B G Lingaraju Vs M/S Alu Wintech Sliding Systems

W/O B.G.LINGARAJU, NO.36, BDA SHOPPING COMPLEX, DOMLUR, BENGALURU-560 071 DESCRIBED IN THE PLAINT CAUSE TITLE AS MRS.SANDHYA L, MAJOR, INDIA CABS, NO.36, BDA SHOPPING COMPLEX, DOMLUR, BENGALURU-560 071.

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…APPELLANTS

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(BY SRI. KUMAR M.N, ADVOCATE)

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AND:

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M/S ALU WINTECH SLIDING SYSTEMS REP BY PROPRIETOR, SMT.SMITA BHATNAGAR, KHATA NOL290, NO.651, GUNJUR BUS STOP,

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VARTHUR MAIN ROAD, BENGALURU-560 087.

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…RESPONDENT

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(BY SRI. KEMPARAJU.B.S & SMT. RESHMA KHANUM, ADVOCATES)

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THIS RFA FILED UNDER SECTION 96 AND 107 R/W ORDER XLI OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED 31.07.2018 PASSED IN O.S.NO.5049/2014 ON THE FILE OF THE XLI ADDITIONAL CITY CIVIL JUDGE BANGALORE, PARTLY DECREEING THE SUIT FOR RECOVERY OF MONEY.

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

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CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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ORAL JUDGMENT

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Though the appeal is listed for admission, with

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consent of learned counsel appearing for the appellants/defendants, the matter is taken up for final disposal.

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This appeal is filed by the defendants in

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O.S.No.5049/2014 challenging the judgment and decree dated 31.07.2018 passed in O.S.No.5049/2014 on the file

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NC: 2025:KHC:44959 RFA No. 1847 of 2018

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of XLI Additional City Civil Judge, Bengaluru (CCH-42)¹ , thereby, the suit filed for recovery of money was decreed.

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For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court.

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It is the case of the plaintiff that the defendants

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are the owners of the house property and the defendants have engaged the plaintiff for glazing works on the site of the defendants and accordingly quotation was procured and it was agreed between the plaintiff and defendants to do gazing works for a fixed amount of Rs.205/- per sq. ft., which amounts to a total of Rs.6,70,350/- including VAT and service tax, the total comes to Rs.10,08,901/-. It is pleading of the plaintiff that the defendants have not discharged the entire payment to the plaintiff; therefore, filed the suit for recovery of money.

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The defendants appeared in the suit and filed

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written statement by pleading that though there is an

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1 hereinafter referred to as ‘the Trial Court’ for short

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agreement between the plaintiff and defendants for glazing work, the plaintiff did not complete the work as agreed between them. Hence, the defendants have engaged another agency for completion of glazing work and thus, the defendants have incurred loss and therefore, pleaded that the defendants do not have any balance amount to pay to the plaintiff. Thus, prays to dismiss the suit.

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Upon the pleadings, the Trial Court has framed

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the following issues:

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1. Whether the plaintiff proves that the defendants are liable to pay the suit claim?

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1. Whether the defendant No.1 proves that besides taking excess amount from him taken his tools and materials from the site and failed to bring in a new team as promised to complete the work nor completed the work?

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1. Whether the plaintiff is entitle for reliefs sought for?

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1. What order or decree?

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In order to prove the case, the proprietor of

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plaintiff’s company is examined as PW-1 and one more witness is examined as PW-2 and got marked documentary evidence as Exs.P-1 to P-9. On the behalf of the defendants, defendant No.1 is examined as DW-1 and during course of the cross-examination of PW-1, defendant No.1 has got marked documentary evidence as Exs.D-1 to D-4.

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The Trial Court has decreed the suit directing the defendants to pay an amount of Rs.2,83,022/- with interest at the rate of 18% p.a. from the date of suit till the date of realization.

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Being aggrieved by the judgment and decree, the defendants have preferred the instant appeal by raising various grounds in the memorandum of appeal and the learned counsel for the appellants/defendants in consonance with the grounds raised in the memorandum of appeal has argued that the Trial Court has expunged the evidence of defendant No.1 given as DW-1 and

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therefore, the judgment and decree passed by the Trial Court is one sided judgment without considering the evidence of DW-1. Hence, the defendants pray to remand the matter to Trial Court for fresh consideration in accordance with law. Though learned counsel appearing for the defendants/appellants has raised several grounds in the appeal, he has confined his argument for remanding the case for the grounds above submitted.

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In spite of giving sufficient opportunities, the respondents/plaintiff’s counsel remained absent for arguing the appeal.

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Having heard the arguments from the learned counsel appearing for the appellants/defendants and upon perusal of the documentary evidence on record, the following point would arise for my consideration:

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“Whether, under the facts and circumstances involved in the case, the appellants/defendants prove that expunging the evidence of the defendants and considering the only the evidence of PW-1 and PW-2, passing the judgment and decree requires any interference by

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this Court and thus, liable to be remanded to the Trial Court for fresh consideration?”

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Defendant No.1 was examined as DW-1 and got

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marked documentary evidence as Exs.D-1 to D-4 during

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the course of cross-examination of PW-1. Upon considering the entire judgment, the discussion is only regarding the evidence of PW-1 and

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PW-2 and documentary evidence as Exs.P-1 to P-9.

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From the Trial Court records, it is revealed that on 08.10.2012 defendant No.1 tendered his affidavit evidence in lieu of examination-in-chief. Learned counsel for the plaintiff cross-examined DW-1 in part on 03.02.2018 and thereafter, at the request of learned counsel for the plaintiff, further examination of DW-1 is deferred. Subsequently, as per the order sheet it is revealed that DW-1 and the learned counsel for the defendants were absent and then on 03.04.2018, the Trial

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Court passed an order that the examination-in-chief of DW-1 is expunged and taken evidence of the defendants’

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side was closed. Hence, the trial Court had only dealt with the evidence tendered by the plaintiff.

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When the defendants have tendered evidence, the Trial Court ought to have granted some time to the defendants for appearance, but the Trial Court has totally discarded the evidence of DW-1 and passed an order of decree. Hence, the Court is of the opinion that without touching merits involved in the case, the matter be liable to be remanded to the Trial Court for fresh consideration after recording the evidence of DW-1 and pass appropriate order as per law on merits. Accordingly, I answer point in the Affirmative. Thus, by allowing the appeal the impugned judgment and decree passed by the Trial Court is liable to be set aside.

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In the result, I proceed to pass the following:

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ORDER

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i. The appeal is allowed.

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ii. The judgment and decree dated 31.07.2018 passed in O.S.No.5049/2014 on the file of XLI Additional City Civil Judge, Bengaluru (CCH-42) is hereby set aside.

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iii. The matter is remanded to the Trial Court for fresh consideration in accordance with law.

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iv. The Trial Court, after issuing notice to both the parties shall consider the case afresh on its own merits and pass appropriate orders as per law.

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v. The parties shall co-operate with the Trial Court for early disposal of the case without seeking unnecessary adjournment.

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vi. No order as to costs.

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SD/(HANCHATE SANJEEVKUMAR) JUDGE

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SRA

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List No.: 1 Sl No.: 24

B G Lingaraju v. M/S Alu Wintech Sliding Systems

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B G Lingaraju v. M/S Alu Wintech Sliding Systems

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