IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE S.R.KRISHNA KUMAR COMMERCIAL APPEAL NO. 21 OF 2019 BETWEEN:
M/S. MANIPAL ENERGY AND INFRATECH LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT UDAYAVANI BUILDING, PRESS CORNER, MANIPAL REPRESENTED BY ITS AUTHORIZED SIGNATORY MR.RICHARD JAMES D’SA.
(BY SHYAM SUNDAR H.V., ADVOCATE) AND:
1. M/S. SRI KRISHNA SHELTER PVT LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT NO.59, “ SRI KRISHNA SUDHA”, WEST ANJANEYA TEMPLE STREET OFF BASAVANAGUDI MAIN ROAD GANDHI BAZAR, BENGALURU – 560 004 REPRESENTED BY ITS MANAGING DIRECTOR MR.RAGHAVENDRA K.A.
2. THE KARNATAKA STATE POLICE HOUSING AND INFRASTRUCTURE DEVELOPMENT CORPORATION LTD NO.59, RICHMOND ROAD BENGALURU – 560 025 REPRESENTED BY THE CHAIRMAN AND MANAGING DIRECTOR.
3. KAVERI GRAMEENA BANK NO.2236, 23RD CROSS ... APPELLANT BANASHANKARI II STAGE BENGALURU – 560 070.
REPRESENTED BY THE BRANCH MANAGER.
... RESPONDENTS ---
THIS COMMERCIAL APPEAL IS FILED UNDER SECTION 13 (1A) OF THE COMMERCIAL COURTS ACT, 2015 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908 PRAYING TO SET ASIDE THE ORDER DATED: 27.09.2019 PASSED BY THE LEARNED LXXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU ON IA NO. III FIELD IN COM.OS NO.181/2019 AND CONSEQUENTLY ALLOW IA NO.III AND ETC.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, KRISHNA KUMAR, J, DELIVERED THE FOLLOWING:
JUDGMENT By way of this appeal filed under Section 13(1A) of the Commercial Courts Act, 2015, challenge has been made to the impugned order dated 27.09.2019 passed by the learned LXXXIII Additional City Civil and Sessions Judge, Bengaluru, by which the application in I.A.No.3 filed under order 39 rule 10 CPC by the appellant in COM.O.S.No.181/2019 has been dismissed.
2. The appellant herein who was the plaintiff in the Court below filed a suit for a judgment and decree directing Respondent No.1-Defendant No.1 to pay a sum of Rs.16,14,11,652/- to the appellant together with interest and for other reliefs. In the said suit, the appellant/plaintiff filed an application I.A.No.3 under order 39 rule 10 read with Section 151 of CPC for a direction to the Defendant No.2-Respondent No.2 to deposit in the Court below the amounts payable under the contract dated 05th March 2014 executed by second defendant in favour of first defendant. The defendants 1 and 2 opposed the said application and disputed the contentions and claim put forth by the plaintiff.
3. By the impugned order, the Court below came to the conclusion that in the absence of any admission on the part of defendant No.2 that it was holding the money as a trustee for another party or that the defendant No.2 had admitted that the said money belongs to another party, the provisions contained in order 39 rule 10 CPC were not applicable to the facts of the instant case and consequently, no direction could be issued to defendant No.2 to deposit the amount and the application I.A.No.3 was liable to be rejected. The Court below also came to the conclusion that having regard to the material on record which indicated that there was no privity of contract between the plaintiff and the defendant No.2 coupled with the fact that the plaintiff had neither showed existence of any prima facie right against the defendant No.2 nor infraction of any such right, the question of granting injunction against defendant No.2 did not arise.
4. Aggrieved by the impugned order passed by the Court below rejecting I.A.No.3, the present appeal has been filed by the plaintiff.
5. It is contended on behalf of the plaintiff that the Court below committed an error in rejecting I.A.No.3 filed by the plaintiff without noticing or appreciating that in the written statement filed by Defendant No.2, there was an admission by the defendant No.2 which would attract the provisions contained in order 39 Rule 10 of CPC which would clearly to make the defendant No.2 liable to deposit the amount into the Court. In this context, the learned counsel appearing on behalf of the appellant invited our attention to Paragraph 10 of the written statement filed on behalf of the Defendant No.2 and contended since the Defendant No.2 had made payment of Rs.53,29,355/-, it has impliedly admitted its liability and as such, it is essential that the defendant No.2 is directed to deposit the amount as sought for by the plaintiff in I.A.No.3.
6. We have given our anxious consideration to the contentions urged on behalf of the appellant and perused the material on record.
7. It is relevant to extract the provisions of Order 39 Rule 10 of CPC.
“10. Deposit of money, etc., in Court: - Where the subject-matter of a suit is money or some other thing capable of delivery and any party thereto admits that he holds such money or other thing as a trustee for another party , or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last-named party, with or without security, subject to the further direction of the Court.”
8. A bare reading of order 39 rule 10 of CPC would indicate that in order to attract the said provisions:
a) there has to be admission by a party to a suit that he holds the money as a trustee for another party or b) there has to be an admission by a party to a suit that the money belongs or is due to another party.
9. The provisions also indicate that existence of either of the said admissions in writing by a party are a mandatory precondition/requirement for a direction to be issued against such a party. Therefore, we will have to ascertain whether there exists any such admission. According to the learned counsel for the appellant, the admission is in paragraph 10 of the written statement filed by defendant No.2 in the suit which is extracted as under:
“The 2nd Defendant submits that with respect to certain bills submitted to it by the 1st Defendant, an amount of Rs. 67,09,410/-(Rupees sixty seven lakhs nine thousand four hundred and ten only) has been release on 04.10.2019. After deductions of taxes, an amount of Rs. 53,29,355/- (Rupees fifty- three lakhs twenty nine thousand three hundred and fifty five only) has been paid request towards such payment is produced here to as Document No.7. This defendant cravesleave to produce any further documents in this regard. The 2nd defendant is acting in compliance with the Agreement. The plaintiff is attempting to paint this compliance of the 2nd Defendant as a collusive act between the 1st and 2nd Defendant, which is vehemently denied. The 2nd Defendant is not acting in collusion with and party. It is unnecessarily been dragged into disputes between the plaintiff and the 1st Defendant.”
10. A perusal of the averments contained in the written statement not only indicate that there is no admission whatsoever as contemplated under order 39 rule 10 CPC, but the alleged liability of the Defendant No.2 has been seriously denied and disputed by the defendant No.2. Under these circumstances, as rightly held by the Court below, the provisions contained in order 39 rule 10 CPC are not attracted to the facts of the instant case. As rightly held by the Court below, apart from the fact that there was no privity of contract between the plaintiff and defendant No.2, there was no admission whatsoever, much less an admission as contemplated under order 39 rule 10 CPC so as to make the defendant No.2 liable to deposit the money into the Court below as sought for by the plaintiff in I.A.No.3.
11. The trial Court was fully justified in rejecting the application filed by the plaintiff. We do not find any illegality or infirmity in the impugned order passed by the Court below. Accordingly, the above appeal is dismissed.
Sd/- CHIEF JUSTICE Sd/- JUDGE bnv*