Sri Prabhakara K Acharya vs The General Manager
2023 Latest Caselaw 6224 Kant

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                                                NC: 2023:KHC:31362
                                             RSA No. 2199 of 2017




               IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 31ST DAY OF AUGUST, 2023

                                   BEFORE

                     THE HON'BLE MR JUSTICE H.P.SANDESH

             REGULAR SECOND APPEAL NO.2199 OF 2017 (DEC/INJ)

            BETWEEN:

            SRI PRABHAKARA K ACHARYA
            S/O SRI. BABURAYA ACHARYA,
            RESIDENT OF VIDYANAGAR,
            KINYA POST, KOTEKAR VILLAGE,
            MANGALORE TALUK
            D.K.DISTRICT-575023
                                                     ...APPELLANT
            (BY SRI DEEPAK, ADVOCATE FOR
             SIR A KESHAVA BHAT, ADVOCATE)

            AND:
Digitally signed
by SHARANYA THE GENERAL MANAGER
T
Location: HIGH THE KOTEKAR VYAVASAYA SEVA
COURT OF         SAHKARI BANK LIMITED.,
KARNATAKA        KOTEKAR POST, KOTEKAR,
            MANGALORE TALUK
            D.K.DISTRICT-575023
            BY ITS GENERAL MANAGER,
            BHUJANGA CHOWTA,
            S/O KORAGA CHOWTA,
            AGED MAJOR,
                                                ...RESPONDENT
            (BY SRI CHANDRASHEKAR KULKARNI, ADVOCATE FOR
             SRI G BALAKRISHNA SHASTRY, ADVOCATE)
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                                            NC: 2023:KHC:31362
                                          RSA No. 2199 of 2017




    THIS RSA IS FILED UNDER SEC.100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 30.08.2017
PASSED IN RA NO.51/2013 ON THE FILE OF THE III ADDL.
SENIOR CIVIL JUDGE, MANGALURU. D.K AND ETC.

     THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                       JUDGMENT

Heard the learned counsel appearing for the

respective parties.

2. The plaintiff before the Trial Court seeks for the

relief of declaration to declare that the order dated

22.12.2008 passed by the defendant bank transferring the

plaintiff from Kotekar branch to Talapady branch as null

and void and also prayed for the relief of mandatory

injunction directing the defendant bank to transfer the

plaintiff from Talapady branch to Kotekar branch. The

Trial Court having considered the material on record

decreed the suit of plaintiff declaring that transfer is null

and void. Being aggrieved by the said order, an appeal

was filed before the First Appellate Court and the First

Appellate Court on re-appreciation of material on record

NC: 2023:KHC:31362 RSA No. 2199 of 2017

and also considering the grounds urged in the appeal

formulated the point that whether the judgment of the

Trial Court is against law, fact, evidence and probabilities

of the case and liable to be intervened by this Court. The

First Appellate Court taken note of the material on record

and also considering that what relief has been sought

before the Trial Court and comes to the conclusion that the

Trial Court has not properly appreciated the documents

and wrongly comes to the conclusion that the transfer was

illegal and void and the said conclusion is erroneous. The

First Appellate Court also taken note of the fact of

maintainability of the suit and in paragraph 22, an

observation is made that in service matter, the private

employees, no written contract employee, not complying

with the transfer order and seeking declaration that said

order of transfer is illegal. The First Appellate Court also

taken note of the decision relied upon by the appellant's

counsel and comes to the conclusion that in a suit for

declaration and permanent injunction, service matter

private employment, if no written contract, the relief if

NC: 2023:KHC:31362 RSA No. 2199 of 2017

granted would amount to enforcing contract of personal

service which is barred under law and such relief cannot

be granted. Considering the judgment of Apex Court, the

First Appellate Court comes to the conclusion that no

doubt, the suit of the plaintiff is barred under Section 9 of

CPC as since there is no written contract exist between the

plaintiff and the defendants as since there is no written

contract between the parties, the dispute cannot be

resoled with reference to any terms and conditions

governing the relationship between the parties. Hence,

the First Appellate Court opines that the order of the Trial

Court requires interference and set aside the judgment of

the Trial Court.

3. The counsel for the appellant would vehemently

contend that the very approach of the First Appellate Court

is erroneous wherein the First Appellate Court comes to

the conclusion that the very suit is not maintainable and

the said observation is not accepted and actually there is

no specific contention by the appellant that the suit was

NC: 2023:KHC:31362 RSA No. 2199 of 2017

maintainable and this Court has to frame the substantial

questions of law. The said contention cannot be accepted

even though no specific defence was taken, the same is a

question of law and an employee of a bank cannot

approach the Court and seek an order of injunction with

regard to transfer issue involved between the parties.

When the suit itself is not maintainable, the question of

granting any relief does not arise. Hence, I do not find

any error committed by the First Appellate Court in

allowing the appeal and in setting aside the judgment and

decree dated 19.01.2013 passed in O.S.No.136/2013 and

hence, no grounds are made out to admit the appeal

framing the substantial questions of law. With this

observation, this second appeal is dismissed.

Sd/-

JUDGE

SN