IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos.10486/2019 & 11600/2019 (GM-CPC) BETWEEN:
Centum Electronics Ltd. A company incorporated Under the companies Act, 1956 Having its registered office at No.44, KHB Industrial Area, Yelahanka, Represented by its authorised Representative Nagaraj K.V ... Petitioner (By Sri.B.M.Halaswamy, Advocate) AND:
BBSI PTE LIMITED 120, Lower Delta Road, No.08-12, Cendex Centre, Singapore-169 208, Represented by its Director Ms.Geetha Srikanth.
… Respondent (By Sri.Vachan Gowda , Advocate for Sri.Dhananjay Joshi, Advocate) These writ petitions are filed under Articles 227 of the Constitution of India praying to set aside the order dated 14.11.2018 passed by the LXI Additional City Civil and Sessions Judge, Bengaluru (CCH-62) on IA No.6 and 7 in O.S.No.3505/2017 Annexure-F and etc.
These writ petitions coming on for preliminary hearing this day, the Court made the following:
ORDER The petitioner-defendant filed the present writ petitions against the order dated 14.11.2018 made in O.S.No.3505/2017 rejecting the application-I.A.No.6 filed under Order XVIII Rule 17 of the Code of Civil Procedure to recall PW1 for cross-examination and I.A.No.7 filed under Section 151 of Code of Civil Procedure to recall the order dated 09.10.2018 on the file of LXI Additional City Civil and Sessions Judge, Bengaluru.
2. The plaintiff filed suit for recovery of money against the defendant-company by raising various contentions. The defendant filed written statement denying the plaint averments and sought for dismisssal of suit. The plaintiff lead evidence and the matter was posted for cross-
examination of PW1 on 03.09.2018, the defendant’s counsel requested time for cross-examination of PW1. Thereafter, the matter was posted for cross-examination of PW1 on 09.10.2018. On that day, the defendant’s counsel had appeared in the morning session in first round and the matter was passed over and the counsel was waiting in the court hall itself. When the matter has been called out in the second round, the counsel for the defendant had gone to other court hall to attend other cases. Thereafter, he came back, by that time the case was taken up and the trial Court has taken note that PW1 was present and the cross-examination of PW1 was taken as NIL. When matter was posted on 11.10.2018, the defendant filed two applications-I.A.Nos.6 and 7 under Order XVIII Rule 17 of the Code of Civil Procedure and under Section 151 of Code of Civil Procedure for cross-examination of PW1 and to re- call the order dated 09.10.2018 respectively. The said applications were resisted by the plaintiff. The trial Court considering the applications and objections, by the impugned order dated 14.11.2018 dismissed the applications-I.A.Nos.6 and 7 with costs of Rs.1,000/-. Hence, the present writ petitions are filed.
3. I have heard the learned counsel appearing for the parties to the lis.
4. Sri.B.M.Halaswamy, learned counsel for the petitioner contended that the impugned order passed by the trial Court in dismissing the applications-I.A.Nos.6 and 7 filed by the defendant under Order XVIII Rule 17 of the Code of Civil Procedure and under Section 151 of Code of Civil Procedure is erroneous and contrary to material on record. He would further contend that suit is filed for recovery of US $ 152,311.60 against the defendant, which was contested by the defendant. Due to unavoidable circumstances as the counsel for the defendant was not well, the defendant sought time for cross-examination of PW1 on earlier occasion and when the matter was posted on 18.09.2018, the plaintiff made the statement that defendant sought time for cross-examination which is not correct. He further submits that when the counsel for defendant was ready to cross-examine PW1, the trial Court ought to have given an opportuntiy to the defendant to cross-examine PW1 since the suit is filed for the recovery of heavy amount. Therefore, he sought to allow the writ petitions.
5. Per contra, Sri.Vachan Gowda, learned counsel appearing on behalf of Sri.Dhananjay Joshi, learned counsel for respondent sought to justify the impugned order passed by the trial Court. He would contend that inspite of granting sufficient time, the defendant has not utilised or co-operated with the Court. Therefore, the learned Judge was justified in dismissing the applications.
6. Having heard the learned counsel appearing for the parties, it is undisputed fact that the plaintiff filed a suit against defendant for recovery of a sum of US $ 152,311.60 with interest against the defendant. The same was disputed by the defendant and contended that the very suit filed by the plaintiff is not maintainable. When the matter posted for cross-examination on 03.09.2018, PW1 was present. The counsel for defendant sought time to cross-examine PW1 by filing application, which was rejected by the trial Court and cross-examination of PW1 was taken as NIL. Again, when the matter was posted to 09.10.2018, the trial Court permitted the counsel for defendant to recall PW1 but on the said date defendant and his counsel failed to appear before the Court. Once again when the matter was posted on 11.10.2018, the applications-I.A.Nos.6 and 7 came to be filed. The learned Judge dismissed the applications-I.A.Nos.6 and 7 mainly on the ground that there are no bonafide reasons forthcoming in the accompanying affidavit filed in support of I.A.Nos.6 and 7 for not availing several opportunities given to him for the purpose of cross-examination of PW1 on the above said dates and the defendant has filed these applications only to protract the proceedings and to waste the valuable time which is nothing but abuse of the process of law.
7. Sri.B.M.Halaswamy, learned counsel for petitioner-defendant submits that if an opportunity is given on the next date of hearing i.e. on 27.03.2019, the defendant will cross-examine PW1 and will not seek any further adjournment. The said submisison is placed on record.
8. The rights of the parties are involved in the suit.
The suit is filed for recovery of a sum of US $ 152,311.60 with interest against the defendant. In the interest of justice, an opportunity should be given to the defendant to cross examine PW1 to prove his case. Since the suit is of the year 2017, the trial Court ought to have given one more opportunity. The same has not been done.
9. For the reasons stated above, the writ petitions are allowed. The impugned order dated 14.11.2018 passed by LXI Additional City Civil and Sessions Judge, Bengaluru made in O.S.No.3505/2017 is hereby quashed. The application-I.A.No.6 filed by the defendant under Order XVIII Rule 17 of the Code of Civil Procedure to recall PW1 for cross-examination and I.A.No.7 filed under Section 151 of Code of Civil Procedure to recall the order dated 09.10.2018 are hereby allowed, subject to a condition that the defendant shall proceed with cross-examination of PW1 on next date of hearing i.e. on 27.03.2019 without seeking any further adjournment, subject to payment of cost of Rs.5,000/- payable by the defendant to the plaintiff and in case, the defendant fails to pay the cost and cross-examine PW1 on that day, the trial Court is at liberty to proceed with the suit in accordance with law.
Sd/- JUDGE UN