Karnataka High Court

K. Bhavikatti vs M/S Yes Associates on 13 January, 2025

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                                                        NC: 2025:KHC:1246
                                                       RFA No.1642/2010




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                       DATED THIS THE 13TH DAY OF JANUARY, 2025
                                          BEFORE
                      THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
                       REGULAR FIRST APPEAL NO.1642/2010 (MON)

                 BETWEEN:

                 1.    K. BHAVIKATTI
                       S/O V.S. BHAVIKATTI
                       AGED ABOUT 35 YEARS
                       OCC:PROPRIETOR
                       M/S. BHAVIKATTI MAIN ROAD
Digitally signed       GULBARGA- 585 101.
by ARSHIFA
BAHAR KHANAM
Location: HIGH   2.    PROPRIETOR
COURT OF               M/S. BHAVIKATTI MAIN ROAD
KARNATAKA              GULBARGA- 585101.
                                                              ...APPELLANTS
                 (BY SRI. A.K. DHIRAJ KUMAR AND
                     SRI. K. CHANDRAPPA, ADV.,)

                 AND:

                 M/S. YES ASSOCIATES
                 PROPRIETARY CONCERN
                 HAVING ITS REGISTERED OFFICE
                 AT NO.167/C, ANUGRAHA
                 III MAIN ROAD, 7TH CROSS
                 CHAMARAJPET,BANGALORE- 18
                 REP. BY ITS PROPRIETRIX
                 SMT. LALITHA SHIVAMURTHY.
                                                             ...RESPONDENT
                 (SERVICE OF NOTICE TO R1 IS H/S V/O/DTD:13.12.2016)
                                            ---

                      THIS RFA IS FILED U/S 96 OF CPC., PRAYING TO CALL FOR
                 RECORDS IN O.S.NO.7645/2004 FROM THE FILE OF THE
                 LEARNED XIV ADDL. CITY CIVIL JUDGE AT BANGALORE (CCH
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                                             NC: 2025:KHC:1246
                                         RFA No.1642/2010




NO.28) AND TO ALLOW THIS APPEAL, THEREBY SETTING ASIDE
JUDGMENT AND DECREE DATED 30.07.2010 PASSED IN
O.S.NO.7645/2004 BY THE LEARNED XIV ADDL. CITY CIVIL
JUDGE AT BANGALORE AND TO DISMISS THE SUIT IN THE
INTEREST OF JUSTICE.

    THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:    HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

                     ORAL JUDGMENT

The defendant has filed this regular first appeal

challenging the judgment and decree dated 30.07.2010

passed in O.S.No.7645/2004 by the Court of XIV Addl. City

Civil Judge, Bengaluru (CCH-28) wherein the suit of the

plaintiff was decreed by directing the defendant to pay

Rs.35,000/- along with interest at the rate of 6% p.a. from

05.02.2002 till complete realization of the amount and the

defendant was granted three months time to pay the

decreetal amount.

2. The parties to the proceeding are referred to as

per their rankings before the Trial Court.

3. It is the case of the plaintiff that it is the

proprietary concern represented by Smt.Lalitha Shivamurthy

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and carrying on the business of printing, publishing and

selling the text books and guides for various schools all over

the States of Tamil Nadu and Karnataka. It is averred that

the defendant No.1 who is the proprietor of M/s.Bhavikatti,

Main Road, Gulbarga placed an order for the supply of goods

i.e. various text books with the plaintiff vide Invoice No.828

dated 05.02.2002 and pursuant to the said invoice, the

plaintiff has supplied the books referred in the invoice for a

sum of Rs.36,350/-. It is further averred that the defendant

No.1 received the consignment of the goods and has issued

Cheque for a sum of Rs.35,000/- to be drawn on Karnataka

Bank, Gulbarga in favour of the plaintiff towards the

payment of amount due under the invoice dated

05.02.2002. It is also averred that the plaintiff has

presented the said Cheque for encashment. The said

Cheque was returned to the plaintiff with an endorsement

'insufficient funds'. On enquiry, the defendant informed to

present the said Cheque after 15 days and accordingly, the

plaintiff has presented the said Cheque. However, the

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Cheque was again returned with endorsement 'insufficient

funds'.

4. It is contended that the plaintiff issued legal

notice dated 27.05.2002 demanding payment of the Cheque

amount and the said notice issued to the defendant returned

unserved as he evaded the notice. The plaintiff initiated

criminal proceedings against the defendant No.1 for the

offences punishable under Section 138 of the Negotiable

Instruments Act, 1881 (hereinafter referred to as 'the Act').

However, for non-service of notice, the said complaint was

dismissed. It is further contended that the defendants are

jointly and severally liable to pay Rs.35,000/- being the

Cheque amount with interest from 05.02.2002 till realization

of the amount. Hence, sought to quash the judgment and

decree for a sum of Rs.51,800/- with interest at 18% p.a.

from the date of Cheque till the date of filing of the suit till

realization.

5. The defendant No.2 filed written statement

contending that defendant No.1 by name V.S.Bhavikatti died

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on 13.01.1992 at Gulbarga. Since then, he is in no way

concerned with the proprietorship of defendant No.2 which is

exclusively run by B.Karthikeya. Hence, the suit filed by the

plaintiff against a dead person is not maintainable in law and

sought for dismissal of the suit. The defendant No.2 has

denied other averments made in the plaint and sought for

dismissal of the suit. The Trial Court framed the issues and

recorded the evidence. One S.Vijay Kumar has been

examined as PW-1 on behalf of the plaintiff and got marked

Exs.P1 to P9. The defendant did not adduce any evidence.

The Trial Court, on appreciation of the evidence on record,

decreed the suit partly by directing the defendant to pay a

sum of Rs.35,000/- along with interest at the rate of 6%

p.a. from 05.02.2002 till its complete realization and the

defendant was granted 3 months' time to make the

payment. Being aggrieved, the defendants are in appeal.

6. Sri.A.K.Dhiraj Kumar, learned counsel appearing

for the appellant submits that the Trial Court has committed

grave error in passing the impugned judgment and decree.

It is submitted that the plaintiff has filed a suit initially

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against V.S.Bhavikatti in the year 2004 and on the date of

filing the suit, the said V.S.Bhavikatti was not alive as he

died on 13.01.1992. It is further submitted that the said

death of V.S.Bhavikatti was brought on record by way of

written statement filed by the present appellant as a

proprietor of defendant No.2 and based on such written

statement, the plaintiff has filed an application under Order

VI Rule 17 read with Section 151 of the Code of Civil

Procedure, 1908, to substitute the name of V.S.Bhavikatti

with K Bhavikatti. The Trial Court allowed the said

application without providing any opportunity to the

defendant No.2 as the counsel for defendant No.2 had filed

memo of retirement on 04.08.2009 which came to be

allowed on the said day. It is contended that the Trial Court

has committed grave error in accepting the memo of

retirement as the said memo of retirement was filed without

service of notice on defendant No.2. Hence, the entire

procedure followed by the Trial Court is erroneous which has

resulted in defendant No.2 remaining unattending the

proceedings. It is submitted that when the Trial Court has

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substituted the defendant No.2 K.Bhavikatti in place of

V.S.Bhavikatti, the Court would have issued summons to

him and such procedure followed by the Trial Court is

contrary to the settled principles of law and on this ground

alone, the impugned judgment and decree requires to be set

aside. He submits that substitution of K.Bhavikatti as

defendant No.1 in place of V.S.Bhavikatti amounts to the

addition of the parties to the proceedings. It is further

submitted that the entire pleadings, documents and exhibits

indicate that the transaction is purely between

V.S.Bhavikatti and the plaintiff and neither the defendant

No.2 nor his firm has anything to do with the transaction.

Hence, he seeks to allow the appeal.

7. Though notice is served on the respondent, they

remained absent and are placed exparte.

8. I have heard the arguments of the learned

counsel for the appellant and meticulously perused the

material available on record including the Trial Court

records. The point that arises for consideration in this appeal

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is "Whether the impugned judgment and decree of the Trial

Court call for any interference in the present appeal?"

9. The instituted facts are that the plaintiff has filed

a suit in O.S.No.7645/2004 seeking prayer to pass the

judgment and decree for a sum of Rs.51,800/- along with

interest at 18% p.a. from the date of initiation of the suit till

its realisation. The said suit came to be filed on 11.10.2004

and admittedly on the said date, defendant No.1

V.S.Bhavikatti was not alive. The cause title of the plaint

indicates that the defendant No.1 is the proprietor of

M/s.Bhavikatti, Main Road, Gulbarga. However, it is

not mentioned in the plaint as to who is representing the

proprietary concern. Be that as it may, B. Karthikeya as

proprietor of the defendant No.2 has filed written statement

specifically contenting that on 13.01.1992 V.S.Bhavikatti has

died and he has no concern with the proprietorship of

defendant No.2. After filing of the said written statement,

the plaintiff has filed an application under Order VI Rule 17

read with Section 151 of the CPC on 17.04.2010 seeking to

substitute K Bhavikatti in place of V.S.Bhavikatti as

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defendant No.1. The said application was allowed by the

Trial Court on the same date. The records also indicate that

the counsel representing the defendant No.2 i.e.

K.Bhavikatti, the proprietor and the defendant No.2 has filed

memo of retirement on 04.08.2009 and the same came to

be allowed. Though the notice of retirement of counsel is

available on record, there is no evidence or material to

indicate that the memo of retirement is served on the

defendant No.2-appellant herein. Hence, the Trial Court has

failed to appreciate the memo of retirement filed by the

learned counsel for the defendant No.2 is without the service

of retirement notice on defendant No.2. The Trial Court has

also committed grave error in adopting the procedure

unknown to law by substituting the name of defendant No.1

from V.S.Bhavikatti to K.Bhavikatti without providing any

opportunity to K.Bhavikatti that to offer the counsel for

defendant No.2 retire from the case. The Trial Court ought

to have issued notice on the application filed by the plaintiff

under Order VI Rule 17 read with Section 151 of the CPC as

the learned counsel for the defendant No.2 has filed memo

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of retirement prior to the said date. The Trial Court has

committed grave error in substituting the parties to the

proceedings without following proper procedure. Learned

counsel for the appellant is right in contending that

substituting K.Bhavikatti as defendant No.1 in place of

V.S.Bhavikatti is nothing but adding a party to the

proceedings without providing any opportunity to the said

party in the suit. The learned counsel for the appellant is

also right in pointing out that the entire pleading and the

evidence on record indicate that the transaction is between

V.S.Bhavikatti and the plaintiff. Be that as it may, the Trial

Court has proceeded to pass the judgment and decree

without providing sufficient opportunity to the defendant

No.2 / appellant herein. Hence, interest of justice would be

met if the impugned judgment and decree as well as the

order on I.A.3 are set aside and the matter is remitted back

to the Trial Court with the direction to provide an

opportunity to the defendant to adduce evidence.

10. In view of the foregoing reasons, I proceed to

pass the following:

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ORDER

(1) The impugned judgment and decree of the Trial

Court dated 30.07.2010 passed in O.S.No.7645/2004 and

the order dated 17.04.2010 passed on I.A.No.3 filed under

Order VI Rule 17 of the CPC by the Court of XIV Addl. City

Civil Judge, Bengaluru (CCH-28) are set aside.