Karnataka High Court

M/S Planet Agencies vs S K Jain on 30 October, 2024

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                                                                          NC: 2024:KHC:43916
                                                                         RFA No. 376 of 2008




                                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                        DATED THIS THE 30TH DAY OF OCTOBER, 2024

                                                          BEFORE
                                         THE HON'BLE MR JUSTICE UMESH M ADIGA
                                     REGULAR FIRST APPEAL NO. 376 OF 2008 (MON)
                                 BETWEEN:

                                 M/S PLANET AGENCIES,
                                 A COMPANY INCORPORATED UNDER
                                 THE PROVISIONS OF INDIAN COMPANIES ACT,
                                 HAVING ITS REGISTERED OFFICE AT NO.1040
                                 DR. RAJAKUMAR ROAD,
                                 4TH BLOCK, RAJAJINAGAR,
                                 BANGALORE - 560 010
                                 REPRESENTED BY ITS
                                 MANAGING DIRECTOR
                                 SMT. ARUNA
                                                                                 ...APPELLANT
                                 (BY SRI.GIRISH B MANGANNAVAR, ADVOCATE FOR
                                     SRI. B. PRAMOD, ADVOCATE )

                                 AND:

                                 S.K. JAIN,
                                 W/O LATE KANTHILAL JAIN,
Digitally signed by KORLAHALLI
BHARATHIDEVIKRISHNACHARYA        AGED ABOUT 42 YEARS,
Location: HIGH COURT OF
KARNATAKA
                                 R/AT NO.5/1,
                                 4TH MAIN, TATA SILK FARM,
                                 BANGALORE-560 068.
                                                                               ...RESPONDENT
                                 (BY SRI. V.B.SHIVAKUMAR, ADVOCATE )

                                       THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
                                 CPC AGAINST THE JUDGMENT AND DECREE DT.22.11.2007 PASSED
                                 IN O.S.NO.1336/2004 ON THE FILE OF THE XIX ADDL. CITY CIVIL
                                 AND SESS. JUDGE, BANGALORE CITY, DECREEING THE SUIT FOR
                                 RECOVERY OF MONEY.
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                                               NC: 2024:KHC:43916
                                              RFA No. 376 of 2008




     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


CORAM:      HON'BLE MR JUSTICE UMESH M ADIGA



                          CAV JUDGMENT

The defendant in O.S.No.1336/2004 preferred this

appeal challenging the judgment and decree dated

22.11.2007 passed by XIX Additional City Civil and Sessions

Judge, Bengaluru City.

2. I refer to the parties as per their rankings before

the trial Court.

3. It is the case of the plaintiff that defendant is a

dealer of Honda Activa (Silver). The plaintiff booked Honda

Activa (Silver) a two wheeler vehicle from the defendant and

paid Rs.35,433/- in advance. The defendant issued a receipt

No.154 dated 04.08.2001 on account No.2650,

acknowledging the receipt of the above said amount. The

defendants did not deliver the said vehicle. The plaintiff

approached the defendants calling upon him to deliver the

said vehicle as per their agreement. However, the

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defendants did not deliver the same. In spite of

correspondence, the defendants neither replied to the said

correspondence nor delivered the vehicle. Therefore, the

plaintiff prayed for decreeing the suit to refund amount paid

to the defendant while booking the vehicle in advance i.e.

Rs.35,433/- with interest and cost.

4. The defendants denied the contention of the

plaintiff. They have further contended that the suit is bad for

non-joinder of necessary parties and mis-joinder of parties.

They denied the payment of Rs.35,433/- to the defendant's

company and prayed for dismissal of the suit.

5. From the rival contentions of the parties, the trial

court framed necessary issues.

6. The plaintiff to prove his case examined himself

as PW.1 and got marked Exs.P1 to P5. The defendants

examined DW1 and got marked Exs.D1 to D4.

7. The trial Court after hearing both the parties and

appreciating the evidence on record, answered issue Nos.1,

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2 and 4 in the affirmative and issue No.3 in the Negative and

decreed the suit by impugned judgment dated 22.11.2007.

8. I have heard the arguments.

9. Learned counsel for the appellant submits that

respondent has not paid the amount to the appellants. They

had a transaction with one Ravi. The said Ravi is not at all

connected to defendant Nos.1 and 2 and when amount was

paid to Ravi, which is admitted in the cross-examination of

PW1 and said Ravi is an authorised person of M/s Pushpak

Motors, ought to have filed suit against Ravi or M/s Pushpak

agency and not against the present defendant. The learned

trial Judge has not appreciated the said facts properly and

wrongly decreed the suit.

10. Learned counsel for the appellant further submits

that there are no material on record to prove that

respondent had paid the amount to appellant-company.

Ex.P1 is not a valid receipt given by any dealer. Therefore,

on the basis of the said document, relief cannot be granted.

The learned trial Judge has not appreciated the evidence

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properly and therefore came to a wrong conclusion. With

these reasons, prayed for allowing the appeal, by setting

aside impugned judgment.

11. Learned counsel for the respondent submits that,

in the cross-examination of PW-1, he clearly stated that he

paid the amount to the defendants and one Ravi was working

in the said concern. The respondent did not pay any amount

to M/S Pushpak Motors. The Vehicle was not booked with

the Pushpak agency. Under these circumstances, just to

confuse the Court, the evidence of PW-1 was mislead by the

appellants. The defendants even denied that they are the

dealers of the Honda Activa vehicle. The defendants

produced certificate to show that earlier it was a partnership

firm, later on it was converted to a private limited company.

The defendants produced the receipt book; A copy of receipt

is available, which is marked at Ex.P1(a). Their own records

show that the defendants received amount of Rs.35,433/-

towards value of the Honda Activa (Silver). The said

evidence is sufficient to decree the suit. The plaintiff made

correspondences including the notice from the advocate with

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defendants but none of the correspondence were replied by

the defendants. Even they have not denied it. Under these

circumstances, the contention of the plaintiff cannot be

discarded. Moreover, DW1 is not a competent witness to

deny the case of the plaintiff. The learned trial Judge

properly appreciated the evidence and rightly decreed the

suit and it does not call for any interference. Therefore,

prayed for dismissal of the appeal.

12. The following points emerges for my

determination:

i. Whether learned trial Judge is justified

in decreeing the suit?

13. My answer to the above question is in affirmative

for the following reasons:

PW-1 is plaintiff and he reiterated the plaint

averments. He produced Ex.P1 i.e. receipt for Rs.35,433/-

dated 04.08.2001 and its receipt No.154. It bears the seal

of "Planet Agency" and signed by responsible officer. It

appears that defendants produced the receipt books and

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cleverly they have not marked it and in the cross-

examination of DW-1, plaintiff got marked copy receipt

No.154, which was available in the said receipt book as

Ex.P1(a). The defendants do not dispute Ex.P1 and

Ex.P1(a). They do not explain as to why Ex.P1 was issued

by defendants to plaintiff for a sum of Rs.35,433/-. The said

evidence is sufficient to decree the suit.

14. The plaintiff issued letters, and notices to the

defendants and they were served on the defendants. This

fact is not disputed. A line of answer given by the

defendants in the written statement was that it was not

pertaining to him, therefore, he did not respond to it. The

said contention is not acceptable. If it was not pertaining to

the transaction between plaintiff and defendants, at least, he

should have replied to the same. Even in the written

statement, there is no explanation regarding Ex.P1. These

facts are considered by the trial Court while decreeing the

suit.

15. The defendants examined DW-1 - power of

attorney holder. In his cross-examination, DW-1 admits that

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rubber stamp seal found on Ex.P1 as per Ex.P1(a) was that

of Planet Agency. The copy of Ex.P1 is with them in the bill

book i.e. Ex.P1(a). He also admits that in Ex.P1(a) there is

alteration. Therefore, whatever denial made by DW-1 in his

examination-in-chief is not reliable in view of the answers

given in the cross-examination. These oral and documentary

evidence proves the case of the plaintiff that he booked

Honda Activa (Silver) and paid advance of Rs.35,433/-.

16. The defendant in written statement very cleverly

stated that the suit is suffering by non-joinder and mis-

joinder of the parties. It is the duty of the defendants to

elaborate as to who were necessary parties or why the suit

was bad for mis-joinder of the parties. The plaintiff

contended that he booked Honda Activa from the defendants

when it was a partnership firm. It is not in dispute that

defendant No.1 was converted to private limited company.

The plaintiff proved that he paid an amount to defendant

No.1. The said contention of mis-joinder of the parties was

not at all available to the defendant.

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17. During the course of cross-examination of PW-1,

there is some reference regarding Pushpak Agency and one

Ravi. On the basis of the said evidence, the learned counsel

for the appellant contended that plaintiff paid amount to the

said "Pushpak Motors" through one Ravi, therefore, the said

Pushpak Motors was a necessary party. Neither it is the

pleading of the plaintiff nor he admits in his cross-

examination that he booked vehicle from Pushpak Motors.

The day on which he paid the amount to defendant No.1, the

said Ravi was said to have received the amount. In cross-

examination of PW-1, defendants elicited these facts and it

was suggested to him that the said Ravi was brother-in-law

of defendant No.2. Therefore, as they are relatives, he

might be sitting in the counter of defendant No.1 and

received the money. But the said payment was on behalf of

defendant No.1. Therefore, who was sitting in the counter

was immaterial but the payment was made to defendant

No.1. Under these circumstances, the suit cannot be

rejected on the ground of non-joinder of necessary parties.

The said contention of the appellant is not tenable. The

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learned trial Judge, properly appreciated the pleadings and

evidence on record and decreed the suit. It does not call for

any interference by this Court.

18. The payment was made to the appellant on

04.08.2001. In spite of lapse of about 23 years, the plaintiff/

respondent is unable to recover the said amount. The

contention of the defendant/appellant is frivolous. It is

nothing but abusing the process of Court. Therefore, the

appellant needs to be directed to pay the compensatory

costs. Compensation amount stated in Section 35(A) of CPC

is not sufficient, looking to the facts of the present case. The

plaintiff-respondent, who was deprived of his money for

about 23 years, hence, exercising powers under Section 151

CPC compensation shall be awarded.

19. For the above said reasons, I pass the following:

ORDER

The appeal is dismissed with

compensatory cost of Rs.15,000/- payable to

defendant.

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The impugned judgment and decree dated

22.11.2007 in O.S.No.1336/2004 passed by the

XIX Additional City Civil and Sessions Judge at

Bengaluru is confirmed.