- 1 - HC-KAR NC: 2025:KHC:21203 RSA No. 1801 of 2013 C/W RSA No. 1802 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1801 OF 2013 (MON) C/W REGULAR SECOND APPEAL NO. 1802 OF 2013 IN RSA No. 1801/2013 BETWEEN: SAMPATHRAJ JAIN S/O AMICHANDJI, AGED ABOUT 64 YEARS, TRADER, RESIDING AT ‘VANIGOTRA NILAYA’, NEELAKANTESWARA EXTENSION, CHITRADURGA. REP. BY HIS P.A. HOLDER SRI. UDAY S. JAIN, S/O SAMPATHRAJ JAIN, AGED ABOUT 42 YEARS, PRESENTLY RESIDING AT ‘VANIGOTRA NILAYA’, NEELAKANTESWARA EXTENSION, CHITRADURGA-577 501. …APPELLANT (BY SRI. PARAS JAIN & SRI. JAGADISH, ADVOCATES) AND: SHAFIULLA @ SYFULLA S/O SYED MAHOBOOB SAB, AGED ABOUT 71 YEARS, PROP: SMS TEXTILES, Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:21203 RSA No. 1801 of 2013 C/W RSA No. 1802 of 2013 RESIDING AT HULIYAR TOWN, CHIKKANAYAKANAHALLI TALUK, TUMKUR DISTRICT-572 001. …RESPONDENT (BY SRI. BHARATE PATIL, ADVOCATE) THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DATED 25.02.2013 PASSED IN R.A.NO.62/2010 ON THE FILE OF THE ADDL. SESSIONS JUDGE (FAST TRACK COURT), CHITRADURGA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 30.3.2010 PASSED IN O.S.NO.107/2003 ON THE FILE OF THE SENIOR CIVIL JUDGE, CHITRADURGA. IN RSA NO. 1802/2013 BETWEEN: SAMPATHRAJ JAIN S/O AMICHANDJI, AGED ABOUT 64 YEARS, TRADER, RESIDING AT ‘VANIGOTRA NILAYA’, NEELAKANTESWARA EXTENSION, CHITRADURGA. REP. BY HIS P.A. HOLDER SRI. UDAY S. JAIN, S/O SAMPATHRAJ JAIN, AGED ABOUT 42 YEARS, PRESENTLY RESIDING AT ‘VANIGOTRA NILAYA’, NEELAKANTESWARA EXTENSION, CHITRADURGA-577 501. ...APPELLANT (BY SRI. PARAS JAIN & SRI. JAGADISH, ADVOCATES) - 3 - HC-KAR NC: 2025:KHC:21203 RSA No. 1801 of 2013 C/W RSA No. 1802 of 2013 AND: SHAFIULLA @ SYFULLA S/O SYED MAHOBOOB SAB, AGED ABOUT 71 YEARS, PROP: SMS TEXTILES, RESIDING AT HULIYAR TOWN, CHIKKANAYAKANAHALLI TALUK, TUMKUR DISTRICT-572 001. ...RESPONDENT (BY SRI. RAHUL CARIYAPPA, ADVOCATE) THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DATED 25.02.2013 PASSED IN R.A.NO.63/2010 ON THE FILE OF ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT), CHITRADURGA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 30.3.2010 PASSED IN O.S.NO.108/2003 ON THE FILE OF THE SENIOR CIVIL JUDGE, CHITRADURGA. THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT These two appeals are arising out of judgments and decrees passed in R.A.Nos.62/2010 and 63/2010 dated 25.02.2013 on the file of the Additional Sessions Judge, Fast Track Court, Chitradurga. 2. For convenience, the parties are referred to based on their ranking before the trial Court. The appellant - 4 - HC-KAR NC: 2025:KHC:21203 RSA No. 1801 of 2013 C/W RSA No. 1802 of 2013 was the plaintiff and the respondent was the defendant in both the suits. 3. Brief facts leading rise to the filing of these appeals are as follows: The plaintiff filed two separate suits against defendant for the recovery of money. It is the case of the plaintiff that the plaintiff is carrying on a business in textiles in Chitradurga. The defendant in both the suits is also carrying on a business in textiles under the name and style of M/s. SMS Textiles at Huliyur Town, Tumakuru District and the defendant is the proprietor of the same. At the time of borrowing the money the defendant executed a demand promissory note in his own handwriting, wherein it was described as Syfulla and signed the promissory note as Shafiulla. Moreover, in Huliyur town, there is no other businessman, carrying on a business of textiles under the name and style of SMS Textiles. The plaintiff lent a sum of Rs.50,000/- to the defendant on 10.08.2000 and Rs.50,000/- on 11.08.2000. The defendant agreed to - 5 - HC-KAR NC: 2025:KHC:21203 RSA No. 1801 of 2013 C/W RSA No. 1802 of 2013 repay the same amount with interest @2% per month. The defendant failed to repay the loan amount hence, a cause of action arose for the plaintiff to file suits for recovery of money. 4. The defendant appeared through counsel and filed a separate written statements in two suits, denying the averments made in the plaints and it is contended that the name of the defendant is M. Syed Syfulla proprietor of SMS Textiles and he is the person, who made as a party i.e., defendant to the suits filed by the plaintiff not as stated in the plaint. The defendant changed the spelling of his name and had prefixed Syed to his name and claimed that the suits are against the wrong person. The defendant further claimed that he is not Shafiulla as claimed by the plaintiff. His name is M. Syed Syfulla. For this reason he denied his signature on the alleged promissory note. The suit is filed against the wrong person and hence prays to dismiss the suit. - 6 - HC-KAR NC: 2025:KHC:21203 RSA No. 1801 of 2013 C/W RSA No. 1802 of 2013 5. The trial Court, based on the pleadings of the parties, framed the following issues: IN O.S.No.107/2003 ISSUES 1. 1.Whether plaintiff proves that Shafiulla refers to M/s. Syed Shafiulla, Proprietor of SMS Textiles? 2. Whether the plaintiff proves that, the defendant had borrowed Rs.50,000/- on 10.08.2000 undertaking to repay with interest at 25% p.a. by executing D.P.Note? 3. Whether the plaintiff proves that, the defendant has neglected and failed to make repayment whenever demanded? 4. Whether plaintiff proves that, defendant is due to pay suit claim? 5. Whether plaintiff is entitled for decree? 6. What decree or order? IN O.S.No.108/2003 ISSUES 1. Whether plaintiff proves that Shafiulla son of Syed Mahaboob Sab, is, Proprietor of SMS Textiles and has borrowed loan of Rs.50,000/- on 11.08.2000 by executing pronote? 2. Whether plaintiff proves that, defendant had agreed to pay interest at rate of 24% p.a. on loan borrowed? - 7 - HC-KAR NC: 2025:KHC:21203 RSA No. 1801 of 2013 C/W RSA No. 1802 of 2013 3. Whether plaintiff proves that defendant has failed and neglected to make repayment? 4. Whether defendant proves that, proprietor of SMS Textiles is Syed Shafiulla and the person sued is fictitious person? 5. Whether plaintiff is entitled for decree? 6. What order or decree? 6. The plaintiff to establish his case, in O.S.No.107/2003, examined the power of attorney holder as PW-1. Examined one witness as PW-2 and marked two documents as ExP.1 and Ex.P.2. In rebuttal, the defendant was examined himself as DW-1 and marked four documents as Ex.D.1 and Ex.D.4. The plaintiff to establish his case in O.S.No.108/2003, examined the power of attorney holder as PW-1, examined one witness as PW-2 and marked two documents as Ex.P.1 and Ex.P.2. On the other hand, the defendant examined himself as DW-1 and marked four documents as Ex.D.1 to Ex.D.4. - 8 - HC-KAR NC: 2025:KHC:21203 RSA No. 1801 of 2013 C/W RSA No. 1802 of 2013 7. The trial Court after recording the evidence, hearing both sides and assessing the verbal and documentary evidence, answered issues No.1 to 5 in O.S.No.107/2003, in the affirmative and issue No.6 as per the final order. The trial Court in O.S.No.108/2003, answered issues No.1 to 3 and 5 in the affirmative, issue No.4 in the negative and issue No.6 as per the final order. 8. The suit of the plaintiff in O.S.NO.107/2003 was decreed and it is ordered that the defendant is liable to pay Rs.85,933/- to the plaintiff with future interest @ 24% per annum each on the principle sum from the date of suit till realization. 9. The suit of the plaintiff in O.S.No.108/2003 was decreed with cost. It is ordered that the defendant is liable to pay a sum of Rs.85,900/- to the plaintiff with future interest @ 24% per annum on the principle sum from the date of suit till realization. - 9 - HC-KAR NC: 2025:KHC:21203 RSA No. 1801 of 2013 C/W RSA No. 1802 of 2013 10. The defendant aggrieved by the judgments and decrees passed in O.S.Nos.107/2003 and 108/2003, preferred appeals in R.A.No.62/2010 and R.A.No.63/2010 on the file of the Additional Sessions Judge, Fast Track Court, Chitradurga. 11. The first appellate Court after hearing the learned counsel for the parties, framed the following points for consideration: In R.A.No.62/2010 POINTS 1. Whether the plaintiff proved that, Shafiulla refers to M. Syed Syfulla, proprietor of SMS Textiles, Huliyur? 2. Whether the plaintiff further proved that, defendant has borrowed a sum of Rs.50,000/- on 10.08.2000 by promising to repay the same with interest @ 24% p.a. by executing on demand promissory note? 3. Does plaintiff proved that, the defendant has not paid nor discharged the principal and interest though there was a demand made by the plaintiff? 4. Whether the impugned judgment and decree passed by the learned trial court is arbitrary, perverse, capricious and oppose to law? - 10 - HC-KAR NC: 2025:KHC:21203 RSA No. 1801 of 2013 C/W RSA No. 1802 of 2013 5. Is there any sufficient reasons to interfere in the order of the learned trial court? 6. What decree or order? In R.A.No.63/2010 POINTS 1. Whether the plaintiff proved that, Shafiulla refers to M. Syed Syfulla, proprietor of SMS Textiles, Huliyur? 2. Whether the plaintiff further proved that, defendant has borrowed a sum of Rs.50,000/- on 11.08.2000 by promising to repay the same with interest @ 24% p.a. by executing on demand promissory note? 3. Does plaintiff proved that, the defendant has not paid nor discharged the principal and interest though there was a demand made by the plaintiff? 4. Whether the impugned judgment and decree passed by the learned trial court is arbitrary, perverse, capricious and oppose to law? 5. Is there any sufficient reasons to interfere in the order of the learned trial court? 6. What decree or order? 12. The first appellate Court, after hearing the learned counsel for the parties passed separate judgments answering points No.1 to 3 in the negative and points No.4 and 5 in the affirmative in both appeals and consequently allowed both appeals and set aside the judgments and decrees passed in O.S.Nos.107/2003 and 108/2003 and - 11 - HC-KAR NC: 2025:KHC:21203 RSA No. 1801 of 2013 C/W RSA No. 1802 of 2013 consequently dismissed the suits filed by the plaintiff. The plaintiff, aggrieved by the impugned judgments filed this Regular Second Appeal. 13. Heard the learned counsel for the parties. 14. Learned counsel for the plaintiff submits that the defendant in both suits has taken a hand loan of Rs.50,000/- on 10.08.2000 and Rs.50,000/- on 11.08.2000 and agreed to pay the interest @ 2% per month. The defendants did not repay the loan amount. The trial Court was justified in decreeing the suits of the plaintiff. The first appellate Court, without properly reappreciating the evidence on record committed an error in reversing the judgments and decrees passed by the trial Court. The judgments passed by the first appellate Court are arbitrary and erroneous. Hence, on these grounds prays to allow the appeal. 15. Per contra, the learned counsel for the defendant submits that the defendant had not availed any - 12 - HC-KAR NC: 2025:KHC:21203 RSA No. 1801 of 2013 C/W RSA No. 1802 of 2013 loan from the plaintiff and the plaintiff has filed a suit by mis-arraying person. Hence, the first appellate Court has rightly reappreciated the entire evidence on record and dismissed the suits of the plaintiff. Hence, he submits that the judgments passed by the first appellate Court are just and proper and does not call for any interference. Hence, prays to dismiss the appeal. 16. This Court admitted the appeals on 17.02.2020 to consider the following Substantial Question of Law: “Whether the first Appellate Court was justified in reversing the judgment and decree of the trial Court?” 17. Perused the records and considered the submissions of the learned counsel for the parties. Reg: Substantial Question of Law 18. The plaintiff examined himself as PW-1 in both suits and deposed that he had advanced a hand loan of Rs.50,000/- on 10.08.2000 and Rs.50,000/- on 11.08.2000 to the defendant and the defendant agreed to - 13 - HC-KAR NC: 2025:KHC:21203 RSA No. 1801 of 2013 C/W RSA No. 1802 of 2013 pay the interest at 2% per month. However, the defendant failed to repay the loan amount. The plaintiff to prove that the plaintiff has advanced a hand loan of Rs.1,00,000/-, the power of attorney of the plaintiff was examined as PW- 1. He reiterated the plaint averments in the examination- in-chief and produced the documents in both suits. Ex.P.1 is the special power of attorney. The plaintiff has authorised the power of attorney who deposes on behalf of the plaintiff. Ex.P.2 is the demand promissory note. 19. During the cross-examination, it was suggested to PW-1 that plaintiff filed the suits against a wrong person and denied the transaction between the plaintiff and the defendant. It was suggested to PW-1 that the loan was given to the owner of SMS Textiles and he admits that the said suggestion, and he also admits that he is having knowledge in respect of different names. According to his evidence Mr. M. Syed Saifulla has transacted with his father. He admitted that Kamlesh, Rangaiah, Burram, Sayarnol Jabbi and others, who have been working in their - 14 - HC-KAR NC: 2025:KHC:21203 RSA No. 1801 of 2013 C/W RSA No. 1802 of 2013 shops for more than 5 years and that they have kept a ledger account regarding the suit transaction. He has not produced the said ledger account. The plaintiff has also examined one witness as PW-2 to prove the transaction between the plaintiff and the defendant. 20. The defendant in both the suits was examined as DW-1 in the respective suits. He has denied the loan transactions and also denied that the plaintiff is a stranger to him and he has produced the documents where a registration certificate marked as Ex.D.1 in both suits. Ex.D.2 is the enrolment certificate in both suits, the ration card is marked as Ex.D.3 in O.S.No.107/2003 and in O.S.No.108/2003 it is marked as Ex.D.4. The EPIC to show that defendant is not Shafiulla but they are M. Syed Saifulla is marked as Ex.D.4 in O.S.No.107/2003 and Ex.D.3 in O.S.No.108/2003. 21. There is a dispute regarding the identity of the defendant. The defendant has seriously disputed his - 15 - HC-KAR NC: 2025:KHC:21203 RSA No. 1801 of 2013 C/W RSA No. 1802 of 2013 identity and obtaining of hand loans from the plaintiff. Hence, a heavy burden is on the plaintiff to establish that the Shafiulla is the proprietor of SMS Textiles. To establish that the plaintiff had advanced hand loans to the defendant, the plaintiff had not produced ledger account and the plaintiff had also not entered into the witness box. The Power of Attorney holder, was not having any personal knowledge regarding the alleged transaction between the plaintiff and the defendant. 22. The first appellate Court, in R.A.No.63/2010, relied upon the judgment of the Hon’ble Apex Court in the case of Thiruvengada Pillai Vs. Navaneethammal and Another reported in AIR 2008 SC 1541 and also in the case of Ajit Savant Majagavi Vs. State of Karnataka reported in AIR 1997 SC 3255, had reappreciated the entire evidence on record and recorded a finding in paragraph 28, which reads as under: 28. So, from the above principles of laws and facts discussed above it is crystal clear that, - 16 - HC-KAR NC: 2025:KHC:21203 RSA No. 1801 of 2013 C/W RSA No. 1802 of 2013 though the account books are with the custody of plaintiff in respect of loan transaction, which has not been produced it goes to show that, defendant by name M.Syed Syfulla has not obtained any loan. This is also admitted by the plaintiff in the due course of cross examination that the said loan is obtained by one Shafiulla. The learned trial court has mainly relied by the postal acknowledgement of the defendant wherein Shafiulla S/o Syed Mahaboob Sab, proprietor of SMS Textiles, Huliyar town is mentioned and same is received by M.Syed Syfulla by attesting his signature. Therefore, he is estopped to contend that he is not Shafiulla, but he is M.Syed Syfulla and therefore he is not liable to pay the loan amount. To rebut this aspect, the very defendant in his written statement and also in his evidence has deposed that, though it is contended as Shafiulla S/o Syed Mahaboob Sab proprietor of SMS Textiles, Huliyar he has received the summons as it has come in the name of SMS Textiles, Huliyar town as he is a proprietor and therefore he has filed the written statement and contended that, Shafiulla is not at all son of Syed Mahaboob Sab and said Shafiulla is not the proprietor of SMS Textiles, Huliyar town. In this regard dready detail discussion has been made stating that, - 17 - HC-KAR NC: 2025:KHC:21203 RSA No. 1801 of 2013 C/W RSA No. 1802 of 2013 there is no record produced by the plaintiff to show that Shafiulla is the proprietor of SMS Textiles, Huliyar and he is the son of Syed Mahaboob Sab. Apart from this, M.Syed Syfulla who has filed the written statement has produced 4 public documents, wherein his name and his father's name is also show as M.Syed Syfulla S/o Syed Mahaboob Sab, proprietor of SMS Textiles, Huliyar. So, under such circumstances, the said principle of estoppel is not applicable at this juncture and the learned trial court which has relied on the decision is also not applicable to the present facts of the case. Hence, I am of the opinion that, the impugned judgment and decree is completely arbitrary, perverse, capricious and oppose to law. Therefore, there are sufficient reasons to interfere in the order of the learned trial court, otherwise the alleged defendant by name M.Syed Syfulla S/o Syed Mahaboob Sab, proprietor of SMS Textiles, Huliyar will be put to more irreparable loss and hardship rather than the alleged defendant by name Shafiulla, who is not at all the proprietor of SMS Textiles, Huliyar. So, I answer Points 1 to 3 in the negative and Points 4 and 5 in the affirmative. - 18 - HC-KAR NC: 2025:KHC:21203 RSA No. 1801 of 2013 C/W RSA No. 1802 of 2013 23. The first appellate Court has rightly held that the plaintiff failed to prove that he has advanced hand loans of Rs.1,00,000/- to the defendant and the defendant agreed to pay interest @ 2% per month. The defendant also denied the execution of a demand promissory note. The plaintiff has not proved the execution of the demand promissory note. It is the settled law that mere marking of a document does not dispense it is proved. The first appellate Court, considering the entire evidence on record, has justified in passing the impugned judgments. The first appellate Court is justified in reversing the judgments and decrees passed by the trial Court. In view of the above discussion, I answer Substantial Question of Law in the affirmative. 24. Accordingly, I proceed to pass the following: ORDER 1. The Appeals are dismissed. 2. The judgments and decrees passed in R.A.Nos.62/2010 and 63/2010 dated 25.02.2013 - 19 - HC-KAR NC: 2025:KHC:21203 RSA No. 1801 of 2013 C/W RSA No. 1802 of 2013 on the file of the Additional Sessions Judge, Fast Track Court, Chitradurga are hereby confirmed. No order as to the costs. In view of the disposal of the appeals, pending I.A.s, if any, do not survive for consideration and accordingly, disposed of. Sd/- (ASHOK S.KINAGI) JUDGE BVK List No.: 1 Sl No.: 27