IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA BETWEEN W.P.Nos. 2958-62/2018 (GM-CPC) 1. MR. A. C. SRINIVAS RAJU S/O. LATE A. CHAMARAJU, RESIDING AT NO.29, 3RD BLOCK, JAYANAGAR, BENGALURU-560 011.
2. MR. A. C. KRISHNA RAJU S/O. LATE A. CHAMARAJU, RESIDING AT NO. 29, 3RD BLOCK, JAYANAGAR, BENGALURU-560 011.
3. MR. A. C. CHANDRASHEKAR RAJU S/O. LATE A. CHAMARAJU, RESIDING AT NO. 29, 3RD BLOCK, JAYANAGAR, BENGALURU-560 011.
4. MR. K. R. SANJAY S/O. LATE RAMA RAJU, RESIDING AT NO.1698, 30TH CROSS, 15TH MAIN, BANASHANKARI 2ND STAGE, BENGALURU-560 070.
5. MS. SHANTHALAKSHMI W/O. LATE RAMA RAJU, RESIDING AT NO.1698, 30TH CROSS, 15TH MAIN, BANASHANKARI 2ND STAGE, BENGALURU-560 070.
... PETITIONERS (BY SMT. MANEESHA KONGOVI, ADV.) AND 1. KARNATAKA STATE INDUSTRIAL INFRASTRUCTURE AND DEVELOPMENT CORPORATION LIMITED, HAVING ITS REGISTERED OFFICE AT KHANIJA BHAVAN, 4TH FLOOR, EAST WING, RACE COURSE ROAD, BENGALURU-560 001, REPRESENTED BY ITS AUTHORISED SIGNATORY.
2. M/S. ORR CEE ELECTRONICS LTD., REPRESENTED BY THE OFFICIAL LIQUIDATOR, APPOINTED BY THE HIGH COURT OF KARNATAKA, BENGALURU.
3. DR. S. G. CHANDRA S/O. S.A. GANGAPPA, RESIDING AT NO.18, POLICE STATION ROAD, BASAVANAGUDI, BENGALURU-560 004.
4. MS. SAROJAMMA W/O. LATE K.M. NANJAPPA, RESIDING AT NO.79, BULL TEMPLE ROAD, BASAVANAGUDI, BENGALURU-560 004.
... RESPONDENTS (BY SRI. T. P. VIVEKANANDA, ADV. FOR SRI. P. S. MANJUNATH, ADV. FOR R1 SRI. K. CHANDRANATH ARIGA, ADV. FOR R3 R2 SERVED BUT UNREPRESENTED NOTICE TO R4 IS D/W V/O DT.6.3.2019) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 29.8.2017 PASED IN MISC.NO.64/2015 BY THE HON'BLE PRINCIPAL DISTRICT AND SESSIONS JUDGE AT MYSURU AT ANNEXURE-N AND ETC., THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER These writ petitions are filed by petitioners 1 to 5 who were respondents 4 to 7 in Misc.No.64/2015, against the order dated 29.08.2017 passed in Misc.No. 64/2015 on the file of the Principal Distrtict and Sessions Judge, Mysore. By the said order, the trial Court allowed the application filed by the 1st respondent herein under Order IX Rule 9 read with Section 151 of CPC, subject to payment of cost of Rs.2,500/- for respondents 4, 5, and 7 and Rs.2,500/- for respondent No.6(a) and the order dated 11.12.2014 dismissing Misc.No.65/2014 was recalled. Hence, the present writ petitions are filed.
2. The 1st respondent – Karnataka State Industrial Infrastructure and Development Corporation Limited, filed Misc. No.1049/2000 under the provisions of Sections 31(1)(aa) and 32(1) of the Karnataka State Financial Corporation Act, 1951 against the petitioners herein and respondents 2 to 4 for recovery of a sum of Rs.3,95,04,603.40 with future interest on the ground petitioners were guarantors to respondent No.2 who had borrowed the amount and had not repaid the same. The said miscellaneous petition came to be transferred to the Principal District Judge, Mysore, and was re- numbered as Misc.No.122/2010 in pursuance of the order passed by this Court dated 25.08.2009 in C.P.No.133/2009. Since the 1st respondent did not appear before the Court inspite of granting sufficient time, the said miscellaneous petition came to be dismissed for default on 08.03.2012.
3. Against the said order, the 1st respondent filed Misc.No.41/2012 under Order IX Rule 9 of CPC for restoration. The said miscellaneous petition also came to be dismissed for non-prosecution on 19.06.2014. Thereafter, the 1st respondent filed another miscellaneous petition under Order IX Rule 9 of CPC in Misc.No.65/2014. The said miscellaneous petition also came to be dismissed on 11.12.2014 for not taking steps to serve the respondents. Thereafter, yet another application came to be filed under Order IX Rule 9 of CPC in Misc.No.64/2015 with an application for condonation of delay. The trial Court after considering the application, objections and after recording the evidence, by the impugned order dated 29.08.2017 allowed Misc.No.64/2015 and restored Misc.No.65/2014. Against the said order dated 29.08.2017, the present writ petitions are filed.
4. I have heard the learned counsel for the parties to the lis.
5. Smt. Maneesha Kongovi, learned counsel for the petitioners vehemently contended that the impugned order passed by the trial Court allowing Misc.No.64/2015 without imposing any conditions on the respondent No.1 is erroneous and contrary to the material on record. She would further contend that because of the negligence on the part of the 1st respondent, 1st miscellaneous petition came to be dismissed on 08.03.2012 and the 2nd miscellaneous petition came to be dismissed on 19.06.2014 and the 3rd miscellaneous petition also came to be dismissed on 11.12.2014. Because of the mistake committed by the 1st respondent, petitioners are not liable to pay any interest on the amount claimed. She further submitted that inspite of granting sufficient time, the 1st respondent repeatedly showed lack of diligence in pursuing the litigation. Because of the blunder committed by the 1st respondent in not pursuing the miscellaneous petition diligently, present petitioners are not liable to pay the penalty by way of interest. The learned trial Judge nowhere in the entire order discussed about the payment of interest for the delay on the part of the 1st respondent who filed miscellaneous petition against the petitioners and respondents 2 to 4. She would further contend that the trial Court ought not to have allowed the miscellaneous petition as the 1st respondent had not shown sufficient cause for not taking steps when the miscellaneous petition came to be dismissed. Therefore, she sought to allow the writ petitions.
6. Sri. K. Chandranath Ariga, learned counsel for respondent No.3 supporting the contentions urged by the learned counsel for the petitioners, contends that the 1st respondent absolutely has not shown diligence in conducting proceedings. Therefore, the trial Court ought not to have allowed the application restoring Misc.No.65/2014. He further contend that because of the deliberate delay on the part of the 1st respondent, either petitioners or respondent No.3 are not liable to pay any interest on the amount claimed even though the very claim is disputed, that has to be decided after adjudication between the parties.
7. Sri. T. P. Vivekananda, learned counsel for respondent No.1 sought to justify the impugned order passed by the trial Court.
8. In view of the aforesaid rival contentions, the only point that arises for consideration in the present writ petition is:
“ Whether the petitioners have made out a case to interfere with the impugned order passed by the trial Court allowing Misc.No.64/2015 without imposing any condition on the 1st respondent?”
9. Having heard the learned counsel for the parties, it is not in dispute that the 1st respondent – Corporation filed Misc. No.1049/2000 under the provisions of Sections 31(1)(aa) and 32(1) of the Karnataka State Financial Corporation Act, 1951 subseqeuntly the same was renumbered as Misc. No.122/2010 in view of the order passed by this Court for recovery of a sum of Rs.3,95,04,603.40 with future interest raising various grounds. The same was disputed by the contesting respondents therein, present petitioners and respondents 2 and 3 before Misc.No.122/2010 resisting the claim made by the first respondent. Admittedly the said Misc. Petition No.122/2010 came to be dismissed on 08.03.2012 for not taking steps and for non prosecution. Against the order dated 08.03.2012, respondent No.1 filed Misc. Petiton No.41/2012 under order IX Rule 9 of the Code of Civil Procedure, 1908, for restoration of the said Misc. Petition No.122/2010 which came to be dismissed for non-prosecution on 19.06.2014. Thereafter, the 1st respondent filed another miscellaneous petition under Order IX Rule 9 of CPC in Misc. petition No.65/2014. The said miscellaneous petition also came to be dismissed on 11.12.2014 for not taking steps to serve the respondents. However, last 4th application came to be filed under Order IX Rule 9 of CPC in Misc.No.64/2015 with an application for condonation of delay which came to be allowed by impugned order passed by the Trial Court.
10. The Trial Court considering both oral and documentary evidence on record, recorded a finding that the petitioner has made out prima face case which prevented him for not attending Misc.No.65/2014 on 11.12.2014 with sufficient cause and the first respondent-petitioner has made out to restore Misc.No. 65/2014 for hearing on merits.
11. It was further recorded that the question before this Court in these proceedings is only relating to the absence of the petitioner-1st respondent before the Court on 11.12.2014 when the Misc.No.65/2014 was called before the Court for taking steps. The merits of Misc.No.65/2014 or the orders passed in Misc.No.41/2012 cannot be considered at this stage. Petitioner is a Corporation and the original petition was filed for the recovery of the huge amount from the respondent and therefore public money is involved in the matter. Therefore, it is necessary to restore the said order dated 11.12.2014 passed in Misc.65/2014 by imposing reasonable costs on the petitioner. Accordingly, the Mis. No. 64/2015 came to be allowed by imposing cost Rs.5,000/ paybable by the first respondent to the contesting respondents in the Misc.case.
12. The fact remains that though the original Misc. Petition No.1049/2000 filed by the Corporation in the year 2000 subsequently it was renumbered as Misc.No.122/2010 on the orders of this Court. The 1st respondent-Corporation claimed huge amount against the petitioners herein and respondents 2 and 3 by filing Misc.No.122/2010 and the contesting respondents in Misc. 122/2010. respondents claimed that the petition has to be decided on merits because of the lack of diligence on the part of the first respondent- Corporation, the series of miscelleneous Nos.1, 2 and 3 came to be dismissed for default on the part of the learned counsel representing the 1st respondent Corporation and 1st respondent-Corporation should have been diligent in prosecuting the case.
13. The dismissal of the miscellaneous petitions for default for not taking steps by 1st respondent- Corporation representing public money, should not suffered for misdemeanour or inaction on the part of his counsel. My view is fortified by the dictum of the Hon’ble Supreme Court in the case of Rafiq and another vs. Munshilal and another, AIR 1981 SC 1400, wherein at para 3 it is held as under:
3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the Court’s procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watch-dog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr. A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. May be we do not know, he is better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court. There remains the question as to who shall pay the costs of the respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs.200/- should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr. A.K. Sanghi.”
14. It is well settled that when substantial justice and technical considerations are pitted agaisnt each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done on technicalities. It must be grasped that judiciary respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
15. Miscellaneous petitions came to be dismissed for not taking steps and for non-compliance of office objections ought not to be allowed to continue the matter, have to be decided on merits between the parties based on the oral and documentary evidence produced by both the parties. At the same time since the 1st respondent-Corporation or its counsel was not diligent in conducting series of miscellaneous petitions (3 miscellaneous petitions) which came to be dismissed neither for not taking steps nor for non-prosecution, the present petitioners and respondents 2 to 4 should not be penalize for payment of interest due to the fault on the part of the 1st respondent-Corporation. Ultimately misc. petition 64/2015 came to be allowed on 29.08.2017. Though the learned judge restored only Misc.No.65/2014 and again it has to urge Misc.No.65/2014 and that has to be allowed and again Misc.No.41/2012 has to proceed which prolongs the process. The present petitioners and respondents 2 to 4 are not liable to pay any interest, if, respondent No.1 succeeds in 122/2010. To avoid any further complications and in view of the counsel fair submissions made by the learned counsel for the parties, this Court is of the considered opinion that all the miscellaneous petitions are to be restored in the interest of justice to both the parties, subject to denial of interest for delayed period from the date of original Misc. petition dismissed on 08.03.2012 till today, i.e. on 13.03.2019 and to that effect first respondent- Corporation shall file an affidavit before this Court within a week that they will not claim any interest for delayed period from 08.03.2012 till today i.e. 13.03.2019.
16. For the reasons stated above, the writ petitions are disposed of. The orders passed by the Trial Court dismissing the Misc. petition No.122/2010 on 08.03.2012, Misc. Petition No.41/2012 on 19.06.2014 and Misc. Petition No.65/2014 on 11.12.2014 are hereby quashed. Misc. Petition No.122/2010 is restored for fresh disposal on merits strictly in accordance with law subject to the conditions that the 1st respondent-Corporation is not entitled for any interest for delayed period from 08.03.2012 till 13.03.2019 and to that effect 1st respondent- Corporation shall file an affidavit within one week before this Court and parties are directed to appear before the learned Principal District Judge, Mysuru on 28.03.2019.
17. The learned Judge shall issue notice to the second respondent -official liquidator and to proceed with the case strictly in accordance with law after providing sufficient opportunity to both the parties.
18. Since the original miscellaneous petition was filed in the year 2000 subsequently it was renumbered as 122/2010. It is hereby requested the learned Principal District Judge, Mysuru to dispose of Misc. Petition No.122/2010 within a period of six months from the date of receipt of copy of this order and parties are hereby directed to co-operate with the Court to dispose of the same and to pass appropriate orders in accordance with law.
Sd/- JUDGE VP/HR