Dismissed

M/S Stanza Interiors v. M/S Kare Complex

Karnataka HC8 Dec 2022RFA/166/2022

Case brief

AI extract

What is this about?

In this first appeal against a money decree, the High Court of Karnataka addressed an application to recall a stay order on execution. The Court found that the appellant, who had undertaken to settle the amount via post-dated cheques and cash, filed the appeal in bad faith to evade the execution process while already possessing the funds. Consequently, the Court dismissed both the application to r

What did the court decide?

The appeal was dismissed, the recall of the interim stay order was denied, and an appeal cost of Rs.10,000 was awarded.

M/S Stanza Interiors Vs M/S Kare Complex — Contract and Commercial Disputes | Karnataka HC (2022)

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RFA No. 166 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR FIRST APPEAL NO. 166 OF 2022 (MON)

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BETWEEN:

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M/S. STANZA INTERIORS REPRESENTED BY ITS PROPRIETOR MR. IBRAHIM NO.210, SAMAD LAYOUAT HSR LAYOUT, 3^RD STAGE, KALYANANAGAR POST, K.K.HALLI, BENGALURU - 560 043

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…APPELLANT

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(BY SRI. RUDRAPPA P., ADVOCATE)

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AND:

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M/S. KARE COMPLEX NO.2, 44/1, GROUND FLOOR, SHOP NO.9, K.KAMARAJA ROAD NEXT TO DELHI BHAVAN BENGALURU - 560 042 REPRESENTED BY ITS PARTNER MR. K.R.SHYAM KIRAN

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…RESPONDENT

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(BY SRI. CHANDRASHEKAR H B., ADVOCATE)

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Digitally signed by GURURAJ D Location: High Court Of Karnataka

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER XLI RULE 1 AND 2 OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED 22.03.2021 PASSED IN OS.NO.25592/2019 ON THE FILE OF THE IV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT, CITY CIVIL COURT, BENGALURU, DECREEING THE SUIT FOR RECOVERY OF MONEY AND ETC.

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THIS APPEAL IS COMING ON FOR ORDERS THIS DAY, THIS COURT DELIVERED THE FOLLOWING:

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RFA No. 166 of 2022

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JUDGMENT

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Challenging the judgment and decree dated 22.03.2021 passed by IV Additional City Civil and Sessions Judge, Mayohall, Bengaluru, in O.S.No.25592/2019, this appeal is filed.

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Appellant herein was defendant in suit, while respondent herein was plaintiff. Hereinafter, they will be referred to as such in this appeal.

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O.S.No.25592/2019 was filed for recovery of a sum of Rs.3,46,984/- with interest at 24 % per annum from date of suit till realisation. In plaint, it was stated that plaintiff was a partnership business run under name and style M/s. Kare Impex dealing in import and export business of hardware materials. It was stated that defendant had purchased certain material under different invoices on promise to pay entire amount in due course. As such, defendant was due under invoice, an amount of Rs.2,67,175/-. Therefore, plaintiff got issued legal notice demanding payment. When there was no compliance, suit was filed. In suit, though defendant was served with summons and entered appearance through

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RFA No. 166 of 2022

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counsel, he did not file written statement. Thereafter, plaintiff was examined as PW.1 and Exs.P.1 to P.5 were marked. Based on plaint averments, Trial Court framed following points for consideration;

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"i) Whether the plaintiff has proved that defendant is in due of Rs.3,46,984?

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ii) Whether the plaintiff is entitled for the relief claimed in the suit.

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iii) What order?"

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On consideration, trial Court answered after answering point nos.1 and 2 in affirmative and point no.3 by decreeing suit and directing defendant to pay a sum of Rs.3,46,984/- with 18% per annum from date of suit till realisation and with cost. Assailing same, this appeal is filed.

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In said appeal, grounds urged by appellant-defendant are that impugned judgment and decree is arbitrary and contrary to pleadings and documents. Decree was passed without proper appreciation. It is also contended that, in Exs.P.1 to P.5, name of Firm mentioned was different from that of cause-title and therefore, there was no nexus between invoice and plaintiff, and documents are doubtful. It was also contended that

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RFA No. 166 of 2022

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defendant was not given proper opportunity to file written statement and to contest case, and decree was ex parte . It is also contended that before filing suit, no notice was served upon defendant. It was further contended that apart from plaintiff, there were other partners who were not arrayed as parties. It was also contended that without any cause of action, suit was filed as defendant had already repaid money by way of cash.

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This appeal came to be admitted on 28.03.2022 and an interim order staying execution and operation of judgment and decree subject to appellant-defendant depositing 50% of decretal amount within a period of six weeks was granted. Seeking for recalling of said order, I.A.No.3/2022 is filed. In affidavit filed in support of application, it is stated that for execution of impugned decree, plaintiff had filed Ex.Case No.25168/2021. In said petition, an order for attachment of movables was passed on 21.12.2021. When bailiff was in process of executing warrant defendant, had undertaken to settle amount due to plaintiff and endorsed undertaking on backside of warrant. In pursuance of said undertaking, four

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RFA No. 166 of 2022

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post-dated cheques bearing No.000029, dated 10.01.2022; No.000030 dated 20.01.2022, No.000031 dated 27.01.2022 and No.000032 dated 02.02.2022 for a sum of Rs.1,00,000/each drawn on Kotak Mahindra Bank were issued to plaintiff, apart from paying a sum of Rs.63,705/-, in cash, on said date. Defendant had signed on warrant along with Adil Basha, who had issued cheques on behalf of defendant. Having so undertaken to settle amount, suppressing same, defendant had filed this appeal and interim order was obtained. It was further submitted that even prior to that, drawer of cheques issued instructions to bank to stop payment. Said conduct on part of defendant was not bona fide and therefore, sought for recall of order and for dismissal of appeal.

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7. Defendant-appellant filed objections to application,

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portion of which is as follows;

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"3. It is submitted on 28-03-2022 this Hon’ble Court was pleased to passed the order as follows: Admit. Call for records. Paper book to be filed within twelve weeks. Since the captioned appeal is filed questioning the money decree passed by the court below and this Court has to independently reassess the ocular and documentary evidence, I am of the view that the defendant is entitled for some protection. Accordingly

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RFA No. 166 of 2022

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I.A. 1/2022 is allowed. The execution and operation of the judgment and decree passed in O.S. No. 25592/2019 is stayed subject to appellant depositing 50% of the decretal amount within a period of six weeks.

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It is submitted that, as per the order of this Hon'ble Court the appellant could not deposited the 50% of the Decretal amount within the stipulated period. Hence, the appellant has filed an application for extension of time, the said I.A. was partly allowed by this Hon'ble Court. It is submitted that, thereafter the appellant has deposited the 50% of the decretal amount. This Hon'ble Court was pleased to extended the interim order from time to time till today the interim order is continued.

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The order of this Hon'ble court is very clear that, I.A. is allowed. It means prayer of the appellant in I.A. has been considered. The respondent cannot file an application for recall the order because I.A. is already allowed by this Hon'ble Court. If the respondent wants to get set-aside the order, the respondent can approach the Hon'ble Apex court and the respondent cannot filed the application for re-call order dated 28-03-2022 before the same court. That too after allowing the application for stay. Hence, the I.A. filed by the respondent for recall is not maintainable and liable to be dismissed.

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It is submitted that, there is no cause of action for filling the present I.A. is liable to be dismissed with exemplary cost.

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It is submitted that, there is no nexus between the prayer and provision of law which is mentioned in 1.A. Hence, the above I. A. is liable to be dismissed.

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The respondent is trying to mislead this Hon'ble Court by filing the false and frivolous application by suppressing the true facts. The respondent has not

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RFA No. 166 of 2022

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stated any strong and sound reasons in the accompanying affidavit, the contents made in the accompanying affidavit to the present I.A. are false and baseless. Hence, I.A. filed by the respondent is liable to rejected.

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The respondent has not specifically stated in the accompanying affidavit about the cause of action and for what reasons he is seeking to recall the order dated 2203-2022. Hence, the above I. A. is liable to be dismissed.

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Viewing from any angle the I.A. filed by the respondent is not maintainable. The appellant are seeking the leave of this Hon'ble Court to urge any additional grounds at the time of arguments.

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WHEREFORE, the appellant prays that this Hon’ble Court may be pleased to dismiss the above I.A. with exemplary cost, in the interest of justice and equity.”

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On perusal of objections filed, it is seen, there is absolutely no denial of fact that defendant had agreed to settle amount to plaintiff. In para no.17 of memorandum of appeal, defendant has stated that he had repaid money by way of cash to plaintiff. It is thus seen that defendant has admitted transaction.

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Above conduct of defendant indicates that there is absolute lack of bona fides on part of defendant. Hon'ble Supreme Court in Dalip Singh vs. State of Uttar Pradesh

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RFA No. 166 of 2022

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and others reported in (2010)2 SCC 114 has stated that " it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure foundation of justice with tainted hands, is not entitled to any relief, interim or final."

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In view of above, as there is lack of bona fides on part of defendant, no relief can be granted to defendant. Hence, instead of passing order on I.A.No.3/2022, taking into account conduct of defendant, appeal is dismissed with cost of Rs.10,000/-.

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Pending application is dismissed as unnecessary.

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Amount deposited by defendant-appellant in this appeal is ordered to be transmitted to Executing Court namely, IV Additional City Civil Judge and Sessions Judge, Mayo Hall (CCH21), Bengaluru, for disbursal.

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Sd/JUDGE

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M/S Stanza Interiors v. M/S Kare Complex

Case brief

What is this about?

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M/S Stanza Interiors v. M/S Kare Complex

Case brief

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