os Y. Gn the basis of the rival pleadings, trial Court frame iollowing iewes:
I, Wirether piers proves thet "en 25. C3 L907 :
first defendant with a. & o-obligant of secon defendant has borrat ped a Esum of Re 16, 600/- On exacting the i ioar i documents? : 'the.
ie | feller. aud in Sse oF Rs. 28, 090/- as on the deie of ihe Bake suit?
3. Wh 4, What onaer oF decree? ated, wg giten, proves:
a the i placntiff ris entitled io the suit caumr &. Plaintiff ite order > prove it cage, & ng Partner. as MW.l aml got produced anc eA & documents and: get it as Ex.Pl to Ex.S. Defendonte at themeches exariined as DW.1 and . TAS andl got produce 14 documents and got i cofisidering the e .. (eurt anewered beue Ne.l end 2 in Afirmatve and & issue No.3 in the Negatiwe amd dismissed the suit by Ban he se, cen cee, a fet Oe' . Jidgment ar! decrees dete' 15.02 2003, a ah RAE 3M, ER Bet i te oa ee we OB ENE OT SE ELE WY) ee Pek ees ae ..
2 __ a SOE PRE LEG EE A Wet EL E GT ELLE CR TARTS PF Court reversed ihe find intterwet at the rate of
- the eudt ol date of ras ' RSA Ne lay 2006 Division) & | JW anguiments ot the learned tthe parties, Lower = Appellate a points fo or ite consideration:
trial. Court is justified in. dismi issing the suit of the': pluin if. | Se Suiigment o and Deore oft the trial Court aidvocaica appearing for the parties, Lewer Aopellate oe the Tewl Covrt ary > desreed the euit, for eum of Re.26,690/- with future mum trom the dete of tion of dee entire decretal
- ata.
oy the aeid Jui et and Decree, the lm RA No. 1G 744 2008 | before 7 OE a mek EEO RE LE Wee Po EN eS eh eS me .
.
Wwe GR eR ROLE EOE LO EG AE RSE "mst BB The irutal Gcfect, viemiely nor 'Appellate Coust and i cugat to heave . bas' under section 10 and 11 of the Karna' * Lenders Act te dev (Aker copra tae Pa RSA No.l 30/2006 q we hemed by the deferuients m the e Becotal ap med Course! nm defendant would contend that,.. there. i ig Veolation of provisions of Section 10 atl il at the | Rarnete Lencers Act, eels end plaincitt had not produced the money lencling brerse bafire. the trial Court and only before the ower Appolne C Court < Cm, sg of the said leeres wae Thee was no produced "along. with rk. 7 oppertiin ity for the ape nt to rebut the said evidence. (uct of lireerne before trial Court cearinmot be cured before lower m produc co befor re the Trial Court and since, there was absolutely & ine @uit without Goenee, He eoulé e@ntend thet lower Appellate Court could mot have & mos of Money Lencdera License oroduced ee i tid UA PADS ES RW LEBER eee rie Grn aE pom eke om ER Sata oe plain and oft perusal of the judg prava ior arnewert substantial question of law in : AMOS LOE favour of the appellan and getting asvie the j Court or alternatively, eye : >. Preys be matter back to: the. trial Court, for aciidicating afresh with liberty to thes deferdaate tn rebut the said evidence. Counsel appeert
- 13. Raving :
Court; following facta would emerge. endanis appeared before the Ty ec written stelersent, no p the auit. In support of: bia 7 pent of iis Court."
16 RSA No 130/0066 -
delendanta. Tt net producing the Money Lenders License. iS. On apore ation. of evidenvs recorded, 'trial Court held Ieeue Bo. i ard 2 inthe the Aifizmative; n re 1 Deki thet py ever, Trial Courts at t para 26, while arews i tor the suit No.3, as te the entitlement. of the pl it took. into consideration the orel ergumernts ad counsel faye the defendant are ed: by the learne:
hal that, on account of yer production of Morey Lende ete Lives nee, ae required under Section LI of the | Motney Lenders Act, 1961, and applying ment of thie Court, prion laid down in the Judg a gee 8 cs fe 7 reported mm: 200015) KLJ @ 166 held that p ".. glot entitled for suit claim and accordingly dismissed the 3 before the lower Acpellate Court. et Cowt t alne did not formulate: agly isa "ie _ lity of the suit on ground of .
cl oy platy ...-.-ssis«siésé.
Ses Krovi
16. During the course of the procecdi lete Court, which & an appeal being :
continuation of org for producing Money Lenders. License Jasuedt by the competent authorities 'and which was valid aa oft the sane of euit trasactio te axxi aise. on tha date of the auit. Lower Appeliate Eourt jaking. inte 'consideration, sc thee staat.
the aaid Livers produced yy plein? de i? it m. the conte tion, Sof Sri. Venkatesh, lear Counsel app ee for plaintiff that under section 11 of the Kernotala Money Lermdere Act, uit cvuki not have be decreed: by ower Appellate Court om account of dere Licerse before Tewl rare production of Money LL uport the ceee of K.Laksmmipat en hell es ure:
-- Vs Cseriry ahi, where ee he "ir the aforesaid circumetonoes, Ure de ine provisions of Section ii which ore monadeatory, a by virtue of norecomphance with Unier these circaunetances, the revision petition i RSA Ne 130/26 ate.
ae ......
goad Dual RSA Noe L30R006 oe in me wat.
cd te refletedl to the pettioner ats recovered from hin ofthe decree"
Kartatabe Money Le in the seid ui. inapite ef the same, Trial Court deoresd : the wut with 'fider oy t "ae dismissed. In actual words as discussed by this Court in Lekebrripathy Ve Chermaiah case, it reads ax 23 RSA No. 136/206 - which, the decres was not be drawn up and the was to be t ing been dismissed".
Thus. it emerges from the above Judgment that, be waa not produced said inepite of nen-preduction, suit 6 to be deceead with a vider avd hemes, tron Court
-
applied Section 11 of the Karnataka Money Lenders Act 1961, ta the facts therein ard held that, this iitial ber wie not cleared and as euch, suit couki not have been decreed and a. exercize of its revisional purediction, judgment and decree of Trial Court came to be set aside. . 19 in the instant case, it ia the Appellate Court in avercee of ite power, urmder Order 41, which it exercises "ee
-. g6 continuation of original proceed aeqresd (ie suit by taking mito consideration, the Money Lenders Licerme Mme EE EN produce before i . Section Ll of the Money Lenders 'Act r the expiry of six months 2 from the date on which this Act comes into force, no Court shall pass a decrse in favour af a money- ler in arty stit to which this Act, applies led by @ money: lender, unless the 4 Court is satisfied that at the time 1 phen the lean or carey pert thersoy to which the suit reketes was advanced, (and on the date such sist was -flleay the money-lender held availa I heeniz. (2) 108 os fBE. wae (4 8 ahaa in Gue Section shall effect- a Suits in reapect of loans advanced by a nc ler before the date on which this
- "Agt comes into force. at The powers of an niinistrater or a Court under th i proingions of the Mysore jusoupenay Act, 1925, or offer rresponding law in force in any areca of te State, or of a Uquidator under the Companies ae ess i ee @ . gush mestrictiv "were veed therein 6 fret Petal Money :
tion 11 of the. a a reading of jere Act, would ge to. show chat, mG Court, a hall aq decree in fevour of a ones. lender to arty y suit, to a money lender, oe whieh this Act applies, filed | the Court is satiafled that, at the o titne, w : nen the loan or any part the reof to, which the mut; relates WES & 4 on the dete of auch, ouit, was Hiei, te money jers was holding, a 'Nowme. In effect, Court, Le, reletred Under. seotion --\] of the Rarnetake Money mean em inchide Tral Lenders Ag, wor aid et only , Court 'ait also fachades the Appellete Court. Hence, te toe werd "em Li oof the Act eo ee to do sector m £ would go to enow thet ahould pege a ee decree in iaveur of a moresy lersier in amy euit Ried by a ad fa » ae ra aq es 08 on me pad a * wed F Lats ae rye SS ee Bh mye my sa ae "RAE money lender to which the act applies unless auch.
oney Lender had e wall.
"iOe. Powers of Appellate Court - a Subject to euch conditions arid imitations ae | may'. be prescribed, an Appellate Court ahall e a co Menon, Lapis, atten, gto, aera ag as are and inspoeed ty the code Courte mi respect af euite metituted iaphacia supplied by me)
- "Thrus, appellate Court will have the same power ae that ef the Court exercizing orgie! furiediction which is % .
a es SR _the dete of lending of the money an @@ the case be would be erstit tal Fossett wichices cecreei d coumee| appemrny
20. One another factor which requires to be ee hues Oc noticed is thet the orurt which nesses the dece be satisfied, thet at the time whan the ban or anv l ari ori eof to which the euit relate: was advanc the date of. which. such a suit wes filed, the money er beld a valid Heence. This satieliaction ia to be int
- Gling of 'the suit plaints . lemlers Hoenee. Ae such, the plaintiff or the appellant to dermormmetrate the game before tie sopelabe court thal plenum' possessed, ab asuit. As such, it cannot be neki or {touje il of the Act dees. i include Apt Hate Court. "Tn view ef the- eo Fs, "ee.
neg saute oS ms no wb ay ae wr ares br kg Bye ae vue Likes Py be .
BON i re re _a 2 Be RD sicit. The deores that A Appellate Court. 2 is this An; the deoree, which » Pisesesing money lend gatiehed about the empowered to pase a decres. Te other w poe is erie, such. eve i, 1 ia for the contt te form ite opinion about the satisfaction it wante io ane at Question of noe = by the defercian Larit. toes : oot a aree if no doubt arisea. -
21. In the iratent lower < Appellate Court, in evercze of its power conider Onder 41, winch m@ in contiri Wallon or 7 the original jurisdictional power has nil mei wocrmey lercding eer? ncte of the finest that, 7 en arc also on license, a on, the 'date of advan toe datz off filing 0 of the euit aru accordingly decreed the been passed is by the late Court, which passes wil nave to be satiafied about plaintifl Lernaee # leas wee waste Te le savencimg thé loan and date of sult. It is this prec Money Lending Loenpe anc if. the said C Seurt ig euch Aourt™ would be . SCE eG gue at a . ; transaction an alse ae on the date of fing of the eult, | - plain Ay had valid money lemling Lcerwe and decre 7 thie suit The lower A oe 7 thet. Further, Issue No.l and @ formulsied by the cris]
- Court bed alread ig RSA No.130/2006 cise, which waa done by Lower A ippellate Court,"
plaintil/aprellant produced the licens. "Hence. " . eet relied upon by ned counsé! for eelendant aa. ta view of the discussion | made Herein above ® im the facts of the: 'pewienie' case, It ia noticed that, E ae lower Appellate Court hed received initially the true 4 produced. hy: the plainest fourm thet a8 on dete of suit Fete Court recorée jortiue: tue a erewered tm favour of the jeintiff aml as euch substantial question of law =e SON dG i = .
20 RSA No. 1302008.favctsr of ° -- ° : here aa a perue a} Appeal of diominssd, Bh Jradganent and Decree passed by Onl Seon | "s) No onder as to costs. try to draw the decree accordingly. :
pee SP ne OR HOI VONVINNE vy AO Len ft