Karnataka High Court

Mrs. Sheela Maria Lobo vs Karnataka Bank Ltd on 13 June, 2022

Bench: Ashok S.Kinagi

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 13TH DAY OF JUNE 2022

                        BEFORE

        THE HON'BLE MR. JUSTICE ASHOK.S.KINAGI

     WRIT PETITION NO.16453 OF 2021 (GM-CPC)


BETWEEN:

1.     MRS.SHEELA MARIA LOBO,
       AGED ABOUT 43 YEARS,
       W/O HENRY D' SOUZA,
       DOOR NO.2-1401228/3,
       BEJAI NEW ROAD,
       BEJAI, MANGALURU - 577 504.

2.     MRS.SHANTHI D' SOUZA,
       AGED ABOUT 46 YEARS,
       W/O GODWIN D' SOUZA,
       R/AT DOOR NO.2-14-1228/3,
       BEJAI NEW ROAD,
       BEJAI, MANGALURU - 575 004.
                                       ...PETITIONERS

(BY SRI.VENKATESH SOMAREDDI, ADVOCATE)

AND:

KARNATAKA BANK LTD.,
A COMPANY REGISTERED UNDER THE
INDIAN COMPANIES ACT, 1913,
CARRYING THE BANK BUSINESS
HAVING ITS REGISTERED AND HEAD
OFFICE AT MAHAVEERA CIRCLE,
P.B.NO.599, KANKANADY,
                           2




MANGALURU - 575 002
AND HAVING THE BRANCH AT BEJAI,
MANGALURU, REPRESENTED BY ITS
DULY AUTHORIZED OFFICER AND
BRANCH MANAGER
MS.VEENA A JAHAGIRIDAR,
D/O ANANT K JAHAGIRIDAR,
AGED ABOUT 56 YEARS.
                                        ...RESPONDENT

(RESPONDENT SERVED AND UNREPRESENTED)


      THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT
OF CERTIORARI, QUASHING THE IMPUGNED ORDER
DATED 12.07.2021 PASSED BY THE COURT OF I
ADDITIONAL DISTRICT JUDGE AND COMMERCIAL COURT
AT D.K.MANGALORE IN COM.O.S.NO.18/2021 REJECTING
I.A. FILED BY PETITIONERS UNDER SECTION 148 READ
WITH SECTION 151 OF CPC, THE ORDER SHEET
CONTAINING THE IMPUGNED ORDER IS PRODUCED
HEREWITH AT ANNEXURE- C AND ETC.


     THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING 'B' GROUP, THIS DAY, THE
COURT MADE THE FOLLOWING:


                     ORDER

The petitioners aggrieved by the order dated

12.07.2021 passed in Com.O.S.No.18/2021 rejecting

the application filed by the petitioners under Section

148 r/w Section 151 of CPC and also order vide

Annexure-C dated 31.07.2021 passed in the aforesaid

suit by the I Additional District Judge and Commercial

Court at D.K. Mangalore have filed this writ petition.

2. Brief facts leading to filing of this writ

petition are as under:

Respondent-Bank filed Commercial Suit for

recovery of money. The petitioners filed an application

under Section 148 of CPC seeking 15 days time to file

written statement on the ground of ill health of the

petitioners, petitioners could not attend the office of

the counsel to give instructions. To the said

application, respondent-Bank has filed objections. The

trial Court after hearing the parties rejected the

application filed by the petitioners vide order dated

12.07.2021. The petitioners filed one more

application seeking for extension of time based on the

judgment of the Hon'ble Apex Court in the case of

Prakash Corporators V/s Dee Vee Projects Limited

reported in 2022 LiveLaw (SC) 162. The trial Court

rejected the said application on the ground that detail

order was passed on 12.07.2021 and the said order

has attained finality and rejected the application vide

order dated 31.07.2021. Hence, this petition.

3. Notice was issued to the respondent.

Inspite of service of notice, none appears for the

respondent. Heard the learned counsel for the

petitioners.

4. Learned counsel for the petitioners submits

that matter is covered by the judgment of the Hon'ble

Apex Court in Prakash Corporators's case referred to

Supra, he further submits that the trial Court has

committed an error in not extending the time for filing

the written statement. Hence, on this ground he

prays to allow the petition.

5. Heard and perused the records and

considered the submissions of the learned counsel for

the petitioners.

6. The prayer of the petitioners came to be

declined on the ground that in view of the proviso to

Order VIII Rule 1 of CPC, as substituted by the

Commercial Courts Act, 2015, such a right of the

defendants/petitioners to file the written statement

stood forfeited with expiry of 120 days from the date

of service of summons. Respondent instituted a suit

on 12.07.2021. On 05.02.2021, the Trial Court issued

summons to the petitioners for appearance and filing

of written statement. The summons was duly served

on the petitioners on 19.02.2021. The petitioners did

appear before the Trial Court in response to the said

summons on the date fixed i.e., 05.03.2021. The

petitioners sought time for filing written statement

and case was adjourned to 19.03.2021. On

19.03.2021, the petitioners filed an application

seeking extension of time for filing written statement.

Accordingly, Trial Court extended time for filing

written statement. Meanwhile, because of Covid-19

pandemic, almost all the institutions suffered setbacks

with disruption of normal functioning due to illness,

lockdowns and containment measures issued SOP

notification by the High Court. On the strength of SOP

notification, the Trial Court adjourned the matter to

14.06.2021. On 14.06.2021, case was adjourned as

per modified SOP dated 21.05.2021, issued by the

High Court. Case was adjourned to 02.07.2021. On

02.07.2021, the petitioners filed an application for

extension of time for filing written statement. The

Trial Court, taking note of the lockdown due to surge

of Covid-19, granted one more opportunity to file

written statement and to contest the suit, and

adjourned the matter to 12.07.2021. On 12.07.2021,

the petitioners filed application seeking 15 days time

for filing written statement based on the order dated

27.04.2021 passed by the Hon'ble Apex Court in

SMWP(C) No.3/2020. The said application came to be

rejected on the same date by the Trial Court. The

petitioners have filed one more application seeking

extension of time for filing written statement along

with written statement. The said application came to

be rejected vide order dated 31.07.2021. The Hon'ble

Apex Court in SMWP(C) No.3/2020, extended the

period of limitation during Covid-19 Pandemic and

further extended suspension of limitation. The

Hon'ble Apex Court in the case of Prakash

Corporators (supra) at para 20.2 has held as under:

"In other words, the orders passed by this Court on 23.03.2020, 06.05.2020, 10.07.2020, 27.04.2020 and 23.09.2021 in SMWP No.3 of 2020 leave nothing to doubt that special and extraordinary measures

were provided by this Court for advancing the cause of justice in the wake of challenges thrown by the pandemic; and their applicability cannot be denied in relation to the period prescribed for filing the written statement. It would be unrealistic and illogical to assume that while this Court has provided for exclusion of period for institution of the suit and therefore, a suit otherwise filed beyond limitation (if the limitation had expired between 15.03.2020 to 02.10.2021) could still be filed within 90 days from 03.10.2021 but the period for filing written statement, if expired during that period, has to operate against the defendant."

7. In the instant case, the period for filing

written statement had expired between 15.03.2020 to

02.10.2021. The petitioners could still file written

statement within 90 days from 03.10.2021.

8. The issue involved in the instant petition is

covered by the judgment of the Hon'ble Apex Court in

the case of Prakash Corporators (supra).

Considering the law laid down by the Hon'ble Apex

Court in the case of Prakash Corporators (supra), the

writ petition is allowed. The impugned order is set

aside. Written statement filed by the petitioners

deserves to be taken on record and the Trial Court