- 1 - HC-KAR NC: 2025:KHC:34265-DB RFA No. 2146 of 2012 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF SEPTEMBER, 2025 PRESENT THE HON'BLE MR. JUSTICE JAYANT BANERJI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 2146 OF 2012 (MON) BETWEEN: 1. HEMADRI MARKETING, NO.404/2, 7TH MAIN ROAD, 9TH CROSS, II BLOCK, JAYANAGAR, BANGALORE-560 011, REPRESENTED BY ITS PARTNERS. 2. SRI. KEERTHI KUMAR NAGAMOTI, AGED ABOUT 60 YEARS, PROPRIETOR-PUMAC ALUMINIUM. 3. MRS.P.K.NAGAMOTI, AGED ABOUT 55 YEARS W/O KEERTHI KUMAR NAGAMOTI, C/O PUMAC ALUMINIUM, APPELLANTS NO.2 AND NO.3 ARE R/AT NO.16TH KILOMETER HESARGHATTA ROAD, CHIKKABANAVARA POST, BANGALORE-560 090. …APPELLANTS (BY SRI.V.B.SHIVAKUMAR., ADVOCATE) Digitally signed by K G RENUKAMBA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:34265-DB RFA No. 2146 of 2012 AND: KOTAK MAHINDRA BANK, NO.72, ST.MARKS ROAD, BENGALURU, HAVING ONE OF ITS BRANCHES AMONG OTHER BRANCHES AT VISVESHWARAPURAM, BENGALURU-560 004. REP. BY ITS MANAGER. …RESPONDENT (RESPONDENT SERVED) THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 24.08.2012 PASSED IN O.S.NO.7968/2000 ON THE FILE OF X-ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR RECOVERY OF MONEY. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI AND HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE JAYANT BANERJI) Heard the learned counsel for defendants/appellants. 2. The office report of 22.10.2024 has been perused which reflects that the sole respondent has been served but is not represented. No one appears for the respondent today. - 3 - HC-KAR NC: 2025:KHC:34265-DB RFA No. 2146 of 2012 3. The matter has been heard at length. The contention of the learned counsel for the appellants is only to the effect that the counter claim raised by the defendants was the ground on which an additional issue was framed which was whether the defendants prove that they are entitled for counter claim as prayed. 4. However, it is stated that despite evidence on record that an over payment of Rs.1,99,900/- was made on different dates during pendency of the suit, the same has not been duly acknowledged by the trial Court before rejecting the counter claim of the defendants/appellants and decreeing the suit of the plaintiff/respondent. 5. We have perused the records. 6. The suit was filed by the plaintiff/respondent -Bank for recovery of a sum of Rs.4,16,375/- from defendants No.1 to 3. The defendant No.1 was a partnership firm in which defendants No.2 and 3, being husband and wife were partners and on their request, an overdraft facility to the extent of Rs.2,00,000/- was sanctioned for business on their executing - 4 - HC-KAR NC: 2025:KHC:34265-DB RFA No. 2146 of 2012 an on-demand promissory note dated 26.05.1994, on condition to repay the overdue amount with interest at 15.5% per annum compounded with quarterly rests, which facility was availed of by the defendants. The defendants/appellants created charge on all the goods and commodities, that is stock in trade with the first defendant firm by executing hypothecation agreement. A collateral security in respect of house No.41 situated at M.N. Krishnarao Road, Surveyor Street, Bengaluru was offered and a mortgage was created over the same which house was stated to be owned by the second defendant. 7. It was alleged that the defendants after availing the said facility had closed the first defendant firm with intention to defeat the interest of the plaintiff and started a new unit by the name of 'Pumac Aluminium' and became defaulters in respect of overdraft facility availed by them. When, after issuance of several demands and notices to pay the outstanding balance of Rs.4,16,375/- with penal interest, were not addressed, the suit for recovery was filed. The defendants filed their written statement stating that the first defendant partnership firm was no more in existence as it was dissolved on 24.05.1995. The - 5 - HC-KAR NC: 2025:KHC:34265-DB RFA No. 2146 of 2012 suit was therefore not maintainable. They admitted availing the overdraft facility. They however stated that they did not exceed the limit in overdrawing the amount and had remitted the full amount to the plaintiff/bank on 24.05.1995 at the time of closure of first defendant firm and the first defendant is not in arrears of any amount payable to the bank, as the entire outstanding balance in the overdraft amount was remitted at the time of dissolution of the firm. A counter claim for an amount of Rs.1,99,900/- was set up by the defendants on the basis that they were coerced to make the payments to the plaintiff/Bank in pursuance of a notice under a Securitisation Act issued to the defendants and therefore the defendants are entitled to get back the said amount, which was paid subsequently in excess of their liability. 8. In view of the pleadings, the following issues were framed. 1) Whether defendants prove that they have repaid the entire loan amount with interest on 24.5.1995 and closed their loan account? 2) Whether defendants prove the averments made in para No.9 of their written statement? 3) Whether Plaintiff bank is entitled to suit claim from the defendants? 4) To What order or decree? - 6 - HC-KAR NC: 2025:KHC:34265-DB RFA No. 2146 of 2012 Addl. Issue:- 1) Whether the defendants prove that they are entitled for counter claim as prayed for? 9. The plaintiff/Bank examined its Branch Manager as PW-1 and got marked documents Exs.P.1 to P.20 and closed its side. The defendants examined second defendant as DW-1 and got marked documents Exs.D.1 to D.38 and closed their side. Issues No.1 and 2 as well as additional issue No.1 was answered in the negative. The issue No.3 was answered in the affirmative. 10. We have considered the submission of the learned counsel for the appellant, who has drawn attention of the Court to paragraphs No.9, 11 and 16 of the judgment of the trial Court in support of his contention regarding non-consideration of his counter claim. 11. On perusal of the same, we notice that the finding was that the defendants did not inform the plaintiff/Bank regarding closure of the firm and they had not adduced any documents before the Court regarding closure of the firm and also about closing of the overdraft account. The burden was - 7 - HC-KAR NC: 2025:KHC:34265-DB RFA No. 2146 of 2012 upon the defendants to produce such documents before the Court. Exs.D.5 to D.16 were produced by the defendants as proof of repayment of installments of outstanding balance in the overdraft account. The admission of DW-1 was recorded in the cross-examination which was noticed by the Court that whatever receipts he had produced before the Court they were reflected in the account extract which was Ex.D.1. The trial Court noticed that on perusal of Ex.D.1, the payments made under receipts Exs.D.5 to D.16 were taken into account and there were clear entries in that regard. Therefore, the contention of the defendants that the payments were not taken into account, was found to be not proved. 12. As far as the additional issue No.1, which pertains to the counter claim of the defendants was concerned, the trial Court has observed that in case defendants were not in arrears of any amount in respect of the overdraft facility, they would not have deposited the said amount. The defendants having failed to prove that they had made payment of entire amount of overdraft account, they ought to have made any excess payment at least under protest. It was also noticed that the - 8 - HC-KAR NC: 2025:KHC:34265-DB RFA No. 2146 of 2012 defendants kept quiet till 22.07.2010 after the payments were (allegedly) made in the year 2007, thereafter they filed an I.A.No.13 to make a counter claim in their written statement. The finding is that such a counter claim is an afterthought. After the counter claim was allowed, DW-1 was recalled. A finding was recorded that had there been any such over payment/excess payment made by the defendants, DW-1 would have deposed about the same (which he did not). 13. We have perused the examination-in-chief of DW-1 by way of an affidavit recorded on 25.11.2009 and further examination-in-chief by advocate for defendants on 25.11.2009, as well as further examination-in-chief of DW-1 on 28.01.2010. In none of these testimonies has DW-1 testified about any such over payments. As such, we find that the findings recorded by the trial Court are sound in this regard. We have also perused the account statement Ex.P.20 and the deposit slips/ payment receipts credited to A/c.No.1166 of defendant no.1. None of those payment receipts have been demonstrated by the learned counsel for the appellant not to find place in the account statement. - 9 - HC-KAR NC: 2025:KHC:34265-DB RFA No. 2146 of 2012 14. Since no other submission has been advanced, and on perusal of the judgment impugned, we find that the judgment is well reasoned and is based on the evidence on record. We accordingly hold that the suit was correctly decreed and we affirm the same. This appeal is accordingly dismissed. Sd/- (JAYANT BANERJI) JUDGE Sd/- (UMESH M ADIGA) JUDGE BVK List No.: 1 Sl No.: 23