Allowed

Manjunath Basavaraju v. Pushpalatha B G

Karnataka HC8 Dec 2022MFA/469/2018

Case brief

AI extract

What is this about?

This Miscellaneous First Appeal allowed the transfer of O.S. No. 2953/2017 from the Civil Court to the Special Court. The High Court directed the appellant to file necessary applications and appealed for refund of court fees to be considered within two weeks after transfer.

What did the court decide?

Order transferring O.S. No. 2953/2017 to Special Court and directing appellant to file application within one month. Trial Court to consider refund of court fee application within two weeks of transfe

Manjunath Basavaraju Vs Pushpalatha B G — Civil Procedure and Limitation | Karnataka HC (2022)

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MFA No. 469 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8^TH DAY OF DECEMBER, 2022 BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI MISCELLANEOUS FIRST APPEAL NO. 469 OF 2018 (CPC)

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BETWEEN:

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MANJUNATH BASAVARAJU, S/O G.T. BASAVARAJU, AGED ABOUT 36 YEARS, NO.86, 1^ST FLOOR, 10^TH CROSS, 1^ST MAIN, MALLESHWARAM, BENGALURU 560 003, SPA HOLDER N. GANESH.

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…APPELLANT

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[BY SRI. MANIAN K.B.S., ADVOCATE (PH)]

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AND:

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PUSHPALATHA B.G., W/O SRINIVAS MUNIPAPPEGOWDA, AGED ABOUT 59 YEARS, PROPREITRIX, SHREYAS FINANCE & INVESTMENTS, A PORPRIETORSHIP CONCERN, HAVING REGISTERED OFFICE NO.56/1, 3^RD FLOOR, 9^TH LMAIN, (OPP. SAMSKRITHI CONVENTION HALL), 5^TH BLOCK, JAYANAGAR,BENGALURU 560 004.

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Digitally signed by GURURAJ D Location: High Court Of Karnataka

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SRINIVAS MUNIPAPPE GOWDA, S/O LATE Y.V. MUNIPAPPEGOWDA, AGED ABOUT 61 YEARS, HAVING ADDRESS AT NO.969, 54^TH "C" CROSS, VIJAYA BANK LAYOUT, BEHIND IIM, B.G. ROAD, BENGALURU 560 076.

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…RESPONDENTS

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[BY SRI. SRISHA CHANDRA, ADVOCATE FOR SMT. RASHMI JADHAV, ADVOCATE FOR R1 & R2 (VC)]

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THIS MFA FILED U/O 43 RULE 1(a) OF CPC, AGAINST THE ORDER DT.03.01.2018 PASSED IN O.S.NO.2953/2017 ON THE FILE OF THE XXXIII ADDITIONAL CITY CIVIL & SESSIONS JUDGE,

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MFA No. 469 of 2018

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BENGALURU, (CCH-33), RETURNING THE PLAINT TO THE PLAINTIFF THEREIN WITH A DIRECTION TO FILE SUIT BEFORE JURISDICTIONAL SPECIAL COURT OR APPROACH CONCERNED DEPUTY COMMISSIONER OR GOVERNMENT.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Challenging impugned order dated 03.01.2018 passed by XXXIII Addl. City Civil and Sessions Judge and Special Judge(NDPS), Bengaluru (CCH - 33) in O.S.No.2953/2017, this appeal is filed.

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Appellant herein was plaintiff, while respondents

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herein were defendants no.1 and 2 respectively. O.S.No.2953/2017 was filed for recovery of sum of Rs.24,50,000/- with interest of Rs.9,43,240/-. It was stated that defendant no.1 was wife of defendant no.2 and business was run jointly in name of defendant no.1, as its proprietrix. In said firm plaintiff had deposited sum of Rs.24,50,000/-, which was assured to be returned with interest at rate of 21% per annum. It was further stated that towards repayment, defendant no.1 had also issued cheque dated 28.08.2015 for Rs.25,00,000/-. It is stated that despite repeated requests, defendants did not repay amount and was absconding from

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MFA No. 469 of 2018

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jurisdiction of Court. Further when defendants failed to answer demand notice for repayment, suit was filed.

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In said suit, defendant entered appearance and admitted deposits by plaintiff. It was stated that plaintiff in collusion with other members of chit fund and investors, created unnecessary pandemonium in public against defendants leading to filing of complaint with Jayanagar and Malleshwaram police for offences punishable under Section 9 of Karnataka Protection of Interest of Depositors in Financial Establishments Act, 2004 (referred to as 'KPID Act' for brevity). It was further stated that investigating officer in said cases had seized all properties of defendants and therefore submits that claim of plaintiff were to be adjudicated by Special Court.

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On said contention trial Court framed following points

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for consideration:

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" 1. Whether the plaintiff proves that this Court has got jurisdiction to entertain the suit?

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2) What order?"

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On coming to conclusion that suit claim requires to be adjudicated under provisions of KPID Act by Special Court,

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MFA No. 469 of 2018

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constituted under Section 10, trial Court passed impugned order directing return of plaint for presentation before jurisdictional Special Court or to approach concerned Deputy Commissioner or Government within one month. Assailing same, this appeal was filed seeking following prayer:

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"Wherefore the Appellant prays that this Hon'ble Court may be pleased to set aside the impugned order dated 3rd January 2018 passed by the XXXIII Addl. City Civil and Sessions Judge and Special Judge (NDPS) at Bengaluru)(CCH33) passed in O.S. No. 2953/2017 in the interest of justice and equity?"

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During pendency of appeal, I.A.No.1/2022 is filed by appellant for transferring O.S.No.2953/2017 to XCI Addl. City Civil & Sessions Judge & Spl. Judge for KPIDFE cases, Bengaluru.

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Sri. Manian K.B.S., learned counsel for appellant submitted that after passing of impugned order, Government of Karnataka issued notification under Section 5 of KPID Act appointing competent authority. Public notice was also issued in Newspaper on 22.11.2020 inviting claims from depositors of respondent company under Section 7(2) of KPID Act.

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MFA No. 469 of 2018

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He further submitted that this Court by order dated 27.03.2018 while admitting this appeal also ordered for attachment of suit schedule 'A' and 'B' properties. Therefore seeks for continuation of stay order.

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It is further stated that in view of notification issued, above proceedings were required to be transferred to Special Court. Hence, sought for allowing application and dismissal of appeal by transferring O.S.No.2953/2017 to Special Court.

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Sri. Srisha Chandra, learned counsel appearing for respondents no.1 and 2 submitted that prayer sought in application was contrary to prayer sought in appeal. It was further submitted that this Court in other criminal cases quashed proceedings against defendants and therefore proceedings could not be transferred.

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In reply, counsel for appellant submitted that proceedings initiated under Section 9 of KPID Act were criminal proceedings and have nothing to do with recovery proceedings. It was further submitted that by virtue of impugned order, proceedings in O.S.No.2953/2017 were stayed.

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MFA No. 469 of 2018

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It was submitted that at time of passing impugned order, learned trial Judge had assumed issuance of notification, but, same was issued recently. He further submitted that in O.S.no.2953/2017 appellant had paid court fee and sought for direction for refund of Court fee.

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Heard learned counsel, perused impugned order, and record.

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On considering above submissions and issuance of notification under Section 5 of KPID Act as well as inviting claims from depositors under Section 7(2) of KPID Act, which are not disputed by respondent and considering legal position proceedings require to be transferred to Special Court in terms of Section 10(3) of KPID Act.

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Since instant transfer of proceedings is consequent upon subsequent issuance of notification and plaintiff /appellant is required to pursue his remedy before Special Court, he would be entitled to benefit under Section 14 of Limitation Act.

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Insofar as request for refund of Court fee, appellant/plaintiff shall pay necessary Court fee, if any, in

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MFA No. 469 of 2018

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proceedings before Special Court and thereafter claim for refund of Court fee in O.S.No.2953/2017.

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Appellant is directed to file application before Special Court on or before 23.01.2023. Since parties are represented, same would be first date of appearance before Special Court.

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Upon registration of application, plaintiff is at liberty to file application for refund of court fee before Civil Court in O.S.No.2953/2017. If application has filed for refund, trial Court shall consider same within a period of two weeks and pass appropriate orders and thereafter transfer records to Special Court.

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Special Court thereafter proceed with matter in accordance with law from stage, matter stood at time of passing of impugned order.

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In above terms, appeal is allowed.

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In view of disposal of main appeal, pending IAs do not

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survive for consideration.

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Sd/JUDGE

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Psg*

Manjunath Basavaraju v. Pushpalatha B G

Case brief

What is this about?

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Manjunath Basavaraju v. Pushpalatha B G

Case brief

What is this about?

What did the court decide?

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