Karnataka High Court
Kotak Mahindra Bank Ltd vs The Commercial Bank Retired Employees on 5 August, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 18.06.2025
Pronounced on : 05.08.2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF AUGUST, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.13122 OF 2025 (GM - CPC)
BETWEEN:
KOTAK MAHINDRA BANK LTD.,
NO.22, M.G. ROAD,
BENGALURU - 560 001
(ERSTWHILE ING VYSYA BANK LTD.,)
BY ITS VICE PRESIDENT -HR
SRI NAGENDRA PRASAD K.V.,
... PETITIONER
(BY SRI BALASUBRAHMANYA K.M., ADVOCATE)
AND:
1. THE COMMERCIAL BANK RETIRED EMPLOYEES
ASSOCIATION (REGN. NO. 293/01)
REGISTERED UNDER THE TAMIL NADU SOCIETIES
REGISTRATION ACT 1975 AT CHENNAI HAVING ITS
REGISTERED OFFICE AT 87, (NEW NO. 2),
4TH MAIN ROAD, GANDHINAGAR,
ADYAR, CHENNAI - 20
REPRESENTED BY ITS SECRETARY
V. VASUDEVAN,
S/O G.V. VENKATRAMAN,
2
AGED 72 YEARS,
RESIDING AT FLAT NO. 6/30,
NORTON ROAD, MANDAVELI,
CHENNAI - 600 028.
2. R. SATYANARAYANA RAJU
S/O RVSSN RAJU,
AGED 72 YEARS,
DOOR NO. 29-13- 39, I FLOOR,
OPP. KAMINENI HOSPITAL,
KALESWARAO ROAD,
SURYARAOPET,
VIJAYAWADA - 520 002.
G. DEVIPRASAD,
S/O G SUBRAHMANYAM,
(FIRST FLOOR), 44/1,
KANDAPPA CHETTY STREET,
CHENNAI 600 001
SINCE DECEASED
REPRESENTED BY HIS LRS AS
NO.3 , 4 AND 5
3. SMT.G. VASUNDARA
MAJOR
W/O G. DEVIPRASAD
FIRST FLOOR, 44/1,
KANDAPPA CHETTY STREET,
CHENNAI - 600 001.
4. MR. G. RAVINDAR
MAJOR
S/O G. DEVIPRASAD
FIRST FLOOR, 44/1,
KANDAPPA CHETTY STREET,
CHENNAI - 600 001.
5. MRS. G. JAYASHREE
3
MAJOR
D/O G. DEVIPRASAD
FIRST FLOOR, 44/1,
KANDAPPA CHETTY STREET,
CHENNAI - 600 001.
... RESPONDENTS
(BY SRI P.S.RANGANATHAN, ADVOCATE FOR C/R-1)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DATED 15/02/2025 PASSED BY THE HON'BLE XL ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-41) IN I.A. NO.
1/24 IN OS 8105/2004 (ANNEXURE - F) AND DISMISS I.A. NO.
1/24 FILED BY THE RESPONDENTS 1, 2, 3, 4 AND 5.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 18.06.2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner/Kotak Mahindra Bank Limited which is the
defendant in O.S.No.8105 of 2024 is at the doors of this Court
calling in question an order dated 15-02-2025 passed by the XL
Additional City Civil and Sessions Judge, Bengaluru City allowing
I.A.No.1 of 2024 filed under Order I Rule 8 of the CPC, whereby
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permission is granted to convert the original suit into a
representative suit after 21 years of its institution.
2. Heard K.M.Balasubrahmanya, learned counsel appearing
for the petitioner and Sri P.S. Ranganathan, learned counsel
appearing for caveator/respondent No.1.
3. Facts, in brief, germane are as follows: -
The respondents/plaintiffs institute a suit in O.S.No.8105 of
2004 seeking terminal benefits obtaining under the Vysya Bank
(Employees') Pension Regulations, 1995 ('the Regulations' for
short). The erstwhile Vysya Bank is the present petitioner. 1st
plaintiff is Commercial Banks Retired Employees
Association('Association' for short) registered under the Tamilnadu
Societies Registration Act, 1975 at Chennai. It has instituted the
suit claiming that it is voicing individual and collective grievances of
pensioners or retirees of the Bank. The 1st plaintiff/Association also
claims that it has large number of members i.e., pensioners
belonging to different States as members of the Association. The
suit comes to be filed on a particular premise. The premise is non-
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payment or short payment of terminal benefits to the plaintiffs or
members of the Association, as the case would be. The trial
progressed for over 20 years. In the year 2024, the Association
comes up with an application in I.A.No.1 of 2024 under Order I Rule
8 of the CPC seeking conversion of the subject suit into a
representative suit, on the ground that all the pensioners who are
members of the Association are persons who have voluntarily
retired under the Voluntary Retirement Scheme, 2002 and have the
same interest. The petitioner/Bank files its objections to the said
application. The concerned Court, in terms of its order dated
15-02-2025, allows application, permits conversion of the suit
O.S.No.8105 of 2004 into a representative suit under Order I Rule 8
of the CPC. The Bank is before the Court calling the said order in
question.
4. The learned counsel appearing for the petitioner would
vehemently contend that the application under Order I Rule 8 CPC,
which is preferred after 20 years of institution of the suit, is now
allowed after 21 years of its filing. The learned counsel would
further submit that the only common factor amongst the members
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of the Association is that they have retired under the Voluntary
Retirement Scheme, 2002 but the grievance of every person is
different. For a suit to be converted into representative suit what is
necessary is a publication, calling upon interested who share
common interest to join the proceedings and assist the Court in
resolving the dispute. None of these have been followed by the
concerned Court. He would contend that the matter was heard
completely, reserved for its judgment in the year 2018 itself,
without permitting the Court to pass the judgment, repeated
applications are preferred and the subject application is the one,
which is an abuse of the process of law.
5. Per contra, the learned counsel Sri P.S. Ranganathan
appearing for the 1st respondent/plaintiff, the beneficiaries of the
order impugned in the subject petition, would defend the order on
the score that every pensioner should not be driven to litigation. It
is, therefore, the Association in their interest has filed the
application seeking conversion of the suit into a representative suit.
He would admit that it is filed after a delay of 20 years. But, would
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submit that the core issue is to be seen and not delay in filing the
application. He would seek dismissal of the petition.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
7. The afore-narrated facts are not in dispute. The issue at
this juncture before the Court lies in a narrow compass as to
whether, the application under Order I Rule 8 CPC could be
permitted. The 1st plaintiff is the Association of retired employees.
The other plaintiffs are also persons who have retired. They come
forward to institute a suit in O.S.No.8105 of 2004 against the
petitioner/Bank. The claim of the members of the Association of the
1st plaintiff or other plaintiffs is that the Bank had introduced a
Voluntary Retirement Scheme of 2002. The Bank would be the
erstwhile Vysya Bank and not the present Kotak Mahindra Bank
Limited, as the scheme was introduced prior to the petitioner/Bank
taking over Vysya Bank Limited and Pension Regulations were
notified for all the banking sector employees. Likewise, Vysya Bank
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Limited got its pension regulations called the Vysya Bank Limited
(Employees') Pension Regulations, 1995.
8. The voluntary retirement scheme which was notified on
26-02-2002 allowed to scores and scores of employees' of Vysya
Bank ceasing to be in employment on account of voluntary
retirement. The grievances of these employees are not single fold,
but they are manifold. The grievances broadly brought out in the
plaint are that, they are entitled to 5 years addition to qualifying
service, as obtaining under Regulation 29(5) of the Regulations.
The other grievance, is dearness relief under Regulation 37 has not
been granted. The third grievance is, additional pension as
obtaining under Regulation 35(3)(a) has not been acceded to. The
average pay drawn by the retirees in the last 10 months is not
reckoned for the purpose of payment of pension in several cases.
The quantified special pay received for the last 10 months is not
taken into consideration for calculation of average pay. The
voluntary retirement permits encashment of privilege leave, that is
not granted. On the aforesaid grievances the suit is instituted.
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9. The petitioner-Bank files its written statement. The trial
progressed. During the trial, it appears that the very plaintiffs
institute two more suits one in the year 2011 and the other in the
year 2015 in O.S.No.3848 of 2011 and O.S.No.3988 of 2015 again
espousing the cause of retirees. In the suit initially instituted i.e.,
the subject suit - O.S.No.8105 of 2004 - the plaintiffs after about
20 years of its institution file an application under Order I Rule 8
CPC to convert the subject suit into a representative suit, on the
ground that it relates to a common cause of retirees. The concerned
Court by the impugned order dated 15-02-2025 allows the said
application on the following reasons:
".... .... ....
REASONS
7. POINT NO.1: The plaintiffs have filed the present suit
under Order 1 Rule 8 of C.P.C. in respect of the payment of
terminal benefits to the members of plaintiffs association. The
plaint shows it is filed under Order 1 Rule 8 of C.P.C. and the
para No.2 of the plaint no doubt shows that the plaintiff
association represents all pensioners retired from the defendant
bank under the Voluntary Retirement Scheme 2002 agitating
their common relief. It is apparent from the records that, the
suit is filed in the year 2004 and the matter is posted for
arguments and the arguments of both counsels are heard and
when the matter is about to be reserved for the judgment, after
2 decades the plaintiff has come up with the present application.
8. Learned counsel for plaintiff in his arguments submits
that it was noticed that requisite permission under Order 1 Rule
8 of C.P.C. is not obtained and it is the procedural defect which
10
names to be rectified and the said procedural defect is curable
defect and there is no bar on the part of the plaintiffs to move
an application to obtain permission under Order 1 Rule 8 of
C.P.C. and permission may be extended even during the stage
of appeal and hence, the application for permission and issuance
of mandatory notice under Order 1 Rule 8 of C.P.C. needs to be
allowed and this Court in exercise of discretionary power can
grant permission, as the plaintiffs have satisfied the
requirements of Order 1 Rule 8 of C.P.C.
9. learned counsel for the plaintiffs in support of his
arguments has relied upon the judgment of the Hon'ble High
Court of Karnataka reported in ILR 2000 KAR 1511 in case of
Ramachandra Laxman Doddamani and Another V/s. Tilakaraj
Bhaktavarmal Mahajanshet and Others wherein which it is held
as hereunder:
Civil Procedure Code, 1908 (Central Act No.V of
1908) - Order 1 Rule 8 and Order VII Rule 4 -
Plaintiffs sought for an injunction restraining the
defendants from putting up any construction as the
plot has been required by the Corporation for public
purpose, by filing a suit in their individual capacity. At
later stage fearing that their suit is likely to be
dismissed, filed an application to treat the suit as suit
instituted in a representated capacity. Trial Court
dismissed the application. In revision the High Court
Held- Person who files a suit in a representative
capacity is required to obtain the permission of the
Court under Order 1 Rule 8, but if no permission is
obtained, it cannot be said that it is not open for the
Court to entertain an application if filed during the
pendency of the suit. Relying on a decision reported in
M/s. Jainarayan Mandlal V/s. Shri. Agarwal Panch
Mandal Khamgaon AIR 1973 BOMBAY 167, held that
granting of permission during the pendency of the suit
does not change the nature of suit.
10. On the contrary, learned counsel for the defendant in
his arguments submits that for the past 20 years the plaintiffs
have agitated the grievance of only their members without
making any attempt to comply with the requirements of Order 1
Rule 8 of C.P.C. and having prosecuted the case for 20 years
11
and when the original plaintiff No.1 himself is not aggrieved
party the suit itself is not maintainable and the reason stated in
the application for not complying with the provision of Order 1
Rule 8 are not convincing. The plaintiffs stated that the present
suit is filed being aggrieved by the deprival of benefits under the
VRS Scheme and the plaintiffs failed to comply with the
requirements of Order 1 Rule 8 of C.P.C. because, they were
aware that it was a futile exercise as majority of VRS holders
would not support their case. By complying with Order 1 Rule 8,
if any of those employees came before this Court and gave a
statement to the effect that they have no grievance with the
VRS, the plaintiffs would lose their case. Hence, this tactic of not
complying with Order 1 Rule 8 has been adopted by the
plaintiffs. It is submitted that this belated application is as a
result of their objection to the plaintiff's application to amend
the plaint from under Order 1 Rule 8 to under Order 7 Rule I
which was an innocuous way to avoid the non-compliance of
Order 1 Rule 8. Having neglected to comply with the
requirements of Order 1 Rule 8 for 20 years, it is now a futile
exercise to invoke the same and the conduct of the plaintiffs
does not warrant such consideration by this Court and the
application is liable to be dismissed on the grounds of deliberate
latches, filing multiple suits on the same cause of action and
collusion.
11. The present suit is filed by the plaintiffs as against the
defendant under Order 1 Rule 8 of C.P.C. in respect of the
matter of payment of terminal benefits to the members of the
plaintiff association seeking relief of Mandatory Injunction to the
defendant to pay pension to the members of the plaintiff
association by taking into account the last drawn 10 months
average pay and to pay pension by taking into account the
special pay and fixed personal pay as per service conditions and
to pay additional pension and to pay pension by adding 5 years
notional service and to pay the difference in the encashment of
leave with interest at the rate of 12% p.a.
12. The present suit is filed under Order 1 Rule 8 of
C.P.C. by the plaintiffs association which is formed with all the
retirees from service from various banks including the
defendant, as its members and the plaintiffs association has on
its rolls a large number of members belonging to different
States and with a view to avoiding them to move different
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Courts resulting in multiplicity of litigations and petitions they
have collectively filed the present suit for vindication of their
rights. Now when the matter is about to be reserved for
judgment the plaintiff has come up with the present application
seeking leave of the Court to file the suit in representative
capacity.
13. Hence at this point of time, it is considered worth to
take note of the provisions of Order 1 Rule 8 of C.P.C. which
reads as under:
Order I Rule 8 C.P.C.: One person may sue or
defend on behalf of all in same interest-(I) where there
are numerous persons having the same interest in one
suit -
a) one or more of such persons may, with the
permission of the Court sue or be sued, or may
defend such suit, on behalf of, or for the benefit of,
all persons so interested;
b) the Court may direct that one or more of such
persons may sue or be sued, or may defend such
suit, on behalf of, or for the benefit of, all persons
so interested.
(2) The Court shall, in every case where a
permission or direction is given under sub-rule (1) at the
plaintiff's expense, give notice of the institution of the suit
to all persons so interest, either by personal service, or,
where, by reason of the number of persons or any other
cause, such service is not reasonably practicable, by
public advertisement, as the Court in each case may
direct.
(3) Any person on whose behalf, or for whose
benefit, a suit is instituted, or defended, under sub-rule
(1), may apply to the Court to be made a party to such
suit.
(4) No part of the claim in any such suit shall be
abandoned under sub-rule (1), and no such suit shall be
withdrawn under sub-rule (3), of Rule 1 of Order XXIII,
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and no agreement, compromise or satisfaction shall be
recorded in any such suit under Rule 3 of that Order,
unless the Court has given, at the plaintiff's expense,
notice to all persons so interested in the manner specified
in sub-rule (2).
(5) Where any person suing or defending in any
such suit does not proceed with due diligence in the suit
or defence, the Court may substitute in his place any
other person having the same interest in the suit.
(6) A decree passed in a suit under this rule shall
be binding on all persons on whose behalf, or for whose
benefit, the suit is instituted, or defended, as the case
may be.
A bare reading of the said provision makes it clear that the
condition necessary for the maintainability of a representative
suit is that the persons on whose behalf the suit is instituted
must have the same interest. The interest must be common to
them all or they must have a common grievance, which they
seek to get redressed. Community of interest is therefore
essential and it is a condition precedent for bringing a
representative suit. In order to bind a decree passed in a
representative suit, procedure laid down under Order I, Rule 8
of C.P.C. has to be followed. A decree obtained in a suit
instituted in accordance with the provisions of Order I Rule 8
C.P.C. will be binding as resjudicata on all members that belong
to the class who are sought to be represented.
14. So looking to above provisions makes it clear that
before filing the suit the plaintiffs should take permission from
the Court and no doubt the plaintiffs have not taken any
permission from this Court before filing the suit and they have
not given any public notice before institution of suit to all the
persons so interested. According to the plaintiff, it is only
procedural defect which is curable in nature and the Court in
exercise of its discretionary power can cure the defect and
permit the plaintiff to overcome the procedural defect. As per
the judgment referred supra, there is no bar for the plaintiffs to
move an application at any stage during the pendency of the
suit and such permission may be extended even during the
period of appeal. To invoke the provisions of Order 1 Rule 8 of
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C.P.C. the necessary conditions to be complied is that there are
numerous interested parties and they have common interest
and necessary permission of the Court is obtained and public
notice is issued. The power to grant permission to the parties to
sue in a representative capacity is conferred on the Court and
the Court is bound to exercise its power after being satisfied as
to whether the subject matter of the suit involves interest of
numerous persons or not. In the instant suit, the plaint
averments make it clear that interest of numerous persons are
involved in the suit and as such the procedure contemplated
under Order 1 Rule 8 of C.P.C. is a matter of procedure for
giving intimation to all concerned and by making a publication
affording opportunity to those who are interested and to those
who share common interest to join the proceeding and to assist
the Court in resolving the dispute. So, when the present suit
obtains the character of representative suit, for the purpose of
adjudication of the dispute it is considered proper to allow the
application. So, this Court is of opinion that the suit filed without
complying with the procedure required to file a representative
suit being a procedure defect, is a curable defect and hence the
application deserves to be allowed. Accordingly, this Court
proceeds to answer aforesaid point for consideration in the
Affirmative.
15. POINT NO.2: In view of finding given on Point No.1,
this Court proceeds to pass the following:
ORDER
I.A. No.1/24 is filed by the plaintiffs under Order 1 Rule 8
R/w. Sec.151 of Code of Civil Procedure, 1908 is allowed on cost
of Rs. 2,000/-."
The reasons rendered though lengthy, cannot be said to be in tune
with law. Since the application under Order I Rule 8 CPC is allowed,
I deem it appropriate to notice Order I Rule 8 of the CPC. It reads
as follows:
"ORDER-I
.......
8. One person may sue or defend on behalf of all in
same interest.--(1) Where there are numerous persons having
the same interest in one suit,--
(a) one or more of such persons may, with the permission of
the Court, sue or be sued, or may defend such suit, on
behalf of, or for the benefit of, all persons so interested;
(b) the Court may direct that one or more of such persons
may sue or be sued, or may defend such suit, on behalf
of, or for the benefit of, all persons so interested.
(2) The Court shall, in every case where a permission or
direction is given under sub-rule (1), at the plaintiff's expense,
give notice of the institution of the suit to all persons so
interested, either by personal service, or, where, by reason of
the number of persons or any other cause, such service is not
reasonably practicable, by public advertisement, as the Court in
each case may direct.
(3) Any person on whose behalf, or for whose benefit, a
suit is instituted, or defended, under sub-rule (1), may apply to
the Court to be made a party to such suit.
(4) No part of the claim in any such suit shall be
abandoned under sub-rule (1), and no such suit shall be
withdrawn under sub-rule (3), of Rule 1 of Order XXIII, and no
agreement, compromise or satisfaction shall be recorded in any
such suit under Rule 3 of that Order, unless the Court has given,
at the plaintiff's expense, notice to all persons so interested in
the manner specified in sub-rule (2).
(5) Where any person suing or defending in any such suit
does not proceed with due diligence in the suit or defence, the
Court may substitute in his place any other person having the
same interest in the suit.
(6) A decree passed in a suit under this rule shall be
binding on all persons on whose behalf, or for whose benefit,
the suit is instituted, or defended, as the case may be.
Explanation. - For the purpose of determining whether
the persons who sue or are sued, or defend, have the same
interest in one suit, it is not necessary to establish that such
persons have the same cause of action as the persons on whose
behalf, or for whose benefit, they sue or are sued, or defend the
suit, as the case may be."
Order I Rule 8 CPC permits conversion of a suit to a representative
suit on certain conditions. It mandates that one or more persons
may, with the permission of the Court sue or be sued on behalf of
or for the benefit of all persons so interested; the court may direct
one or more of such persons to sue for the benefit of all the persons
so interested; the Court in every case where permission or direction
is given under sub-rule (1) of Rule 8, at the plaintiff's expense, give
notice of the institution of the suit to all persons so interested either
by personal service or reason of number of persons, effect such
service by public advertisement as the Court may in each case
direct.
10. The concerned Court in the order does not indicate that a
public advertisement was rendered seeking all the interested to
come forward. Paragraph-14 of the said order accepts the fact that
before filing of the application for conversion to representative suit
no public notice to all persons interested is given. The concerned
Court which holds that it is only a procedural defect which is curable
in nature and the Court can exercise discretionary power and cure
the defect and permit the plaintiffs to overcome the procedural
defect. The reason so rendered by the concerned Court, on the
face of it, is illegal and contrary to law. The mandate of the statute
cannot be given a go-bye by permitting institution of a
representative suit without bringing in all the interested. The
Association may have 650 members on its rolls. Another 650
members may be outside the Association. They also would be
interested in settling their grievances. Therefore, this is the first
flaw in the order passed by the concerned Court.
11. The application is preferred 20 years after institution of
the suit when the arguments were concluded and the matter was
reserved for its judgment. The application was to convert the suit
into a representative suit. If the 1st plaintiff/Association is so
interested, it need not have waited for 20 long years to bring an
application for such conversion, that too after the matter was
reserved for its judgment. The delay in filing an application in a
pending suit could be allowed only if it would not cause grave
prejudice to the other side. The delay on the part of the person
filing the application would clearly indicate that he has been
indolent and not diligent. Though the application is not for any
amendment, any application of this kind ought not to have been
entertained after 20 years of filing of the suit, that too at the time
when the matter was reserved for its judgment after completion of
arguments. This is the second flaw in the order.
12. The concerned Court observes that there is common
grievance of all the persons, therefore, the suit in the
representative capacity is to be entertained, as they are pensioners.
No doubt, persons who are seeking terminal benefits form a
homogeneous class. That would not mean the evidence of every
person or every pensioner is the same. As observed hereinabove,
there are seven different grievances of each of the members of the
Association. If it is permitted to become a representative suit now,
the grievance could rise to ten-fold and the suit can never be taken
to its logical conclusion. Except the members of the Association
being retirees, there is nothing similar insofar as their grievances
are concerned. Therefore, the concerned Court ought to have
noticed whether the 1st plaintiff was justified in filing the application
on varied grievances of the members of the Association. This is the
third flaw in the impugned order.
13. In the light of serious flaws and the blatant violation of
the mandate of the statute, the order of the concerned Court is, on
the face of it, unsustainable. The unsustainability would lead to its
obliteration. In that light, the petition deserves to succeed, albeit
with a direction to the concerned to conclude the two decades old
suit within 4 weeks.
14. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.
(ii) The order dated 15-02-2025 passed by the XL
Additional City Civil and Sessions Judge, Bengaluru
allowing I.A.No.1 of 2024 filed under Order I Rule 8 CPC
in O.S.No.8105 of 2004 is quashed. I.A.No.I of 2024 is
dismissed.
(iii) The concerned Court is directed to take the suit to its
logical conclusion, as the matter was reserved for its
judgment at the time of filing of I.A.No.I of 2024 and,
render its judgement in accordance with law, within 4
weeks from the date of receipt of a copy of this order.
SD/-
(M.NAGAPRASANNA)
JUDGE
bkp
CT:MJ
