IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR W.P.NO.14451/2017 (GM-CPC) BETWEEN:
SRI.N.UDAY S/O. SRI. N. NARASIMHAIAH, AGED ABOUT 35 YEARS, NO.104/B, 1ST ‘R’ BLOCK, 20TH ‘A’ MAIN, RAJAJINAGAR, BENGALURU – 560 010 ... PETITIONER (BY SRI.V.B.SHIVAKUMAR, ADVOCATE) AND:
1. THE KARNATAKA STATE FINANCIAL CORPORATION NO.1/1, THIMMAIAH ROAD, NEAR CANTONMENT RAILWAY STATION, BENGALURU-560009 REP. BY ITS ASSISTANT GENERAL MANAGER 2. THE RECOVERY OFFICER KARNATAKA STATE FINANCIAL CORPORATION, NO.1/1, THIMMAIAH ROAD, NEAR CANTONMENT RAILWAY STATION, BENGALURU – 560 009 3. M/S. A.P.ROCKS PVT. LTD. ‘A.P.HOUSE’, POST BOX NO.2309, BENGALURU – 560 004 REP. BY ITS MANAGING DIRECTOR SRI. ANANTHA RAMA RAO 4. SRI.ANANTHA RAM RAO MANAGING DIRECTOR M/S. A.P.ROCKS PVT. LTD.
‘A.P.HOUSE’, POST BOX NO.2309, BENGALURU – 560 004 5. SRI. ANANTA RAMA RAO FATHER’S NAME NOT KNOWN TO THE PETITIONER, MAJOR BY AGE, NO.448, II FLOOR, 6TH CROSS, 1ST ‘N’ BLOCK, RAJAJINAGAR, BENGALURU – 560 054 6. SRI.H.M.NATARAJA S/O. SRI MALLIKARJUNAIAH, MAJOR BY AGE, NO.59 (OLD NO.50 SUBSEQUENTLY NUMBERED AS 110), SUBEDAR CHATRAM ROAD, BENGALURU – 560 009 7. SRI. M.R.SHANKARANARAYANA S/O. SRI RANGANATHA SETTY, MAJOR BY AGE, NO.1, NEELAPATHI LANE, COTTONPET, BENGALURU – 560 053 8. SRI.M.UDAYASHANKAR S/O. H. MALLIKARJUNAIAH, MAJOR BY AGE, NO.1, 1ST FLOOR, “SURESH APARTMENTS”, CAUVERYNAGAR, BENGALURU – 560 056 9. SRI.N.NARASIMHAIAH S/O. LATE S. NARAYANAPPA, AGED ABOUT 70 YEARS, NO.1042, 7TH BLOCK, HMT LAYOUT, VIDYARANYAPURA, BENGALURU – 560 097 10. SRI. GIRISH NASHI FATHER’S NAME NOT KNOWN TO THE PETITIONER, MAJOR BY AGE, NO.23, 1ST FLOOR, 1ST MAIN ROAD, SESHADRIPURAM, BENGALURU – 560 020 ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DTD.16.2.2017 PASSED ON THE APPLICATION ORDER DTD.3.8.2015 I.A.NO.1/2016 IN O.S.NO.5774/2004 ON THE FILE OF THE XL ADDL. CITY CIVIL AND SESSIONS JUDGE AT BENGALURU VIDE ANNEX-A.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri V.B.Shivakumar, learned Advocate appearing for petitioner. Perused the records.
2. Petitioner has filed the suit O.S.No.5774/2004 against respondents seeking for a declaration that property described in the plaint standing in the name of plaintiff cannot and could not have been offered as a security by 10th defendant for borrowing loan advanced by defendants-1 and 2 in favour of defendants-3 to 9 and 11; for a declaration that first defendant by its officers and officials have committed fraud upon the plaintiff by advancing loan to defendants-3 to 8 on the strength of the documents for which 10th defendant had absolutely no right, title or interest; for a declaration that defendants-3 & 4 have colluded with defendants-1 and 2 for the purpose of borrowing loan by insisting upon 10th defendant to hand over the documents by executing a Memorandum of Understanding and thereafter handing over the documents to the Bank for the purposes of his benefit to get the loan from defendants-1 and 2 and for other incidental reliefs.
3. An application – I.A.No.1/2015 came to be filed by plaintiff under Order 11 Rule 14 CPC r/w Section 151 CPC seeking for a direction to defendants-1 and 2 to produce the documents indicated in the said application. Trial Court by order dated 03.08.2015 – Annexure-E allowed the said application.
4. Thereafter petitioner – plaintiff filed an application – I.A.No.1/2016 under Order 11 Rule 21 CPC seeking for defence of defendants-1 and 2 being struck off for non-compliance of the order dated 03.08.2015 passed on I.A.No.1/2015 contending interalia that there is non compliance of said order by defendants-1 and 2. Said application came to be resisted to by defendants-1 and 2 by filing objections as per Annexure-G. Trial Court after hearing the learned Advocates appearing for parties, by impugned order, has dismissed said application and after noticing that it had directed defendants-1 and 2 to produce the documents, it held that plaintiff has to be prove his case independently irrespective of the weaknesses of the opposite side and as such, trial Court arrived at a conclusion that plaintiff has not made out any ground to strike off the defence of defendants-1 and 2.
5. It is the contention of Sri V.B.Shivakumar, learned Advocate appearing for petitioner that trial Court has not considered the application filed by plaintiff under Order 11 Rule 21 CPC in its proper perspective inasmuch as, when there was a specific order on 03.08.2015 calling upon defendants-1 and 2 to produce documents and there has been non-compliance of said order, it entails the plaintiff to seek for defence of defendants-1 and 2 being stuck off. In support of his submission, he has relied upon judgment of Hon’ble Apex Court in the case of BABBAR SEWING MACHINE COMPANY vs TRILOK NATH MAHAJAN reported in AIR 1978 SC 1436.
6. Having heard the learned Advocate appearing for petitioner and on perusal of the case papers and also copy of the memo with documents which is said to have been filed by defendants-1 and 2 before trial Court in compliance of order dated 03.08.2015, leaves no manner of doubt in the mind of this Court that contention of the plaintiff has been rightly rejected by the trial Court, inasmuch as, documents sought for production from defendants-1 and 2 by plaintiff as indicated in I.A.No.1/2015 which has also been extracted in the impugned order at internal page Nos.5 and 6 would clearly disclose that documents sought for by the plaintiff has been furnished by defendants-1 and 2 which according to defendants-1 and 2 was in compliance of the order dated 03.08.2015. Hon’ble Apex Court in the case of BABBAR SEWING MACHINE COMPANY vs. TRILOK NATH MAHAJAN relied upon by learned Advocate appearing for petitioner, has held that order striking out of the defence under Order 11 Rule 21 CPC should not be lightly made unless there has been obstinacy or contumacy on the part of defendant or willful attempt to disregard the order of Court and as such, it has cautioned the Courts to be cautious to invoke Order 11 Rule 21 CPC and held that order of striking out the defence should be made use of as a last resort and not as a matter of course. This precise exercise has been undertaken by the trial Court and it has been noticed by trial Court that documents which have been produced by defendants-1 and 2 is in compliance of the direction issued by the trial Court on 03.08.2015.
Hence, impugned order passed by the trial Court would not call for interference. Writ petition stands dismissed.
SD/- JUDGE *sp