Karnataka High Court

Sri Indrajith Lankesh vs M/S Akk Entertainment Pvt. ... on 12 January, 2022

Bench: Pradeep Singh Yerur

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 12TH DAY OF JANUARY, 2022

                    BEFORE

  THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

CIVIL REVISION PETITION NO.507 OF 2021 (IO)

BETWEEN:
SRI INDRAJITH LANKESH
AGED ABOUT 52 YEARS
PROPRIETOR
LANKESH CHITRALAYA
NO.810, 7TH BLOCK
2ND PHASE, BANASHANKARI III STAGE
100 FEET RING ROAD
BENGALURU - 560 085                 ... PETITIONER
(BY SRI M.S.SHYAMSUNDAR, ADVOCATE)

AND:
M/S.AKK ENTERTAINMENT PVT.LIMITED
A COMPANY REGISTERED UNDER
COMPANY ACT, 1956 AND
HAVING ITS REGISTERED
OFFICE AT NO.109
MIDFORD HOUSE, MIDFORD GARDEN
OFF: MAHATHMA GANDHI ROAD
BENGALURU - 560 001
REP. BY ITS DIRECTOR
MR.A.RUDRAGOUD                   ... RESPONDENT

(BY SRI DHYAN CHINNAPPA, SENIOR COUNSEL FOR
    SRI S.B.MATHAPATI, ADVOCATE)
                        ---
     THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 115 OF THE CODE OF CIVIL PROCEDURE 1908
PRAYING TO SET ASIDE THE ORDER DATED
16.12.20021   PASSED    ON    IA  NO.1/2021   IN
O.S.NO.26420/2011 PENDING ON THE FILE OF LXXIV
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ADDITIONAL CITY CIVIL             AND   SESSIONS        JUDGE,
BENGALURU AND ETC.

     THIS CIVIL REVISION PETITION COMING ON FOR
ADMISSION, THIS DAY, THE COURT MADE THE
FOLLOWING:

                           ORDER

Heard Sri M.S.Shyamsundar, learned counsel

appearing for petitioner and Sri Dhyan Chinnappa,

learned Senior Counsel appearing on behalf of

Sri S.B.Mathapati for caveator/respondent.

2. Though the case is listed for admission today,

with the consent of both learned counsel, it is taken up

for final disposal.

3. The petitioner herein, who is defendant before

the trial Court being aggrieved by the order dated

16.12.2021 passed on an application-IA.No.1/2021 filed

under Order VII Rule 11 of CPC in O.S.No.26420/2011

by LXXIV Additional City Civil and Sessions Judge,

Mayohall Unit, City Civil Court, Bengaluru (CCH-75)

having been dismissed, is before this Court challenging

the legality and correctness of the said order.

4. Brief facts of the case:

The respondent herein, who is plaintiff before the

trial Court filed a suit under Order XXXVII Rule 1 of CPC

which is summary in nature stating inter alia that the

defendant had received a sum of Rs.1,00,00,000/-

(Rupees One Crore Only) by way of loan from the

plaintiff. It is also the case of plaintiff that the defendant

along with his sister, Ms.Gowri Lankesh had issued a

letter dated 21.03.2009 acknowledging the liability that

it was to be repaid @ 16% per annum from 28.03.2006

to the date of payment. In view of the relationship

having been strained, the defendant failed to repay the

amount despite repeated request and forcing the

plaintiff to file the present suit in question for recovery

of the said amount which is mentioned in the letter

dated 21.03.2009. On issuance of summons, defendant

appeared before the trial Court and sought for

permission to defend the suit by filing statement of

defence which was granted by the trial Court subject to

certain conditions of depositing security amount.

5. It is submitted across the Bar that the order

dated 29.03.2019 wherein leave to defend was granted

by the trial Court subject to offering security came to be

challenged in the writ petition bearing WP.No.

15498/2019 before this Court and the same has been

stayed.

6. It is the contention of learned counsel for

petitioner-defendant that the plaintiff could not have

invoked provisions under Order XXXVII of CPC since

there was no contract and it was a mere letter which

was issued on 21.03.2009. Therefore, the suit would

not come within the purview of Order XXXVII of CPC in

the summary proceedings nature and hence, he has

filed an application-IA.No.1/2021 under Order VII Rule

11 of CPC with a prayer to reject the plaint on the main

ground that there is a violation of provisions of Order

XXXVII of CPC mainly relying on Order XXXVII Rule 2(b)

of CPC. In view of the fact that the plaintiff has not

complied with the above said provisions of CPC, the

summary suit would not lie on the provisions of Order

XXXVII of CPC and sought for rejection of plaint. The

said application was stoutly resisted by the plaintiff and

the trial Court after hearing both the parties and

considering the submissions and rulings/citations relied

on by both the learned counsel, passed an order

rejecting the application filed by the petitioner-

defendant vide order dated 16.12.2021 which is the

subject matter of this petition.

7. It is the contention of learned counsel for

petitioner-defendant that the trial Court has failed to

consider the provisions of law and various citations

relied on by him during the course of arguments.

Therefore, the trial Court has erred in not appreciating

the rule of law and the tenor of CPC in deciding the

matter under the summary proceedings nature. It is

also contended by learned counsel for petitioner that

the trial Court has failed to take note of the admissions

made in the pleadings and has committed an error in

rejecting the application under Order VII Rule 11 of

CPC. It is also the contention of learned counsel for

petitioner that in the absence of a contract, the letter

relied upon by the plaintiff could not have been

construed as a valid contract under the summary

proceedings and same is not a concluded contract.

Therefore, the trial Court taking cognizance of the

matter under summary proceedings under Order XXXVII

of CPC is erroneous .

8. It is also contended by learned counsel for

petitioner that if the plaint could not have been rejected

under Order VII Rule 11 of CPC in lieu of application

filed by him, the trial Court ought to have treated the

suit filed by the plaintiff as a regular suit under Order

VII Rule 11 of CPC and it cannot at any stretch of

imagination be treated as summary proceedings under

Order XXXVII of CPC as it does not comply with

necessary requirement mandated by the Court. He also

contends that the impugned order passed by the trial

Court is erroneous and opposed to law and the same

requires to be set aside and reversed.

9. Per contra, Sri Dhyan Chinnappa, learned

Senior Counsel appearing on behalf of Sri S.B.Mathapati

for respondent submits that no doubt, the application

under Order VII Rule 11 of CPC has been filed by the

defendant to reject the plaint, the same is not

maintainable in law as the averments made in the plaint

very clearly establish the necessary requirements

mandated under Order XXXVII of CPC and fully complies

with the requirement of the Court to come within the

purview of summary proceedings under Order XXXVII of

CPC. Learned Senior Counsel further contends that at

para-1 of the plaint itself, it is very clearly stated that in

the suit, the plaintiff only seeks to recover the debt and

a liquidated demand in money payable by the defendant

with interest, arising upon the acknowledgement of debt

vide letter dated 21.03.2009. Learned Senior Counsel

contends that the objections raised by the learned

counsel for petitioner-defendant before the trial Court to

institute an application under Order VII Rule 11 of CPC

is only on the ground that there is no compliance of

Order XXXVII Rule 2(b) of CPC. For better

understanding, Order XXXVII Rule 2 of CPC is extracted

hereinbelow:

"2. Institution of summary suits.−(1) A suit, to which this Order applies, may if the

plaintiff desires to proceed hereunder, be instituted by presenting a plaint which shall contain,−

(a) a specific averment to the effect that the suit is filed under this Order;

(b) that no relief, which does not fall within the ambit of this rule, has been claimed in the plaint; and

(c) the following inscription, immediately below the number of the suit in the title of the suit, namely:-

"(Under Order XXXVII of the Code of Civil Procedure, 1908)"."

10. Order XXXVII Rule 1 of CPC specifies certain

requirements for the plaintiff to proceed in a summary

manner which is laid down in Order XXXVII Rule 2(1)(a)

to (c) to be complied. Learned Senior Counsel contends

that it is not the grievance of the petitioner-defendant

that Order XXXVII Rule 2(1)(a) to (c) of CPC has not

been complied. It is his specific contention that there is

no mention of verbatim inscription of the provisions of

Order XXXVII Rule 2(1)(b) of CPC in the plaint. In fact,

he contends that in the plaint, it is very specifically

mentioned that the plaintiff is seeking only to recover

debt on the liquidated demand based on the letter dated

21.03.2009 and nothing else is claimed in the plaint.

Therefore, there need not be a verbatim inscription of

the wordings stipulated in the Code under Order XXXVII

Rule 2(1)(b) of CPC. Considering the same, the trial

Court has appreciated and heard submission of the

parties and has rightly rejected the application filed

under Order VII Rule 11 of CPC. Therefore, he contends

that there is no illegality and perversity in the order

passed by the trial Court in rejecting application under

Order VII Rule 11 of CPC.

11. It is further contention of learned Senior

Counsel that there is no dispute with regard to the

procedure of instituting the suit in summary

proceedings as contemplated under Order XXXVII Rules

1 and 2 of CPC, which specifically states as to how the

averments will have to be made and more specifically,

Order XXXVII Rule 2 of CPC specifically states what

averments and how the summary suits will have to be

presented before the Court, in which, Order XXXVII Rule

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2(1)(a) and (c) of CPC is specific in nature. Learned

Senior Counsel contends that Order XXXVII Rule 2(1)(b)

of CPC does not start with the sentence or specify any

specific averments to be narrated, however, it states

that no relief, which does not fall within the ambit of

this rule, has been claimed in the plaint, has to be

stated. Therefore, it is contention of learned Senior

Counsel that such averments though may not be

verbatim in the same wordings, however has been

narrated and stated in the plaint, it has been

satisfactorily accepted by the learned trial Judge and

based on that, the application under Order VII Rule 11

of CPC has been rightly rejected.

12. In the course of arguments, learned counsel

appearing for the petitioner and learned Senior Counsel

appearing for the respondent submit that grant of leave

to defend subject to security to be provided by the

defendant was carried in a writ petition and stay having

been granted, the parties before the trial Court have

proceeded further in the matter by adducing evidence

i.e. the defendant has filed his detailed statement of

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objections/written statement. The plaintiff has

proceeded to lead evidence. The plaintiff has examined

PW.1 who has also been effectively and fully cross-

examined by the defendant. The matter is at the stage

of adducing defendant's evidence.

13. When this being the present situation in the

suit before the trial Court, it is imperative to understand

the scope and procedural aspect of a summary suit. In

view of the fact that leave to defend has been granted

to the defendant by the trial Court and he has

proceeded further in the matter, the trial Court has not

proceeded to pass any judgment in the suit. In a

summary proceedings nature, if leave to defend is

rejected by the trial Court, the plaintiff thereafter is

entitled for a judgment forthwith. However, such a

situation has not been occurred in the present suit, in

view of leave to defend having been granted and so

also, the security which was ordered by the trial Court is

also stayed by the High Court in the writ proceedings.

Therefore, in fact, it appears that the proceeding before

the trial Court has not been proceeded in a summary

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proceeding nature, it is rather assumed the role of

regular suit under Order VII Rule 1 of CPC and has

proceeded further with evidence and cross-examination

of the parties. Therefore, these subsequent events will

have to be taken note of while deciding this petition.

Both learned counsel for petitioner and learned Senior

Counsel for respondent, in unison, submit that the suit

having been filed in the year 2011 on the basis of

alleged contract seeking to enforce the letter dated

21.03.2009 is already proceeded for more than a

decade. Taking note of this situation, it cannot be now

said that the proceedings before the trial Court is going

on in a summary nature. However, in view of the fact

that the matter has already proceeded for a decade,

learned Senior Counsel appearing for respondent

graciously submits that he is interested in going on with

the main matter rather than on interim application and

on present petition which is challenged on the basis of

interim application under Order VII Rule 11 of CPC. The

said submission is also appreciated and taken note of by

the learned counsel for petitioner and he also agrees to

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go on with the main matter rather than proceeding on

with interim application which is presently being

agitated before this Court. This Court finds sufficient

force in the submissions made by both the learned

counsel.

14. The point that would arise is that the

application for leave to defend which is under challenge

before the writ proceedings, is still pending and the

same is not concluded.

15. Learned Senior Counsel appearing on behalf

of respondent submits that the trial Court is already at

the stage of defendant's evidence. If the defendant

proceeds on with the matter by adducing evidence, the

main matter itself would be disposed of early subject to

the cooperation of petitioner-defendant. If the main suit

comes to an end, the writ petition which is yet to decide

the application for grant of leave may pale into

insignificance.

16. Keeping these submissions on record, I find

sufficient force in the submission made by the learned

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Senior Counsel. Hence, it would be appropriate for both

the parties to proceed further before the trial Court on

the main matter rather than agitating interim

application. The very purpose of initiating proceedings

under Order XXXVII of CPC has already got frustrated

and the matter now has proceeded under Order VII Rule

1 of CPC as a regular suit. It is the concern of learned

counsel for petitioner that all his contentions may be

kept open.

17. Learned counsel for petitioner-defendant

submits that he has already filed his written statement

and he has cross-examined the plaintiff's witness-PW.1

and it is at the stage of adducing defendant's evidence.

There is no bar for the defendant to adduce evidence of

himself or lead any further evidence of the witness. At

the same time, the respondent-plaintiff is at liberty to

proceed further to lead further evidence and to cross-

examine the defendant. It would be premature for this

Court to say anything with regard to adducing of

evidence by the parties as i.e. not the subject matter

before this Court, so also the question with regard to

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leave to defend which is the matter before the writ

Court. Keeping open all the contentions, the learned

counsel to adduce necessary evidence before the trial

Court in the manner known to law. I deem it

appropriate to dispose of this petition as the main

matter is already in the process of conclusion of

evidence. Accordingly, I pass the following:

ORDER

i) Civil Revision Petition is dismissed with the observations made hereinabove;

ii) Both the parties shall proceed further with the matter as observed hereinabove;

iii) Parties to the proceedings will cooperate with the trial Court for speedy disposal, in view of the fact that summary proceedings which was initiated in the nature of summary suit has already completed a decade;