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2020 DIGILAW 379 (KAR)

B. Prabhakar v. M. Bhaskar Rao

2020-02-10

H.B.PRABHAKARA SASTRY

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JUDGMENT 1. The present appellant was the defendant in S.C.No.2/2008 before the Court of the learned Additional Civil Judge, Sindhanur, (hereinafter for brevity referred to as the 'Trial Court'), wherein, the present respondent as a plaintiff had instituted the suit against him for recovery of a sum of Rs.10,800/- along with future interest there upon at the rate of Rs.2.5% per month from the date of suit till realisation. 2. The summary of the case of the plaintiff in the Trial court was that, the defendant had availed a sum of Rs.6,000/- from him on 11-07-2005 for his family and legal necessities in the presence of witnesses. On the same day, the defendant had also executed an On-Demand Promissory Note by agreeing to repay the said loan amount with interest at the rate of Rs.2.5% per month. However, the defendant failed to repay the loan amount, despite the demand made by the plaintiff even by issuing a legal notice on 02-01-2008, which constrained the plaintiff to institute a suit against the defendant. 3. The defendant appearing through his counsel, filed his written statement, denying the alleged loan transaction and execution of the On-demand Promissory Note. The Trial Court framed the following issues for its consideration:- '1) Whether the plaintiff proves that, the defendant had borrowed a loan of Rs.6,000/- on 11-07-2005 by executing an on demand promissory note in the presence of witness and scribe and there by agreed to repay the said loan amount on demand with interest at rate Rs.2.5% per month? 2) Whether the plaintiff is entitled for recovery loan of Rs.10,800/- and along with future interest at Rs.2.5% per month? 3) What order or decree?' 4. The plaintiff got examined himself as PW-1 and got examined two more witnesses as PW-2 and PW-3 and got produced documents from Exhibits P-1 to P-4 including the Promissory Note and legal notice at Exs.P-1 and P-3 respectively. The defendant got himself examined as DW-1 and no documents were marked on his behalf. 5. The Trial Court by its impugned judgment and decree dated 28-10-2010 decreed the suit of the plaintiff for a sum of Rs.10,800/- together with interest at the rate of Rs.2.5% per month on Rs.6,000/- principal amount from the date of the suit till realisation. 6. 5. The Trial Court by its impugned judgment and decree dated 28-10-2010 decreed the suit of the plaintiff for a sum of Rs.10,800/- together with interest at the rate of Rs.2.5% per month on Rs.6,000/- principal amount from the date of the suit till realisation. 6. Aggrieved by the same, the defendant preferred an appeal in R.A.No.30/2010 in the Court of the learned Senior Civil Judge, and Judicial Magistrate First Class, Lingasugur, sitting at Sindhanur (hereinafter for brevity refefred to as the 'First Appellate Court') which also by its judgment and decree dated 19-11-2011 dismissed the appeal of the defendant. Challenging the same, the appellant has preferred this appeal. 7. In spite of service of notice, the respondent has failed to appear in this matter, as such, he has remained absent. 8. Though this matter was listed for admission, however, with consent from the learned counsel for the appellant, the matter is taken up for its final disposal on merit. 9. Heard the arguments of the learned counsel for the appellant. 10. Perused the materials placed before this Court including the memorandum of appeal and the impugned judgments and decrees. 11. Learned counsel for the appellant in his argument submitted that the plaintiff had no licence under the Karnataka Money-Lenders Act, 1961, to do the money lending activity, as such, the Trial Court was barred by entertaining the suit for recovery of money. He further submitted that the Promissory Note speaks about the interest only at Rs.2.5%, but he would say that the same was the percentage rate of interest, as such also, the judgment under appeal deserves to be set aside. 12. Learned counsel fairly concedes that no where in his pleading he has taken a contention to the effect that the plaintiff was doing any money lending business and that he did not possess the required licence under the Karnataka Money-Lenders Act, 1961, in that regard. He further concedes that he has not even whispered in his pleading that the plaintiff was doing money lending business. In that situation, where there was no pleading from the defendant contending that the plaintiff was doing any money lending business, that too, without any licence, the Court cannot presume itself that the plaintiff was doing a money lending business. He further concedes that he has not even whispered in his pleading that the plaintiff was doing money lending business. In that situation, where there was no pleading from the defendant contending that the plaintiff was doing any money lending business, that too, without any licence, the Court cannot presume itself that the plaintiff was doing a money lending business. On the other hand, the impugned judgment of the Trial Court would go to show that the plaintiff has taken a contention that the defendant had availed loan of a sum of Rs.6,000/- from him to meet his family and legal necessities by executing an On-Demand Promissory Note in that regard. When it is neither the case of either of the parties that the alleged loan given by the plaintiff to the defendant was as a part of business of money lending by the plaintiff, the contention of the learned counsel for the appellant that the Court below has committed an error in entertaining the suit without there being any money lending licence, is not acceptable. 13. With respect to the rate of interest also, both the Courts below have clearly given their finding after appreciating the evidence placed before them, both oral and documentary, that the agreed rate of interest was at Rs.2,5% per month on the principal amount. That being the case, when there is a clear finding of fact recorded by both the Courts below, concurrently recording the agreed rate of interest also, I do not find any reason to interfere in the said concurrent finding of fact recorded by both the Courts below. 14. In that view of the matter, since the appeal is bereft of any substantial question of law in it, I do not find any reason to admit the same. Accordingly, the appeal stands dismissed as devoid of merit.