ORAL JUDGMENT

Assailing the judgment and decree dated 03.02.2012 in R.A No.69/2011 on the file of Principal Senior Civil Judge and JMFC Hospet (hereinafter referred to as ‘First Appellate Court’ for short) and the judgment and decree dated 02.06.2011 in O.S No.276/2009 on the file of Civil Judge and JMFC Hospet (hereinafter referred to as Trial Court’ for short) the plaintiff M/s K.L.S Finance and Investments Pvt. Ltd represented by its director, is before this Court in the regular second appeal.

2. Parties herein are referred to as per the rank before the trial Court for the sake of convenience.

3. Heard Sri Gouri Shankar Mot, learned counsel for the appellants and Sri Padmaja Tadaptri, learned counsel for Sri K.L. Patil, learned counsel for respondent No.1 and perused the material on record.

4. Plaint averments:

Suit for recovery for a sum of Rs.49,619/- with interest @ 24% p.a on Rs.15,712/- from the date of suit till the date of realisation and for other reliefs. Case of the plaintiff is that the plaintiff is engaged in the business of hire purchase, and had let on hire Yamaha Crux Motor Cycle, to defendant No.1 on the guarantee of defendant No.2. Hire purchase agreement was entered into between the defendants with the plaintiff-Company on 28.01.2003. It is stated that under the hire purchase agreement, the defendants had agreed to pay regularly hire purchase amount of Rs.1,788/- per month to the plaintiff’s Company for a period of 24 months totally amounting to Rs.42,912/-

with interest @ 24% p.a on delayed payment of hire purchase amount and outstanding hire amount.

5. It is further stated that defendant Nos.1 and 2 have confirmed and acknowledged their dues of Rs.35,332/- as on 25.01.2008 and the defendants have failed to pay their dues, hence, suit for recovery.

6. The details and particulars of amount due by defendant No.1 as stated in the plaint is extracted herein:

“PARTICULARS AMOUNT (a) Total Hire Amount at Rs/1,788-00 Rs.42,912-00 Per month for 24 months.

(b) Less; Amount received through Receipt;

No.2318 dated 28-06-2003 Rs. 5,000-00;

No.1104 dated 27-09-2004 Rs.22,200-00; Rs.27,200-00 ---------------- ----------------

Rs.15,712-00 (c) Interest on Rs.42,912-00 at the rate of 24 percent per annum from

28-01-2003 to 28-06-2003. Rs. 4,232-00 (d) Interest on Rs.37,912-00 at the rate of 24 percent per annum from

29-06-2003 to 27-09-2004. Rs. 11,252-00 (e) Interest on Rs.15,712-00 at the rate of 24 percent per annum from

28-09-2004 to 19-08-2009.

Rs. 18,423-00 -----------------

Suit Claim Rs. 49,619-00”

7. Defendant No.1 appeared and filed his written statement, inter alia, denying the plaint averments more particularly about the confirmation and acknowledgement of his dues of Rs.35,322/- on 25.01.2008 and contended that the plaintiff-Company had obtained the signature of defendant No.1 while entering into the hire purchase agreement on 28.01.2003 on the blank papers and later on have prepared the confirmation and acknowledgment letter dated 25.01.2008, in order to gain unlawfully. The defendant specifically contended that he had discharged the loan borrowed under the hire purchase to the tune of Rs.36,100/- by paying three installments to the plaintiff- company and balance amount of Rs.6,812/- was adjusted by the plaintiff while seize and sale of the vehicle, the defendants specifically contended that the plaintiff- Company seized the vehicle and sold to one Shivakumar s/o Chandraiah on the strength of form Nos.29 and 30 obtained by the plaintiff-company from defendant No.1 at the time of entering into the agreement and has adjusted the sale proceeds towards the balance amount of Rs.6,812/-, excess amount out of the sale proceeds have not been paid to defendant No.1 till today. Further, defendant No.1 contended that the suit of the plaintiff is barred by limitation and sought for dismissal of the suit.

8. The trial Court on basis of the pleadings, framed the following issues:

1) Whether the plaintiff company proves that the defendants