Karnataka High Court
M/S. Sree Gavisiddeswara Traders vs Bmm Ispat Limited on 25 March, 2022
Bench: E.S.Indiresh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.13840 OF 2020 (GM-CPC)
BETWEEN
1. M/S. SREE GAVISIDDESWARA TRADERS
HAVING ITS OFFICE AT
NO.2/5, II FLOOR, II CROSS
KUMARA PARK EAST
BENGALURU-560 001.
REP. BY ITS MANAGING PARTNER
SRI H E PANDURANGA
2. SRI H E PANDURANGA
S/O LATE H S ESWARAPPA
AGED ABOUT 48 YEARS
MANAGING PARTNER
M/S. SREE GAVISIDDESHWARA TRADERS
NO. 473, GAVISIDDESHWARA NILAYA
8TH MAIN, 4TH CROSS, TARA SUBBA RAO ROAD
HANUMANTHANAGAR
BENGALURU-560 050.
3. SRI M SIRNIVASULU
S/O SRI VENKATASWAMY
AGED ABOUT 64 YEARS
PARTNER: M/S. SREE GAVISIDDESHWARA TRADERS
R/AT SRINIVASA NILAYAM
H.NO.168-C, VII WARD
NEAR WATER BOOSTER, III CROSS
GANDHI NAGAR
BELLARY-583 103.
2
4. SRI A KIREETI
S/O SRI D R RATNAKAR
AGED ABOUT 58 YEARS
PARTNER: M/S. SREE GAVISIDDESHWARA TRADERS
R/AT BASAVESWARA CIRCLE
SIR M V ROAD
SHIVAMOGGA-577 201.
5. SRI K GOPAL KRISHNA RAO
S/O SRI KATTE RAJEEV
AGED ABOUT 72 YEARS
PARTNER: M/S. SREE GAVISIDDESHWARA TRADERS
R/AT BUNDER ROAD
GANGOLLI
UDUPI-575 216
ALSO AT
C/O CHINMAYI HOSPITAL
CHURCH ROAD
KUNDAPUR -576 201
UDUPI DISTRICT, KARNATAKA.
6. SRI N ANAND RAO
S/O LATE N RANGAIAH
AGED ABOUT 49 YEARS
PARTNER: M/S. SREE GAVISIDDESHWARA TRADERS
R/AT "SEVEN HILLS" PLOT NO.9
GANDHINAGAR
BELLARY-583 201.
7. SRI T JAYAPRAKASH
S/O SRI T A THIPPE GOWDA
AGED ABOUT 66 YEARS
PARTNER: M/S. SREE GAVISIDDESHWARA TRADERS
R/AT NO.436, 11TH MAIN
RMV EXTENSION, SADASHIVANAGAR
BENGALURU-560 094.
...PETITIONERS
3
(BY SRI P D SURANA, ADVOCATE)
AND
BMM ISPAT LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF COMPANIES ACT, 1956
OFFICE AT NO.10, PRIDE ELITE
MUSEUM ROAD
BENGALURU-560 001.
....RESPONDENT
(BY SRI MANU K, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 07TH FEBRUARY, 2020 MADE ON IA.NO.2 OF 2019
PRODUCED AT ANNEXURE-E IN COM.OS.NO.25769 OF 2016
PENDING ON THE FILE OF THE LXXXIII ADDITIONAL CITY CIVIL
AND SESSION JUDGE, AT BENGALURU (CCH-84).
THIS PETITION COMING ON FOR DICTATION OF ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This Writ Petition is filed by the defendants 1 to 7 in
Com.OS No.25769 of 2016 on the file of the LXXXIII Additional
City Civil and Sessions Judge, at Bengaluru, challenging order
dated 07th February, 2020, dismissing IA.2 filed by defendants.
2. Plaintiff has filed OS No.25769 of 2016 on the file of
the Civil Court under Order XXXVII of Code of Civil Procedure
against the defendants seeking recovery of sum of
Rs.7,00,39,358/- with interest at 12% per annum. The said suit
was contested by the defendants by filing written statement.
Thereafter, the case was transferred to the Commercial Court.
In the meanwhile, the defendants filed IA.2 under Order XIV
Rule 5 of Code of Civil Procedure, seeking to frame additional
issues as mentioned in the application produced at Annexure-C.
The said application was resisted by the plaintiff. The trial Court,
after considering the material on record, by its order 07th
February, 2020 dismissed the application. Feeling aggrieved by
the same, the defendants have presented this Writ Petition.
3. I have heard Sri P.D. Surana, learned counsel
appearing for the petitioner and Sri Manu K., learned counsel
appearing for the respondent.
4. It is the submission of Sri P.D. Surana, learned counsel
appearing for the petitioner that the defendant has raised
specific facts of the manner in which the parties have transacted
in the business. He further submitted that the parties have
constituted a firm called "Gavisiddeshwara Minerals" and in this
regard, he referred to paragraph 10 of the written statement.
He further contended that the plaintiff pleaded that there were
exchange of e-mail correspondences, as set out in the plaint,
and one Sri Udupa, was the authorised representative of the
defendants to make such e-mail correspondence. The basis for
the claim made by the plaintiff is based on the e-mail
correspondence between the plaintiff and the said Udupa. The
aforementioned pleadings have been narrated in the written
statement and therefore, the trial Court ought to have framed
the issues enumerated in IA.2 as proposed Additional Issue to
resolve the dispute amicably. In this regard, he referred to the
judgment of Hon'ble Supreme Court in the case of A.
SHANMUGAM v. ARIYA KSHATRIYA RAJAKULA VAMSATHU
AMDALAYA NANDHAVANA PARIPALANAI SANGAM REP. BY ITS
PRESIDENT AND OTHERS reported in (2012)6 SCC 430.
5. Per contra, Sri Manu K., learned counsel appearing for
the respondent sought to justify the impugned order passed by
the trial Court. He further contended that the issues framed by
the Court covers the entire controversy between the parties and
therefore, there is no necessity for framing an additional issue as
sought for by the petitioner herein. Accordingly, he sought for
dismissal of the Writ Petition.
6. Having heard the learned counsel appearing for the
parties, I have carefully considered the prayer in the plaint.
Plaintiff sought for money decree against the defendants with
interest and same was denied by the defendants in the written
statement. Based on the pleadings on record, the trial Court,
has formulated the following issues for its consideration.
"i) Whether the plaintiffs prove that defendant
No.1 has confirmed balance outstanding and
acknowledged the dues on 8.10.2013 and
28.01.2015 as contended?
(ii) Whether the plaintiff proves that defendants
are jointly and severally liable to pay the
advance payment of Rs.7,00,39,358/- (Rupees
seven crore thirty nine thousand three hundred
fifty eight only) towards non supply of iron
ore?
iii) Whether the plaintiff proves that it is entitled
for interest at the rate of 12% p.a. on the
outstanding amount of Rs.7,00,39,358/-
(Rupees seven crore thirty nine thousand three
hundred fifty eight only) from 08.10.2013 till
realisation of amount?
iv) Whether suit is barred by limitation?
v) What order or decree?
7. Taking into account the specific case of the plaintiff
seeking recovery of money against the defendant, based on the
supply of iron ore and the transaction referred to in the
pleadings on record, I am of the view that the trial Court is
justified in dismissing the application filed by the defendant. As
argued by the learned counsel appearing for the petitioner, I
have carefully considered the proposed additional issues as set
out in Annexure-C to the Writ Petition. Perusal of the same,
would indicate that the proposed additional issues cast burden
on the plaintiff to prove the entire transaction in the matter and
proposed additional issues from 1 to 7 are interlinked with each
other and resemble Issues 1 and 2 in the issues framed by the
trial Court. In order to prove the issue No.2, onus lies on the
plaintiff to answer the e-mail correspondence that were to be
exchanged between the plaintiff and defendants. That apart,
whether the said Udupa, authorised representative of the
plaintiff, is having competence and capacity to do so, be
considered during the trial while dealing with issue No.2 in the
suit. The question, as to rise of iron ore is of Rs.850/- per
metric tonne, could be considered while determining the issue
No.2 in the suit and therefore, the submission made by the
learned counsel appearing for the petitioner with regard to
quantity and the grade of iron ore are to be determined in the
trial and therefore, the trial Court is justified in rejecting the
application taking into consideration that the issues framed are
comprehensive and covers the actual controversy between the
parties to the suit. Though learned counsel appearing for the
petitioner places reliance on the judgment of the Apex Court in
the case of A. SHANMUGAM (supra), I am firmly in consonance
with the dictum of the Apex Court, where the issues are properly
framed and the controversy in the case can be clearly focused
and documents can be properly appreciated in that light. It is
also not in dispute that careful framing of issues would help in
proper examination and cross-examination of the witnesses and
to resolve the dispute by the Court narrowing down the
controversy in the suit and therefore, I am of the opinion that
there is no perversity or illegality in the impugned order passed
by the trial Court. Writ petition is accordingly dismissed.
Sd/-
JUDGE
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