M/S Abhani Distributors vs M/S Johnson & Smith Company
2021 Latest Caselaw 400 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 7TH DAY OF JANUARY, 2021

                         BEFORE

      THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

              M.F.A.NO.8381 OF 2014(CPC)

BETWEEN

M /S ABHANI DISTRIBUTORS
PHARMACEUTICAL DISTRIBUTORS
1, PORTUGUESE CHURCH STREET
2ND FLOOR, KOLKATTA 700 001
REP BY ITS PRO: SRI. VINAYKUMAR
ABHANI
                                               ...APPELLANT
(BY SMT. SUCHETA MAJUMDAR, ADVOCATE)

AND

M/S JOHNSON & SMITH COMPANY
ADM. OFFICE AT NO.14/2
N S IYENGAR STREET
SHESHADRIPURAM
BANGALORE 20
REP BY ITS PARTNER
SRI RAMESH KUMAR
                                             ...RESPONDENT
(BY SRI. D. PRABHAKAR, ADVOCATE)

      THIS APPEAL IS FILED UNDER ORDER 43 RULE 1 (r) OF CPC,
AGIANST THE ORDER DATED: 10.11.2014 PASSED IN MISC.NO.
496/2012 ON THE FILE OF 30TH ADDITIONAL CITY CIVIL JUDGE,
BANGALORE, DISMISSING THE PETITION FILED UNDER ORDER 9,
RULE 13 OF CPC.

     THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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                           JUDGMENT

This appeal is directed against the impugned order

dated 10.11.2014 passed in Misc.No.496/2012 on the file of

the XXX Additional City Civil and Sessions Judge, Bengaluru,

whereby the trial Court dismissed the petition filed by the

petitioner under Order IX Rule 13 of CPC.

2. Heard learned counsel for the appellant and

learned counsel for the respondent and perused the material

on record.

3. The material on record indicates that it is not in

dispute that the respondent was the plaintiff in

O.S.No.7644/2008 filed by it against the petitioner-defendant

for recovery in a sum of Rs.3,89,963-67 against the appellant

and for other reliefs. The appellant having been placed

exparte in the said suit, it did not contest the same and

consequently, by judgment and decree dated 10.02.2012, the

trial court decreed the said suit in O.S.No.7644/2008 in favour

of the respondent herein against the appellant herein. It is the

grievance of the appellant that the appellant was not aware of

the institution of the suit since the summons had not been duly

served upon the appellant and the appellant came to know

about the judgment and decree only subsequent to same

having been passed and consequently, the delay in filing

Miscellaneous Petition which was filed only on 11.07.2012

was due to bonafide, unavoidable reasons and sufficient

cause. The appellant had a good case on merits and if the

exparte judgment and decree passed against the appellant

was not set aside and an opportunity to contest the suit was

not granted in favour of the appellant, it would be put to

irreparable injury and hardship.

4. Respondent herein entered appearance in

Miscellaneous Petition No.496/2012 and after trial during

which both parties adduced both oral and documentary

evidence, the trial Court dismissed the petition inter alia

holding that the appellant had not made out sufficient cause

either to condone the delay in filing the petition or to establish

as to why the appellant could not contest the suit on merits.

5. After having heard learned counsel for the parties

and upon perusal of the material on record, I am of the

considered opinion that the trial Court has committed an error

in adopting a hyper-technical approach in rejecting the petition

filed by the appellant resulting in miscarriage of justice.

6. Under these circumstances, without expressing

any opinion on the merits/demerits of the rival contentions, I

deem it fit and proper to set aside the impugned order and

direct the trial Court to dispose of suit accordance with law

after giving equal opportunity to both sides.

7. In the result, I pass the following:

ORDER

i) Appeal is allowed.

ii) Impugned order dated 10.11.2014 passed

in Misc.No.496/2012 on the file of the XXX

Additional City Civil and Sessions Judge,

Bengaluru is set aside and

Misc.No.496/2012 hereby stands allowed.

iii) O.S.No.7644/2008 is restored to file of the

trial Court.

iv) Both the parties undertake to appear before

the trial Court on 01.02.2021 without further

notice from the Court.

v)     Appellant is directed to file its written

       statement      along   with    documents    on

       01.02.2021       without      seeking   further

       adjournment in the matter.

vi)    It is made clear that in the event, the

appellant does not file the written statement

on 01.02.2021 as stated supra, the trial

Court is entitled to proceed with the suit on

merits and no further adjournment will be

granted to the appellant.

vii) Having regard to the fact that the suit is of

the year 2008, the trial Court is directed to

dispose of the same as expeditiously as

possible and preferably within a period of

six months from 01.02.2021.

viii) Appellant is directed to pay a sum of

Rs.5,000/- towards costs to the respondent

before the trial Court on 01.02.2021.

Sd/-

JUDGE

Mds.