Karnataka High Court
M/S Renram Fashions India Pvt Ltd vs The Esi Corporation on 22 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RP No. 598 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JANUARY, 2025
R
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REVIEW PETITION NO.598 OF 2024
IN
MISCELLANEOUS FIRST APPEAL No.3185 OF 2017
BETWEEN:
M/S RENRAM FASHIONS INDIA PVT LTD.,
NO.1/1, 1ST CROSS
SOMESHWARA NAGAR INDUSTRIAL SUBURB
APMC YARD, YESHWANTHPURA
BANGALORE 560 022
REP. BY TIS MANAGING DIRECTOR
SRI VEERA MARE GOWDA
...PETITIONER
Digitally signed
by DEVIKA M (BY SRI JOSEPH KANIKARAJ, ADVOCATE)
Location: HIGH AND:
COURT OF
KARNATAKA
THE ESI CORPORATION
SRO PEENYA
HARINI TOWERS, 3RD MAIN
3RD CROSS, INDUSTRIAL SUBURB
YESHWANTHPUR
BENGALURU - 560 2022
REP. BY ASG - SHASHI KANTH C
...RESPONDENT
(BY SRI C SHASHIKANTHA, ADVOCATE)
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RP No. 598 of 2024
THIS REVIEW PETITION IS FILED UNDER ORDER 47
RULE 1 OF CPC, PRAYING TO REVIEW THE ORDER DATED
19.11.2024 PASSED IN MFA NO.3185/2017 AND ETC.
THIS PETITION, COMING ON FOR ADMISSION, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL ORDER
This review petition is filed praying this Court to
review the order dated 19.11.2024 passed in MFA
No.3185/2017.
2. Heard the learned counsel appearing for the
respective parties.
3. The factual matrix of the case is that the
respondent passed an order on 13.06.2014 under Section
85-B of the Employees State Insurance Corporation Act
directing the petitioner to pay a sum of Rs.26,34,569/-
towards damages for the delay in payment of contribution
for the period from January 2009 to June 2013. The same
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was challenged before the Employees State Insurance
Court, Bengaluru in ESI No.27/2014 and the ESI Court
vide order dated 13.06.2014 was pleased to allow the said
petition in part reducing the damages from Rs.26,34,569/-
to Rs.6,00,000/-. The respondent challenged the said
order in MFA No.3185/2017 before this Court and this
Court having heard the respective counsel for the parties
was pleased to allow the said appeal vide order dated
19.11.2024 by setting aside the order of the ESI Court
passed in ESI Application No.27/2014.
4. Now the respondent/review petitioner filed the
present review petition under Order 47 Rule 1 of CPC
contending that the order dated 19.11.2024 passed by this
Court suffers from want of jurisdiction. It is contended that
admittedly, the appeal in MFA No.3185/2017 is lack of
jurisdiction since the value of the appeal is Rs.26,34,569/-
and the counsel referring Section 5(i) of the Karnataka
High Court Act, 1961 would vehemently contend that all
first appeals against a decree or order passed in a suit or
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other proceedings, the value of subject matter of which
exceeds Rs.15,00,000/- shall be heard by a Bench
consisting of not less than Two Judges of the High Court
and other first appeals shall be heard by a Single Judge of
the High Court. The counsel referring this provision would
vehemently contend that this Court is not having
jurisdiction to hear and dispose of the appeal. Hence, it
requires interference of this Court. The counsel also
brought to notice of this Court that though the amendment
is brought on 19.06.2024 regarding this aspect is
concerned, the same has been stayed and the same is not
given any effect. The counsel also would vehemently
contend that this Court also passed the resolution stating
that when the order is stayed in the judicial side regarding
amendment is concerned, the same has not been given
effect. The counsel also would vehemently contend that
Section 21 of CPC cannot be invoked and the High Court
Act, 1961 overrides the CPC and hence, the contention of
the respondent cannot be accepted.
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5. The counsel for the review petitioner in support
of his arguments relies upon the judgment passed by this
Court in MFA No.102577/2014 dated 18.04.2016
wherein also discussed Section 19 of the Civil Courts Act
as well as Section 5 of the High Court Act, 1961 and also
considered the material available on record and comes to
the conclusion that when first appeals lie to the High
Court, all such first appeals, whose value of the subject
matter exceeds Rupees Fifteen Lakhs, shall be heard by a
Bench of not less than two judges of this Court, and other
first appeals shall be heard by a Single Judge of this Court.
6. The counsel also relied upon the judgment
reported in AIR 1990 CALCUTTA 168 in the case of
SOHAN LAL BAID vs STATE wherein also discussion was
made with regard to Article 225 of the Constitution of
India and held that power to hear specified classes of
case, it is derived only from allocation of business among
Judges made by Chief Justice, case not covered by such
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allocation, cannot be heard by Judges sitting singly or in
Division Courts.
7. The counsel also relied upon the judgment
reported in (1998) 1 SCC 1 in the case of STATE OF
RAJASTHAN vs PRAKASH CHAND AND OTHERS
wherein discussed with regard to allocation of work is
concerned and brought to notice of this Court paragraph
59 wherein elaborate discussion was made regarding the
administrative control of the High Court vests in the Chief
Justice alone. One the judicial side, however, he is only
the first amongst the equals and when the work was
allotted to particular Judges by the Chief Justice and if it is
not considered and if there is any exercising of powers, it
amounts to anarchy and chaos and hence, the order
passed by this Court it amounts to without jurisdiction and
hence, order requires to be reviewed.
8. Per contra, the learned counsel appearing for
the respondent brought to notice of this Court the very
proviso of Section 21 of CPC. The counsel referring this
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Section would vehemently contend that when the matter
was heard without any objection and objection ought to
have been taken in the Court at first instance at the
earliest possible opportunity and in all cases where issues
are settled or before such settlement and unless there has
been a consequent failure of justice. The counsel referring
this Section would contend that if there is any objections,
the same ought to have been raised at the initial stage
and Section 21 of CPC is applicable in all proceedings and
the very contention of the petitioner's counsel that the
High Court Act, 1961 overrides the CPC cannot be
accepted. The counsel also would vehemently contend
that unless the review petitioner makes out a case for
failure of justice, cannot seek for review of the order. The
counsel would vehemently contend that the ground which
has been urged in the petition is only with regard to the
pecuniary jurisdiction and no other grounds are urged
before this Court. The counsel would vehemently contend
that even with regard to failure of justice as well as
prejudice was not pleaded in the review petition and only
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ground urged in the review petition is with regard to
pecuniary jurisdiction. Hence, the very contention of the
counsel for the review petitioner cannot be accepted.
9. The counsel for the respondent in support of his
arguments relied upon the judgment of this Court reported
in 1999 (2) KCCR 1379 in the case of SHRI
AMARESHWAR FLOUR MILLS vs JAMBOO KUMAR
AND OTHERS and brought to notice of this Court
paragraph 5 and referring this judgment would
vehemently contend that the Court has to take note of the
fact that in cases where the Court lacks inherent
jurisdiction to pass a decree it may be said to be nullity
and may not be executable and objection to that effect
against execution of decree which is nullity and that
account non-executable may be raised but where
objections to executability of decree is not on the ground
of its being null and void on account of inherent lack of
jurisdiction of the Court passing it, but is based on lack of
territorial jurisdiction of Court passing the decree or lack of
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pecuniary jurisdiction of the Court passing the decree
same are not open to be raised at the execution stage.
The counsel also brought to notice of this Court the
discussion made with regard to the legislative intention
that cause and course of justice should not be allowed to
be obstructed by sheer technicalities. It is also observed
that this intention is exhibited by the provisions of Section
21 of CPC. The counsel also brought to notice of this
Court to further discussion made with regard to Section 21
of CPC provides that objection as to lack of territorial
jurisdiction or as to lack pecuniary jurisdiction of the Court
to entertain and to decree the suit have to be and are
required to raise at the earliest stage of the suit or before
the settlement of issues and if are not so raised the
objection to decree on such ground should not be allowed
to be raised at the stage of appeal or revision from the
decree, unless it is shown that there has been a
consequential failure of justice. Basic concept is justice
should not be denied to any party on the ground of
technicalities and simple technical defects. It is also
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observed that it is always open to the party to waive it, as
such Section 21 provides if objections based on want of
territorial jurisdiction or lack of pecuniary jurisdiction have
not been raised at earliest stages as referred to Section 21
then such objections are not to be allowed to raise at
subsequent stages of appeal or revision etc. The counsel
also brought to notice of this Court to the discussions
made with regard that it should not be liable to be
reversed only on the technical grounds such as lack of
territorial or pecuniary jurisdiction, unless it is shown to
have resulted in the failure of justice and the policy of the
legislature has been to treat objections to jurisdiction on
grounds both of territorial and pecuniary as technical and
not open to consideration at later Stage after decree
passed in the suit. The counsel referring this judgment
would vehemently contend that at the time of
consideration the appeal on merits not raised such
objections and after getting an order which it goes against
the review petitioner, he come up with the ground of
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pecuniary jurisdiction and the said ground is not
maintainable at this stage.
10. The counsel also relied upon the judgment
reported in AIR 1996 SC 1567 in the case of
INDERMANI KIRTIPAL vs UNION OF INDIA AND
OTHERS and brought to notice of this Court paragraph 2
of the judgment wherein also discussion was made with
regard to allocation of work is concerned and also brought
to notice of this Court that Section 21 CPC objections
relating to pecuniary or territorial jurisdiction should be
raised at the earliest and if the parties omit to plead and
raise the objections, at a later stage, unsuccessful party
would be precluded to raise lack of jurisdiction.
11. The counsel also relied upon the recent order of
the Apex Court passed on 01.03.2025 in Civil Appeal
arising out of SLP(C) Nos.15347-15348/2020
wherein discussion was made with regard to Section 21 of
CPC and an observation is made that principle enjoins that
objections regarding the place of suing shall not be
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allowed unless such objection is taken in the
Court/tribunal of first instance at the earliest possible
opportunity and in this judgment, a reference was to the
judgment reported in (2005) 7 SCC 791 in the case of
HARSHAD CHIMAN LAL MODI vs DLF UNIVERSAL
LTD., AND ANOTHER and also the judgment reported in
(2007) 13 SCC 560 in the case of SUBHASH
MAHADEVASA HABIB vs NEMASA AMBASA
DHARMADAS (DEAD) BY LRS AND OTHERS and
referring these judgments comes to the conclusion that
the said objections cannot be raised in a belated stage.
12. The counsel also relied upon the judgment
reported in (2009) 2 SCC 244 in the case of MANTOO
SARKAR vs ORIENTAL INSURANCE COMPANY
LIMITED AND OTHERS and brought to notice of this
Court paragraph 16 wherein also discussion was made
with regard to Section 21 of CPC and held that entertain
an appeal on the ground of lack of territorial jurisdiction on
the part of the Court below unless he has been prejudiced
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thereby. Other respondents did not raise any question of
jurisdiction. Although one witness each had been
examined on behalf of the truck owner and owner of the
bus, neither a question of lack of territorial jurisdiction was
raised nor the question of any prejudice had been argued.
It is only the first respondent who raised the question of
territorial jurisdiction. The counsel also brought to notice
of this Court paragraph 18 of the said judgment wherein
also discussion was made that the Tribunal is a Court
subordinate to the High Court. An appeal against the
Tribunal lies before the High Court. The High Court, while
exercising its appellate power, would follow the provisions
contained in the Code of Civil Procedure or akin thereto.
The counsel referring this judgment also would
vehemently contend that it was, therefore, obligatory on
the part of the appellate Court to pose unto itself the right
question viz., whether the first respondent has been able
to show sufferance of any prejudice. The counsel also
brought to notice of this Court paragraph 20 of the
judgment wherein discussion was made with regard to
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jurisdiction to the subject matter of the suit and that of
territorial and pecuniary jurisdiction and the same should
not have been raised in the absence of any finding of
sufferance of any prejudice on the part of the first
respondent. The counsel referring this judgment also
would vehemently contend that in the similar set of facts
also the Courts came to the conclusion that appellate
Court has the jurisdiction. In the case on hand also the
order is passed by the ESI Court and this Court is having
the appellate jurisdiction.
13. The counsel also relied upon the judgment
reported in AIR 1966 SC 634 in the case of BAHREIN
PETROLEUM CO. LTD vs P J PAPPU AND ANOTHER
and brought to notice of this Court paragraph 3 wherein
also Section 21 of CPC was discussed and held that
Section 21 of CPC provides an exception, and a defect as
to the place of suing, that is to say, the local venue for
suits cognizable by the Courts under the Code may be
waived under this section. The waiver under Section 21 is
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limited to objections in the appellate and revisional Courts.
But Section 21 is a statutory recognition of the principle
that the defect as to the place of suing under Sections 15
to 20 may be waived. Independently of this section, the
defendant may waive the objection and may be
subsequently precluded from taking it. The counsel also
brought to notice of this Court paragraph 4 of the said
judgment and also brought to notice of this Court the
judgment of AIR 1962 SC 199 and the said judgment
was discussed in the earlier judgment and in paragraph 4
also discussion was made and held that on the other hand
an objections as to the local jurisdiction of a Court can be
waived and this principle has been given a statutory
recognition by enactment to Section 21 of CPC. Having
consented to have the controversy between the parties
resolved by reference to arbitration through Court, the
defendant deprived himself of the right to question the
authority of the Court to refer the matter to arbitration or
of the arbitrator to render the award. It is clear, therefore,
that the defendant is estopped from challenging the
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jurisdiction of the Bombay High Court to entertain the suit
and to make the reference to the arbitrator. He is equally
estopped from challenging the authority of the arbitrator
to render the award.
14. The counsel referring these judgments would
vehemently contend that the judgments which have been
relied upon by him even applicable not only in respect of
the case of ESI even in respect of arbitration as well as
other execution of the proceedings. Once the consent was
given and right is waived, cannot raise the objection at the
belated stage. The counsel referring these judgments
would vehemently contend that in the case on hand also
already the review petitioner had suffered the order on
merits and now only ground urged before this Court is
pecuniary jurisdiction and not lack of any inherent
jurisdiction hence, the judgments relied upon by the
review petitioner's counsel cannot be accepted. The
counsel also would vehemently contend that the law is
settled that if only in a case of lack of inherent jurisdiction
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if the order is nullity, then the Court can consider. But in
the case on hand, only pecuniary jurisdiction urged stating
that the value of the appeal exceeds Rs.15,00,000/- and
the same cannot be considered at this stage since the
same is contended after the disposal of the appeal that too
in a review petition. Hence, the said order cannot be
reviewed.
15. Having heard the learned counsel appearing for
the respective parties and also on perusal of the material
available on record as well as considering the principles
laid down in the judgments referred supra, the points that
would arise of the consideration of this Court are:
1. Whether the review petitioner has made out the
ground to review the order passed on merit on
the ground of pecuniary jurisdiction as this
Court is not having a jurisdiction to pass such
an order?
2. What order?
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Point No.1:
16. Having heard the learned counsel appearing for
the respective parties, it is not in dispute that the order is
challenged before this Court in MFA is questioning the
order passed by the ESI Court. It is contended that the
ESI Court committed an error in reducing the damages of
Rs.6,00,000/- as against Rs.26,34,569/- and appeal was
preferred against this order and this Court allowed the said
appeal and set aside the order of the ESI Court and
restore the order of the concerned competent authority.
Now the review petitioner filed this petition only on the
ground that Section 5(i) of the High Court Act, 1961 says
that all first appeals against a decree or order passed in a
suit or other proceedings, the value of subject matter of
which exceeds Rs.15,00,000/- shall be heard by a Bench
consisting of not less than Two Judges of the High Court
and other first appeals shall be heard by a Single Judge of
the High Court. Hence, this Court would like to refer
Section 5 (i) of the High Court Act, 1961 which reads as
follows:
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"5. First appeals.-- (i) all First Appeals
against a decree or order passed in a suit or other
proceedings, the value of subject matter of which
exceeds fifteen lakh rupees shall be heard by a
Bench consisting of not less than two Judges of the
High Court and other First Appeals shall be heard by
a Single Judge of the High Court."
17. The learned counsel for the respondent also
relied upon Section 21 of CPC in support of his argument
and hence, this Court also would like to refer Section 21 of
CPC which reads as follows:
"21. Objections to jurisdiction. (1) No
objection as to the place of suing shall be allowed by
any Appellate or Revisional Court unless such
objection was taken in the Court of first instance at
the earliest possible opportunity and in all cases
where issues are settled at or before such
settlement, and unless there has been a consequent
failure of justice.
(2) No objection as to the competence of a
Court with reference to the pecuniary limits of its
jurisdiction shall be allowed by any Appellate or
Revisional Court unless such objection was taken in
the Court of first instance at the earliest possible
opportunity, and, in all cases where issues are
settled, at or before such settlement, and unless
there has been a consequent failure of justice.
(3) No objection as to the competence of the
executing Court with reference to the local limits of
its jurisdiction shall be allowed by any Appellate or
Revisional Court unless such objection was taken in
the executing Court at the earliest possible
opportunity, and unless there has been a consequent
failure of justice."
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18. Having considered the proviso of Section 5(i) of
the High Court Act, it is very clear that the first appeal
which valued more than Rs.15,00,000/-, shall be heard by
a Bench consisting of not less than two Judges of the High
Court and other First Appeals shall be heard by a Single
Judge of the High Court and no dispute with regard to said
Section. It is important to note that the counsel for the
respondent also relied upon Section 21 of CPC in respect
of jurisdiction is concerned. Having read the proviso of
Section 21 referred above, it is very clear that no objection
as to the place of suing shall be allowed by any Appellate
or Revisional Court unless such objection was taken in the
Court of first instance at the earliest possible opportunity
and in all cases where issues are settled at or before such
settlement, and unless there has been a consequent
failure of justice.
19. The counsel for the review petitioner would
contend that deciding the matter by the Single Judge as
against the roster it leads to a anarchy and chaos. This
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contention cannot be accepted for the reason that when
the matter was listed before the Single Bench that means
this Bench, while hearing the matter, he did not raise said
objection and he kept quiet and argued the matter on
merits when the order has been passed and it goes
against him, the present petition is filed only on the
ground that this Court is not having any jurisdiction.
20. It is important to note that having taken note of
Section 21 of CPC, it is very clear that if there is any
objection with regard to the jurisdiction, same has to be
raised at the earliest possible opportunity but the same
has not been done and now, after passing the order, when
the said order goes against him, the present review
petition is filed on the ground of pecuniary jurisdiction.
21. The judgments which have been relied by the
petitioner's counsel i.e., in the case of STATE OF
RAJASTHAN; MFA No.102577/2014 as well as the case
of SOHAN LAL BAID, all are with regard to allocation of
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work is concerned and it is not in dispute that
administration control of the High Court vests with the
Hon'ble Chief Justice alone. But in the case on hand, it is
not a case of allocation of work to the Single Judge and
the objection raised in this petition is with regard to
pecuniary jurisdiction that too after disposal of the appeal.
In the case of MANTOO SARKAR referred supra, it is held
that when there is no any prejudice is caused to either
side, the question of entertaining the review petition does
not arise. The counsel for the respondent also contends
that no pleading in the review petition with regard to
causing of prejudice is concerned. The respondent counsel
also relied upon the judgment of BAHREIN PETROLEUM
CO. LTD's case referred supra wherein it is held that
Section 21 of CPC was discussed and held that Section 21
of CPC provides an exception, and a defect as to the place
of suing, that is to say, the local venue for suits cognizable
by the Courts under the Code may be waived under this
section. The waiver under Section 21 is limited to
objections in the appellate and revisional Courts. But
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Section 21 is a statutory recognition of the principle that
the defect as to the place of suing under Sections 15 to 20
may be waived. Independently of this section, the
defendant may waive the objection and may be
subsequently precluded from taking it. The counsel
referring this judgment would vehemently content that the
petitioner had waived his right when the matter come up
before this Court for final hearing. The counsel also relied
upon the case of SHRI AMARESHWAR FLOUR MILLS
referred supra wherein this Court in detail dealt with
regarding Section 21 of the CPC wherein it is held that
such objections are not to be allowed which raised
subsequent stages of appeal or revision and etc.
22. In the case on hand also such objections has
not been raised when the matter was heard on merit and
even specific observation is made in the judgment referred
supra that it should not be liable to be reversed only on
the technical grounds such as lack of territorial or
pecuniary jurisdiction, unless it is shown to have resulted
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in the failure of justice and the policy of the legislature has
been to treat objections to jurisdiction on grounds both of
territorial and pecuniary as technical and not open to
consideration at later Stage after decree passed in the
suit. In the case on hand also when the appeal is
considered on merits and after disposal of the appeal, the
review petitioner come up with the said objections and
hence, this Court also even discussed in detail that even if
any lack of inherent jurisdiction, such objection can be
raised but in the case on hand, only ground urged is with
regard to pecuniary jurisdiction. It is also important to
note that the Apex Court in the recent judgment dated
01.03.2025 in Civil Appeal arising out of SLP(C)
Nos.15347-15348/2020 referred supra also discussed
Section 21 of CPC and an observation is made that
principle enjoins that objections regarding the place of
suing shall not be allowed unless such objection is taken in
the Court/tribunal of first instance at the earliest possible
opportunity and in this judgment, a reference was to the
judgment reported in (2005) 7 SCC 791 in the case of
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HARSHAD CHIMAN LAL MODI vs DLF UNIVERSAL
LTD., AND ANOTHER and also the judgment reported in
(2007) 13 SCC 560 in the case of SUBHASH
MAHADEVASA HABIB vs NEMASA AMBASA
DHARMADAS (DEAD) BY LRS AND OTHERS and
referring these judgments comes to the conclusion that
the said objections cannot be raised in a belated stage.
Even in the case of INDERMANI KIRTIPAL referred
supra also discussion was made with regard to allocation
of work is concerned and also brought to notice of this
Court that Section 21 CPC objections relating to pecuniary
or territorial jurisdiction should be raised at the earliest
and if the parties omit to plead and raise the objections, at
a later stage, unsuccessful party would be precluded to
raise lack of jurisdiction. In the case on hand also when
the review petitioner was unsuccessful in the appeal, come
up for review of the order of the appeal only on the ground
of pecuniary jurisdiction. Hence, the Court has to take
note of the conduct of the review petitioner in filing this
review petition.
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23. The counsel for the review petitioner only
ground urged in this petition is pecuniary jurisdiction and
no other ground has been urged that is ground of failure of
justice or any prejudice as contended by the counsel for
the respondent and no pleadings to that effect. Section 21
of CPC is clear that same is applicable to any other
proceedings also as observed by the Apex Court. The very
contention of the counsel for the review petitioner that
High Court Act overrides Section 21 and the said
contention cannot be accepted. The review petitioner has
not raised any such objections earlier and only after
disposal of the appeal that too when the order goes
against him, he has come with this objection and hence,
this Court has to take note of the conduct of the petitioner
and when the principles are settled as referred supra in
the judgments relied upon by the respondent counsel and
when there is no lack of inherent jurisdiction, the very
contention of the petitioner cannot be accepted. Hence, I
answer the above point as negative.
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Point No.2:
24. In view of the discussions made above, I pass
the following:
ORDER
The review petition is dismissed with cost of
Rs.25,000/- payable within four weeks from today. If cost
not paid in time, registry is directed to recover the same in
accordance with law.
Sd/-
(H.P.SANDESH)
JUDGE
SN
