IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY R.F.A. No.16 OF 2015 BETWEEN:
Smt. Vidya Kamal Kumari.R.C. No.403, Rohita Gardens 1st Cross, 4th Main Road, Opp. Tatanagar Water Tank, Tatanagar Bangalore – 560 092.
(By Sri. Balaji Raghunathan for True Law) AND:
1. M/s. Popular Finance (Head Office) Popular Towers, Main Road, Vakayar, Konni, Pathanamthitta Kerala – 689698.
2. M/s. Popular Finance No.1382, 1st Cross Jayanagar East End Circle Bangalore – 560 069.
3. M/s. Popular Finance No.28, A.R. Arcade, 60 feet road, Gokul First Stage, Mathikere, Bangalore – 560 054.
…Appellant 4. M/s. Popular Financeiers No.1/9, “The Presidency”, No.1, St. Marks Road, Bangalore – 560 001.
5. M/s. B.J.J. Associates, Govt. Approved Auctioneer, No.75/7, Indira Market, Nagarthepet, Bangalore. 560 002.
(By Sri.N. Krishnappa, Advocate for R-2; Sri. S.J. Sanghvi, Advocate for R-5;
R-1, R3 and R4 - served) …Respondents **** This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908, against the order and decree dated:22.11.2014 passed in O.S.No.3548/2013 on the file of the V Additional City Civil Judge (CCH-13) at Bangalore City, dismissing the suit of the plaintiff as not maintainable.
This Regular First Appeal coming on for Hearing this day, the Court delivered the following:-
J U D G M E N T This is a plaintiff’s appeal. The suit of the present appellant as a plaintiff in O.S.No.3548/2013 instituted against the present respondents, arraigning them as defendants No.1 to 5 respectively in the Court of the V Additional City Civil Judge (CCH-13) at Bangalore City (hereinafter for brevity referred to as the “Trial Court”), for the relief of mandatory injunction, seeking a direction to the defendants 1 to 4 to furnish detailed Statement of payments, to charge interest as per RBI guidelines and to restrain them from auctioning the jewellery, came to be dismissed upon its finding on issue No.1 relating to maintainability. It is against the said order on issue No.1, the plaintiff has preferred this appeal.
2. The summary of the case of the plaintiff in the Trial Court was that, she had availed gold loan from defendants No. 3 and 4. Regarding its repayment, she requested defendants No.1 to 4 to furnish her the details of the statement of account maintained by them with respect to her gold loan. However, they not only failed to furnish her the statement of account, but also proceeded to auction the gold pledged by her with them through defendant No.5. This made her to institute the suit against the defendants 1 to 5.
3. The defendants who appeared through their counsel have filed their written statement wherein they have admitted that, the plaintiff had availed two gold loans from defendants No.3 and 4 for the sums shown by the plaintiff in her plaint. However, the defendants 1 to 4 further stated that, apart from these two gold loans, she had also availed few more gold loans from defendants No.1 to 4 and had become defaulter in the repayment of the loan amount. The defendant No.5 in his written statement stated that he is only an auctioneer, as such, he is acting only as an agent of the defendants No.1 to 4 in carrying out the task of auctioning the pledged goods, as such, he has no privity of contract with the plaintiff and also in no way liable to the plaintiff, in any manner, much less, towards the relief she has sought for with respect to rendition of the accounts by the defendants No.1 to 4.
4. Based on the pleadings of the parties, the Trial Court framed the following issues for its consideration:-
“1. Whether the plaintiff to prove that his suit is maintainable in the present form?
2. Whether the plaintiff to prove that in spite of his best efforts the defendants not furnished defendants particulars as pleaded to para 5 of the plaint?
3. Whether the plaintiff to prove the defendant No.1 to 4 have illegally and unilaterally sent letter declaring they are going to auctioning the ancestral gold ornaments of the plaintiff?
4. Whether the plaintiff is entitled for reliefs claimed in the suit?
5. What decree or order?”
5. The Trial Court took up the first issue for its consideration before even proceeding to record the evidence of the parties. The Trial Court by its impugned order dated 22-11-2014 answered the said first issue in the negative, holding that the plaintiff has failed to prove that the suit is maintainable in the present forum and proceeded to dismiss the suit as not maintainable. It is against the said order and decree the plaintiff has preferred this appeal.
6. Learned counsel for the appellant/plaintiff in his single sentence argument submitted that, since the remedy of mandatory injunction and the permanent injunction cannot be granted by any other forum and he has no other remedy, he has approached the Civil Court through this suit, as such the impugned order is not justifiable.
7. Per contra, learned counsel for the respondents/defendants in his single sentence argument stated that, the impugned order is hundred percent justifiable.
8. While reasoning issue No.1, the Trial Court has given only two reasons to hold that the suit of the plaintiff as not maintainable.
The first reason is that, Sections 172 to 181 of the Indian Contract Act,1872, which deal with the provisions relating to ‘bailments of pledges’ and rights of ‘pawnor and pawnee’, nowhere give any right to the plaintiff to file such a suit seeking a mandatory injunction against a financier.
The Second reason given by the Trial Court is that, the plaintiff had every right to approach a competent forum seeking suitable remedy, as such also, the suit in the present forum is not maintainable.
9. A perusal of the pleading of the parties would go to show that, none of the defendants in their Written Statements, anywhere, have taken any contention regarding the maintainability of the plaint in the Court below. In the absence of any whisper by any of the defendants, with specific reason as to why it is not maintainable, the Trial Court has proceeded to frame the issue regarding maintainability, that too, casting the burden upon the plaintiff to prove the same.
Secondly, the Indian Contract Act, 1872 no where in its Chapters gives any specific right to any of the parties to file any particular suit in any forum. It only deals with the concept of contract including the definition of contract, obligations of the parties and the various types of contracts including bailments of pledges. Merely because chapter IX of the Indian Contract Act does not specifically mention that parties who are aggrieved by any of the acts of the bailor or bailee can approach a competent Civil Court for rederessal of their grievances, by that itself, it cannot be considered that, there is any prohibition for a party aggrieved by the breach of any contract of bailment or agency from approaching the competent Civil Court.
Thirdly, Section 9 of the Code of Civil Procedure, 1908, clearly mentions that, the Courts shall (subject to the provisions contained in Civil Procedure Code) have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The Trial Court, nowhere, has mentioned as to any bar or prohibition that might be there against the plaintiff from approaching through an Original Suit under Order VII Rule 1 of Code of Civil Procedure, 1908.
Fourthly, even though the Trial Court in its short reasoning running into a single paragraph has stated that, the plaintiff could have approached a competent forum seeking suitable remedy, but, nowhere stated as to what was that alternative remedy that was available to the plaintiff for the relief which she has sought for in the plaint. Nowhere the Trial Court has mentioned which was that competent forum which could have granted her or which could have considered her prayer for the relief of a mandatory injunction and permanent injunction in the circumstance of the case like the one on hand. The reasoning in detail as to what was that alternate remedy the plaintiff had has not been whispered by the Trial Court and it appears that it has presumed on its own that the plaintiff should have approached a competent forum. Thus, in my view, the said reasoning given by the Trial Court since is bereft of merit and since the entire suit is dismissed only on the ground of maintainability without going into the other issues, the said finding which is now proven to be erroneous, deserves to be set aside and the matter deserves to be remanded for its fresh consideration in accordance with law.
Accordingly, I proceed to pass the following:
O R D E R [i] The appeal is allowed in part;
[ii] The order and decree dated 22-11-2014 passed by the Court of the V Additional City Civil Judge (CCH-13) at Bangalore City, in O.S.No.3548/2013, is hereby set aside;
[iii] The matter is remanded to the Trial Court with a direction to it to dispose of the matter afresh in accordance with law;
[iv] Both side parties are directed to appear before the Trial Court without anticipating any fresh notice or summons from it on 18-11-2019 at 11:00 a.m. and participate in the further proceedings of the suit.
Registry to transmit a copy of this judgment along with the Lower Court records to the concerned Trial Court, without delay.
Sd/- JUDGE BMV*