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2019 DIGILAW 1467 (KAR)

M. Narayan v. S. Nagaraju

2019-06-28

H.B.PRABHAKARA SASTRY

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JUDGMENT : H.B.PRABHAKARA SASTRY, J. 1. The present respondent in his capacity as a plaintiff had instituted a suit in O.S.No.709/2009 against the present appellant arraigning him as a defendant in the Court of learned XIX Addl. City Civil & Sessions Judge, Bengaluru City, (hereinafter for brevity referred to as 'trial Court'), for recovery of a sum of Rs.3,74,000/- from the defendant together with interest at the rate of 6% p.a., from the date of suit till the date of realisation. 2. The summary of the case of the plaintiff in the trial Court was that the defendant had borrowed from him a sum of Rs.3,50,000/- on 10.9.2001 and Rs.2,00,000/- on 10.8.2002 in the form of hand loans agreeing to repay the same together with interest thereupon at 2% p.a. Though the defendant paid only a sum of Rs.50,000/-, but, failed to pay the remaining amount. It is the further contention of the plaintiff that even thereafter, the defendant executed an Acknowledgement of Debt on 20.8.2003, acknowledging his liability and subsequently issued few post-dated cheques in his favour. However, the cheques also got dishonoured. Thus, as on the date of institution of the suit, he was in arrears of Rs.3 lakhs towards principle amount and an interest of Rs.74,000/-, thus, in total a sum of Rs.3,74,000/-. 3. In response to the summons, the defendant appeared through his counsel and filed written statement denying all the plaint averments. He denied the alleged loan transaction, as well his alleged liability to pay the suit claim to the plaintiff. He also contended that the suit was not maintainable as barred by limitation. 4. Based on the pleadings of the parties, the trial Court framed the following issues : 1. Whether the plaintiff proves that the defendant is liable to pay a sum of Rs.3,74,000/- along with interest at the rate of 6% per annum from the date of suit till the date of realisation? 2. Whether the plaintiff proves cause of action? 3. Whether the defendant proves that the suit is not maintainable as pleaded in the written statement? 4. Whether the defendant proves that the suit is time barred? 5. Whether the plaintiff is entitled for the decree sought? 6. What decree or order? In his support, the plaintiff got himself examined as PW-1 and got marked the documents from Exs.P-1 to P-14. 4. Whether the defendant proves that the suit is time barred? 5. Whether the plaintiff is entitled for the decree sought? 6. What decree or order? In his support, the plaintiff got himself examined as PW-1 and got marked the documents from Exs.P-1 to P-14. The defendant neither chose to lead oral evidence from his side nor produced any documentary evidence in the cross-examination of PW-1. After hearing both side, the trial Court by its impugned judgment and decree dated 4.2.2011, decreed the suit of the plaintiff. Challenging which the defendant has preferred this appeal. 5. Lower Court records were called for and the same are placed before this Court. 6. Heard the learned counsel for the appellant and perused the materials placed before this Court. 7. Inspite of granting several and sufficient opportunities, the respondent's counsel has not appeared and not addressed his arguments. As such, the arguments from the respondent's side is taken as not addressed. 8. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court. 9. It is the argument of learned counsel for the appellant/defendant that the suit is barred by limitation. According to him, the limitation was expiring on 23.9.2007, whereas, the suit is filed on 24.9.2007, as such, the suit is barred by limitation. The learned counsel even after admitting that, as observed by the trial Court, the date 23.9.2007 was a Sunday, as such, holiday for the Court, still contended that the plaintiff ought not to have waited till the last date of limitation and should have filed the suit much earlier to 23.9.2007. 10. The said argument of the learned counsel for the appellant is not acceptable for the reason that Section 4 of the Limitation Act, 1963, reads as below : "Section 4 :Expiry of prescribed period when court is closed.- Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens. Explanation.- A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day." A reading of the said Section goes to show that when the last day of limitation is a non-working day for the Court and the Court being closed, the suit can be instituted on the day when the Court reopens. Admittedly, in the instant case, 23.9.2007 being the last date of the limitation to institute the suit by the plaintiff, the said day was a Sunday, as such, the trial Court was closed on the said day. Admittedly, the plaintiff has filed the suit on the very next day i.e., on 24.9.2007, which was the immediate reopening day of the Court. Therefore, the contention that suit is barred by limitation is not acceptable. 11. The second argument of the learned counsel for the appellant was that no sufficient opportunity was given to him to lead his evidence. In that regard, when the trial Court records, more particularly, the order sheet maintained by the trial Court is perused, it can be noticed that though initially the suit was listed for defendant's evidence on 20.11.2010, but, on that day, the defendant did not lead the evidence since he had preferred an application to recall PW-1 for his crossexamination. Accordingly, after allowing the said application and completion of the evidence of PW-1, the suit was marked for defendant's evidence on 13.12.2010. Thereafter, it was called again on 7.1.2011. Finally on 13.1.2011, observing that the defendant has not led evidence, his side evidence was taken as closed and the matter was posted for argument and without further delay, the impugned judgment was passed by the trial Court. 12. Considering the facts and circumstances of the case and more particularly of the fact that within four days from 7.1.2011, the trial Court once again listed the matter for defendant's evidence and immediately thereafter, proceeded further in disposing of the matter, I am of the view that a reasonable opportunity has not been given to the defendant to lead his evidence. Thus, the defendant has been deprived of leading his evidence to put forth his case in the trial Court. Thus, the defendant has been deprived of leading his evidence to put forth his case in the trial Court. In that background, the judgment and decree under appeal deserves to be set aside and the matter requires to be remanded with a direction to the trial Court to give opportunity to the defendant before it to lead his evidence. However, considering the age of the suit, which is of the year 2009, mandating the defendant to appear before the trial Court and to lead his evidence without taking further adjournment also appears to be just and required to be observed in this appeal. 13. Accordingly, I proceed to pass the following order: ORDER The Appeal is allowed in part. The judgment and decree dated 4.2.2011, passed by the learned XIX Addl. City Civil & Sessions Judge, Bengaluru City, in O.S.No.709/2009, is set aside. The matter is remanded to the trial Court, with a direction to give opportunity to the defendant to lead evidence from his side and thereafter to proceed further in accordance with law. It is directed that both parties in this appeal to appear before the trial Court on 29.07.2019 without anticipating any fresh notice or summons from the trial Court. The parties shall co-operate with the trial Court in speedy disposal of the matter. The refund of the Court fee to the appellant would be in accordance with law. The Registry is directed to transmit a copy of this judgment along with lower Court records to the lower Court immediately.