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IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 15'1"" DAY OF SEPTEMBER 2010
BEFORE
THE HONBLE MR. JUSTICE S.N. SATYANARAYPEEA
R.F.A. No. 679/2001 (MON)
BETWEEN:
MRFAROUK YUSUFF,
S / O LATE YUSUFF ABDULA.
AGED ABOUT 60 YEARS.
RADIO HOUSE,
1 13 BRIGADE} ROAD.
BANG!-\LO%~ 560 001.
PRESENT ADDRESS, S
NO.51," "BOv'e'.i'§;[§\E(};::§i:~10§3'PIffAL 'ROAD,
BANGALORE: 559.. go 1 .' ._ - - . . .APPI}3LLANT
[BY SR1 'AB4I3{INA"J" R..." ASVCEIATE FOR
M/S. KUMAR & ;§.:;M.:3R~ASSOc1ATES. ADVOCATES)
'~ 2 ..... .. 9
E S"fm.'1.«:" MYSORE,
BANKING COIVEPANY INCORPORATED
UNDER _OO.MPANiES ACT.
HAVING 1'}-'S' HEIAID OWICE: AT
K.G.R=OA;¥), BANGALORE AM)
---- A,BRANCi-I OFFICE AMONGST
OTHER PLACES AT M.G.ROAD.
_ 'BA?~EGAI,OI{E«56O 001.
~~-RVEPRESENTEI.) BY ITS
B RANC H MANAGER. . . . . . RE?SPONDi§NT
[BY SR1 ."I'. S. MAHABALE SW3-XRA, A[)VOCATE)
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THIS RFA IS FILED UNDER SECTION 96 OF CPC
AGAINST 'I'HI%3 JUDGMENT AND IJ.Ii}CR}iSE DATED
28.5.2001
ZPASSIZIJ IN O.S.NO.l’?44/87 BY “f’l~IE XXIX
ADDITIONAL, CITY CIVIL JUDGE, BANGALORE, (CCI-I
l\lO.30}, PARTLY DECREEING THE SUIT FOR MONEY.
THIS R.F’.A.COMIN’G ON FOR I-IEARING *rI=§Is
THE COURT DEI.IVlE)REI) THE I*”OLLOWING:» ‘
J U I} G M E N T
This is de’fer1dam’s
correctness of the jucigrI_1er3t47.. I’
28.05.2001 passed in 0.8. ll’?-élgfil,/8? “of the
XXIX, Additional City
2) The Vap’pella;_I1f isV.tl’I§_.filefendant, and
the re:3pondAéfit:VB_aE}k’I.§”th_e. plairltiff in the court below.
For the’ vvsgéltke of I the parties herein are
refe;jrédI.to “ranking in the Court below.
,, plaintiff is a Natioraaliseci Bank having
in 1\/LG. Roaé. The defendant is a
business ffielfi and also Manager of M / 3. Radio House.
I S_itou§1t;eId at I\Io.1.13 Brigade Road. Defealdarat and
— M Radio House are long si:an.ding custorluars of the
” .”plaint,il’f havilag their accounts with pl21ini;:iff.
may’?
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21%} It is the ease of the plaintiff that the
deferidant approached the plaintiff for grant of housing
loan to an extent of Rs.1,S0,000/– for eomplet;io11V;f>his
house at Koramangala. Since the plaintii’f_iv.asstrict.’
having” the facility to sanction housing loan}:-._i:t.
over draft facility to an Extcérit “of t_ Rs.-(3(§)t,:(il€}O to’.
defendant on 28.07.1984, 3Vl1iCl?l”..V\r;£tS.
the defendant. In terms sanet_io11 :.’ofAt.’o4trterdral’t
facility the defenciant:’:h\vas repay the entire
amount received in the within 10
months. Thetsaifzi afmou;a’t \}Vas5.”re.q_u§ired to be repaid
with it -t is the further case of the
plair1t;iff « that.’ tttoijgii defendant availed overdraft
faeilit3}, “he did repay the said amount in terms of the
.sanetiori, several reminders were sent to him,
duly aelmow}.edged by the deferidarlt.
“l’herte.ai’ter.; a legal notice was also sent calling upon the
de’fe.r1dar1.t to clear the outstandirlg loan, which was not
to. Hence, the plaintiff filed a suit for recovery
the outst,andiI1g; amount, of Rs.41,085.37 with interest
Ml,
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represented by the defendant in the capacity of a
General Manager and he eienieci any eommti.nicai.ion to
him directiy from the p1aintiff-Bank in his personal
name calling upon him to pay the 21fores_2*i–id”–Ioa:1
amount. It is his specific case that he head’ Lroxfowedii V’
money from the p1aintiff–Bank »d_ift”e1;en.t’,
accounts, which he has repaid ‘cor11piet.eIy’.i,i”t11erefor=e,V’–..
there are no dues from it is Valisoi that
the plaintiff is not to have
been sanctioneci on either in
his individual’ ori of M/s. Radio
House:’-, as a General Manager.
Therefore’; of the suit.
_’F”mC_,_ouv:::t beiow after completion of
‘pIeadin.gs, trained the following two issues, which are as
EiZ1Ci€i’I~ ‘
i VW11ethez’ the piaintiff proves that the
defendant has avaiied the loan in
question and has executed necessary
documents agreeing to pay interest. at
18% pa with quarteriy rests as
alieged’?
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ii) Whether the plaintiff is entitled to
recover the suit claim from the
defendant t0g’et.hei~ with current and-=__
future interest at i’?.5% p.a.’?
iii) What’ decree or order’?
8) Thereafi:er, on behalf
officers, namely, KS. LakshInan4anddV.Sri. Srina’thd”a
were examined as PWs.1 respeatfiiv eiyddand the
documents pmdueed support of its
case were marked as behaif of the
defendia11tv,.A1f1’e,eXé£min’ed=11i.mse1.f.aais DW.1, no documents
were On appreciation of the
pleadingsdandv oral and«…doCume11tary evidence available
<)r1..'::"e.cor:ci,evp_i'.11e Aeo'L:..rtd..be1ow proceeded to partially decree
"Li<1.e'-p_sLI4ii';i;"difee1:ir1g defendant to pay a sum of
iivith simple interest at 6% p.a., from the
",_date "i"nStit.u'€.ion of the suit: till the date of realisation
'd'_o.f same and court cost. The appeliani:/defendant;
i3ei11g aggrieved by the judgment and decree passed by
the Court below, defe'nde3"1t has ehailenged the Same in
this eppeai on the following gI'<)m1ds:
Q/'~'§
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9) The Court below has not properly
appreciated the grounds raised by the defendant whiie
considering Issue No.2, the burden of proving the–said
claim is on the plaintiff; that the Court
wrongly decided the same in favour of the
the proper accounts extract is notmpI”edt;aeed
of the claim; that there is’ Variation in tfie”ae~eoi.;ht,S’~_
extract from that of the suit”h»o}aim: aiso
failure in proper apptrseeiationdddodf ohhthe part of
the Court below; and thet. f.-has produced
two e;§:tfiie’ts}:”3xe’A.:iEf7 are showing different
enti*iesVu,’-.desti”oye”the:’vei’j,r.iteundation of p1ain.tiff’ S ease.
Further, also piedded by the defendant that the
ajhelow “” “failed to appreciate whether the
loan to the plaintiff in his
individu;a.1_d’ifiéim.e or in the name of General Manager,
M/S. Raelio House.
}0} In this appeai, the plaintiff was duly served
aihd represented by its counsel The entire trial Court
record was also secured. Wm
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11} On going through the pleadings and t.he
grounds urged by the defendant in this appeal, the
points that arise for consideration in this appeal a1fe,_~.
i) Whether the Court below was j11st.ii:ie’.r5l
ciecreeing the suit of the :”
directing the ciefendantto pa_y”_
Rs.41,0s5.37 with at * 4.5%’ ‘V T
from the date of suit.__
realisation?
ii] What order?..V
12) Heard the Connelelll» / defendant
and -Plerused the impugned
judgment anda1so”thei__:’eVitienCe on record along with
the :doeL1ment:s”1:iarkecl’ in the Court below. On re-
lv”app3’eci’a’tion__of the pleadings and evidence on record.
Co=;l1:If1:vla:isx£>’ered the aforesaid point, which arose for
Con’side_:’ai;ion in the affirmative, for the following
it V”r.easons:»§.
6533) The fact that the appellant/defendant: is an
…e.mp.E0yee Working in the capacity of General Manager of
M/s. Raoio ltlcitise is not in dispute. It is also not in
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dispute that the said M / s. Radio House is the
Cor1st.i.tuerit of the plaintiff for 3. long time and therefore,
it had Kong standing business transaction wit}i=._the
plaintiff. The appeilant herein, who was
Genera} Manager of the said firm had
with the p1air1tiff for a tong
dispute that at the relevant ?.point4’0f:t:rI1e,
had taken up construction house._ai1d’V.1tii’é.;tVtime had
submitted an application jiioasingviiloan to an
extent of Rs.i,5O,O0O/V of his
house. It is ;E3~’l;$_§iE’:_:V\L’1’1()f;:i.1″}. =:disp1ite’thtat__.s«ince plaintiff was
not having _fac:’iii*ty7’tosarirztiori housing loan. Therefore
the co11ter_1tiovni;;5Iai.fi.tiff that. considering the iong
StEl.’.1§t:’1i.VI1g busiriess reiationship plaintiff had with M/ s.
.Ra.d_io Where the defendant was working as a
“Gez1eraI’Mar1ager, his request for ioan was considered
as .s};iec’ia1 ease and overdraft facility to the tune of
¥{s;5nO,t}’OO/~ was sanctioned to enable him to complete
Heonstruetion of his house and that the defendant
“has utilised the same can not be ciisbeiieved.
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14») Further Cont;ehtioi1 of the defendant that.
though he souglit for sanction of loan of Rs.l,50,000/–,
the same was not eanetioiied to him as the h(>Lisihg. loan
facility was not available with the plaintiff arid
overdraft. to an extent of Rs.60,C300/~ was
28.07.1984 in the name of NH
was working as 21 General Manager éhfid riot–3.r1*h1s ‘1if:iIifile._V
therefore, he is not liable {ogre-pay tile in V’
his individual Capaeitfiearillhotiljl:)e”=aCCe}§ted.”‘d Though
dependent claims that’: Vvcorhi151′}liI:_11_i:atioris dated
28.07.1984-EX’.’i?2:* -2’f?7.e5,o11§;z8l5«1i;x.e3 were
acidretgsed–to’l–‘i.im_:’iiot’ -individual capacity but, as
General ‘Manager Radio House, therefore, the
said} ovierdrafi.-‘facility was not sanctioned to him, the
. eaid ;’oI1.t,eIitio:1 does not hold water in View of his reply
letter at EXP4 Writteii by the defendant in
hii3__iIivCi’i.\riduei.i capacity’ to the Manager of the plaintiff
“‘elez1i’ly discloses that the civerdraft of Rs.60.000/– was
“V”ext.eh_ded to him in his individual eapacity and that he
ixkfi
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had utilised the same. In the said letter, he had also
requested for an accommodation of three months to
clear the said amount and further, he has also gi\1»<e.na11
'undertaking to remit Rs.4,351.28 within;"fe¥;&=tj'~'..'_dayjs'nA
towards the said loan amount. .sa;id
acknowledgement by letter dated: 10:.-Otfifiv
EX.P4 clearly establishes th'a.t.__all ulifgetl
by the defendant in his written stVaten91'ent' and also in
his evidence are nVothing'A._ baatvtlh to deny
repayment of loan ava.i.1«ed.by him. '
Codi't"he1oW has rightly relied
upon the P4 and has decreed the suit
in favour of""tljielp3ainvtiff1l Further the grounds urged by
'JV"=th-g:._defe:nd'ant' hefeijhl in this appeal regarding variance
is also properly explained by PWs.l
who have given evidence in support of the case of
plai__nti'ff-Bank. On going through the same, it is
'' –el'e.a1fl.y seen that there is no discrepancy In the oral or
_,,_docun1enta1"y evidence. In fact the defendan.t has made
an attempt. to implicate M/s. Radio House, in his place
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as the borrower and to create COI1f1.lSiOI1 regarding his
liability to repay oL1tsta11d_ing loan due to plaintiff. In
the light of the evidence of I-'3Ws.1 3: 2 an<_:1___ the
documents produced by the plaintiff, the
is right in contending that the defendant–~,i'ias..Aayaaile.d'a V'
overdraft facility to the tune of }§'<»S';E}{1,00:()/it it
to plaintiff to clear the outstanel:i«rig'–.ai*i'ioiil':r1.t.
said over draft, which on 'V
28.07. 1984.
17) In any event; lithe not made out
any valid groiirid V’ the weihreasoned
judgIIiei1t_ by the Court below in
cleczreeirig tiliéglijiaintiff-Bank for recovery of a
sumjliovf i?_s.4l;’08.5V.OO&:with interest at 6% pa.
lé)y Accordingly, the appeal filed by the defendant
H islit”£iSIi1’ie§3″_eg:ll’x;i?i’i.hout, any orcler as to Costs.