Karnataka High Court
Venkatesh vs Mr Devaraj on 19 July, 2012
Author: A.S.Bopanna
Bench: A S Bopanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF JULY 2012
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
REGULAR FIRST APPEAL NO.1208/2010
Between :
1. Venkatesh
S/o late Munipillappa
Aged about 50 years
2. Sarojamma
W/o Venkatesh
Aged about 45 years
Both residing at
No.26/2, B Nagasandra
Yamluar Post
Bangalore-37. ...Appellants
(By Sri G.C. Mahabaleshwar, Adv.)
And :
Mr. Devaraj S/o Kuppu Swamy
Aged about years
Proprietor
M/s Sabari Constructions
No.84/2, K Shivalingaiah Colony
2nd Cross, Murugesh palya
HAL Post, Bangalore-560 017 ... Respondent
(By Smt. Shashikala, Adv.)
This appeal is filed under Order 41 Rule 1 of CPC.,
against the judgment and decree dated 01.02.2010 passed in
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O.S.No.16891/05 on the file of the IV Addl. City Civil &
Sessions Judge, Mayohall Unit, Bangalore, (CCH 21),
decreeing the suit for recovery of money.
This Appeal coming on for hearing, this day, the Court
delivered the following :
JUDGMENT
The appellants herein are the defendants in O.S.No.16891/2005. The suit in question was filed for recovery of the sum of Rs.6,19,456/- which according to the plaintiff was due to be paid by the defendants. The defendants though had entered appearance and had filed their written statement, did not effectively participate in the trial. The Court below therefore accepting the version of the plaintiff has decreed the suit by its judgment dated 01.02.2010. The defendants are therefore before this Court in this appeal.
2. The parties would be referred to in the same rank as assigned to them before the trial Court for the purpose of convenience and clarity.
3. The suit though decreed in favour of the plaintiff, the judgment at the outset would indicate as if 3 the judgment is in the nature of an exparte judgment as there was no effective participation by the defendants in defending the suit by establishing the contentions which were put forth in the written statement.
4. The brief facts leading to the suit are that the defendants had entrusted the construction work of their house to the plaintiff under an agreement dated 05.07.2002. The plaintiff claims to be the contractor and the proprietor of M/s.Sabri Constructions. It is the case of the plaintiff that though the cost of the construction was estimated at Rs.24,75,000/- and the construction work was undertaken by the plaintiff, the defendants failed to comply with the terms and conditions of the agreement and they had paid only a sum of Rs.18,55,544/-, but failed to pay the balance amount. Thereafter a sum of Rs.40,000/- was paid on 15.06.2003 leaving a balance of Rs.6,19,456/- which was claimed in the suit.
5. The defendants on being served with suit summons had appeared and filed their written 4 statement. The case of the plaintiff had been disputed by them though the fact that the construction work was entrusted to the plaintiff was admitted. It is the case of the defendants that the plaintiff failed to complete the work within the time agreed and it is he who in fact had violated the terms of the agreement. Since the work was incomplete, the defendants had to engage another contractor for completing the work and the said work was completed by a Contractor named Sri Cheluvaraju. Since in that process the defendants had incurred additional expenses, they claim that they are not liable to pay any amount.
6. The Court below on taking note of the rival contentions framed as many as 5 issues for its consideration. The plaintiff examined himself as PW.1 and marked the documents at Exhs.P1 to P17. As noticed, the defendants had not effectively participated and therefore, they did not even cross examine PW.1 nor did they tender any evidence. It is in that context the Court below, after taking note of the evidence of 5 PW.1 which had remained un-challenged, had proceeded to decree the suit.
7. In a normal circumstance, the Court below would have been justified and the judgment rendered in such proceedings would not have called for interference by this Court, in the absence of evidence being tendered before the trial Court. In this case, the defendants have indicated the reasons for not being able to prosecute the suit effectively and in that context has also referred to the fact that the counsel who was assigned the matter had left the office without informing the defendants. Even the mere submission to that extent would not have been sufficient for this Court to accept the contention of the learned counsel for the defendants that an opportunity needs to be provided to them to put forth their contentions.
8. However, what is to be noticed by this Court is that the plaintiff had relied on the agreement as at Ex.P1 which is not in dispute. The other documents relied on by the plaintiff are the receipts at Exhs.P3 to 6 P17 whereunder certain payments were made by the defendants to the plaintiff and further the notice issued seeking payment is at Ex.P2. Whether the payment made under the said receipts are in compliance to the extent of the work which had been carried out by the plaintiff could have been assessed only if there was sufficient evidence tendered by the defendants. In this regard, what cannot also be lost sight is that the defendants have indicated in the appeal memo that a criminal complaint No.415/2006 was filed by the plaintiff against the defendant herein. The certified copy of the proceedings therein and the order passed in the said proceedings is made available to this Court. Considering that the said copies are part of the judicial proceedings, the same has been taken into consideration. A perusal of the same would indicate that the plaintiff herein had in fact filed a complaint under Section 138 of the Negotiable Instruments Act claiming therein that the first defendant herein had issued a cheque dated 18.12.2003 for payment of Rs.6,00,000/- and the same had been dishonoured. 7
9. The said proceedings was in the year 2006 while the instant suit was filed in the year 2005. In the said proceedings, the plaintiff has put forth a different case to contend as if the plaintiff had advanced certain amounts to the first defendant and the first defendant had issued the cheque towards repayment of the said amount. But, the same had been dishonoured. However, the complainant therein did not disclose that he had instituted a civil suit on different set of pleadings for recovery of the amount. It is in that context, it was brought on record by the first defendant herein that the instant suit had been filed and also had relied on the receipts with regard to the payments which had been made in that regard. Though it is not possible for this Court to come to the conclusion as to whether the said documents themselves would be sufficient to defeat the suit of the plaintiff, what cannot be ignored is that the plaintiff has not put forth similar contentions in the two proceedings while claming the amount. But had made an attempt to recover certain amounts in the criminal proceedings and had failed. In such situation, merely 8 because there was no cross examination of PW.1, the evidence of the plaintiff cannot be accepted on its face value as it would have been normally done, when in the circumstances the plaintiff has not put forth the contentions in its correct perspective.
10. Therefore, in such circumstance, I am of the opinion that keeping in view the fact that the defendants had filed written statement putting forth certain contentions to dispute the claim of the plaintiff and in that regard since there are also certain materials which had been brought forth in a judicial proceedings, it is would be in the interest of justice to provide an opportunity to the defendants to produce material before the Court below and effectively participate in the suit. It is no doubt true that the plaintiff would be put to some hardship in this regard. Therefore I am of the opinion that the defendants should be burdened with some costs to be paid before the trial Court before an opportunity is provided to the defendants. In this regard the costs are fixed at Rs.5,000/-.
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11. In the result, the judgment and decree dated 01.02.2010 is set aside. The suit in O.S.No.16891/2005 is restored to file of the 4th Additional City Civil and Sessions Judge, Mayohall Unit, Bangalore to reconsider the same afresh. The opportunity provided to the defendants is subject to the payment of costs on the date of appearance before the trial Court. The defendants shall appear before the trial Court without further summons being issued by the trial Court on 28.08.2012. If costs are deposited, the trial Court shall issue notice to the plaintiff. Immediately on appearance of the plaintiff, the costs be permitted to be withdrawn. If the costs are not deposited, the trial Court shall once again affirm the judgment which has already been passed.
The appeal is allowed in part in the above terms.
Sd/-
JUDGE akc/bms