Sri A R Satish S/O Ramalingaiah vs M/S Lakshmi Automobiles
2022 Latest Caselaw 8802 Kant

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                                                        COMAP No. 100007 of 2022


                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                DATED THIS THE 15TH DAY OF JUNE, 2022

                                               PRESENT

                               THE HON'BLE MR JUSTICE KRISHNA S.DIXIT

                                                  AND

                                THE HON'BLE MR JUSTICE P.KRISHNA BHAT

                                COMMERCIAL APPEAL NO. 100007 OF 2022

                      BETWEEN:
                      SRI. A. R. SATISH S/O RAMALINGAIAH
                      AGE. 35 YEARS,
                      OCC. SECOND HAND VEHICLE BUSINESS
                      R/O.HOUSE NO.14, WARD NO.9
                      ROYAL COLONY, S. N. PET,
                      BALLARI-583102
                                                                     ...APPELLANT
                      (BY SRI. S G KADADAKATTI, ADVOCATE)
                      AND:
                      1.    M/S LAKSHMI AUTOMOBILES
                            REP. BY ITS MANAGING PARTNER
                            SRI. P.L.VENKATESULU S/O. P.THIMMAPPA
                            DEALERS IN TVS MOTORS COMPANY LTD.,
                            PARVATHI NAGAR, 2ND CROSS,
                            BALLARI-583102

Digitally signed by
SUJATA SUBHASH
PAMMAR
                      2.    SRI LAKSHMI MOTORS
Location: HIGH
COURT OF
KARNATAKA,
                            REP. BY ITS PROPRIETOR
DHARWAD
Date: 2022.06.20
10:35:23 +0530              SRI HEMANTH
                            SUB-DEALER IN TVS MOTOR COMPANY LTD.,
                            NANDHAN COMPLEX,
                            NEAR NEW KSRTC BUS STAND
                            BALLARI ROAD, SANDUR
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                                          COMAP No. 100007 of 2022


    BALLARI DISTRICT-583119
                                                         ...RESPONDENTS
(BY SRI. B. CHIDANAND, ADV., FOR R1;
SRI. H. R. DHESHPANDE, ADV., &
SMT. USHA DESHPANDE, ADV., FOR R2 OCATE)


       THIS COMMERCIAL APPEAL IS FILED UNDER SECTION 13(1)
OF THE COMMERCIAL COURTS, 2015, PRAYING TO CALL FOR
RECORDS; SET ASIDE THE JUDGMENT                    AND DECREE DATED
23.11.2021 PASSED BY THE LEARNED IV ADDITIONAL DISTRICT
AND SESSIONS JUDGE (COMMERCIAL COURT) BALLARI, IN
COMMERCIAL EXECUTION NO.202/2021 AND TO ALLOW THE
APPLICATION      IN   I.A.NO.1   FILED     BY      THE   APPELLANT   BY
ALLOWING THIS APPEAL IN THE ENDS OF JUSTICE AND EQUITY.

       THIS COMMERCIAL APPEAL COMING ON FOR ORDERS THIS
DAY, P. KRISHNA BHAT, J., DELIVERED THE FOLLOWING:

                              JUDGMENT

Respondent No.1 herein instituted Commercial

O.S.No.50/2019 against respondent No.2 before the learned

Commercial Court and the Court of IV Additional District and

Sessions Judge at Ballari (for short "the Trial Court") for a

decree of recovery of money. In the said suit, respondent

No.2 raised a counter-claim. After trial, Commercial

O.S.No.50/2019 was dismissed by the learned Trial Court

and the counter-claim of respondent No.2 was decreed.

COMAP No. 100007 of 2022

Respondent No.2 levied execution of the decree against

respondent No.1 by filing Commercial Execution

No.202/2021 and obtained an order of attachment of the

following motorcycles:

i) TVS Excel 100 Heavy Duty, Blue Colour, Chassis No.MD621BP26MIC29478.

ii) TVS Excel 100 Heavy Duty, Green Colour, Chassis No.MD621BP20MID08645.

iii) TVS Radeon, Blue Colour motorbike, Chassis No.MD625BK27M1DO1347.

iv) TVS NTORQ-125 zSuper Solider Bike, Blue Colour, Engine No.AK3CM2X12448.

v) TVS NTORQ-125 Race Edutuib Black with Yellow Colour bike, Engine No.AK3BM2218584.

2. The Bailiff of the Court, after attachment at the

premises of respondent No.1, brought the said motorcycles

and produced the same before the Court. The appellant

herein, as a third party objector, filed an application under

Order XXI Rule 58 of the Code of Civil Procedure, 1908

praying for raising of the attachment and seeking release of

the same in his favour.

COMAP No. 100007 of 2022

3. The said petition filed by the appellant herein was

contested by respondent No.2 and after trial, the application

filed by the appellant came to be dismissed by the impugned

order dated 23.11.2021 by the learned Trial Court. Being

aggrieved by the same, the present appeal has been filed.

4. Detailed reference to the facts culminating in

filing of Commercial O.S.No.202/2021 is not necessary for

adjudicating the present appeal.

5. The learned counsel for the appellant/third party

objector raised several contentions in support of his

claim/entitlement to the ownership and possession of

attached five motorcycles with reference to various exhibits

namely Exs.A1 to A5 and the evidence of AW1. Learned

counsel for the appellant contended that the third party

objector was the purchaser of the motorcycle from a dealer

in Tumkur and he had merely entrusted the same to

respondent No.1 for minor repairs, before he could sell the

same to his customers as a pre-owned vehicle dealer. He

submitted that the learned Trial Court has not appreciated

COMAP No. 100007 of 2022

the evidence in its proper perspective and it has rejected the

said application on improper grounds and therefore, the

order suffers from non-application of mind and accordingly

his appeal is entitled to be allowed.

6. Learned counsel for respondent No.2, per contra,

contended that the appellant herein/the third party objector

has filed application as a proxy for respondent No.1 and his

application is totally bereft of bona fides. He submitted that

the learned Trial Court on appreciation of the entire evidence

and after recording a clear finding that the contentions raised

and the documents produced by the appellant failed to

inspire the trust and confidence of the Court has rejected the

application and therefore, the order of the learned Trial Court

is liable to be maintained by this Court and the appeal is

liable to be dismissed.

7. We have given our anxious consideration to the

submissions made on both sides and have carefully perused

the records.

COMAP No. 100007 of 2022

8. Perusal of the impugned order shows that the

learned Trial Judge has correctly placed the burden of proof

on the appellant herein to establish that he is either the

owner of the attached vehicles or he is otherwise entitled to

possession of the same before he could succeed on merits in

his application. We also notice that learned Trial Judge has

adverted his attention to the evidence of AW1 and RW1 and

also exhibited documents Exs.A1 to A5 & Exs.R1 to R8 and

drawn appropriate and right conclusion therefrom.

9. Firstly, the learned Trial Court has noticed that

even though the appellant as AW1 has stated in his evidence

that he has paid the price of the vehicles to the Tumkur

dealer in the month of April-2021, the tax invoices at

Exs.A1(a) to A5(a) dated 22.09.2021 show the alleged

purchase of the attached vehicles on credit basis, thereby

demonstrating prima facie that the appellant has taken a

false stand that he had purchased the vehicles by paying

consideration. Learned counsel for the appellant has not

been able to show that the above finding of the learned Trial

Court is erroneous.

COMAP No. 100007 of 2022

10. Secondly, learned Trial Judge has recorded that

the Court Bailiff in his report has given particulars of the

attached five motorcycles and further stated therein that on

20.09.2021, he had visited the showroom of respondent

No.1 along with respondent No.2 and informed about the

Court warrant of attachment in the presence of local

residents to respondent No.1 and immediately thereafter

respondent No.1 left the premises promising to come back.

Since respondent No.1 did not return to the premises, the

Court Bailiff attached the said five vehicles from his premises

in the presence of respondent No.2 and other local residents

and brought the same before the Court. The appellant's

version subsequently during the trial that he had objected to

the Court Bailiff attaching the vehicles shows that the

vehicles were in fact attached from the premises of

respondent No.1/judgment-debtor and thereafter brought to

the Court.

11. Thirdly, learned Trial Judge doubted the

creditworthiness of Exs.A1 to A5, which are display delivery

notes dated 12.04.2021 allegedly issued by Balaji Motors in

COMAP No. 100007 of 2022

the name of the appellant herein on account of bills bearing

Nos.3655, 3654, 3653, 3651 and 3652 showing striking

down of reference to invoice Nos.1600, 1601, 1602, 1599

and 1598, which are credit bills dated 22.09.2021 (Exs.A1(a)

to A5(a). The point of the matter is, as noted by the learned

Trial Judge, if at all display delivery notes were received on

12.04.2021, it is impossible for such documents to bear

reference to the invoice numbers which came into existence

more than five months later i.e., on 22.09.2021.

12. Fourthly, learned Trial Judge has noticed that the

appellant had not taken requisite permission from the RTO

for display of the vehicles for the customers/public, which is

mandatory. The Trial Court has correctly, therefore, doubted

the version of the appellant.

13. Fifthly, the learned Trial Court has noticed from

the evidence that even though five motorcycles were

attached by the Court Bailiff on 20.09.2021, the credit tax

invoices Exs.A1(a) to A5(a) were all of subsequent dates i.e.,

22.09.2021 thereby clearly indicating that as at the time of

COMAP No. 100007 of 2022

the attachment the appellant could not have claimed any

right to the said vehicles.

14. Sixthly, learned Trial Judge has adverted to the

admissions by the appellant in his evidence that attached

vehicles were brand new vehicles and they were not plied on

the road which falsifies his case that he had entrusted the

said vehicles to respondent No.1 for minor repairs as a

dealer in pre-owned motorcycles. Besides, he had not

produced any job cards to sustain his claim that he was the

owner and he had merely entrusted said vehicles to

respondent No.1 for repairs.

15. On an entire appreciation of the evidence we are

not in a position to disagree with the finding of the learned

Trial Judge that the appellant had filed the application

seeking raising of the attachment and for release of the

vehicles in his favour by suppressing the true facts. Learned

counsel for appellant has miserably failed to show as to how

the judgment of the learned Trial Judge was in error in

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COMAP No. 100007 of 2022

passing the order impugned herein. We do not find any merit

in the appeal and accordingly, we dismiss the appeal.

16. In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are dismissed accordingly.

Sd/-

JUDGE

Sd/-

JUDGE

YAN