M/s. Bella India Health Care Pvt. Ltd. Vs M/S Vyshnavi Enterprises

M/S. BELLA INDIA HEALTH CARE PVT. LTD., (NOW TZMO INDIA SOUTH PRIVATE LIMITED), HAVING ITS REGISTERED OFFICE AT, NO.2, FETHERLITE BUILDING, NEW TIMBERYARD LAYOUT, MYSORE ROAD, BYATARAYANAPURA, BENGALURU-560 026. REP. BY MR.PANKAJ BHARDWAJ M D.

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Digitally signed by PRAJWAL A Location: High Court of Karnataka

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(BY SRI.SUNDARESH C.R., ADVOCATE) AND:

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M/S. VYSHNAVI ENTERPRISES, H.NO.24/216, RANGAREDDY NAGAR, RANGAREDDY, TELANGANA-560 055.

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…APPELLANT

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…RESPONDENT

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THIS COMMERCIAL APPEAL IS FILED UNDER SECTION 13(1-A) OF THE COMMERCIAL ACT, 2015 PRAYING FOR THE FOLLOWING RELIEFS. (I) TO CALL FOR THE ENTIRE RECORDS PERTAINING TO THE SUIT AND THE PROCEEDINGS IN COM.O.S.NO.197/2020 ON THE FILE OF LXXXII ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-83) AT BENGALURU. (II)

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SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 11/04/2022 PASSED BY THE LXXXII ADDL. CITY CIVIL AND SESSIONS JUDGE AT BENGALURU (CCH-83), IN COM.O.S.NO.197/2020 (VIDE ANNEXURE-A) AND REVERSE THE FINDINGS AND DECREE THE SUIT OF THE APPELLANT. (III) GRANT COST OF THIS APPEAL AND ETC.,

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THIS APPEAL COMING ON FOR ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE V KAMESWAR RAO and HON'BLE MR JUSTICE S RACHAIAH

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ORAL JUDGMENT

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(PER: HON'BLE MR JUSTICE V KAMESWAR RAO)

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A memo is filed along with the paper cutting of the

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English Newspaper – ‘Telangana Today” Hyderabad Edition, wherein notice to the respondent has been effected though publication.

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Despite publication, there is no representation on behalf of the respondent.

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This is an appeal filed by the appellant-M/s.

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Bella India Health Care Pvt. Limited under Section 13(1A) of the Commercial Courts Act, 2015 challenging the judgment/decree dated 11.04.2022 passed by the Court

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of LXXXII Additional City Civil and Sessions Judge, Bengaluru, whereby the learned Sessions Judge has dismissed the Commercial Suit No.197/2020 filed by the appellant herein.

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The case of the appellant before the learned Sessions Judge was that, it is engaged in manufacture, marketing and import of various products and the respondent has a business as distributor dealing with the appellant-company and in terms of the orders placed by the respondent, the plaintiff had supplied the goods to the respondent against invoices/bills together with courier consignments as proof of dispatch of the goods to the respondent along with the statement of running accounts maintained by the appellant. The respondent had paid an advance amount of Rs.2.00 Lakhs on 28.02.2016 through RTGS and the appellant had supplied Rs.2.99 Lakhs worth of goods on 29.02.2016 to the respondent. The appellant has been continuously supplying the goods and raising / raised invoices dated 30.02.2016 and 31.03.2016 for the

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supply of goods to the respondent. The respondent has paid a partly sum of Rs.99,803/- on 28.01.2016 against the balance payable by the respondent of Rs.14,35,276/-. The appellant had made a claim of Rs.14,35,276/- by filing a suit before the learned Sessions Judge seeking current and future interest @12% p.a. The summons on the respondent were not served. Even the summons issued to the respondent by RPAD returned by stating, ‘No such person found in the address’ . It is thereafter, the paper publication was made. Since the respondent was not represented despite paper publication, the respondent was proceeded ex-parte.

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The learned Sessions Judge had framed the

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following two points for his consideration:

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i) Whether the appellant is entitled for the suit claim from the respondent?

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ii) What order?

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On Point No.1, the learned Sessions Judge,

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after considering the case put-up by the appellant, was of

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the view that the respondent was in default in paying the amount for supply of goods to it. The learned Sessions Judge was of the view that initially the suit was filed on 24.10.2019. In view of non-compliance of Section 12(A) of the Commercial Courts Act, 2015, the plaint was returned to the appellant and after compliance, the suit was re-presented on 05.08.2020. So, effective from 28.10.2016, the suit having been filed on 24.10.2019, the suit was filed within time. The appellant had filed a Nonstarter Report issued by the District Legal Services Authority (‘DLSA’ for short) on 06.01.2020. As per the said report, the date of application for Pre-institution Mediation was on 19.11.2019. As per the office endorsement, the plaint was returned for non-compliance on 21.11.2019. In other words, the appellant had already approached the DLSA for Pre-institution Mediation i.e., 10 days before the order of the return of plaint.

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As stated above, the earlier suit was filed four

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days before the expiry of the limitation period. The Non-

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starter Report having been issued on 06.01.2020, the appellant should have re-presented the plaint on or before 10.01.2020. The plaint was re-presented only on 05.08.2020.

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The learned Sessions Judge was of the view that, even if the period during which the Pre-institution Mediation was undertaken, the plaint should have been represented on 10.01.2020. But, having not done that and re-presented the plaint only on 05.08.2020, the appellant shall not be entitled to exclusion of period from 10.01.2020 to 05.08.2020. The learned Sessions Judge has referred to a judgment in the case of Amar Inani

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Chand Vs. Union of India [AIR 1973 SC 313] to hold that, the suit is deemed to have been instituted only on the date of re-presentation, that is on 05.08.2022 and is not in continuation as such the plaintiff/appellant is not entitled to the benefit of Section 4 of the Limitation Act. So, the learned Sessions Judge has come to the conclusion

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that the suit is barred by Limitation, having been presented only on 05.08.2020.

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We agree with the conclusion arrived at by the learned Sessions Judge to hold that, the re-presentation of the plaint having been made on 05.08.2020, the appellant is not entitled to the benefit between of the period between 10.01.2020 and 05.08.2020.

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The submission of the learned counsel of the appellant is that the appellant is entitled to the benefit of the judgment of the Hon'ble Supreme Court in suo-moto Writ Petition (Civil) No.3/2020 Dated 03.08.2021, in RE.COGNIZANCE FOR EXTENSION OF LIMITATION

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wherein the Hon'ble Supreme Court has excluded the period between 15.03.2020 and 28.02.2022 for the purpose of limitation. We are not in agreement with the submission in as much as the limitation to re-present the plaint having expired on 10.01.2020, much before the applicability of the judgment of the Hon'ble Supreme Court in the aforesaid case, the learned Sessions Judge has

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rightly dismissed the suit on the ground that, the suit was not filed within three years from the date of occurring of cause of action ie., on 28.10.2016 when admittedly the amount of Rs.99,803/- was paid by the respondent to the appellant.

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We accordingly dismiss the appeal being

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without merit.

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Sd/(V KAMESWAR RAO) JUDGE

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Sd/(S RACHAIAH) JUDGE

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KGR List No.: 1 Sl No.: 4

M/s. Bella India Health Care Pvt. Ltd. v. M/S Vyshnavi Enterprises

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M/s. Bella India Health Care Pvt. Ltd. v. M/S Vyshnavi Enterprises

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