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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF APRIL, 2016 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.44117/2015 (GM- CPC)
BETWEEN:
S.PRASAD S/O SHANTAHAPPA, AGED 57 YEARS, E.C.NO.06315, SENIOR TECHNICAL ASSISTANT, S.R.PLANT, M.P.M LIMITED, BHADRAVATHI, R/O HOUSE NO.1/37, PAPER TOWN, BHADRAVATHI – 577 301. …PETITIONER
(BY SRI.PARIKSHITH, ADV. FOR SRI.S.N.BHAT, ADV.)
AND:
M/S KAVITHARANI FINANCE(R), REP. BY ITS MANAGING PARTNER, SRI.K.N.MANJUNATHA, S/O NANJAPPA, AGED 60 YEARS, EMP.NO.706243, R/O KURUBARA STREET, JANNAPURA, BHADRAVATHI – 577 301. ...RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 29.7.2015 ON I.A.NO.9 FILED U/O 16 RULE 1,2,6 & 7 R/W SEC.151 OF CPC PASSED BY PRINCIPAL CIVIL JUDGE & JMFC, BHADRAVATHI IN O.S.NO.68/2012(ANNX-E) CONSEQUENTLY ALLOW THE I.A.NO.9.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
Heard Sri.Parikshith, learned counsel appearing on behalf of Sri.S.N.Bhat for petitioner. Perused the records.
Facts in brief which has lead to filing of this writ petition can be are crystalised as under:
Respondent herein has filed a suit against writ petitioner as well as against one Sri.S.Raju for recovery of Rs.64,150/- with costs and interests contending interalia that first defendant - Sri.S.Raju had borrowed the amount for Rs.50,000/- on 23.07.2011 under loan account No.87/2011 agreeing to re-pay the same with interest @ 16% p.a. and had executed suit documents, for which loan writ petitioner herein as surety cum
applicant had also executed relevant loan papers and on account of non payment of loan borrowed, suit in question has been filed against petitioner and first defendant - Sri.S.Raju.
On service of suit summons, both defendants appeared, filed their written statement, contested the suit and both parties have already tendered their evidence and when the matter was set down for evidence, application came to be filed by second defendant seeking for summoning the witnesses namely, Assistant Registrar of Cooperative Societies, Income Tax Officer – Office of the Income Tax Department, ITO, Ward-3, Shimoga and Professional Tax Officers, Office of the Commercial Tax, Shimoga, to produce the documents indicated in application, Annexure-C, contending interalia that alleged loan transaction is an outcome of fraud perpetrated by plaintiff and denying the liability to repay the loan amount. It is also contended therein that plaintiff has no licence to conduct money lending business.
Trial Court during the course of impugned order has clearly observed that plaintiff at the time of examination-in-chief has produced documents relating to loan transaction which had taken place between the parties and particularly few documents to establish that plaintiff – firm is duly registered and licence had been issued by Assistant Registrar for running the finance business and as such, initial burden cast on plaintiff has been discharged. When second defendant is disputing the authority of plaintiff to file the suit on the ground that there is no money lending licence, it is obligatory upon him to secure appropriate documents and produce them before jurisdictional Court to substantiate his claim. However, he has not undertaken such an exercise to produce certified copies of documents by filing necessary application or by filing necessary application under Right to Information Act. Hence, second defendant cannot be heard to contend that witnesses referred to in the application are required to be summoned for the purposes of tendering evidence in
relation to those documents. In the light of second defendant having not made any attempts to secure the certified copies of documents, trial Court has rightly refused to summon the witnesses particularly when suit is at the stage of final disposal. There are no grounds to interfere with the impugned order. Hence, writ petition stands rejected.
SD/- JUDGE