Karnataka High Court
Canara Bank vs Mr. N G Subbaraya Setty on 8 November, 2024
Author: S Sunil Dutt Yadav
Bench: S Sunil Dutt Yadav, Shivashankar Amarannavar
-1-
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RP No. 528 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
REVIEW PETITION No. 528 OF 2023
BETWEEN:
CANARA BANK
A PUBLIC LIMITED COMPANY
OF THE GOVERNMENT OF INDIA
HAVING ITS REGISTERED OFFICE
AT JC ROAD, BENGALURU.
REPRESENTED BY CHIEF MANAGER
MR. VASUDEV VIJAY KUMAR KUTIKUPPALA
BASAVANAGUDI BRANCH
BENGALURU - 560 004.
...PETITIONER
Digitally signed by
LAKSHMINARAYANA (BY SRI B C THIRUVENGADAM, SENIOR ADVOCATE FOR
MURTHY RAJASHRI SRI RAHUL JAMES, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
1. MR. N G SUBBARAYA SETTY
S/O LATE N M GOVINDARAJA SETTY
AGED ABOUT 73 YEARS
No.1/1, 1st CROSS
SHANKARAPURAM
BENGALURU - 560 004.
2. MR. N S SUHAS
S/O SRI N G SUBBARAYASETTY
-2-
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RP No. 528 of 2023
AGED ABOUT 52 YEARS
R/AT No.1/1, 1st CROSS
SHANKARAPURAM
BENGALURU - 560 004.
...RESPONDENTS
(BY SRI RAMESH KULKARNI, ADVOCATE
V/O DTD. 25.10.2024)
THIS REVIEW PETITION IS FILED UNDER SECTION 114
READ WITH ORDER 47 RULE 1 OF THE CPC, 1908, PRAYING TO
ALLOW THE ABOVE REVIEW PETITION AND REVIEW THE
IMPUGNED ORDER IN RFA 1427/2016 DATED 10.02.2022 PASSED
BY THIS HON'BLE COURT AND ANY OTHER RELIEFS THIS HON'BLE
COURT MAY DEEM IT FIT AND NECESSARY IN THE FACTS AND
CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE
AND EQUITY AND ETC.,
THIS PETITION COMING ON FOR FURTHER ORDERS THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S SUNIL DUTT YADAV
and
HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL ORDER
(PER: HON'BLE MR JUSTICE S SUNIL DUTT YADAV)
1. The present review petition has been filed seeking
to review the order passed on 10.02.2022 in RFA No.
1427/2016. Regular First Appeal came to be disposed of in
terms of the order dated 10.02.2022 and reads as follows:
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"Memo is preferred by the appellant and is
signed by the learned counsel for the appellant. The
memo reads as under:
"1. The present Regular First Appeal arises out
of OS. No.3765/2010.
2. The Hon'ble Supreme Court in Civil Appeal
No.4233 of 2018 was pleased to dismiss a
similar suit in OS No.495 of 2015 based on
which the present OS.No.3765/2010 was filed.
The certified copy of the Judgment and Decree in
Civil Appeal No.4233 of 2018 of the hon'ble
Supreme Court of India is been submitted, and
hence the matter before Civil Court is covered
and the parties are same.
3. Hence the present OS. No.3765/2010 from
which the present Regular First Appeal arises
does not survive."
In that view of the matter, the appeal is dismissed
as not surviving for consideration."
2. The review proceedings relates to the order in the
Regular First Appeal. The appellant was permitted serve
learned counsel appearing for the respondents in the Regular
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First Appeal. In the light of such liberty granted, memo was
filed on 15.07.2024 along with letter evidencing service of
copies on the learned counsel for respondents. Taking note of
the same, office was directed to show the name of learned
counsel Sri. Ramesh Kulkarni as appearing for the
respondents.
3. Despite the name of learned counsel Sri. Ramesh
Kulkarni having been shown as representing the respondents
in the cause list, there is no representation on behalf of the
respondents. Accordingly, the matter is taken up for
consideration.
4. It is to be noted that the Regular First Appeal
came to be disposed off on the basis of the memo filed and
appeal was dismissed as not surviving for consideration.
5. As rightly pointed out by the learned Senior
counsel appearing on behalf of the Bank which is the review
petitioner, it was the contention of the Bank that O.S. No.
3765/2010 which was decreed by the trial Court ought to
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have been dismissed taking note of the position of law
enunciated by the Apex Court in Civil Appeal No. 4233/2018
as regards suit O.S. No. 495/2015 between the same parties.
Attention is drawn to the order of the Apex Court. It was the
case of the learned Senior counsel appearing on behalf of the
review petitioner that the Apex Court had clearly held that
the deed of assignment relied on by the respondents who
were plaintiffs before the trial Court was not registered, even
otherwise there was no provision under the Banking
Regulation Act that would have permitted the Bank to act in
furtherance of the deed of assignment. Accordingly it is
submitted that taking note of the order of the Apex Court the
decree in O.S. No. 3765/2010 requires to be set aside in the
light of the law laid down between both the parties.
6. The memo filed in the Regular First Appeal also
appears to be not asking for appropriate reliefs as paragraph
No. 3 of the memo merely stated that O.S. No. 3765/2010
does not survive. The learned Senior counsel submits that
the Regular First Appeal would have to be re-heard and an
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order passed on merits taking note of the order of the Apex
Court. It is further submitted that steps would be taken to
withdraw the memo and file appropriate pleadings.
7. The said submission is taken note of and ground is
made out for entertaining and passing appropriate order in
the review petition. It cannot be said that the order of the
Supreme Court which has conferred rights on the Bank would
lead to dismissal of the appeal as is the order that is passed
in the Regular First Appeal. As rightly pointed out by the
learned Senior counsel appearing for the review petitioner, in
terms of the order of the Apex Court the judgment in O.S.
No. 3765/2010 would have to be set aside if the contention
of the appellant were to be accepted and if that were to be
so, the appeal would have to be allowed setting aside the
judgment and decree passed in O.S. No.3765/2010. While
doing so the procedure under Order 41 Rule 31 of C.P.C. is
required to be followed.
8. Accordingly, sufficient cause is made out for
entertaining the review petition and the petition is allowed.
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The judgment dated 10.02.2022 passed in RFA No.
1427/2016 is set aside and the matter is remitted back to be
re-adjudicated in the appeal proceedings while also noticing
the undertaking on behalf of the appellant to withdraw the
memo and file appropriate pleadings. The appeal to be
decided keeping in mind the mandate of Order 41 Rule 31 of
C.P.C. as well as the law laid down regarding disposal of
Regular First Appeal in Malluru Mallappa(D) Thr. L.rs vs.
Kuruvathappa and ors. reported in 2020(4) SCC 313. The
matter be listed before the regular Bench. To avoid delay in
adjudication (according to the learned Senior counsel for the
petitioner - Bank) it would be appropriate that the review
petitioner is at liberty to take out advance notice to the
respondents by serving counsel who represents the
respondents in debt recovery proceedings as well and in
other proceedings pending before the same parties stated to
be pending before the trial Court.
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9. The name of the counsel for review petitioner be
shown as Manik B.T. in the Regular First Appeal proceedings
as well.
Sd/-
(S SUNIL DUTT YADAV)
JUDGE
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
LRS
