Allowed

Mahantesh Shankaragouda Patil v. Shankranna Karabasappa Karabasannavar

Karnataka HC27 Nov 2020CRP/1082/2009

Case brief

AI extract

What is this about?

The High Court allowed civil revision petitions filed by a dual litigant defendant, reversing a trial court decree that ignored a filed counter-claim. The High Court held that the suit must be remanded and disposed of afresh in compliance with Order VIII Rule 6A of the CPC.

What did the court decide?

Allowed both civil revision petitions, set aside the impugned judgment and decree, and remanded the matter for fresh disposal in accordance with Order VIII Rule 6A CPC.

Mahantesh Shankaragouda Patil Vs… — Contract and Commercial Disputes | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 27^TH DAY OF NOVEMBER, 2020

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BEFORE

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THE HON’BLE DR.JUSTICE H.B.PRABHAKARA SASTRY

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CIVIL REVISION PETITION No.1076 OF 2009 c/w. CIVIL REVISION PETITION No.1082/2009

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CIVIL REVISION PETITION No.1076 OF 2009

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BETWEEN:

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Mahantesh Shankargouda Patil Age: 35 years, Occ: LIC Agent, R/o. Devagiri, now at Murugarajendramath Kaginelli Road, Haveri.

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.. Petitioner (common in both CRPs.)

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(By Sri S.H. Mittalkod for Sri.V.M. Sheelvant, Advocate)

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AND:

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Shankranna Karabasappa Karabasannavar, Age: 45 years, Occ: Business & Agriculture, R/o. Gandhi Road, Haveri.

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.. Respondent

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(common in both CRPs.)

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(By Sri. Shivaraj S. Balloli, Amicus Curiae )

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Civil Revision Petition No.1076/2009 is filed under Section 115 of the Code of Civil Procedure, 1908, r/w. Section 18 of the Karnataka Small Cause Courts Act, 1962, praying to set aside the judgment and decree dated

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C.R.P.No.1076/2009 c/w. C.R.P.No.1082/2009 2

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04-06-2009 passed by the Civil Judge (Sr.Dn.) Haveri, in Small Cause No.1/2004, in the interest of justice and equity, etc.

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Civil Revision Petition No.1082/2009 is filed under Section 115 of the Code of Civil Procedure, 1908, r/w. Section 18 of the Karnataka Small Cause Courts Act, 1962, praying to set aside the judgment and decree dated 04-06-2009 passed by the Civil Judge (Sr.Dn.) Haveri, in Small Cause No.1/2004, in so far as the counter-claim is concerned, in the interest of justice and equity, etc.

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These Civil Revision Petitions having been heard through Physical Hearing/Video Conferencing Hearing and reserved for orders on 18-11-2020 , coming on for pronouncement this day, the Court made the following:

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O R D E R

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Both these petitions have been filed by the defendant in S.C.No.1/2004 on the file of the learned Senior Civil Judge (Sr.Dn.), Haveri (hereinafter for brevity referred to as the “Trial Court”) aggrieved by its judgment and decree dated 04-06-2009.

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Civil Revision Petition No.1076/2009 has been filed seeking setting aside of the said judgment and decree dated 04-06-2009 passed by the Trial Court in S.C. No.1/2004, whereas Civil Revision Petition

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C.R.P.No.1076/2009 c/w.

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C.R.P.No.1082/2009 3

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No.1082/2009 is filed seeking setting aside of the very same judgment and decree in so far as counter-claim is concerned.

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The present respondent was the plaintiff in the Trial Court who had instituted a suit for recovery of money against the present petitioner arraigning him as a defendant in the Trial Court.

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The Summary of the case of the plaintiff in the Trial Court was that, the defendant was a close associate of one Sri. M.S. Hiremath and through the said Sri. M.S. Hiremath approached the plaintiff for financial assistance of a sum of 40,000/-. However, the plaintiff gave him a financial assistance of 20,000/- on 09-06-2001 through a cheque bearing No.218232. Since the defendant was also known to the plaintiff, no document was executed towards the said transaction. Though the defendant had agreed to repay the said amount within a month to the plaintiff, but even after

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C.R.P.No.1076/2009 c/w.

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C.R.P.No.1082/2009 4

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encashing and utilising the money and lapse of the agreed time, he did not repay the said amount. This made the plaintiff to issue a legal notice to the defendant through his counsel on 04-03-2002. However, the defendant sent an untenable reply dated 23-03-2002 by creating a story of purchase of pump set

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and wiring for 30,000/- from the plaintiff and that the plaintiff even after receiving 30,000/- is said to have failed to install the pump set. With this, the defendant, in his reply notice, claimed refund of the alleged balance of 10,000/- from the plaintiff himself. This made the plaintiff to institute a suit for recovery of a sum of 20,000/- from the defendant.

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In response to the summons served upon him, the defendant appeared through his counsel and filed his Written Statement denying the plaint averments and contending that his family possesses land to an extent of 20 acres and that he is also earning as an LIC agent, thus he had no necessity to borrow any loan from the

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C.R.P.No.1076/2009 c/w.

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C.R.P.No.1082/2009

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plaintiff. He also denied that he had approached the plaintiff for any hand loan, on the other hand, he contended that since the plaintiff was running a shop in electrical goods and borewell Motors, he (the defendant) along with one Sri.Hulageri A.M. and Chikkappa Basavanneppa Bogali approached the plaintiff and paid him a sum of 30,000/- for installation of submersible motor pump set and connected electrical equipments. However, the plaintiff even after receiving the money, failed to perform his promise and was postponing the installation of the motor. Due to the constant demand by the defendant for refund of his money, the plaintiff has paid only a sum of 20,000/- to him on 09-06-2001 through a cheque and the balance of 10,000/- is still due to be payable by the plaintiff to him (the defendant). With this, he made a counter-claim for a decree for the said sum of 10,000/- from the plaintiff.

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Based on the pleadings of the parties, the Trial Court framed the following points for its consideration:-

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C.R.P.No.1076/2009 c/w.

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C.R.P.No.1082/2009

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[1] Whether the plaintiff proves that, the defendant has borrowed a sum of ` 20,000/- on 9.6.2001 from him through cheque drawn on State Bank of Mysore, Haveri Branch?

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[2] Whether defendant proves that the said cheque through which he drawn _20,000/- was in respect of_ 30,000/- paid by him to the plaintiff for purchase of pumpset and wiring?

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[3] Whether plaintiff is entitled for decree for the suit claim?

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[4] Whether the defendant is entitled for the counter-claim of ` 10,000/- against defendant?

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[5] To what decree or order?

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In order to prove his case, the plaintiff got

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himself examined as PW-1 and also examined two more witnesses as PW-2 and PW-3 and got marked documents from Exhibits P-1 to P-6(a). The defendant in his support got himself examined as DW-1 and got examined a witness for him as DW-2 and also marked documents as Exhibits from D-1 to D-14.

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After hearing both side, the Trial Court in its impugned judgment and decree dated 04-06-2009 answered points No.1 and 3 in the affirmative, points No.2 and 4 in the negative and proceeded to decree the

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C.R.P.No.1076/2009 c/w. C.R.P.No.1082/2009 7

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suit of the plaintiff, holding that he is entitled to recover a sum of 20,000/- from the defendant with costs and interest at 6% per annum from the date of suit till the date of realisation. It is challenging the said judgment and decree, the defendant has filed these two Civil Revision petitions.

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The respondent was the plaintiff in the Trial Court. Even after service of notice upon him, he has remained absent. As such, this Court by its order dated 05-11-2020 appointed learned counsel Sri. Shivaraj S. Balloli as Amicus Curiae for the respondent in both the matters.

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Heard arguments from both side. Perused the

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material placed before this Court including the impugned judgment and the Trial Court records.

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After hearing both side, the only point that arise for my consideration in these two revision petitions

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is:-

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C.R.P.No.1076/2009 c/w.

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C.R.P.No.1082/2009

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“ whether the impugned judgment sustains, in the absence of Trial Court not giving any finding on the alleged counter-claim of the defendant,?”

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Learned counsel for the petitioner in his brief argument canvassed only one point that, admittedly,

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when the Trial Court has noticed that the defendant has preferred a counter-claim for a sum of `10,000/- against the plaintiff, it ought not to have disposed of the plaintiff’s suit alone without inviting the objections, if any by the plaintiff to the counter-claim and without giving any finding on the counter-claim of the defendant.

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Learned Amicus Curiae for the respondent also

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in his brief argument submitted that since one of the points raised by the Trial Court is about the defendant’s entitlement for his counter-claim of `10,000/- against the plaintiff, as such, the impugned judgment does not warrant any interference at the hands of this Court.

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C.R.P.No.1076/2009 c/w. C.R.P.No.1082/2009

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The Trial Court in its impugned judgment itself has acknowledged that the defendant in his Written Statement has specifically contended that the cheque which was given by the plaintiff for a sum of 20,000/on 09-06-2001 was in respect of a sum of 30,000/which was payable to the defendant from the plaintiff.

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The impugned judgment also mentions that the defendant made a counter-claim for the decree of the said sum of 10,000/- with compensatory costs and the defendant has also stated that he was ready to pay the Court fee on the said amount. The impugned judgment further mentions that the defendant also filed a memo on 02-08-2008 seeking permission to pay the court fee on the counter-claim. Thus, the Trial Court clearly and specifically acknowledged that there exists a counterclaim from the defendant against the plaintiff for a sum of 10,000/-.

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Order VIII Rule 6A of the Code of Civil Procedure, 1908, reads as below:-

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C.R.P.No.1076/2009 c/w.

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C.R.P.No.1082/2009 10

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“6A. Counter-claim by defendant.-(1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:

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Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

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(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.

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(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.

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(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.”

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In the instant case, admittedly, the

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defendant’s counter-claim was within the pecuniary

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limits of the jurisdiction of the Trial Court. Once a counter-claim is filed, the plaintiff was at liberty to file a written statement in answer to the counter-claim of the

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C.R.P.No.1076/2009 c/w. C.R.P.No.1082/2009 11

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defendant within such period as may be fixed by the Court.

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A perusal of the order sheet maintained by the

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Trial Court would go to show that, after the defendant filed his Written Statement including his counter-claim on 16-09-2004, the Trial Court did not give any opportunity to the plaintiff to file his Written Statement in answer to the counter-claim of the defendant. That apart, the counter-claim which had the same effect as a cross-suit was entitled to have a pronouncement of a final judgment upon it, however,the impugned judgment in its operative portion does not mention anything about

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the fate of the counter-claim of the defendant. No doubt, point No.4 framed by the Trial Court in its judgment for consideration pertains to the defendant’s entitlement for counter-claim of `10,000/- and the same was answered in the negative, but as already observed above, the Trial Court did not invite any Written Statement to the said counter-claim from the plaintiff. Had really it invited

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C.R.P.No.1076/2009 c/w.

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C.R.P.No.1082/2009

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the Written Statement/objections, if any, by the plaintiff to the said counter-claim, the defendant might have known the response of the respondent/plaintiff for his alleged counter-claim. Further even in the operative portion of the impugned judgment also, the Trial Court has not mentioned about the dismissal of the counterclaim, if it really intended to dismiss it.

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Interestingly, even according to the impugned judgment, during pendency of the suit of the plaintiff, the defendant filed a memo on 02-08-2008, seeking permission to pay the court fee on the counter-claim.

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A perusal of the order sheet maintained by the Trial Court would go to show that, after receiving the said memo and taking the same on record, the Trial Court though adjourned the matter to hear on the said memo and in its proceeding dated 29-05-2009 mentioned that, it heard in part on main suit and court fee on counter-claim, but, on the next date of hearing

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C.R.P.No.1076/2009 c/w.

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C.R.P.No.1082/2009 13

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i.e. on 01-06-2009 it proceeded to reserve the matter

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for judgment. In the impugned judgment, there is no mention about the defendant’s request to permit him to pay the court fee on the counter-claim through his memo dated 02-08-2008. Without giving any finding on the memo and without passing any order on the said memo, though in its order sheet, the Trial Court mentioned that the parties were heard on the court fee, it proceeded to ignore the memo and defendant’s counter-claim and proceeded to decree the suit of the plaintiff. Therefore, the procedure followed by the Trial Court is not in accordance with the relevant Rules, i.e. Order VIII Rule 6A of the Code of Civil Procedure, on the contrary, it has caused prejudice to the interest of the defendant. Consequently, the decree of the plaintiff’s suit deserves to be set aside and the matter deserves to be remanded to the Trial Court for its fresh disposal in accordance with law.

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Accordingly, I proceed to pass the following:-

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C.R.P.No.1076/2009 c/w.

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C.R.P.No.1082/2009 14

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O R D E R

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[i] The Civil Revision Petition No.1076/2009 and Civil Revision Petition No.1082/2009 are allowed;

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[ii] The impugned judgment and decree dated 04-06-2009 passed by the learned Civil Judge (Sr. Dvn.), Haveri in Small Cause No.1/2004 is hereby set aside;

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[iii] The matter is remanded to the Court of the learned Civil Judge (Sr.Dvn.), Haveri, with a direction to dispose of the suit in Small Cause No.1/2004 afresh, after following the procedure laid down in Order VIII Rule 6A of the Code of Civil Procedure, 1908, with respect to the defendant’s counter-claim before it;

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[iv] In view of the fact that the original suit is of the year 2004, and in order to avoid any further delay in the matter, the Trial Court disposing of the entire suit

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C.R.P.No.1076/2009 c/w.

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C.R.P.No.1082/2009 15

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within four months from the date of this order is highly

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appreciated;

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[v] In order to enable the Trial Court to dispose of the matter at the earliest, both the parties herein are directed to appear before the Trial Court on 18-12-2020 at 11:00 a.m. without anticipating any fresh summons or notice from it;

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[vi] Registry to keep the original of this order in C.R.P.No.1076/2009 and a copy thereof in the connected Civil Revision Petition.

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[vii] The Court while acknowledging the services rendered by the learned Amicus Curiae for the respondent, recommends honorarium of a sum of not less than `3,000/- payable to him by the registry.

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[viii] In view of disposal of the main petitions, I.A.No.1/2015 filed in C.R.P.No.1076/2009 does not survive for consideration.

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C.R.P.No.1076/2009 c/w.

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C.R.P.No.1082/2009 16

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Registry to transmit a copy of this order along

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with the Trial Court records to the concerned Trial Court

forthwith.

Sd/-

JUDGE

BMV*

Mahantesh Shankaragouda Patil v. Shankranna Karabasappa Karabasannavar

Case brief

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Mahantesh Shankaragouda Patil v. Shankranna Karabasappa Karabasannavar

Case brief

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What did the court decide?

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