This writ petition is filed by the defendant in

O.S.No.220/2020 on the file of I Additional District Judge

and Commercial Court, Dakshina Kannada, Mangaluru,

(hereinafter

referred

to

as

'trial

Court'

for

short)

challenging the order dated 10.12.2021, by which, an

application filed by the defendant under Order XIV Rule 5

was rejected.

2.

For

the

sake

of

convenience

and

easy

understanding, the parties shall henceforth be referred to

as they were arrayed before the trial Court.

3.

The suit in O.S.No.220/2020 was filed for

recovery of a sum of Rs.8,44,140.15/-. The defendant

contested the suit and filed an elaborate written statement

contending that he was not the one who had raised a loan

from the plaintiff, but it was somebody else who had

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misused the property documents and had raised a loan

from the plaintiff. It was also claimed that another

proceeding was pending before the Debt Recovery Tribunal

against a person named Noel Michael Saldanha and that

the plaintiff has misused the similarity in the names and

had launched a suit against the defendants. The trial Court

framed issues. The plaintiff examined one of its officials as

PW.1 and he was cross-examined. Later, PW.2 was

examined and at the stage of cross-examination of PW.2,

the defendant filed an application to frame additional

issues which are as hereunder:

Additional issue sought to be framed:

1.

Whether the plaintiff proves that the documents

relied by the bank are actually and really executed by

the person who was compelled to appear before this

Court due to the illegal, fraudulent, ingenious and

connivance act of the plaintiff bank officials, then beat

post-man, then Court-Staff and alleged fraudulents ?

2.

Whether the plaintiff proves that the subject loan

are actually and really borrowed by the very same

person who was made to appear before this Hon'ble

Court by the ingenious and deceitful act of bank officials

and other officials including alleged fraudulent who

4

made simpleton, innocent and uneducated Noel Michal

Saldanha to appear before this Court ?

3.

Whether the plaintiff proves that the person who

appeared before this Court and the person shown in the

cause title are one and the same?

4.

Whether the alleged person appeared before this

Court proves that there is similar dispute connected to

the subject loan for recovering the loan amount of

Rs.36,00,000/- and odd pending before the Deputy

Commissioner

and

DRT-Bengaluru

and

both

the

proceedings are initiated to have unlawful gain if

possible ?

4.

The trial Court rejected the application on the

ground that the defendant had extensively cross-examined

DW.1 and at the stage of cross-examination of PW.2, the

application was filed ingeniously to delay the proceedings

in the suit. It also found that the defendant did not swear

to the affidavit accompanying the application but his

counsel had sworn to a memorandum of facts and the trial

Court fount this strange. It also held that the defendant is

at liberty to prove before the Court that he had not

executed the loan documents and that he was not the

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borrower and the plaintiff had dishonestly got the suit

summons served on the defendants.

5.

Being aggrieved by the aforesaid order, this

writ petition is filed.

6.

Learned counsel for the defendant submitted

that the issues ought to have been framed in view of the

specific contentions raised in the written statement.

However, the trial Court proceeded to record the evidence

without framing the proper issues. Learned counsel invited

the attention of the Court to the written statement where

the defendant had elaborately stated the way in which the

proceedings were initiated against the defendant. Learned

counsel therefore contended that the defendant cannot

prove his facts unless there is a corresponding issue

framed and therefore, prays that the application be

allowed.

7.

Learned counsel for the plaintiff/respondent

submitted that the application was designed to delay the

6

proceedings in the suit. He however c