Appeal against recovery decree stayed. Court found respondent company wound up without official liquidator's impleadment, disposing appeal with liberty to approach liquidator.
Appeal disposed; appellants entitled to refund of deposited sum with interest if annulled by official liquidator.
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.
NC: 2023:KHC:40277 RFA No. 628 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA REGULAR FIRST APPEAL No.628 OF 2008 (MON)
BETWEEN:
BOTH ARE RESIDING AT FLAT NO T-7, “GURUPREETH RESIDENCY” 4TH CROSS, 4TH MAIN, VINAYAKA LAYOUT BHOOPASANDRA, RMV II STAGE SANJAY NAGAR, BANGALORE -560 094
…APPELLANTS
Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA
(BY SRI M J ALVA, ADVOCATE)
AND:
KARNATAKA STATE AGRO CORN PRODUCTS LTD (A GOVT. OF KARANTAKA UNDERTAKING) HAVING ITS REGISTERED OFFICE AT POST BAG NO.2479, BELLARY ROAD, HEBBAL BANGALORE 560 024, REPRESENTED BY CHAIRMAN AND MANAGING DIRECTOR
…RESPONDENT
(BY SRI H.M.MURALIDHAR, ADVOCATE-ABSENT)
NC: 2023:KHC:40277 RFA No. 628 of 2008
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 R/W ORDER XLI RULE 1 OF THE CIVIL PROCEDURE CODE AGAINST THE JUDGMENT AND DECREE DATED 25.2.08 PASSED IN O.S.NO.6716/93 ON THE FILE OF THE XXX ADDL. CITY CIVIL JUDGE, BANGALORE, DECREEING THE SUIT FOR RECOVERY OF MONEY.
THIS REGULAR FIRST APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri M.J. Alva, learned counsel for the appellants. No representation on behalf of the respondent.
3. Facts in brief for disposal of the appeal are as under:
Plaintiff filed a suit stating that it is a Government of Karnataka undertaking and it was involved in manufacturing and sale of varieties of maize products, corn products, cattle and poultry feeds. It is further contended by the plaintiff that first defendant was appointed as an agent to sell the products of the plaintiff company for the area of Bhoopasandra and Hebbal as per the agreement dated 17.08.1983, entered into
between plaintiff and first defendant. Second defendant stood as a guarantor for performance of the terms and conditions contained in the agreement, entered into between the first defendant and the plaintiff.
within the stipulated period after expiry of grace period of 15 days.
claim is false, frivolous and fictitious and therefore,
unsustainable both in law and on facts.
NC: 2023:KHC:40277 RFA No. 628 of 2008
NC: 2023:KHC:40277 RFA No. 628 of 2008
“The suit of the plaintiff is decreed with costs.
Both the defendants are jointly and severally liable to pay a sum of 1,59,580-22 (Rupees One Lakh Fifty Nine Thousand Five Hundred and Eighty and Paise Twenty Two only) with Court costs and current and future interest at the rate of 9% p.a. on Rs.89,864-22 from the date of the suit till its realization.”
The judgment and decree passed by the court below is illegal, improper, perverse and the same is an error apparent on the face of the records. Hence the impugned judgment is liable to be set aside.
There was no proper authorisation or board resolution passed in favour of PW1 and PW2 to depose before the court below on behalf of the respondent. PW1 was not available for further chief examination itself and his evidence was taken off
NC: 2023:KHC:40277 RFA No. 628 of 2008
the record. PW2 had admitted that he has no personal knowledge about the transactions and basing on the records available he had deposed. No other witness was examined on behalf of the plaintiff. No document was produced for having supplied the poultry feeds in respect of which the suit claim is made. In the absence of any such material the court below has decreed the suit which is perverse and the same is liable to be set aside.
The 1st appellant was running a poultry farm and she was the bulk purchaser of poultry feeds from the respondent and she was never indulged in any trading activities. This aspect was admitted by PW2 during the course of his cross examination. But the court below relying upon Ex P2 had come to the conclusion that she is the selling agent of the respondent. This view taken by the court below is erroneous which needs to be reversed.
The statement of account filed by the respondent was seriously disputed. There were no delivery challans for having supplied the poultry feeds to the appellants. There was variations between the documents produced by the respondent. The amount claimed in the suit was Rs. 1,59,580/- as on 11.11.1993. But the respondent had subsequently issued the notice on 31.3.96 showing the total balance as Rs. 99,674/- as on the said date. The payments made by the appellants as
NC: 2023:KHC:40277 RFA No. 628 of 2008
per Ex. D2 & D3 had not been taken into account in the statement of accounts produced before the court below. These aspects had been lost the sight of the learned Judge while passing the impugned judgment and decree.
The court below has failed to critically examine the material evidences available on record and erroneously passed the impugned judgement and decreed the suit by improper application of mind which is opposed to the rule and the law. There is absolutely no material available on record to show that the consignment had been delivered to the appellants and that they are due and liable to pay the suit claim amount. In the absence of such vital evidences available on record the court below has erroneously decreed the suit.
The view taken by the court below is opposed to the rule and the law and the probabilities of the case. The impugned judgement is unsustainable which is the out come of total mis-appreciation of the material evidence available on record.
The finding of the court below on all the issues is erroneous and baseless and the same is liable to be reversed. The respondent is not entitled to charge and claim 24% interest.
The learned Judge has grossly erred in decreeing the suit which is the outcome of the erroneous conclusions and the appreciation of the
material evidences available on record. Hence the impugned judgment is perverse which needs to be reconsidered by this Hon'ble Court by exercising the appellate jurisdiction.
The appellants have not filed any other appeal on the same cause of action and no other proceedings are pending between the parties on the same subject matter.
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appellants/defendants on verification submitted that plaintiff company has closed its operations and it is wound up. Sri H.M. Muralidhar is absent.
NC: 2023:KHC:40277 RFA No. 628 of 2008
official liquidator after holding an enquiry, the appellants are entitled to refund of the said sum of Rs.50,000/- which is in deposit with accrued interest.
ORDER
Appeal stands disposed of with liberty for the appellants
to work out their remedy before the official liquidator.
Ordered accordingly.
Sd/JUDGE
MR
Smt Leelavathi Sundar Raj
V T Sundar Raj
Karnataka State Agro Corn Products Ltd
V SRIOSHANANDA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
