Units Spirits Limited vs M/S Idx India Display Private ...
2022 Latest Caselaw 11795 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 13TH DAY OF SEPTEMBER, 2022

                          BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

       WRIT PETITION NO.14094 OF 2022 (GM-CPC)

BETWEEN:

UNITED SPIRITS LIMITED
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT, 1956, HAVING ITS REGISTERED
OFFICE AT, UB TOWER, NO. 24,
VITTAL MALLYA ROAD, BANGALORE 560 001.
REP BY ITS AUTHORIZED SIGNATORY,
MR. SHRIVARDHAN DESHPANDE,
SENIOR GENERAL MANAGER
AGED ABOUT 38 YEARS
                                               ...PETITIONER
(BY SRI C.K.NANDA KUMAR, SENIOR COUNSEL FOR
     SRI RAGHURAM CADAMBI, ADVOCATE)

AND:

M/S IDX INDIA DISPLAY PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 2013, HAVING ITS
REGISTERED OFFICE AT 2ND FLOOR,
ESTEEM REGENCY, 6, RICHMOND ROAD,
BANGALORE 560025,
REP. BY ITS AUTHORIZED SIGNATORY,
MR. AUGISTINE HARVEY LOPEZ
REPRESENTED BY ITS DIRECTOR.
                                               ...RESPONDENT
(BY SRI UDAY SHANKAR R.M., ADVOCATE FOR C/R)
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     THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD
05.07.2022 PASSED BY THE HONBLE LXXXV ADDL. CITY CIVIL AND
SESSIONS JUDGE AT BENGALURU (CCH-86) (COMMERCIAL COURT)
VIDE ANNX-A, DISMISSING THE MEMO DATED 05.07.2022, AND
THE ORDER DTD 05.07.2022 PASSED BY THE HONBLE LXXXV
ADDL. CITY CIVIL AND SESSNIONS JUDGE AT BENGALURU (CCH-
86) (COMMERCIAL COURT), AS PART OF ITS ORDER SHEET VIDE
ANNX-B,   BOTH      PASSED      IN    THE   PROCEEDINGS    IN
COM.O.S.NO.4266/2018.


     THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 12.09.2022, COMING ON FOR PRONOUNCEMENT OF
ORDER THIS DAY, THE COURT MADE THE FOLLOWING:


                              ORDER

The captioned writ petition is filed by the defendant

questioning the order of the Commercial Court passed on a

memo dated 05.07.2022.

2. The respondent has instituted a recovery suit in

O.S.No.4266/2008. Later the suit was transferred to the

Commercial Court and renumbered as Commercial

O.S.No.4266/2018. Pending consideration of suit, it appears

that the matter was referred to Lok Adalat and the very

Presiding Officer acting as a Conciliator tried to assist the

parties to arrive at an amicable settlement. Since the same

did not materialize, it appears the matter was sent back to the

Court for adjudication. It is in this background, the present

petitioner filed a memo requesting the Presiding Officer to

place the file before Hon'ble Principal District Judge to allot the

present suit to some other Commercial Court as the Presiding

Officer had participated in conciliation proceedings.

3. The learned Judge having examined the

contentions raised in the memo, was of the view that no

grounds are made out in the memo which would compel the

Presiding Officer to place the present suit before the Principal

District Judge for necessary orders. The learned Judge has

also taken strong objection to the manner in which the counsel

appearing for the defendant has pursued the case by filing a

memo seeking transfer. Learned Judge was of the view that

the counsel who filed the memo representing herself as an

Advocate for defendant found that there is no authorisation in

her favour and therefore, learned Judge was of the view that

she was not competent to file the present memo seeking

transfer of the case. Therefore, learned Judge was of the view

that the junior counsel who had moved a memo was one

without any authorisation by the defendant. Therefore, it is in

this background, learned Judge has come to conclusion that

memo needs to be rejected by imposing heavy cost.

Consequently, memo is rejected by imposing a cost of

Rs.25,000/-.

4. Heard learned Senior Counsel and learned counsel

appearing for the respondent/plaintiff. Perused the order

under challenge.

5. Insofar as merits of the case are concerned,

learned Senior Counsel would fairly concede, though various

grounds are raised in the present writ petition by placing

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

of AFCONS Infrastructure Limited and Another vs.

Cherian Varkey Construction Company Private Limited1.

However, the question that needs to be examined by this

Court is whether the learned Judge while rejecting the memo

was justified in imposing a cost of Rs.25,000/-.

6. Insofar as the Judge in-charge of the case assisting

the parties for negotiations, the question is whether he can

deal with the adjudication of the matter to avoid

apprehensions of bias and prejudice. In the present case on

hand, such a situation would not warrant. In the present case

on hand, the learned Judge found that though the matter was

referred for amicable settlement before the Lok Adalat, the

official appearing on behalf of respondent-Company however

made a submission that he had joined the company recently

and he needs some time to verify with the company in regard

to settlement issue and accordingly, time was sought.

Therefore, even otherwise the material on record does not

(2010) 8 SCC 24

indicate that parties were relegated for extensive deliberations

with effective assistance with the Presiding Officer as a

Conciliator. Therefore, the judgment cited by the learned

Senior Counsel would not squarely apply to the present case

on hand.

7. Now coming to the cost imposed by the learned

Judge, though several factors have led to imposing cost by the

learned Judge, however, having regard to the facts and

circumstances of the case on hand, I am of the view that the

cost imposed was unwarranted in the present case on hand.

If the junior member of the Bar who is part of the office, on

instructions, by the counsel on record has moved a memo, she

cannot be found fault with. Merely because she did not have

an authorization, that in itself would not render disqualification

for a junior member to make submissions and conduct cases

on behalf of counsel on record.

8. Young lawyers who are part of office cannot be

discouraged by Courts. They need to be encouraged. That is

for the betterment of the Institution. A junior member who is

the future has to be proactive, tenacious, persistent and an

opportunity has to be given to the young members of the Bar

and allow them to absorb court atmosphere. To have a robust

legal system, we need to have a very strong young bar. A

junior member, even if he/she has not signed Vakalath, is not

only a helping hand to the counsel on record but often assists

the Court in absence of counsel on record. Therefore, they

play a vital role in absence of the counsel on record and assist

the Court in smooth functioning and the matters don't get

adjourned for want of counsel on record.

9. It is in this background, this Court is of the view

that the cost imposed by the learned Judge only for the reason

that the counsel who moved a memo had no authorization by

the defendant is not sustainable and same is liable to be set

aside. Though this Court concurs with the findings recorded

on memo, however, the cost imposed is liable to be set aside.

10. Accordingly, writ petition is allowed in part. The

cost of Rs.25,000/- imposed is set aside.

Sd/-

JUDGE

CA