IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 30TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 33525 OF 2015 (GM-CPC) C/W WRIT PETITON NO. 33526 OF 2015 (GM-CPC) BETWEEN:
BHARTIYA JANATA PARTY KARNATAKA HAVING ITS REGIONAL OFFICE AT NO.11, 12TH MAIN, 16TH CROSS, MALLESHWARAM, BANGALORE-55, REP BY ITS SECRETARY / TREASURER.
… COMMON PETITIONER (BY SRI. VIVEK REDDY, SENIOR COUNSEL FOR SRI. K N SUBBA REDDY, ADVOCATE) AND:
OSS AIR MANAGEMENT PVT.LTD HAVING ITS OFFICE AT NEW UDAAN BHAVAN COMPLEX, AIRPORT BUILING,-301 WING C ,1ST FLOOR, IGI AIPORT TERMINAL3, NEW DELHI-110037 REP BY ITS COMPANY SECRETAY & HEAD LEGAL.
…COMMON RESPONDENT (BY SRI. AJAY J NANDALIKE, ADVOCATE) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 30.6.2015 VIDE ANNX-A PASSED BY THE CITY CIVIL JUDGE, BANGALORE (CCH 32) IN RESPECT OF I.A.NOs.1 & 2 VIDE ANNX-H IN O.S.NO.811/2014 AND PERMIT THE PETITIONER TO FILE THE WRITTEN STATEMENT AND PROSECUTE AND DEFEND THE SAID SUIT.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The petitioner, a National Registered & Recognized Political Party being the defendant in a summary suit filed by the respondent - Company in O.S.No.811/2014 is invoking the writ jurisdiction of this Court for assailing the common order dated 30.06.2015, a copy whereof is at Annexure-A whereby, the learned City Civil Judge, Bengaluru (CCH-32), has rejected its request for the grant of leave to defend the said suit and also its application filed under Order VII Rule 11(a) & (d) of CPC, 1908, for the dismissal of the suit. The respondent after service of not8ice having entered appearance through its counsel resists the writ petitions.
2. Learned Sr. Advocate, Mr. Vivek Reddy appearing for the counsel on record for the petitioner argues that the impugned order has errors apparent on its face warranting indulgence of this Court because - a) the denial of leave to defend the summary suit is contrary to the principles governing such suits; petitioner has an eminent case for grant of leave regard being had to hugeness of the suit amount, the nature of the funds handled by the political party and bulk of alleged contract on which the suit is founded being inferential; b) the Court below did not advert to the likely injustice and loss that would occasion to the petitioner – political party by denying the leave to defend the suit and , c) the pleadings of the respondent – plaintiff/company do not generate confidence to any mind reasonably trained in law and that there is absolutely no triable case in the suit at all. So arguing he seeks allowing of the writ petitions.
3. The learned counsel for the respondent – plaintiff/company per contra contends that the writ petitions are unworthy of consideration; the petitioner in its applications both for the grant of leave and for the dismissal of the suit has admitted the version prima facie emerging from the plaint; the procedure prescribed for the summary suits is much in variance with that of ordinary suit; if there is no case for grant of leave to defend, logically there cannot be one for dismissal of the suit at all; more than five years having lapsed after the filing of the suit, the proceedings are there where they were when the suit was instituted and this would defeat the very purpose of filing the summary suit. So contending, he seeks dismissal of the writ petitions.
4. Having heard the learned counsel for the parties and having perused the writ petition papers, keeping in view the decision of the Apex Court in IDBI TRUSTYSHIP SERVICES LTD. VS. HUBTOWN LTD., 2017 (1) SCC 568 this Court grants conditional reprieve to the petitioner for the following reasons:-
(i) The provisions of Order XXXVII introduced by 1976 amendment to the CPC, 1908 are structured on a premises that in a summary suit the defendant is not entitled as of right, to put in his defence; he can apply for the grant of leave within ten days computed from the service of summons for judgment, by complying with the conditions in Rule 3 or 5 thereof; however, bulk of the contract on which the suit is founded is not in writing; there is a triable issue emerging from the pleadings of the respondent;
(ii) the stand of the petitioner in its application for the grant of leave and also in its application for the dismissal of the suit prima facie goes to show that the claim for leave to defend the suit is bonafide; in the affidavit supporting the said applications, petitioner has stated about some transaction between the parties to the suit as to using of the helicopter/aircraft during the relevant period; this itself shows the bonafide; had the petitioner denied all and any connection with the respondent, perhaps its bonafide could have been in crisis; the petitioner arguably has a fair/reasonable defence;
(iii) admittedly, the petitioner is a National Registered & Recognized Political Party; it is a common knowledge that all such political parties subject to all just exceptions do receive donations within the legally permissible limits and that these funds are annually audited; in a limited sense, the funds of the political parties par take the character of quasi public funds; denying leave to defend the suit thus, may cause a kind of loss of public funds since summary suit eventually would result into a money decree;
(iv) in view of what is stated in the sub paragraphs (i) (ii) & (iii) above, although petitioner needs to be granted leave, the same cannot be unconditional especially when more than five years the suit proceedings have been in the cold storage of the Courts, that be; justice of the case requires that the petitioner should deposit within two weeks, a sum of Rupees Twenty Lakh in the Registry of the City Civil Court, Bengaluru, which amount shall be invested in an interest earning Fixed Deposit in any Nationalized Bank;
(v) the Court below had declined to grant relief which this Court is granting conditionally; no case is made out for reconsideration of petitioner’s application filed under Order VII Rule 11(a) & (d) of CPC, 1908; however, the grounds urged in the said application may also constitute part of the defence of the petitioner in the suit.
In the above circumstances, these writ petitions are favoured in part; petitioner is accorded leave to defend the subject suit by filing necessary pleadings within two weeks after its depositing within two weeks, a sum of Rupees Twenty Lakh in the Registry of the City Civil Court, which shall be invested in the interest earning Fixed Deposit Schemes in any Nationalized Bank.
The learned trial judge is requested to try and dispose off the suit within a period of one year; the observations made herein above being confined to disposal of the writ petitions, shall not influence the trial & disposal fo the suit in any way. All defences are permitted to be taken by the petitioner.
The Registrar (Judicial) of this Court shall convey this order to the learned trial judge telephonically since it is submitted at the Bar that the suit is posted for judgment on 01.08.2019.
No costs.
Sd/- JUDGE Bsv