Partly allowed

Sri. M K Ananth v. M/S Indian Bank

Karnataka HC3 Sept 2021CRP/521/2017

Case brief

AI extract

What is this about?

High Court of Karnataka maintained two Civil Revision Petitions challenging the imposition of a predeposit condition for restoring a suit and the maintainability of a CRP after non-compliance. The court set aside the predeposit condition, ordered deposit, and restored the suit.

What did the court decide?

Petitioners directed to deposit Rs.3,22,148/- within four weeks; suit restored for hearing on 07.10.2021 without further notice.

Sri. M K Ananth Vs M/S Indian Bank — Execution and Attachment | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 03RD DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ

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CRP NO.520 OF 2017 C/W CRP NO.521/2017 (M)

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IN CRP NO.520/2017

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BETWEEN:

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SRI. M K ANANTH

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AGED ABOTU 69 YEARS

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S/O K.R.KRISHNAMURTHY,

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SMT. SHAILAJA ANANTH

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AGED ABOUT 61 YEARS,

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W/O M.K.ANANTH

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BOTH RESIDING AT NO.1, HOSUR ROAD, BENGALURU-560025. (BY SRI.ABHINAV.R, ADVOCATE)

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... PETITIONERS

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AND:

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M/S INDIAN BANK A BODY CORPORATE CONSTITUTED UNDER THE BANKING COMPANIES (ACQUISITION AND TRANSFER FOR UNDERTAKINGS) ACT V OF 1970, HAVING ITS HEAD OFFICE AT NO.66, RAJAJI SALAI, POST BOX NO.1384, CHENNAI-600 001. AND BRANCH INTER-ALIA AT RICHMOND CIRCLE BRANCH, SHIVAHSHANKAR PLAZA, 19, LALBAGH ROAD, BENGALURU-560027. REPRESENTED BY ITS CHIEF MANAGER

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... RESPONDENT

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(BY SRI.YOGESH KUMAR H.S, ADVOCATE)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC, 1908 PRAYING TO SET ASIDE THE ORDER 29.08.2017 PASSED IN MIS.NO.157/2011 ON THE FILE OF THE ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU PARTLY ALLOWING THE PETITION FILED UNDER ORDER IX RULE 13 OF CPC AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 12.07.2010 PASSED IN O.S NO.253/2007 AND THE SAID SUIT IS RESTORED TO ITS FILE SUBJECT TO THE CONDITIONS THAT THE PETITIONERS HEREIN/DEFENDANTS IN THE SAID SUIT, SHALL - DEPOSIT RS.3,22,148/- ON OR BEFORE THE NEXT HEARING DATE FAILING WHICH, ORDER OF ALLOWING THE ABOVE PETITION WILL AUTOMATICALLY STANDS CANCELLED.

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IN CRP NO.521/2017

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BETWEEN:

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SRI. M K ANANTH AGED ABOTU 69 YEARS

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S/O K.R.KRISHNAMURTHY,

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SMT. SHAILAJA ANANTH AGED ABOUT 61 YEARS, W/O M.K.ANANTH

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BOTH RESIDING AT NO.1, HOSUR ROAD, BENGALURU-560025.

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... PETITIONERS

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(BY SRI.ABHINAV.R, ADVOCATE)

AND:

... RESPONDENT

(BY SRI.YOGESH KUMAR H.S, ADVOCATE)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC, 1908 PRAYING TO SET ASIDE THE ORDER 04.11.2017 PASSED IN MIS.NO.157/2011 ON THE FILE OF THE ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU HOLDING THAT SINCE AMOUNT AS ORDERED ON 29.08.2017 IS NOT DEPOSITED ALLOWING OF PETITION STANDS CANCELED.

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THESE CRPs COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners are before this Court seeking for setting aside the order dated 29.08.2017 passed by Additional City Civil and Sessions Judge in Miscellaneous Petition No.157/2011 insofar as imposition of condition of predeposit of amount of Rs.3,22,148/-.

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The suit in O.S No.253/2007 has been filed by the respondent herein against the petitioners seeking for recovery of certain amounts advanced by the respondent bank to the petitioners. The said suit came to be decreed for an amount of Rs.4,66,434.87 along with interest at the rate of 16% p.a.

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Prior to the said decree, notice has been ordered to the petitioners who were not served physically but were served by substituted service by way of paper publication in the newspaper 'Udayavani'.

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In this background, Misc.P No.157/2011 came to be filed on 23.02.2011 to set aside the decree dated 12.07.2010 passed in O.S No.253/2007. The trial Court allowed the miscellaneous petition and restored the file to the suit. However, directed the petitioners to deposit a sum of Rs.3,22,148/- before next date of hearing, failing which, the order of allowing the above petition would automatically stand cancelled. It is this condition which is challenged before this Court.

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Sri.Abhinav.R, learned counsel for the petitioners by relying the decision in Tea Auction Ltd. v. Grace Hill Tea Industry reported in (2006) 12 SCC 104 , more particularly, paragraph 14 thereof contends that the trial Court did not exercise its jurisdiction in a proper and required manner. There is no reason ascribed by the trial Court for imposition of the condition to deposit Rs.3,22,148/- and therefore, he submits that the restoration had to be made without any condition.

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Per contra, Sri.Yogesh Kumar H.S, learned counsel for the respondent submits that the suit was filed for recovery of Rs.4,66,434.87 which included interest as on that day principal amount being Rs.3,22,148/-. The

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decree has been passed on 12.07.2010. Petitioners have successfully delayed the matter, till now. The interest of the respondent bank is adversely affected. These facts though not mentioned in the order where the clause of such a condition being imposed, therefore, he submits that this Court ought not be interfere with the order passed by the trial Court.

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Heard Sri.Abhinav.R, learned counsel for the petitioners and Sri.Yogesh Kumar, learned counsel for the respondent.

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Admittedly, a suit has been filed in the year 2007. Admittedly, paper publication has been taken out in Udayavani. On account of service having not been done, the Civil Procedure Code provides for such service, hence, ordinarily a paper publication once taken up would be deemed service on the part of the defendant in a suit. This would however be for the defendant to establish by rebutting this presumption that the defendant did not know or was not capable of knowing about paper publication. No such evidence has

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been led nor that fact has been examined by the trial Court.

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Be that as it may, the trial Court but the order dated 29.08.2017 has been passed by allowing the miscellaneous petition. Thereafter, no challenge has been made to the said order. It is only the successful petitioners who are before this Court challenging the conditional order.

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The decree having been passed in the year 2010 for an amount of Rs.4,66,434.87 plus 16% interest from 09.01.2007, the further interest by 2010 had accumulated to an extent of Rs.1,50,000/- as on today the interest which has been accumulated would not be less than Rs.6.00 lakhs. Thus, I do not find any reason now to interfere with the order passed by the trial Court the condition stands.

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Petitioners are directed to deposit a sum of Rs.3,22,148/- within a period of four weeks from today since the order has been passed in the presence of the counsel. It the deposit is not been made by 04.10.2021 this order will automatically stand recalled.

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12. Petition is dismissed

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In Crl.P.521/2017

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Sri.Yogesh Kumar, learned counsel accepts notice for the respondent.

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Office has raised objection with regard to maintainability of the order dated 04.11.2017 in view of Order 43 Rule 1(d) of CPC stating that petition is maintainable on account of dismissal of an application under Order 9 Rule 13 CPC.

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In the present case as observed while dealing with CRP No.520/2017, miscellaneous petition was in fact allowed. However, on account of the violation of the condition, fruits of this order were not available to the petitioners and petition came to be dismissed for non compliance. Hence, I am of the considered opinion that the Civil Revision Petition would be maintainable.

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In view of the orders passed in CRP No.520/2017

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where a condition is imposed, taking into account that the petitioner was before this Court challenging the conditional order due to which petitioner has been deprived of the order since then petition has been

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restored by order passed in CRP No.520/2017. The petitioner and the respondent are directed to appear before the trial Court in the restored suit on 07.10.2021 without requirement of further notice.

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The trial Court is directed to ascertain if the deposit has been made on or before 04.10.2021 as directed in CRP No.520/2017. If the deposit has been made, to take up the matter and proceed thereafter. If deposit has not been made, there would be no requirement for the trial Court to proceed in the matter.

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Sd/JUDGE

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Sri. M K Ananth v. M/S Indian Bank

Case brief

What is this about?

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Sri. M K Ananth v. M/S Indian Bank

Case brief

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