Karnataka High Court
The Karnataka State Tourism vs C K Ramakrishna on 1 December, 2023
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RFA No. 574 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
REGULAR FIRST APPEAL NO. 574 OF 2010 (MON)
BETWEEN:
THE KARNATAKA STATE TOURISM,
DEVELOPMENT CORPORATION LTD.,
REPRESENTED BY ITS MANAGING DIRECTOR,
NO.49, II FLOOR, KANIJA BHAVAN,
RACE COURSE ROAD, BANGALORE - 560 001.
...APPELLANT
(BY SRI. B.S. SHRINIVAS ALONG WITH
SRI. B. L. SANJEEV, ADVOCATE)
Digitally
signed by
SUMITHRA R AND:
Location:
HIGH COURT C.K. RAMAKRISHNA,
OF S/O C.M. KEMPEGOWDA,
KARNATAKA AGED ABOUT 58 YEARS,
NO.16/1, NORTH HALF PORTION,
MIDDLE SCHOOL ROAD,
V.V. PURAM, BANGALORE - 4.
...RESPONDENT
(BY SRI. M.B. CHANDRA CHOODA, ADVOCATE)
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 25.11.2009 PASSED IN
O.S.NO.3623/2003 ON THE FILE OF THE XXVII ADDL. CITY
CIVIL JUDGE, BANGALORE, DISMISSING THE SUIT FOR
RECOVERY OF MONEY.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RFA No. 574 of 2010
JUDGMENT
Appellant/plaintiff feeling aggrieved by the judgment
of trial Court on the file of XXVII Additional City Civil
Judge, Bengaluru in O.S.No.3623/2013 dated 25.11.2009,
preferred this appeal.
2. Parties to the appeal are referred with their
ranks as assigned in the trial Court for the sake of
convenience.
3. The factual matrix leading to the case of the
plaintiff can be stated in nutshell to the said effect that
plaintiff by order of entrustment bearing
No.KSTDC/MD/1563/99-2000 dated 10.09.1999 permitted
the defendant to operate Bengaluru - Hospet, Hospet and
Hampi T.B. Dam sight seeing tours with the acceptance of
terms and conditions laid down in the Letter of
Undertaking dated 06.09.1999. The defendant was
allotted two coaches bearing No.KA-01-9335 and KA-01-
9271 for this purpose. The defendant had agreed to pay
Rs.500/- per day for operating Hampi - T.B. dam sight
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seeing tours, irrespective of occupancy and operation of
coaches. As per the statement furnished by the incharge
CAAO of the Corporation, the total collection due to the
Corporation from defendant for the period from
13.09.1999 to 13.09.2000 is Rs.25,84,223/-. The
defendant has paid only Rs.10,01,117/-. The defendant is
due for remaining amount and inspite of
letter/correspondence of plaintiff dated 05.07.2000 and
21.08.2000, the defendant has not paid the amount. The
defendant has misappropriated the funds of plaintiff-
Corporation. The incharge Special Officer (workshop) has
reported that the conditions of the vehicles which were
returned by the defendant was very bad with damages
and dents all over the vehicles. The total bills is worth
Rs.34,800/-. The defendant is in due of Rs.9,67,689/-
towards revenue collection. The allegation of
misappropriation against the defendant has been proved in
the disciplinary proceedings. Therefore, on these grounds,
plaintiff-Corporation filed the suit for recovery of money
due to it as claimed in the suit.
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4. In response to the suit summons, the defendant
has appeared through counsel and filed written statement
admitting the orders of plaintiff-Corporation dated
10.09.1999 and defendant was entrusted with two
coaches for the purpose of operating the same from
Bengaluru - Hospet sight seeing tours. However,
defendant has denied that he is due of suit claim. It is the
case of the defendant that he has paid the entire amount
due to the plaintiff. The plaintiff has made false
allegations against defendant for having caused damages
to the vehicle and incurred expenses for repairs of both
the coaches. The decision of disciplinary authority in
holding the defendant guilty of the charges leveled against
him has been challenged before this Court in
W.P.No.47099/2004, which is still pending. Therefore,
prayed for dismissal of the suit.
5. The trial Court on the basis of the pleadings of
both the parties has framed necessary issues. Plaintiff to
prove its case relied on the evidence of P.W.1 and the
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documents at Exs.P1 to P5. The defendant has relied on
his own evidence D.W.1 and no documents were marked
on behalf of defendant. The trial Court after hearing the
arguments of both sides and on appreciation of evidence
has dismissed the suit of plaintiff.
6. Heard the arguments of both sides.
7. After hearing the arguments of both sides and
on perusal of trial Court records and judgment, following
points arise for consideration:-
i) Whether the finding recorded by the trial
Court on Issue Nos.1 and 2 is perverse,
capricious and legally not sustainable ?
ii) Whether any interference of this Court is
required ?
8. On careful perusal of oral and documentary
evidence placed on record by both the parties to the suit,
it would go to show that the plaintiff by order dated
10.09.1999 has permitted the defendant to operate
Bengaluru - Hospet, Hospet and Hampi T.B. dam sight
seeing tours with the acceptance of terms and conditions
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laid down in the Letter of Undertaking dated 06.09.1999
and defendant was allotted two coaches bearing No.KA-
01-9335 and KA-01-9271 for this purpose. Further the
defendant has agreed to pay Rs.500/- per day for
operating Hampi - T.B. dam sight seeing tours irrespective
of occupancy and operation of coaches, has not been
denied by the defendent.
9. It is the case of plaintiff that, defendant has not
paid the amount collected for the period from 13.09.1999
to 13.09.2000 which according to the plaintiff is worth
Rs.25,84,223/-. The plaintiff has called upon the
defendant by letter dated 05.07.2000 and 21.08.2000 to
pay the said amount. The basis for such claim of the
plaintiff is calculation sheet which was prepared by the
Chief Accounts Officer of plaintiff-Corporation and the
claim towards damages is based on the report of S.Mohan
Krishna, Ex.P5. The defendant claims that he has paid all
the money due to the plaintiff and he is not in arrears of
any amount as claimed by the plaintiff.
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10. The vital document to the claim of plaintiff is
Ex.P2, Letter of Undertaking executed by the defendant
which has been accepted by the plaintiff and allotted two
coaches bearing No.KA-01-9335 and KA-01-9271 for the
said purpose. In view of clause 7 of Ex.P2, it would go to
show that defendant has agreed to settle the payment as
agreed upon once in fifteen days for both the coaches. If
he fails to make payment within the scheduled date, the
coaches can be withdrawn from the Corporation without
assigning any reasons thereon. Indisputably the plaintiff
at any point of time has not withdrawn the coaches from
the operation, due to default in depositing the collection
amount continuously for a period of fifteen days.
11. In this context, if the cross-examination of
P.W.1 is perused, then it would go to show that suit claim
is made on the basis of report submitted by Chief
Accountant and Audit Officers of plaintiff-Corporation.
P.W.1 has admitted that the details of the claim has not
been shown in the plaint averments or in the affidavit
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evidence regarding the defendant is in due of
Rs.10,01,117/-. P.W.1 has further admitted that the
plaintiff has not filed accounts statement pertaining to the
Corporation in the suit. It is pertinent to note that plaintiff
is a Corporation and expected to maintain the proper
accounts regarding the income and expenditure. The
plaintiff-Corporation must necessarily have the document
regarding the accounts maintained regarding income and
expenditure. However, the best available evidence has
been withheld by the plaintiff Corporation and not chosen
to produce the accounts book and statement to
substantiate the suit claim to which the defendant is
answerable. P.W.1 has however admitted that the period
for which defendant has committed default is also not
shown in the plaint averments and no documents have
been produced to substantiate the said fact. The plaintiff
in the plaint averments itself has pleaded that defendant
has paid only Rs.10,01,117/-. If the accounts books and
statements have been produced by the plaintiff
Corporation, the same could have been ascertained.
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P.W.1 when specifically asked as to why plaintiff-
Corporation did not exercise the right to withdraw the
operation of buses by the defendant in exercise of Clause
No.7 of Ex.P2 to which he has answered that without
looking to the records he cannot say. P.W.1 further
admits that in Ex.P.3 no particulars of amount withheld by
the defendant has been given. On the contrary, the
defendant was only called upon by the plaintiff to remit
the amount outstanding by letter dated 05.07.2000. The
same is another reminder dated 21.08.2000. However,
P.W.1 for the same question referred above again in Para
No.9 of deposition, has admitted that "we have not
withdrawn the bus facility provided to the defendant after
coming to know of the default committed by the
defendant". Insofar as for not exercising power in terms
of Clause 7 of Ex.P2 witness chose to remain silent without
answering. Therefore, from the said evidence on record
and the admission of P.W.1, it would go to show that no
document evidencing the period of default committed by
the defendant and to which amount he is liable to pay has
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been produced by the plaintiff. On the other hand, the
plaintiff chose to rely on the calculation sheet said to have
been prepared by the Chief Accounts Officer. The author
of the said document Ex.P5 has not been examined, nor
any documents have been produced evidencing the
amount claimed in the calculation sheet. There is also no
evidence to show that plaintiff-Corporation has made
known this fact to the defendant by serving the calculation
sheet and provided an opportunity inspecting the books of
accounts to substantiate the claim of plaintiff that the
defendant is in arrears of the amount for the period from
13.09.1999 to 13.09.2000 amounting to Rs.25,84,223/-
as claimed in the suit.
12. Insofar as claim for damages are concerned,
plaintiff contended that, at the time of handing over the
two coaches entrusted to the defendant, there were lot of
damages and dents on the vehicles and the tyres with
other parts were required to be changed and the
estimated charges is for Rs.46,723/-. On the first available
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opportunity, when the defendant has returned the two
vehicles to the plaintiff-Corporation, then in the presence
of defendant the authority taking possession of two buses
should have made assessment noting the damages with
signature of defendant, so as to bind him to answer for the
damages. However, no such efforts have been made by
any Officials of the plaintiff-Corporation to substantiate it's
claim for damages. The amount claimed towards revenue
collection and the damages by the plaintiff-Corporation is
based on its own calculation sheet-Ex.P.5 and the report
and at any point of time that has not been brought to the
notice of the defendant. The plaintiff-Corporation has also
not produced any documents to prove the said facts.
13. D.W.1 during the course of his evidence has
deposed that he is not in arrears of any amount to the
plaintiff-Corporation and not caused any damages to the
buses entrusted to him at the time of handing over the
same to plaintiff-Corporation. The defendant though was
subjected to cross-examination, nothing worth material
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has been brought on record do discredit his evidence.
Above all the claim of plaintiff is based on documentary
evidence and the best available documentary evidence in
the custody of the plaintiff, has not been produced before
the trial Court to substantiate the claim of the plaintiff.
Other than the calculation sheet said to have been
prepared by the Chief Accounts Officer of the plaintiff-
Corporation and the report of one Sri.S.Mohan Krishna,
there is no any evidence on record to substantiate the
claim made by the plaintiff. The same is also not been
brought to the notice of defendant at any point of time. It
is a primary duty of the plaintiff to prove the facts pleaded
in the plaint to seek decision of the Court to give finding
and for grant of relief claimed in the suit. The plaintiff by
virtue of oral and documentary evidence placed on record
has failed to substantiate that defendant is in due of
amount as claimed by the plaintiff-Corporation. It is true
that the departmental enquiry was conducted against the
defendant for misappropriation of funds where he was
found guilty and same has been challenged by the
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defendant before this Court in W.P.No.47099/2004. P.W.1
admits in cross-examination at para No.10 that plaintiff-
Corporation has also initiated criminal action against the
defendant before ACMM in C.C.No.8330/2002 and
defendant has been acquitted in the said criminal case.
There are two versions working against defendant that, in
disciplinary proceedings he was found guilty and in
criminal proceedings he has been acquitted for the
allegations of misappropriation of funds of plaintiff-
Corporation. It is true that the finding of criminal Court is
not binding on Civil Court and has to independently decide
the claim as made out in the suit.
14. In view of the reasons stated above, it is
observed and held that plaintiff-Corporation has failed to
prove the evidence on record that, defendant is in due to
suit claimed by the plaintiff.
15. The trial Court has rightly appreciated the oral
and documentary evidence placed on record. The findings
recorded by the trial Court are based on legal evidence
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and same does not call for any interference by this Court.
Consequently, proceed to pass the following:
ORDER
Appeal filed by the appellant is hereby dismissed as
devoid of merits.
Registry to send back the records to Trial Court with
a copy of this order.
SD/-
JUDGE
GPG
CT: BHK
