Karnataka High Court
Salim Moulsaheb Jamadar vs M/S. Lakhamappa Klallappa Klhot on 27 January, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 27TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA.NO.100914/2014 (MON)
BETWEEN
SRI.SALIM MOULSAHEB JAMADAR,
AGED ABOUT: 55 YEARS,
OCC: CIVIL CONSULTANCY,
R/O: H.NO.626, RADHABAI ROAD,
JAYSINGPUR, TQ: SHIROL,
DIST: KOLHAPUR.
... APPELLANT
(BY SRI.G.I.GACHCHINAMATH, ADV.)
AND
1. M/S. LAKHAMAPPA KLALLAPPA KHOT,
A REGISTERED FIRM AT HEBBAL,
TQ: HUKKERI BY ITS PARTNERS.
1A. SRI. LAKHAMAPPA KALLAPPA KHOT
SINCE DECEASED BY HIS LRS
1B. SRI. BASAVARAJ LAKHMAPPA KHOT,
AGED 40 YEARS,
OCC: TRADE and AGRICULTURE,
R/O: HEBBAL, TQ: HUKKERI, DIST: BELGAUM,
1C. SRI. SACHIDANAND
LAKHMAPPA KHOT, AGED 28 YEARS,
OCC: TRADE and AGRICULTURE,
R/O: HEBBAL, TQ: HUKKERI, DIST: BELGAUM,
2
1D. SMT. PREMA W/O CHANDRAKANT KOTHWALI,
AGED ABOUT 38 YEARS, OCC: HOUSEHOLD WORK,
R/O: BANGALORE.
1E. SMT. SUVARNA W/O SADANAND KITTURE,
AGED ABOUT: 58 YEARS,OCC: HOUSE HOLD WORK,
R/O: CLUB ROAD, BELGAUM, TQ and DIST: BELGAUM.
2. M/S. JAMADAR AND CO.,
A FIRM SITUATED AT SHIROL ROAD
IN FRONT OF J.J.MAGDUM
ENGLISH SCHOOL, JAYSINGPUR,
TQ: SHIROL, DIST: KOLHAPUR, BY ITS PARTNERS
2A. SRI. RAFIQ AHAMAD MOULASAHEB JAMADAR,
AGED ABOUT: 67 YEARS, OCC: TRADE,
R/O: SHIROL ROAD, IN FRONT OF J.J, MAGDUM
ENGLISH SCHOOL, JAYSINGPUR, TQ: SHIROL,
DIST: KOLHAPUR.
3. HALIMABI W/O MOULSAHEB JAMADAR
SINCE DECEASED BY HER L.R.S.,
3A. DR. BALECHANDR MOULASAHEB JAMADAR,
AGED ABOUT: 70 YEARS, OCC: PRACTICE,
R/O: NO. 626, RADHABAI ROAD,
JAYSINGPUR, TQ: SHIROL, DIST: KOLHAPUR.
3B. MUSTAFA MOULASAHEB JAMADAR
AGED ABOUT: 64 YEARS, OCC: BUSINESS,
R/O: FLAT NO. 202, RISHABH
SADHANA APARTMENT, OPP: MAHAVEER GARDEN,
KOLHAPUR, DIST: KOLHAPUR.
3C. SRI.SHAIFAHAMED MOULASAHEB JAMADAR,
AGED ABOUT 55 YEARS, OCC: BUSINESS,
R/O 626, RADHABAI ROAD, JAYSINGPUR,
TQ.SHIROL, DIST: KOLHAPUR,
3D. SRI.VAJID MOULASAB JAMADAR,
AGED ABOUT: 51 YEARS, OCC: BUSINESS,
R/O: H.NO.626, RADHABAI ROAD, JAYSINGPUR,
TQ: SHIROL, DIST: KOLHAPUR,
3
NOW RESIDENT OF C/O SUNIL KOLI, H.NO.232/5,
NALAWADE COLONY, JADHAV WADI, OPP. MARKET YARD,
KOLHAPUR, DIST: KOLHAPUR.
4. SMT.REHANA PARVEEN MUSTAFA JAMADAR,
SINCE DECEASED BY HER L.R.S.,
4A. SRI.JAVED MUSTAFA JAMADAR,
AGED 40 YEARS, OCC: BUSINESS,
R/O: FLAT NO. 202, RISHABH SADHANA APARTMENT,
OPP TO MAHAVEER GARDEN, DIST: KOLHAPUR.
4B. MISS. NILOFER MUSTAFA JAMADAR,
AGED 36 YEARS, OCC: HOUSEHOLD WORK,
R/O: FLAT NO. 202, RISHABH SADHANA APARTMENT
OPP. MAHAVEER GARDEN, KOLHAPUR.
4C. MISS.TANVEER @ TANVEERA MUSTAFA JAMADAR,
AGE: 34 YEARS, OCC: HOUSEHOLD WORK,
R/O: FLAT NO. 202, RISHABH SADHANA APARTMENT,
OPP. MAHAVEER GARDEN, KOLHAPUR, DIST KOLHAPUR.
4D. SRI.NAAVED MUSTAFA JAMADAR,
AGED 46 YEARS, OCC: BUSINESS,
R/O NO.P-3, VISHWAJEET APARTMENT,
NEAR VIVEKANANDA COLLEGE, NAGALA PARK,
KOLHAPUR, DIST: KOLHAPUR.
... RESPONDENTS
(BY SMT.SUNANDA P.PATIL, ADV. FOR R1B, R1C R1E;
R2A & R3A ARE SERVED; R1D INCOMPLEE ADDRESS;
R3B LEFT ADDRESS; R3C NOT CLAIMED; R4A, B & C LEFT ADDRESS;
R4D NOT IN COURT LANGUAGE)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED
18.02.2011 MADE IN O.S.NO.2/1997 PASSED BY THE SENIOR CIVIL
JUGE, HUKKERI AND ALSO THE IMPUGNED JUDGMENT AND DECREE
DATED 01.08.2014 MADE IN R.A.NO.113/2011 PASSED BY THE VII
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELGAUM AT
CHIKKODI AND FURTHER DISMISS THE SUIT OF THE PLAINITFFS
INSOFAR AS THIS APPEALLANT IS CONCERNED.
4
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned Regular Second Appeal is filed by
defendant No.3D questioning the judgment and decree of
the courts below in holding that the present appellant and
other defendants are jointly and severally liable to pay
Rs.3,50,671.44 p.s. to the respondent/plaintiff firm along
with interest at the rate of 18% p.a. from the date of filing
of the suit till the date of decree and future interest at the
rate of 6% p.a. from the date of drawing the decree till
realization.
2. The judgment and decree of the trial court was
questioned by the present appellant herein before the first
appellate court in R.A.No.113/2011. The first appellate
court on re-appreciation of oral and documentary evidence
though confirmed the judgment and decree of the trial
court, however, has modified the judgment and decree of
the trial court only in regard to entitlement of interest. The
first appellate court by partly allowing the appeal has
awarded interest at 6% p.a. from the date of filing of the
suit till realization as against 18% p.a. from the date of
filing of the suit till the date of decree and future interest at
the rate of 6% p.a. from the date of drawing the decree till
realization.
3. The present appeal is filed by
appellant/defendant No.3D who failed to file the written
statement. His application in I.A.No.37 filed under Order 8
Rule 1 r/w Section 151 of CPC was rejected by the trial
court by order dated 29.11.2010. Learned counsel for the
respondent/plaintiff has brought to the notice of this court
that this order is not at all challenged by the present
appellant. Therefore, legally speaking, there is no contest
by the present appellant and the application filed by him in
I.A.No.37 seeking leave of the court to file written
statement was rejected.
4. Insofar as controversy as to whether respondent
No.1/plaintiff is entitled for a sum of Rs.3,50,671/- is
concerned, both the courts having appreciated oral and
documentary evidence and having examined categorical
admissions given by defendant No.2 who is examined as
D.W.1, have come to the conclusion that present appellant
and other defendants are liable to pay a sum of
Rs.3,50,671/-. Both the courts having examined oral and
documentary evidence have placed reliance on Exs.P21 &
23 which are documents pertaining to settlement of
accounts. Both the courts have taken judicial note of the
fact that in reply notice defendants have not denied the
settlement of accounts vide Exs.P21 and 23. Both the
courts have meticulously examined the legal notice issued
by respondent/plaintiff wherein all significant details are
reflected. In the legal notice dated 24.09.1987 as per
Ex.P18, both the courts found that terms and conditions of
contract are mentioned and it also indicates delivery of
consignment. Both the courts have taken note of the fact
that there is no serious dispute to the legal notice issued
by the respondent/plaintiff firm. The claim is not in dispute,
but the defendants in reply have specifically contended that
demand made is not correct and further contention is taken
by the defendants that recovery sought in the legal notice
is on the higher side.
5. Having examined the clinching evidence on
record adduced by the respondent/plaintiff firm, both the
courts have concurrently held that defendants are due to
the tune of Rs.3,50,671/-. Further, both the courts have
concurrently held that suit filed by the respondent/plaintiff
is well within time and accordingly, proceeded to decree
the suit.
6. As stated supra, the present appellant has not
contested the proceedings. His application filed in
I.A.No.37 seeking permission to file written statement is
rejected by order dated 29.11.2010. The said order has
attained finality. Therefore, in the absence of contest and
in the absence of rebuttal evidence, the present appellant
has no locus standi to question the judgment and decree of
the courts below. On this short point, this court is of the
opinion that the second appeal filed by the present
appellant herein needs to be dismissed at the threshold.
7. It is unfortunate that the appellant has placed
reliance on the written statement filed by him in the
present second appeal. At para 10(b), he has referred to
written statement filed by him. Therefore, this court would
find that there is total suppression of the order passed on
I.A.No.37 in the present appeal memorandum. Therefore,
the appeal is dismissed by imposing cost of Rs.25,000/-.
Sd/-
JUDGE
MBS/-
