M/S Sree Kumaran Silks, Vs M/S Sree Rudramma Vastra Bhandar

M/S. SREE RUDRAMMA VASTRA BHANDAR (PROPRIETARY CONCERN) NO.57/1, 2ND AND 3RD FLOOR SIDANNA GALLI, NEAR JUMMA MASJID BENGALURU 560002 REP. BY ITS GPA HOLDER MANJUNATH S.V.

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…RESPONDENT

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(BY SRI. SRIPAL J. SANGHVI, ADV.,)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF MANDAMUS DIRECTING THE HON'BLE LXXXVI ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU (COMMERCIAL COURT-CCH-87) TO PASS ORDERS ON I.A. FILED BY THE PETITIONER HEREIN ON 29.07.2024 UNDER ORDER XXI RULE XXIX R/W SEC 151 OF CPC IN COM.EX.NO.364/2024 AT THE EARLIEST WHICH IS PRODUCED AT ANNX-G & ETC.

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NC: 2026:KHC:4256 W.P. No.29191/2024

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HC-KAR

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL ORDER

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This petition is filed seeking for the following reliefs:

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"Issue a writ of mandamus directing the Hon'ble LXXXVI Addl. City Civil and Sessions Judge, Bengaluru (Commercial Court - CCH-87) to pass orders on I.A. filed by the petitioner herein on 29.07.2024, under order XXI Rule XXIX R/w Sec 151 of CPC in Com.Ex.No.364/2024 at the earliest which is produced at Annexure-G".

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Sri.Keshav Kumar B., learned counsel appearing

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for the petitioner submits that the respondent has filed a commercial suit against the petitioner which came to be decreed ex parte . It is submitted that the petitioner filed a miscellaneous petition seeking to set aside the ex parte judgment and decree and during the pendency of the said proceedings, the respondent filed an execution petition to execute the judgment and decree and in the said execution proceedings, the petitioner has deposited

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HC-KAR

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Rs.37,00,000/- on different dates. It is further submitted that the petitioner has filed an application in the Executing Court seeking to stay the further proceedings. In view of the pendency of the Com.Misc.No.45/2024 on the ground that till the Com.Misc.No.45/2024 is disposed of, it would not be appropriate for the Executing Court to proceed with the execution, more particularly, when the judgment debtor has deposited substantial amount of Rs.37,00,000/- before the Court. However, the Executing Court has not considered the application which compelled the petitioner to file this writ petition. It is also submitted that this Court, vide order dated 30.10.2024 has stayed the further proceedings in the execution subject to the petitioner depositing further Rs.25,00,000/- before this Court and the said amount is also deposited. It is also submitted that the principal amount as per the case of the respondent is Rs.47,56,117/-, incorrectly calculated the interest at the rate of 18% p.a. and the claim is made at Rs.90,61,622/-. It is contended that the Trial Court has

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HC-KAR

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not assigned any reason whatsoever for award of 18% interest in the case. Hence, he seeks to issue appropriate direction to the Executing Court to consider the application filed by the petitioner for staying the further proceedings before it, till the disposal of miscellaneous petition filed by the petitioner. Hence, he seeks to allow the petition.

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Per contra , Sri.Sripal J.Sanghvi, learned counsel appearing for the respondent submits that the summons in the commercial suit was duly served on the petitioner. He neglected the proceedings and remained absent. Noting the same, the Commercial Court, by a well reasoned judgment, decreed the suit and ordered to pay Rs.90,61,622/- along with interest at the rate of 18% p.a. It is submitted that the petitioner cannot argue the aspect of interest in the present proceedings as the judgment is not under challenge in any of the proceedings. It is further submitted that even the miscellaneous application filed for setting aside the ex parte decree was filed belatedly and taking note of the same, the Executing Court

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HC-KAR

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has proceeded to continue the proceedings. It is also submitted that the dispute between the parties being a commercial dispute, cannot be allowed to stay longer as it would defeat the very object of the establishment of the Commercial Court. Hence, he seeks to dismiss the petition.

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I have heard the arguments of the learned counsel for the petitioner, learned counsel for the respondent and meticulously perused the material

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available on record.

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The respondent has filed Com.O.S.No.9/2024 against the petitioner for a judgment and decree for a sum of Rs.90,61,622/- along with interest at the rate of 18% p.a. The said suit came to be decreed ex parte on 07.02.2024. Thereafter, the decree holder-respondent herein has filed Com.Ex.No.364/2024 to execute the said decree. The records indicate that after service of the notice in the execution proceedings, the petitioner

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HC-KAR

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deposited Rs.37,00,000/- before the Executing Court. The record further indicates that the petitioner has filed an application before the Executing Court seeking to stay the further proceedings till the disposal of the Com.Misc.No.45/2024. The petitioner has filed

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Com.Misc.No.45/23024 under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure, 1908, seeking to set aside the ex parte judgment and decree dated 07.02.2024 passed in Com.O.S.No.9/2024. Admittedly, the said proceedings are pending. It is pointed out that the said proceedings are at the stage of trial.

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Be that as it may, the present petition is filed seeking the relief of mandamus to direct the Executing Court to consider the application filed by the petitioner on 29.07.2024 which is produced as Annexure-G to the petition. I am of the considered view that without going into the merits of the case, interest of justice would be met if the Trial Court/Executing Court is directed to consider the application filed by the petitioner on merits

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HC-KAR

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and in accordance with law, after providing sufficient opportunity to the both side. It is to be noticed that this Court has stayed the further proceedings in the execution subject to the petitioner depositing Rs.25,00,000/- and the said amount has been deposited. Hence, interest of justice would be met if the interim order granted by this Court on 30.10.2024 is continued till the Executing Court considers and disposes the application filed by the petitioner. Hence, I proceed to pass the following:

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ORDER

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(i) The writ petition is allowed.

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(ii) The Executing Court is directed to

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consider the application filed by the petitioner under Order XXI Rule 19 read with Section 151 of the CPC, in accordance with law after providing an opportunity to the petitioner and respondent.

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HC-KAR

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(iii) Till the passing of the order on the

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said application, the Executing Court shall not execute the decree.

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(iv) It is made clear that any findings recorded by this Court are limited to the extent of adjudication of this dispute and not on the merits of the case.

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Consequently, the pending application is disposed of.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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RV List No.: 1 Sl No.: 13

M/S Sree Kumaran Silks, v. M/S Sree Rudramma Vastra Bhandar

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M/S Sree Kumaran Silks, v. M/S Sree Rudramma Vastra Bhandar

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