Shri. Kailashchandra Kasturilal ... vs M/S. Varuna Agencies
2023 Latest Caselaw 7771 Kant

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                                                   NC: 2023:KHC:41322
                                                  RFA No. 328 of 2021




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 17TH DAY OF NOVEMBER, 2023

                                      BEFORE
                   THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
                   REGULAR FIRST APPEAL NO. 328 OF 2021 (MON)
            BETWEEN:

            1.   SHRI. KAILASHCHANDRA KASTURILAL SODHI
                 S/O LATE KASTURILAL SODHI,
                 AGEDA BOUT 78 YEARS,

            2.   SMT RAJANI K SODHI
                 SINCE DEAD REPRESENTED BY
                 SHRI KAILASCHANDRA KASTURILAL SODHI,
                 W/O SRI KAILASHCHANDRA K SODHI,
                 AGED ABOUT 74 YEARS.

                 RESIDING AT NO.6A, CAUVERY APARTMENTS,
                 RESIDENCY ROAD, CONVENT ROAD,
                 BANGALORE-560 025.
                                                          ...APPELLANTS
            (BY SRI.ANIL BAJAJ .,ADVOCATE)
            AND:
Digitally
signed by
VANDANA S   1.   M/S. VARUNA AGENCIES
Location:        A PARTHERSHIP FIRM HAVING ITS OFFICE AT OM SHIVAM
HIGH             COOPERATIVE HOUSING SOCIETY LIMITED,
COURT OF         PLOT NO.2, OPP. CIGARETE FACTORY, CHAKALA,
KARNATAKA        SHARA ROAD, ANDHERI (EAST)
                 MUMBAI 400 099.
                 ALSO AT NO.217, 2ND FLOOR, BIRYA HOUSE, 365,
                 PERIN NARIMAN STREET, FLORT MUMBAI 40001,
                 REP BY ITS MANAGING PARTNER.

            2.   MRS MEERA
                 W/O LATE SURESH KOTIAN,
                 AGED ABOUT 64 YEARS,
                 M/S VARUNA AGENCIES,
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                                                NC: 2023:KHC:41322
                                              RFA No. 328 of 2021




3.    MS SAVERA
      D/O LATE SURSH KOITIAN,
      AGEDA BOUT 35 YEARS,
      PARTNER,

4.    MS SHAMIKA
      D/O LATE SURSH KOTIAN,
      AGEDA BOUT 33 YEARS,
      PARTNER M/S VARUNA AGENCIES,

      DEFENDANTS NO. 2-4 ARE
      R/A NO.701, 3RD FLOOR,
      AMARTANI SEVEN-B,
      NEAR OLD NAGARDAS ROAD,
      OPP. PINKS CINEMA, ANDHERI EST,
      MUMBAI 400 069.
                                          ...RESPONDENTS
(BY SRI.M. RAJASHEKAR, ADVOCATE FOR R-2 TO R-4)
      THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED: 26.06.2020 PASSED IN
OS.NO.7337/2012 ON THE FILE OF THE XXX ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT
FOR RECOVERY OF MONEY.

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


                             JUDGMENT

This appeal filed by the unsuccessful plaintiffs under

O.S.No.7337/2012 dated 26.06.2020, is directed against the

impugned judgment and decree passed by the XXX Addl. City

Civil and Sessions Judge, Bengaluru City, whereby issue No.3

framed by the Trial Court as in the suit was treated as a

preliminary issue and answered against the appellant - plaintiff

and in favour of the respondents 2 to 4 - defendants 2 to 4

NC: 2023:KHC:41322 RFA No. 328 of 2021

thereby culminating in the impugned judgment and decree

passed by the Trial Court which dismissed the suit, filed by the

appellant - plaintiff.

2. Heard learned counsel for the appellants - plaintiffs and

learned counsel for the respondents - defendants and perused

the material on record.

3. The material on record discloses that the appellants -

plaintiffs instituted the aforesaid suit against the respondents -

defendants for recovery of sum of Rs.10,16,350/- together with

interest @ 18% per annum and for other reliefs. In the said suit,

the respondents 2 to 4 - defendants 2 to 4 entered appearance

and filed their written statement interalia disputing the various

claims and contentions urged on behalf of the plaintiffs.

4. It was also contended that the suit was barred by

principles of Res Judicata and Order 2 Rule 2 CPC. Based on

the pleadings, the Trial Court framed the following issues:

"1. Whether the plaintiffs prove that the 1st Defendant Firm represented by one late Suresh Kotian as its Managing partner had borrowed a sum of Rs.6,80,000/- from them through four cheques dated 12.10.2009 and 16.11.2009 for development and expansion of its business?

NC: 2023:KHC:41322 RFA No. 328 of 2021

2. Whether the plaintiffs further prove that the defendants No.2 to 4 being the partners of 1st Defendant Firm are liable to repay the said loan borrowed by the 1st Defendant Firm along with interest at the rate of 18% per annum?

3. Whether the defendants prove that the suit is hit by principles of Res-Judicata and also u / O 2 R 2 of CPC.,?

4. Whether the suit is barred by limitation?

5. Whether the plaintiffs are entitled for recovery of a sum of Rs.10,16,350/- as prayed with interest at the rate of 18% per annum?

6. What Order or decree?"

5. As can be seen issues framed by the Trial Court, issue

No.3 related to maintainability of the suit on the ground Res

Judicata and Order 2 Rule 2 CPC. Subsequently, when the matter

was posted for trial, the respondents 2 to 4 - defendants 2 to 4 filed

an application I.A.No.5 under Order 14 Rule 2(2) of CPC to treat

issue No.3 as a preliminary issue. The said issue No.3 was

ordered to be treated as a preliminary issue by the Trial Court vide

Order dated 09.11.2018, pursuant to which the Trial Court recorded

oral and documentary evidence of both sides on the said

preliminary issue No.3.

NC: 2023:KHC:41322 RFA No. 328 of 2021

6. Thereafter, the Trial Court heard both sides and proceed

to pass the impugned order answering issue No.3 in favour of the

respondents 2 to 4 and against appellants - plaintiffs and

consequently dismissed the suit as not maintainable.

7. Aggrieved by the impugned judgment and decree passed

by the Trial Court under the impugned order dated 09.11.2018,

treating issue No.3 as a preliminary issue and the impugned order

passed by the Trial Court answering issue No.3 against the

appellants, the appellants - plaintiffs are before this court by way of

the present appeal.

8. A perusal of the material on record including the

impugned judgment and decree will indicate that there are several

disputed / complicated / complex questions / issues of law and fact

that arise for consideration between the parties as born out from

the pleadings of the parties on all aspects of the matter including

the plea of res-judicata which is a mixed question of law and fact.

9. Under these circumstances, the only question that arises

for consideration is as to whether the Trial Court was justified in

treating issue No.3 as a preliminary issue and answering the same

NC: 2023:KHC:41322 RFA No. 328 of 2021

in favour of the respondents 2 to 4 - defendants 2 to 4 and there by

dismissing the suit as not maintainable.

10. In this context, it is relevant to state that it is trite law that

issue regarding Res Judicata involving disputed questions and law

and fact cannot be treated as a preliminary issue as held by the

Apex Court in SATHYANATH AND ANOTHER V/S. SAROJAMANI

- (2022) 7 SCC 644.

11. In the instant case, while it is the specific assertion of the

appellants - plaintiffs that the respondents 2 to 4 are the wife and

children of one Suresh Kotian who was a Managing Partner of

defendant No.1 - M/s. M/s. Varuna Agencies, which had borrowed

sums of money from the appellants - plaintiffs, the said contention

as regards Suresh Kotian being the Managing Partner / Partner of

M/s. Varuna Agencies and the allegations that the said firm and

Suresh Kotian had borrowed sums of money from the appellant is

seriously disputed by the respondents 2 to 4 - defendants 2 to 4.

12. It is therefore clear that there exists a serious dispute of

fact as regards the right of the appellants - plaintiffs to put forth the

suit claim is against the respondents 2 to 4 - defendants 2 to 4 and

the alleged liability of the respondents 2 to 4 to answer the claim of

NC: 2023:KHC:41322 RFA No. 328 of 2021

the appellants - plaintiffs and consequently the said dispute which

stands covered by preliminary issue No.3 in the light of the

judgment and decree passed in O.S.No.4111/2010 dated

25.08.2012 and confirmed by this court in RFA No.1742/2012 gives

rise to mixed / disputed question of law and fact would necessarily

involve a full fledged trial and the Trial Court would have to render

findings on all issues including the issue No.3 regarding

Res Judicata and the bar of the suit under Order 2 Rule 2 of CPC

as held in the aforesaid judgment of the Apex Court.

13. Under these circumstances, I am of the considered

opinion that the Trial Court fell in error in treating issue No.3 as a

preliminary issue and answering the same in favour of the

respondents 2 to 4 without considering other issues and

consequently, the impugned judgment and decree passed by the

Trial Court deserves to be set aside and the matter remitted back to

the Trial Court for reconsideration afresh and for disposal in

accordance with law by adjudicating upon all issues including

issue No.3 in accordance with law.

14. In the result, I pass the following:

NC: 2023:KHC:41322 RFA No. 328 of 2021

ORDER

i) Appeal is hereby allowed.

ii) Impugned judgment and decree dated 26.06.2020 passed

in O.S.No.7337/2012 by the XXX Addl. City Civil and Sessions

Judge, Bengaluru City is hereby set aside.

iii) The matter is remitted back to the Trial Court for

reconsideration afresh on all issues in accordance with law.

iv) The Trial Court is directed to hear both sides and provide

both parties an opportunity to adduce oral and documentary

evidence in support of their respective claims and dispose of the

suit on merits by recording findings, on all issues in accordance

with law, within a period of six months from the date of receipt of

a copy of this order.

v) All rival contentions on all aspects of the matter are kept

open and no opinion is expressed on the same.

vi) Parties undertake to appear before the Trial Court on

11.12.2023 without awaiting further notice from the Trial Court.

vii) Registry is directed to refund the entire court fee of

Rs.62,945/- paid on the memorandum of appeal back to the

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appellant forthwith in view of Section 64 of the Karnataka Court

Fees and Suit Valuation Act.

viii) Registry is directed to retransmit the Trial Court records

back to the Trial Court forthwith.

ix) Liberty is reserved in favour of the parties to adduce

additional oral and documentary evidence in support of their

respective claims.

Sd/-

JUDGE

DHA