The High Court allowed an appeal against the dismissal of a money recovery suit. The lower court erred in dismissing the suit while proceedings for judgment under Order 37 were pending. The matter was remitted for disposal on merits.
Impugned order set aside. Matter remitted to trial Court for disposal. Court fee refunded to appellant.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 07TH DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR. JUSTICE HULUVADI G.RAMESH
REGULAR FIRST APPEAL NO.944 OF 2003
BETWEEN : SRI R A BATAVIA, 61 YEARS S/O AMICHANDJI BATAVIA PROP. M/S P.D.BROS NO 158, CUBBONPET MAIN ROAD BANGALORE-2
...APPELLANT
( By Sriyuths S J SANGHVI, N S SHIVAKUMAR, GOVIND BHAT AND N K VIJAYAKUMAR, ADVS)
AND :
M/S ELITE BAKERS PVT LTD BY ITS MANAGING DIRECTOR PLOT NO 21, PHASE II SIPCOT INDUSTRIAL COMPLEX HOSUR-635 109 ALSO AT VELEPPAY(PO) ATHANI, THRISSUR
...RESPONDENT
( By Sriyuths K G C PRABHU, S MOHAN AND T M VEERESHS, ADVS)
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THIS R.F.A. IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE ORDER DT.24.6.2003 PASSED IN O.S.NO.6831/02 ON THE FILE OF THE 31ST ADDL. CITY CIVIL JUDGE, BANGALORE, CCH NO.14, DISMISSING THE SUIT FOR RECOVERY OF MONEY.
THIS R.F.A.COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the plaintiff challenging the order passed by the XXXI Addl. City Civil Judge, Bangalore in O.S.No.6831/2002.
the principal amount of Rs.1,61,620.40. He was a wholesale dealer of various kinds of chemicals. The defendant who is a baker, is a customer of the plaintiff at Bangalore. For having supplied the goods to the defendant on 30 days credit basis worth Rs.3,70,234.45 between 22.11.2000 and 23.5.2002 personally through common carriers, defendant has made total payment of Rs.2,08,614 to the plaintiff and
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for the remaining amount of Rs.1,61,620.40 defendant has failed to submit Form No.C to the plaintiff to claim sales tax benefit amounting to Rs.22,214/- and also failed to settle the dues of the plaintiff despite repeated requests. As such, a legal notice was issued on 14.8.2002 and on failure of the defendant to make payment, suit came to be filed. After serving suit summons, defendant appeared through his counsel wherein plaintiff has served summons on judgment in Form No.4A. Subsequently, as the defendant did not turn up, an application was filed in Form No.4A by the plaintiff on 16.6.2003 along with a memo and a postal cover acknowledgment which was returned as not claimed, requesting the Court to proceed to pass the judgment. In the application filed in Form No.4A, it is stated by the plaintiff that all the parties concerned have to attend the Court on 27.3.2003 around 11 O' clock in the forenoon on the hearing of the application of the plaintiff which is supported by an undelivered postal cover as 'not claimed'. Accordingly, he sought for rendering of the judgment. However, the trial Court has dismissed the suit of the
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plaintiff, as against which, the plaintiff is in appeal before this Court.
that instead of decreeing the suit on the basis of Form No.4A filed, the trial Court has proceeded to dismiss the suit, which is illegal and without application of mind.
Whether the trial Court is justified in dismissing the suit of the plaintiff?
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application filed, and the trial Court has dismissed the very suit itself. The trial Court, on the ground that as per Rule 5 of Code of Civil Procedure, the defendant at any time, within 10 days from the date of
serving of summons on judgment, may seek leave of the Court to defend the suit and that the suit summons on judgment is not at all issued or served on the plaintiff, as such, there is no proper service as required under Order 37 Rules 4 and 5 of Civil Procedure Code, has dismissed the very suit itself, instead of dealing with the application filed for rendering the judgment.
application filed by the plaintiff and permitted him to lead evidence and after affording an opportunity to the defendant, on his appearance on permitting him to defend the suit, matter could have been disposed of on merits, in stead, plaintiff is made to suffer for the fault of the defendant. When Form No.4A sent to the defendant and his counsel were returned as unclaimed, the trial Court ought to have treated the
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same as sufficient service to deal with the application itself. Be that as it may. The trial Court ought not to have dismissed the very suit filed by the plaintiff.
it is for the trial Court to dispose of the matter. Court fee paid be refunded to the appellant-plaintiff.
Sd/JUDGE
Bkp
1 issue framed by the court
Whether the trial Court was justified in dismissing the plaintiff's suit instead of disposing the Form No.4A application?
3 provisions across 1 enactments
Sri R A Batavia
M/S Elite Bakers Pvt Ltd
Huluvadi G. Ramesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
