Karnataka High Court
The Oriental Insurance Co. Ltd vs V. Manjunatha on 2 June, 2023
Bench: H.P.Sandesh
-1-
MFA No. 8138 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.8138 OF 2017 (CPC)
BETWEEN:
THE ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE,
TP HUB, 4TH FLOOR,
44/45, LEO SHOPPING COMPLEX,
RESIDENCY ROAD, BANGALORE,
BY ITS REGIONAL MANAGER.
...APPELLANT
(BY SMT. HARINI SHIVANANDA, ADVOCATE)
AND:
V. MANJUNATHA,
MAJOR,
S/O. VENKATARAVANAPPA,
Digitally signed
by SHARANYA T R/O. BADAVANAHALLI,
Location: HIGH DODERI HOBLI,
COURT OF
KARNATAKA MADHURI TALUK-524 203.
...RESPONDENT
(BY SRI MAHESHA P, ADVOCATE)
THIS MFA IS FILED UNDER ORDER 43 RULE 1(d) OF CPC,
AGAINST THE ORDER DATED 05.09.2017 PASSED IN MVC
MISC.NO.7/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE & MACT, MADHUGIRI, DISMISSING THE PETITION FILED
UNDER ORDER 9 RULE 13 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
-2-
MFA No. 8138 of 2017
JUDGMENT
This matter is listed for admission today. Heard the
learned counsel for the appellant and the learned counsel
for the respondent.
2. This appeal is filed challenging the order dated
05.09.2017, passed in MVC Misc.No.7/2014 filed under
Order 9 Rule 13 of CPC, on the file of the Principal Senior
Civil Judge and MACT, Madhugiri.
3. The case of the appellant herein before the Trial
Court while invoking Order 9 Rule 13 of CPC is that they
came to know about the judgment and award passed in
MVC No.968/2003 in the year 2014 and also there was a
delay of 7 years 8 months in filing the petition. The same
was resisted by the respondent by filing the statement of
objections contending that there is an inordinate delay of 7
years 8 months in filing the petition. The Trial Court gave
an opportunity to lead the evidence and the Company i.e.,
the appellant herein, examined one witness as P.W.1 and
got marked the documents at Exs.P.1 to 10. On the other
MFA No. 8138 of 2017
hand, the respondent not led any evidence and also not
produced any document. The Trial Court after considering
both oral and documentary evidence placed on record,
particularly while assigning the reason in dismissing the
petition, in paragraph No.11 taken note of the admission
given by P.W.1 in the cross-examination that they were
having the knowledge of the execution petition filed in the
year 2007 and also represented through the counsel. In
paragraph No.12, the Trial Court has taken note that when
the warrant was issued, the counsel appeared and
undertaken to make the payment in the execution petition
in the year 2008 and also taken note of the documents
produced by the petitioner before the Court and comes to
the conclusion that the appellant herein was aware of the
pending of the execution proceedings since from the year
2007 and on going through Ex.P.1 i.e., impugned
judgment, it clearly discloses that the respondent Company
has failed to appear before the Court inspite of due service
of notice. The Trial Court also taken note of that what
prevented in filing the petition immediately after coming to
MFA No. 8138 of 2017
know about the same and no sufficient cause is shown for
the inordinate delay of 7 years 8 months in filing the
petition and hence dismissed the petition.
4. The learned counsel for the appellant would
vehemently contend that the Company is not liable to pay
the amount, since the claim is made by the owner himself
and also placed the document for having entrusted the
matter to the counsel for giving vakalath in the execution
petition. The learned counsel submits that in a petition
filed under Order 9 Rule 13 of CPC, Exs.P.3 to 6 are the
letters issued to the advocates Smt. ANP and Sri HKV
Reddy. Ex.P.7 is the copy of the order sheet in Execution
Petition No.524/2007 and Ex.P.10 is the copy of the
vakalath given in the execution petition. The documents
are placed before the Court for having entrusted the matter
to the advocate.
5. The learned counsel for the respondent would
contend that the appellant was having the knowledge and
notice was served in the original MVC petition itself and
MFA No. 8138 of 2017
they were placed exparte. Even after the execution also,
they have filed vakalath and were aware of the same and
the petition was not filed within time and the petition was
filed after 7 years 8 months after disposal of the petition
and no proper reasons are assigned while invoking Order 9
Rule 13 of CPC.
6. Having considered the submissions of the
respective learned counsel and also on perusal of the
material available on record, it is not in dispute that MVC
was filed in the year 2003 and disposed of on 05.03.2007
and execution petition was filed immediately in 2007 itself.
The material also discloses that notice was served in the
execution and though notice was served in original MVC as
well as in the execution petition, the Insurance Company
has not taken any steps even to challenge the order passed
in MVC No.968/2003 and there is a delay of 7 years 8
months in filing the petition under Order 9 Rule 13 of CPC.
Sufficient cause is not shown for the inordinate delay in
filing the petition and they were having knowledge of the
earlier proceedings and the execution petition. Apart from
MFA No. 8138 of 2017
that, the counsel also appeared in the execution petition
and the documents clearly discloses that the appellant was
having knowledge of the award passed by the Tribunal and
also filing of the execution petition and no proper reasons
are assigned and the petition is filed after 7 years 8 months
invoking Order 9 Rule 13 of CPC. The Trial Court while
dismissing the petition filed under Order 9 Rule 13 of CPC,
given the reasons and also taken note of the answers
elicited from the mouth of P.W.1 in the cross-examination,
which has been narrated in paragraph No.11 and also taken
note of the documents placed before the Court in
paragraph No.12 and 13 and in detail discussed that no
sufficient reason is given to invoke Order 9 Rule 13 of CPC.
The Trial Court also observed that the Court cannot expect
a prudent person to file this kind of Misc. petition after a
lapse of 7 years 8 months when they were having the
knowledge about the same and the petition is filed in 2014
even though they had knowledge in the year in 2007 and
hence sufficient cause is not shown to invoke Order 9 Rule
13 of CPC. What prevented the appellant from appearing
MFA No. 8138 of 2017
before the Court when the summons was served and also
when they were having the knowledge and not questioning
the judgment and award passed in 2007 till 2014, nothing
is placed on record. When such being the case, the
question of setting aside the order of the Trial Court does
not arise and there is no merit in the appeal.
7. In view of the discussions made above, I pass
the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
MD
