IN THE HIGH COURT OF KARNATAKA AT BANGALORE PRESENT THE HON BLE MR.JUSTICE K.L.MANJUNATH AND THE HON BLE MR.JUSTICE RAVI MALIMATH

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 2 ND DAY OF JUNE 2014 PRESENT THE HON BLE MR.JUSTICE K.L.MANJUNATH AND THE HON BLE MR.JUSTICE RAVI MALIMATH REGULAR FIRST APPEAL NO.1348 OF 2007 BETWEEN: 1. M/s Jupiter Marines Pvt Ltd A Company incorporated under The Companies Act 1956, having Registered Office at Manoor Fisheries Road, Kota, Udupi Taluk Represented by its Managing Director. 2. Sri K.C.Kunder Aged about 70 years S/o Chikkayya Marakala Managing Director M/s.Jupiter Marines Pvt Ltd Reg. Office at Manoor Fisheries Road, Kota, Udupi Taluk

2 2 3. Smt.Radha Kunder Aged about 63 years W/o K.C.Kunder Director, M/s.Jupiter Marines Pvt. Ltd., Reg. Office at Manoor Fisheries Road, Kota, Udupi Taluk Sri Suresh Kunder Aged about 38 years S/o K.C.Kunder Director M/s.Jupiter Marines Pvt. Ltd., Reg. Office at Manoor Fisheries Road, Kota, Udupi Taluk Sri Dinesh Kunder Aged about 36 years S/o K.C.Kunder Director M/s.Jupiter Marines Pvt. Ltd., Reg. Office at Manoor Fisheries Road, Kota, Udupi Taluk APPELLANTS (By Sri Ajith Shetty, Advocate for Sri A.Ananda Shetty, Advocate) AND: M/s.Nayak s Finance and Investment (R), Kota, Represented by its Managing Director

3 3 Sri K.Laxminarayana Nayak Aged about 36 years S/o Sri K.Baburaya Nayak R/o Kota, Udupi Taluk RESPONDENT (By Sri Udaya Holla, Senior Advocate for M/s.Holla and Holla, Advocates) ***** This RFA is filed under Section 96 of CPC against the Judgment and Decree dated passed in OS.No.38/2004 on the file of the Civil Judge (Sr.Dn.) Kundapura, decreeing the suit for recovery of money. This RFA coming on for hearing this day, K.L.Manjunath J., delivered the following:- JUDGMENT The legality and the correctness of the Judgment passed by the Civil Judge, (Senior Division), Kundapura, on 8 th March, 2007 in O.S.38/2004 is called in question in this appeal by the appellants who have suffered a decree.

4 4 2. Heard Mr.Ajith Shetty, the learned counsel appearing for the appellants and Mr.Udaya Holla, the learned senior counsel appearing for the respondent. 3. The facts leading to this appeal are as hereunder:- The respondent-plaintiff filed a suit to recover a sum of Rs.40,00,000/- with costs and future interest. According to the plaint averments the plaintiff is a registered firm carrying on the money lending business after duly obtaining a licence to carry on the money lending business. According to the plaint averments in the course of its business, the plaintiff firm had advanced a sum of Rs.36,00,000/- to the defendant No.1. It is a Private Limited Company and the 2 nd defendant is the Managing Director. On the accounts were finalized. The 2 nd defendant agreed to issue the shares of the defendant No.1 Company to an extent of Rs.36,00,000/-. Contending that the defendant has failed

5 5 to issue share certificate of the 1 st defendant Company in terms of the compromise a suit came to be filed. The defendants contested the matter. They denied the 1 st defendant having borrowed a sum of Rs.36,00,000/- from the plaintiff. It is further contended that there was no loan transaction between the plaintiff and defendant no.1 and that the suit filed by the plaintiff is wholly barred by limitation and that they never agreed to issue share certificate worth Rs.36,00,000/- to the plaintiff. It was contended that receipt dated is forged and fabricated document and based on such document suit is not maintainable. 4. The following issues were framed by the court below:- 1. Whether the plaintiff firm proves that defendant No.1 Company availed loan of Rs.36,00,000/-(Rupees Thirty Six Lakhs only)

6 6 and executed loan papers in favour of plaintiff on ? 2. Whether the plaintiff proves that defendant No.1 has agreed to pay interest at 24% p.a., on said loan amount? 3. Whether the defendants prove that all loan papers are forged and fabricated and they have not executed the same? 4. Whether the plaintiff is entitled for suit claim? In order to prove their respective contentions one Laxminarayana Naik was examined as P.W.1 and he relied upon Exs.P-1 to P-16. The 2 nd defendant K.C.Kundar got examined himself as D.W.1. At the time of examination of P.W.1 the original receipt dated was not produced. A xerox attested copy of the same was marked as Ex.P-1. The defendants objected for marking Ex-P.1.

7 7 However, the court permitted the plaintiffs to mark the same subject to production of the original document. 5. The trial Court after appreciating the evidence decreed the suit directing the defendants to pay a sum of Rs.40,00,000/- with future interest at 12% per annum from the date of the date of the suit till the date of realisation. 6. The Judgment and decree are called in question in this appeal. 7. The learned counsel appearing for the appellants mainly contends that the trial Court has committed a serious error in decreeing the suit on According to him, after the arguments were heard; the matter was reserved for Judgment fixing the date of Judgment on Till the original of Ex.P-1 was not produced before the Court and behind

8 8 the back of the defendant Ex.P-1 was produced by the plaintiff on after the Judgment is delivered. Therefore he contends that the trial Court was required to dismiss the suit since Ex.P-1 has not been proved in accordance with law. 8. He further contends that even if the plaintiff had produced the original of Ex.P-1 the trial Court was not justified in receiving the same since the same was not informed to the defendant and no opportunity was given to the defendant to cross-examine P.W.1 on the original of Ex.P-1. It is further contended by the appellants that when the defendants have denied the execution of Ex.P-1, and when Ex.P-1 is only an attested xerox copy, in all fairness the trial Court was required to direct the respondent to produce the document and thereafter an opportunity should have been given to the defendant to cross-examine PW-1..

9 9 9. He further submits that if Ex.P-1 had really produced on the trial Court could not have dictated the Judgment and pronounced the same in the open Court because the Judgment runs to 25 pages and there was no time for the trial court to dictate the Judgment, correct it and pronounce it in the open Court on He further submits that on a bare perusal of the order sheet dated it reveals discloses that the endorsement made by the learned Judge in regard to the production of original of Ex.P-1 has been made after the pronouncement of the Judgment. In other words, he contends that the order sheet dated is interpolated by the learned Judge after the Judgment is pronounced by the Court. 10. The learned Senior counsel Sri Uday Holla contends that the original of Ex.P-1 was produced in the open Court on and on the same day the Judgment has been pronounced. By looking into the order

10 10 sheet maintained by the trial court he admits that no opportunity has been given to the defendant to crossexamine P.W.1 on original of Ex.P-1. He fairly concedes that in order to put an end to the litigation and to avoid all technicalities he has no objection to set aside the Judgment and decree of the trial court and remand the matter to the trial court to give an opportunity for the appellants to cross-examine P.W.1 on Ex.P-1 and to decide the matter by the Court below afresh and the learned counsel appearing for the appellants has no objection for setting aside the Judgment and decree of the trial court and remand the matter for fresh consideration in accordance with law. The learned counsel appearing for both the parties submit that a direction may be issued to the trial court to permit both the parties tolead further evidence. 11. In view of the fair submission made by the learned counsel appearing for the parties we have no other

11 11 option than to set aside the Judgment and decree of the trial Court and remand the matter to the trial court for fresh consideration in accordance with law. 12. In the result, the appeal is allowed. The Judgment and decree dated 8 th March, 2007, passed by the learned Civil Judge, (Senior Division), Kundapura, in O.S.No.38/2004 is hereby set aside. The matter is remanded to the trial Court for fresh consideration in accordance with law. Both the parties to bear their costs. In view of the order of remand, the appellant is entitled for refund of full Court-fee. Considering that the suit is of the year 2004 we direct the trial court to dispose off the suit within a period of 6 months from today.

12 12 Both the parties shall appear before the court below on 7 th July, forthwith. The Registry is directed to transmit the records Sd/- JUDGE Sd/- JUDGE Rsk/-

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