IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF NOVEMBER, 2019 BEFORE THE HON' BLE MR. JUSTICE S.G. PANDIT C.R.P. No.330/2017 BETWEEN:
M/S. SURYA FASHION LADIES & KIDS WEAR POST OFFICE BUILDING DEVASANDRA MAIN ROAD K R PURAM BANGALORE-560036 REPRESENTED BY 1. PARAS PRAJAPATH 2. DEEPAK PRAJAPTH ...PETITIONERS (BY SRI.KARN SINGH, ADV. FOR SRI. GOPAL SINGH, ADV.) AND:
BABULAL C. BALAR S/O CHAGGANRAJ AGED ABOUT 65 YEARS PROPRIETOR M/S. MILLION FASHION INDIA NO.13/3, NAVEEN MARKET T.N.SHETTY LANE AVENUE ROAD CROSS BANGALORE-560002.
REP. BY GPA HOLDER MR.RAMESH B. JAIN S/O BABULAL C. BALAR AGED ABOUT 37 YEARS.
…RESPONDENT (BY SRI. H R SANJEEVE GOWDA, ADV.) THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 18 OF THE KARNATAKA SMALL CAUSES COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED 19.12.2015 PASSED IN S.C. NO.15112/2015 ON THE FILE OF THE V ADDL. SMALL CAUSES JUDGE AND XXIV ACMM MEMBER, M.A.C.T., BANGALORE, DECREEING THE SUIT FOR RECOVERY OF MONEY.
THIS CIVIL REVISION PETITION COMING ON FOR FURTHER ARGUMENTS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners are in revision, under Section 18 of the Karnataka Small Cause Courts Act, against the judgment and decree dated 19.12.2015 in S.C.No.15112/2015 on the file of the V Additional Small Causes Judge and 24th ACMM, Mayo Hall Unit, Bangalore.
2. Petitioners are defendants and respondent is the plaintiff in S.C.No.15112/2015 and the parties would be referred to as per their ranking before the trial Court.
3. The plaintiff’s suit was for recovery of a sum of Rs.55,442/- with future interest at the rate of 24% p.a., from the date of suit till the date of realization. It is stated that the plaintiff is a dealer in Dress Materials and Fancy Cotton Sarees in the name and style of M/s. Millions Fashion. The defendant was one of the customers of the plaintiff who purchased the goods on credit under invoices bearing Nos.10317 dated.30.08.2013; 10155 dated 03.11.2013; 10135 dated 04.02.2014; 10655 dated 22.03.2014 and 11228 dated 23.10.2014 totally amounting to Rs.1,55,768/-. It is stated that the defendant had paid Rs.90,100/- and returned the goods worth Rs.22,082/-. Thereafter the defendant was due in a sum of Rs.43,586/- including the interest. Hence, the suit for recovery of Rs.55,442/- was filed.
4. On issuance of suit summons, the defendants appeared before the Court and filed written statement denying the said transactions. It was also denied the purchase of goods on credit basis.
5. The GPA holder of plaintiff examined himself as P.W.1 and got marked the documents as Ex.P1 to Ex.P11. Even though the defendants had filed the written statement, they had neither cross-examined the plaintiff nor lead their evidence.
6. The trial Court, looking to the evidence placed on record by the plaintiff, both oral and documentary, allowed the suit and decreed the same directing the defendants to pay a sum of Rs.55,442/- with future interest at the rate of 24% p.a. from the date of suit till the date of realization. Aggrieved by the said judgment and decree, the defendant is in revision before this Court.
7. Heard the learned counsel for the petitioners/ defendants and learned counsel for the respondent/ plaintiff.
8. Learned counsel for the petitioners would submit that the defendants are not liable to pay the amount claimed by the plaintiff. It is his submission that the defendants were not given sufficient opportunity to defend their case. It is also his submission that the court below, without affording opportunity to cross- examine the plaintiff/P.W.1, proceeded to pass the judgment. It is his submission that the evidence of the plaintiff was recorded on 17.12.2015 and it was posted for defendant’s evidence on the next day i.e. on 18.12.2015. On 18.12.2015, as the defendants were absent, defendants’ evidence was taken as NIL and arguments of the plaintiff was heard and judgment was delivered on 19.12.2015. Learned counsel for the petitioners would further submit that the invoices Ex.P2 to Ex.P6 are concocted and the defendants need an opportunity to cross-examine the plaintiff on that aspect. It is also his further submission that the defendants were due in a sum of Rs.2,000/- in that respect, they had issued a cheque which was returned “unpaid”, which was the route cause for filing the recovery suit by the plaintiff. Thus, he prays for allowing the petition.
9. Per contra, learned counsel for the respondent/plaintiff submits that, even after affording sufficient opportunity, the defendant failed to participate in the proceedings, even though he had filed written statement. It is his further submission that the trial Court based on the material placed on record by the plaintiff has proceeded to allow the suit directing the defendants to pay a sum of Rs.55,442/- with future interest at the rate of 24% p.a. from the date of suit till the date of realization and prays for dismissal of the revision petition.
10. On hearing the learned counsel for the parties and on perusal of the lower court records, the only point which falls for consideration is as to whether the trial Court is justified in decreeing the suit of the plaintiff?
11. Answer to the above point is in the negative for the following reasons:
The plaintiff’s suit was for recovery of a sum of Rs.55,442/- with future interest at the rate of 24% p.a. from the date of petition till the date of realization from the defendants. The plaintiff claims that the defendants had purchased the goods under various invoices as stated above amounting to Rs.1,55,768/- during the period between 30.08.2013 to 23.10.2014. Out of the said amount, it is stated that the defendants had paid a sum of Rs.90,100/- and had also returned the goods worth Rs.22,082/-. Thereafter, the defendants were due in a sum of Rs.43,586/-. The defendants had also issued a cheque for a sum of Rs.2,000/- on 25.03.2015 which was dishonored on its presentation. Learned counsel for the defendants has taken me through the invoices which are marked as Ex,P2 to Ex.P6. Invoices raised by the plaintiff are not in seriatim. He submits that the defendants had no opportunity to cross- examine the plaintiff and to lead their evidence.
12. On going through the order sheet of the trial Court, it reveals that the suit was posted for plaintiff’s evidence on 30.11.2015, on that day the plaintiff was absent, again the case was posted on 11.12.2015, again the plaintiff was absent and there was no representation even in the morning as well as at 3.00 p.m. On that day, the case was posted on 17.12.2015. On 17.12.2015, the GPA holder of the plaintiff was examined as P.W.1 and Ex.P1 to Ex.P11 were marked. The order sheet would not indicate the case being posted for cross-examination of P.W.1 nor cross- examination taken as NIL. But the case was posted for defendants’ evidence on the next day i.e., on 18.12.2015. On that day, the defendant was absent and there was no representation. So the defendant’s evidence was taken as NIL. The plaintiff arguments was heard and judgment was delivered on the next day i.e., on 19.12.2015. From the sequence of order sheet, I am of the view that the defendant had no proper opportunity to lead his evidence. The plaintiff’s evidence was commenced on 17.12.2015 and judgment was pronounced on 19.12.2015. Further, considering the submission of the learned counsel with regard to invoices raised by the plaintiff as concocted, I am of the view that the defendants are to be given an opportunity to cross-examine the plaintiff and to lead their evidence in the suit.
13. It is submitted by the learned counsel for the parties that the defendants have already deposited decretal amount before the Executing Court. To cross- examine P.W.1 and to lead their evidence, the defendants are given an opportunity on payment of cost of Rs.5,000/-, which shall be paid by the defendants to the plaintiff, on the next date of hearing. Accordingly, the appeal is allowed. The judgment and decree dated 19.12.2015 passed in S.C.No.15112/2015 on the file of the V Additional Small Cause Judge and 14th ACMM is set aside and the suit is remanded to the trial Court for fresh consideration after affording an opportunity to the defendants for cross-examining the P.W.1 and to lead their evidence.
The parties are directed to appear before the trial Court on 02.12.2019 without expecting any notice. The defendants shall not drag on the proceeding.
mpk/-*CT:bms Sd/- JUDGE