Karnataka High Court

Karnataka State Financial ... vs Hotel Krishna International ... on 16 June, 2022

Bench: Sachin Shankar Magadum

                           1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 16TH DAY OF JUNE, 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

        WRIT PETITION NO. 2649 OF 2022 (GM-CPC)

BETWEEN:

KARNATAKA STATE FINANCIAL CORPORATION
HO NO.1/1,
THIMMAIAH ROAD,
BENGALURU-560052
BY ITS DEPUTY GENERAL MANAGER
                                    ...PETITIONER
(BY SRI.MALIPATIL.P.S, ADVOCATE)

AND

1.     HOTEL KRISHNA INTERNATIONAL INDIA LTD
       NO.5/43, SHESHADRI ROAD,
       BENGALURU-560009
       BY ITS MANAGING DIRECTOR

2.     SRI S R MALLAIAH
       S/O RANGEGOWDA,
       DECEASED BY LRS.,

2(a). SAKAMMA,
      W/O MALLAIAH,
      R/O NO.147-A,
      NORTH PARK ROAD,
      SHESHADRIPURAM,
      BENGALURU-560020
                          2



2(b). SWAROOP
      S/O MALLAIAH,
      R/O NO.147-A,
      NORTH PARK ROAD,
      SHESHADRIPURAM,
      BENGALURU-560020

2(c). ASHOK
      S/O MALLAIAH,
      R/O NO.147-A,
      NORTH PARK ROAD,
      SHESHADRIPURAM,
      ENGALURU-560020

3.   SRI U M RAMDAS BALLAL
     S/O NARAYAN BALLAL,
     AGED ABOUT 62 YEARS,
     NO.12/1,
     RACE COURSE ROAD,
     BENGALURU-560001

4.   SRI K S RAMAKRISHNA BALLAL
     S/O SRINIVAS BALLAL,
     AGED ABOUT 63 YEARS,
     R/O SRI HARI GURU NILAYA,
     NO.191, DIWAN ROAD,
     MYSORE-570001

5.   SRI T KESHAVA MURTHY
     S/O K THIMMA SHETTY,
     AGED ABOUT 61 YEARS,
     R/O 154,
     8TH MAIN, MALLESHWARAM,
     BENGALURU-560003

6.   SRI U ANANTHA PADMANABHA BALLAL
     S/O M NARAYANA BALLAL,
     AGED ABOUT 56 YEARS,
     ANANTHA NILAYA,
                              3



      NO.122/15,
      11TH A MAIN ROAD,
      VASANTHNAGAR,
      BENGALURU-560001

7.    SRI M GOPAL KRISHNA BALLAL
      S/O VYASRAYA BALLAL,
      NO.32,
      AGED MAJOR,
      SHESHADRI ROAD,
      BENGALURU-560009

8.    DR B DEVDAS BHAT
      S/O B KRISHNA DAS BHAT,
      AGED MAJOR,
      R/O BADANIDIYOOR,
      UDUPI TALUK AND DISTRICT-586101
                                    ...RESPONDENTS

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER DTD.15.12.2021 PASSED IN COM
O.S.NO.624/2022 ON THE FILE OF THE LXXXIX ADDL CITY
CIVIL AND SESSIONS JUDGE BENGALURU (CCH-90) VIDE
ANENXURE-E AND ETC.,

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                          ORDER

The captioned writ petition is filed by the

petitioner/plaintiff, questioning the order dated

15.12.2021 passed by the learned LXXXIX Additional

City Civil and Sessions Judge, Bengaluru on I.A.No.6

filed under Order XXII Rule 4 of CPC, on I.A.No.8 filed

under Order XXII Rule 9 of CPC and on I.A.No.10 filed

under Section 5 of Limitation Act in

Com.Misc.No.624/2002 as per Annexure-D.

2. These three applications are filed to bring the

proposed legal representatives of deceased

respondent/defendant No.2 on record, against whom

the Corporation has initiated a recovery suit seeking

recovery of money of `1,41,03,893/-.

3. The facts leading to the case are as under;

The petitioner/plaintiff is a financial Corporation

and the present suit is one for recovery of money of

`1,41,03,893/-. The respondent/defendant No.2 is the

principal borrower and the other

respondents/defendants are guarantors. The

petitioner/plaintiff Corporation has come to know

about the death of respondent/defendant No.2 and

moved applications to bring the legal representatives

of deceased respondent/defendant No.2 on record,

who was placed exparte. The legal representatives

applications are rejected by the Commercial Court, on

the premise that the petitioner/plaintiff Corporation

being a statutory body, has not acted with due

diligence. The learned Judge was of the view that the

Corporation has not assigned sufficient cause for not

filing applications within reasonable time. On these set

of reasoning, the Commercial Court has proceeded to

reject the application.

4. Heard the learned counsel appearing for the

petitioner. Perused the order under challenge.

5. The impugned order is capricious and is palpably

erroneous. The petitioner/plaintiff Corporation is

seeking recovery of sum of `1,41,03,893/-. The

material on record would also indicate that

respondent/defendant No.2 was served with summons

and was placed exparte. Even though the legal

representatives were served through paper

publication, the proposed legal representatives of

respondent/defendant No.2 have not chosen to

contest the proceedings. The learned Trial Judge has

elaborately discussed the principles involved in

examining valuable rights of the parties. The learned

Judge has also discussed elaborately as to how

substantial justice and technical consideration have to

be taken into consideration. Having taken note of all

the principles, strangely the learned Judge has

proceeded to reject the applications, when there is no

contest. The hyper-technical approach adopted by the

learned Judge has virtually resulted in miscarriage of

justice. Here is a case where principal borrower has

conveniently evaded summons and was placed

exparte.

6. The Apex Court in the case of Collector, Land

Acquisition, Anantnag and another .vs. Mst.Katji

and others1 has laid down illustrative contours under

which an application for condonation of delay requires

to be examined. It has been held in the aforesaid

judgment to the following effect:

"3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of Courts. It is common

AIR 1987 SC 1353

knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy."

7. Therefore, the principles laid down by the Apex

Court in the judgment cited supra clearly indicates

that if delay is no condoned, the same may result in

meritorious matter being thrown out at the very

threshold and there is every likelihood of justice being

defeated. In the present case on hand, the

Corporation has filed L.R. application to bring the

proposed legal representatives of deceased No.2 on

record, who was already placed exparte. Therefore,

the learned Judge erred in adopting pedantic approach

while dealing with L.R. applications. The learned Judge

was expected to deal with the matter in a rational