- 1 - NC: 2025:KHC:7025 RFA No. 762 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE G BASAVARAJA REGULAR FIRST APPEAL NO. 762 OF 2020 (MON) BETWEEN: SHASHIDHAR ALABUR AGED ABOUT 64 YEARS, MANAGING DIRECTOR SYNECTIC TELECOM EXPORT PVT. LTD., NO.196, I MAIN, 3RD STAGE, 4TH SECTOR, BASAVESHWARA NAGAR, BENGALURU - 560 079. …APPELLANT (BY SRI. ASHWIN KUMAR H., ADV. FOR SRI. T. V. VIJAY RAGHAVAN., ADV.) AND: MALLIKARJUN KAMBALYAL PROPRIETOR SUBSHURBH RENEWABLES AND RESEARCH CENTER, A BLOCK, IT PARK OPP: GLASS HOUSE, HUBBALLI - 580 029. …RESPONDENT (RESPONDENT - SERVED AND UNREPRESENTED.) THIS RFA IS FILED UNDER SECTION 96 OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED 21.11.2019 PASSED IN O.S.NO.5886/2019 ON THE FILE OF THE VII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT FOR RECOVERY OF MONEY. Digitally signed by LAKSHMINARAYAN N Location: High Court of Karnataka - 2 - NC: 2025:KHC:7025 RFA No. 762 of 2020 THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE G BASAVARAJA ORAL JUDGMENT Plaintiff-appellant has preferred this appeal against the judgment and decree dated 21.11.2019 passed in OS.No.5886/2019 by the Court of VII Addl. City Civil & Sessions Judge, Bengaluru (CCH-19) (hereinafter referred to as 'Trial Court' for short). 2. For the sake of convenience, the parties in this appeal are referred to as per their status and rank before the Trial Court. 3. The brief facts leading to this appeal are that: The plaintiff-appellant has filed suit for recovery of amount of Rs.12,70,211/- (Rupees Twelve lakh seventy thousand two hundred and eleven only) from the defendant-respondent along with interest at the rate of 9% p.a. from the date of suit till realization. In pursuance of summons issued by the Trial Court, the defendant- - 3 - NC: 2025:KHC:7025 RFA No. 762 of 2020 respondent has appeared through his counsel and has not filed his written statement within a prescribed time. Therefore, the Trial Court without, recording any evidence, dismissed the suit by invoking the provisions under Order VIII Rule 10 of Code of Civil Procedure, 1908. Being aggrieved by the said judgment and decree, the appellant- plaintiff has preferred this appeal. Despite service of notice to the respondent-defendant, he remained absent and unrepresented. 4. Learned counsel for appellant would submit that the judgment and decree of the trial Court is arbitrary; there is error apparent on the face of record, tainted with legal infirmities and hence, liable to be set aside. The trial Court has not provided any opportunity to the plaintiff- appellant to adduce his evidence. Further, he would submit that, in the plaint it is clearly stated that the cause of action for the suit arose on 08.09.2010, 22.09.2010, 14.02.2013 and 13.2.2013 and on 20.02.2017 when the defendant-respondent issued letter of acknowledgment of liability on 01.06.2019 and when the complainant made - 4 - NC: 2025:KHC:7025 RFA No. 762 of 2020 the payment of Rs.50,000/- through demand draft dated 11.04.2019 which was reported in CC No.4899/2018. Hence, the suit is filed in time. Without considering the same, the trial Court has dismissed the suit, which is opposed to law. The trial Court has not provided any opportunity to adduce evidence also submit his arguments and has passed the impugned judgment, which is not sustainable under law. On all these grounds, he sought to allow this appeal and to remand the case for fresh disposal in accordance with law by providing an opportunity to adduce his evidence. 5. Having heard the arguments of the learned Counsel appearing for the appellant and on perusal of the impugned judgment, the following points would arise for my consideration: 1. Whether the appellant has made out a ground to remand the case to the trial Court to provide an opportunity to adduce his evidence? 2. What Order? - 5 - NC: 2025:KHC:7025 RFA No. 762 of 2020 6. My answer to the above points are: Point No.1: in the affirmative; Point No.2: as per final order. Regarding Point No.1: 7. I have carefully examined the averments of the plaint. Plaintiff has filed a suit for recovery of amount of Rs.12,70,211/- from the defendant along with interest at the rate of 9% per annum from the date of suit till realisation. It is stated in the plaint that the plaintiff and defendant having acquainted with each other since school days, defendant approached plaintiff for financial help to acquire a plot from KSSIDC at Belgaum which was allotted to him. Considering the request of the defendant, plaintiff assisted the defendant financially in his personal capacity in a sum of Rs.8,46,720/- between the period from 08.09.2010 to 14.02.2013, i.e. Rs.87,500/- by way of Demand Draft drawn on Canara Bank on 08.09.2010, Rs.59,220/- by bank transfer from HDFC Bank on 22.09.2010, Rs.4,00,000/- by Bank transfer from Citi Bank - 6 - NC: 2025:KHC:7025 RFA No. 762 of 2020 on 13.02.2013 and Rs.3,00,000/- by bank transfer dated 14.02.2013. 8. It is further averred that the defendant received the total sum of Rs.8,46,720/- from the plaintiff with an understanding that the defendant would repay the same along with interest at 9% per annum effective from the date of receipt of the said amount. Since April 2013, the plaintiff has been seeking for return of the said amount and on repeated demand, the defendant finally issued a letter of acknowledgment of liability dated 20.02.2017 promising to repay the said amount with agreed rate of interest within 40 to 60 days from the aforesaid letter dated 20.02.2017. In spite of such acknowledgement of liability executed by the defendant assuring to repay the amount with interest, the defendant failed to repay the same. Again, considering the repeated request of the plaintiff, defendant issued a Cheque bearing No.229606 for Rs.50,000/- dated 30.05.2018 in favour of the plaintiff. When the plaintiff presented the said cheque for encashment, the same was returned as "funds - 7 - NC: 2025:KHC:7025 RFA No. 762 of 2020 insufficient". Having left with no option, plaintiff filed private complaint against the defendant in CC No.4899 of 2018 for dishonour of cheque. The plaintiff also issued demand notice calling upon the defendant to pay the amount received along with interest. However, when defendant failed to repay the amount, the plaintiff constrained to file the suit. On all these grounds, it was sought for decree the suit. 9. The defendant appeared before the Court through his Counsel, but has not filed written statement within the prescribed time. Hence, the written statement was taken as "not filed" and the trial Court dismissed the suit invoking the provisions of Order VIII Rule 10 of Code of Civil Procedure. 10. At paragraph No.12 of the plaint, it is stated as under: "The cause of action for the suit arose on 08.09.2010. 22.09.2010, 14.02.2013 and 13.2.2013 and on 20.02.2017 when the defendant issued the letter of acknowledgment of liability and on - 8 - NC: 2025:KHC:7025 RFA No. 762 of 2020 01.06.2019 when the complainant issued the payment of Rs.50,000/- by demand draft dated 11.04.2019 which was reported in CC No.4899/2018. Hence, the suit is in time". 11. The Trial Court has not discussed about the cause of action alleged in the plaint. It ought to have provided an opportunity to the plaintiff-appellant to adduce his evidence before passing the judgment under the provisions of Order VIII Rule 10 of Code of Civil Procedure. 12. The trial Court has observed that in view of Provisions of Section 18 of the Limitation Act, the acknowledgment of liability accepted must relate to a subsisting liability as the Section requires that it must be made before the expiration of the period prescribed under the Limitation Act. An acknowledgement of liability does not create a new right of action, but merely extends the period of limitation. It is further observed that according to plaint averments, plaintiff has paid the amount between - 9 - NC: 2025:KHC:7025 RFA No. 762 of 2020 08.09.2010 to 14.02.2013 and even if three years limitation is calculated from the date of last payment i.e. 14.02.2013, the period of limitation comes to an end on 14.02.2016. Whereas, the letter of acknowledgement of liability dated 20.02.2017, relied upon by the plaintiff, has been executed by the defendant after the expiry of the limitation period of three years. The said letter is in respect of time-barred debt and the plaintiff is not entitled for any relief under the said letter of acknowledgement of liability dated 20.02.2017. Accordingly, the trial Court has dismissed the suit holding that the suit is barred by Law of Limitation. 13. The trial Court has not provided any opportunity to the plaintiff/appellant to adduce his evidence before passing the impugned judgment under the provision of Order VIII Rule 10 of Code of Civil Procedure. At least, the trial Court could have provided an opportunity to the plaintiff to submit his arguments as to the point of limitation which is not done and the same is opposed to the principles of natural justice. At the time of - 10 - NC: 2025:KHC:7025 RFA No. 762 of 2020 presentation of the plaint, the Office also has not raised any objection on the point of limitation. Under the given set of circumstances, it is just and proper to provide an opportunity to the plaintiff-appellant to adduce his evidence and proceed with the case in accordance with law. Hence, the appellant-plaintiff has made out a ground to remand the case. Accordingly, I answer point No.1 in the affirmative. Regarding Point No.2: 14. For the aforestated reasons, I proceed to pass the following: ORDER i. Appeal allowed. ii. The judgment and decree dated 21.11.2019 passed in OS.No.5886/2019 by the Court of VII Addl. City Civil & Sessions Judge, Bengaluru (CCH-19) is set aside. iii. Without expressing any opinion on the merits, the case is remitted back to the trial Court with a direction to provide opportunity to the plaintiff-appellant to adduce his - 11 - NC: 2025:KHC:7025 RFA No. 762 of 2020 evidence. Thereafter, the Trial Court shall proceed with the case. in accordance with law. iv. The Trial Court is also directed to give one more opportunity to the defendant- respondent to file his written statement, if any. v. The Trial Court is directed to issue notice to both the parties to appear before the Trial Court. vi. The Court fee shall be refunded to the plaintiff-appellant as per Section 64 of the Karnataka Court Fees and Suits Valuation Act, 1958. vii. The Trial Court is also requested to dispose of the suit as early as possible since the suit is of the year 2019. Sd/- (G BASAVARAJA) JUDGE SSD List No.: 1 Sl No.: 6