Bangalore District Court
M/S Pixelmate Designs Private Limited vs M/S Shri Shakti Tools And Hardwares on 25 March, 2025
15
Com.Misc.1/2024
KABC170000252024
IN THE COURT OF LXXXII ADDL.CITY CIVIL & SESSIONS
JUDGE, AT BENGALURU (CCH.83)
THIS THE 25th DAY OF MARCH 2025
PRESENT:
SMT. SUMANGALA S BASAVANNOUR.,B.COM,L.L.M.,
LXXXII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
COM.MISC.1/2024
BETWEEN:
1. M/s. Pixelmate
Designs Pvt. Ltd.
No.301, Hari Palace,
Judges Colony, Near
Saguna More, Danapur,
Patna, Bihar - 801503
Represented by its
Director Nikhil Ranjan
2. Nikhil Ranjan
No.301, Hari Palace,
Judges Colony, Near
Saguna More, Danapur,
Patna, Bihar - 801503.
15
Com.Misc.1/2024
3. Sonal Singh,
No.301, Hari Palace,
Judges Colony, Near
Saguna More, Danapur,
Patna, Bihar - 801503.
: PETITIONER/S
(Represented by
Sri.Ganesh Kumar R.,
Advocate)
AND
Sri. Shakthi Tools and
Hardware
Represented by its
Proprietor Santhosi
Devi Agarwal, Having
its office at No.63/64,
KIADB, 60 ft. Road,
T.Dasarahalli,
Bengaluru - 560057.
: RESPONDENT
(Represented by
Sri.Shanmukappa M.,
Advocate)
Date of Institution of the
03.01.2024
Petition
Nature of the Petition (suit Miscellaneous
on pronote, suit for
15
Com.Misc.1/2024
declaration & Possession,
Suit for injunction etc.)
Date of commencement of
07.08.2024
recording of evidence
Date on which judgment
25.03.2025
was pronounced
Total Duration Year/s Month/s Day/s
01 02 22
sd/-
(SUMANGALA S BASAVANNOUR),
LXXXII Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This petition was filed for set aside the exparte Judgment and Decree dtd.28.02.2022 passed by this Hon'ble Court in Com.O.S.No.84/2020 and also prays to restore the case for direct disposal of the suit in accordance with law and consequently permit to file the W/S.
2. The Brief facts of the Petition are as follows:-
The Petitioner No.2 got to know about Com.O.S.84/2020 when the Petitioner No.2 received Notice through email on 21.11.2023 in his spam box in Com.Ex.No.448/2022. Thereafter, 15 Com.Misc.1/2024 the Petitioner No.2 contacted his counsel in Bangalore and applied for Certified Copy of the entire file in the above case. On perusal of the papers, it was learnt that the Plaintiff has filed Com.O.S.84/2020 seeking to recover a sum of Rs.43,05,000/-
along with interest at the rate of 18 percent from the date of the suit till realization. It was also noticed that the suit summons was issued to the Petitioners herein and that the same was sent to the address Sy.No.41 A, Raghuvanapalya, 9th Phase J.P Nagar, Bengaluru - 560078. The said notice returned with an endorsement "Addressee left" on 09.03.2023.
The Petitioner further submits that, In view of the financial loss of the Petitioner moved to the Address as stated in the cause title and the Petitioner No.2 was making efforts to revive and run the Petitioner No.1 company. Thereafter, the Petitioner No.1 company has not been operational till date. The Petitioner No.2 in search of business opportunities had gone to UAE Dubai to explore business opportunities in order to make a living. Due to his misfortune and the outbreak of COVID-19 epidemic a nationwide lock down was imposed on 24.03.2020 the entire nation came to a standstill and the Petitioners were not able to carry on any business activity. In the meanwhile, the Respondent herein has instituted Com.O.S.84/2020. Summons 15 Com.Misc.1/2024 was issued to the Petitioner in the Address at Sy.No.41 A, Raghuvanapalya, 9th Phase J.P Nagar, Bengaluru 560078. The Petitioners were not present in the said premise as the bank had taken over the premise and the summons sent returned with an endorsement 'Addressee Left". It is pertinent to mention that the summons sent to the 3rd Petitioner returned with an endorsement 'insufficient address'. Thereafter, on 20.09.2021 the Respondent filed application U/O 5 Rule 20 of the Code of Civil Procedure seeking to take paper publication. The same was allowed and the Respondent herein was permitted to take paper publication.
The Petitioner further submits that, On 01.10.2021 this Hon'ble Court was pleased to adjourn the matter for appearance of the Petitioners herein. Thereafter, on 10.11.2021 the Petitioners herein were called out absent and were placed ex- parte. Subsequently, on 28.02.2022 this Hon'ble Court was pleased to pass an ex-parte judgment decreeing the suit of the Plaintiff as prayed for. the Respondent herein has admitted that Criminal Appeal bearing No. 2086 of 2019 is pending between the parties. It is submitted that the Petitioners herein through its counsel has been appearing in the above appeal and contesting the same. The Respondent herein has admitted that 15 Com.Misc.1/2024 Crl.A.No.2086/19 is pending between the parties. The Petitioners herein through its counsel has been appearing in the above appeal and contesting the same. This Hon'ble Court on 05.03.2021, 07.04.2021 and 10.06.2021 was pleased to grant the Respondent time for furnishing the correct address to facilitate summons to the Petitioners. However, the Respondents purposely with an intention to obtain an Ex-parte Judgment and decree has made no attempts to find out the correct address of the Petitioners.
The Petitioner further submits that, The Respondents could have intimated his counsel appearing Crl.A.No.2086/19 to find the correct address. The Respondent herein had also lodged a police complainant to harass the Petitioner before the Peenya Police Station and the same came to be registered as C.C.33799/2018 pending before the Hon'ble 3rd Additional Chief Metropolitan Magistrate. The Petitioner has been appearing in the said case and contesting the same. Despite having means to find out the correct address of the Petitioners, the Respondent has proceeded to file an application to take summons through paper publication. The Petitioners are law abiding citizens and have been contesting all proceedings initiated against the Petitioners diligently. Even though the Respondent was aware 15 Com.Misc.1/2024 that the premise to which summons was taken was in the possession of the bank and that the Petitioners were not residing there, the Respondent has applied for sending summons to the said premise. As the Petitioners moved out of Bangalore in the month of February, the newspaper publication taken out by the Respondent never came to the notice of the Petitioner and no summons was also received by the Petitioners. The Petitioner No.2 got to know about the above suit only when the Petitioner No.2 received Notice through email on 21.11.2023 in his spam box in Com.Ex.448/2022. It is only after going through the certified copies that the Petitioner came to know about the nature of the suit, the Petitioner being placed ex- parte, proceedings that had taken place in the suit and about the Ex-parte Judgment and decree passed against the Petitioner.
The Petitioner further submits that, Petitioners were not in the said premise as the Bank had taken over possession. The Petitioners have been contesting other proceedings instituted by this Respondent as well as other cases. Therefore, the Petitioners had no intention to evade the process of law. For this reason the Ex-parte Judgment is liable to be set aside. The order placing the Petitioner Exparte is to be recalled and the Exparte Judgment and Decree is liable to be set aside and the 15 Com.Misc.1/2024 Petitioner should be permitted to contest the suit on merits. The Petitioner has an excellent case on merits. The documents produced by the Respondent are disputed documents. If given an opportunity, the Petitioner would be able to demonstrate conclusively before this Hon'ble Court all the above facts and the false claims of the Respondent. If the Petitioner was served with summons and if the Petitioner had appeared in the above matter, the false case built up by the Respondent would have collapsed and the suit would have been dismissed. As stated supra, that the Petitioner No.2 got to know about the above suit when the Petitioner No.2 received Notice through email on 21.11.2023 in his spam box in Com.Ex.448/2022. Thereafter, the Petitioner No.2 contacted his counsel in Bangalore and applied for Certified Copy of the entire file in the above case. Thereafter, the Counsel of the petitioner received the certified copies only on 07.12.2023. Only after receiving the certified copies, the Petitioner came to know the exact nature of the suit and the prayers sought therein. On going through the certified copies, the Petitioner came to know regarding the Ex-parte Judgment and decree passed against it. The Petitioners immediately held consultations with its advocate. Thereafter, the Petitioners were collating certain documents for filing the present petition. The Petitioners instructed their counsel on 15 Com.Misc.1/2024 certain facts and the present petition is being filed now. The Petitioner humbly submits that non-appearance of the Petitioner was due to the bonafide reasons mentioned above. The Petitioner will be put to irreparable loss and hardship if the petition is not allowed and Com.O.S.84/2020 is not restored to the file. On the contrary, no hardship or loss would occur to the Respondent if this petition is allowed and the suit is restored to the same stage for disposal on merits. Hence, this petition.
3. Respondent appeared through Counsel and not chosen to file the Objections. But, filed memo stating that, they have no objections to allow the petition subject to deposit of decreetal amount along with Interest as per the Judgment dtd.28.02.2022.
4. The Petitioner has examined PW-1 and got marked Ex.P.1 to Ex.P.7. I have heard the arguments of the Advocate for the Petitioner.
5. Based on the above pleadings of the Petitioner, the following points arise for my consideration -
1. Whether the Petitioner made out a ground to set aside the Judgment and Decree passed in Com.O.S.84/2020 ?
15Com.Misc.1/2024
2. What Order?
6. My findings on the above Points are as under:
1. Point No.1 :- In the Affirmative.
2. Point No.2 :- As per the final Order for the following reasons.
REASONS
7. Point No.1:- The averments of Petition and evidence of PW-1 discloses that, In view of the financial loss of the Petitioner moved to the Address as stated in the cause title and the Petitioner No.2 was making efforts to revive and run the Petitioner No.1 company. Thereafter, the Petitioner No.1 company has not been operational till date. The Petitioner No.2 in search of business opportunities had gone to UAE Dubai to explore business opportunities in order to make a living. Due to his misfortune and the outbreak of COVID-19 epidemic a nationwide lock down was imposed on 24.03.2020 the entire nation came to a standstill and the Petitioners were not able to carry on any business activity. In the meanwhile, the Respondent herein has instituted Com.O.S.84/2020. Summons was issued to the Petitioner in the Address at Sy.No.41 A, Raghuvanapalya, 9th Phase J.P Nagar, Bengaluru 560078. The 15 Com.Misc.1/2024 Petitioners were not present in the said premise as the bank had taken over the premise and the summons sent returned with an endorsement 'Addressee Left". It is pertinent to mention that the summons sent to the 3rd Petitioner returned with an endorsement 'insufficient address'. Thereafter, on 20.09.2021 the Respondent filed application U/O 5 Rule 20 of the Code of Civil Procedure seeking to take paper publication. The same was allowed and the Respondent herein was permitted to take paper publication.
8. The Respondent was always aware of the whereabouts of the Petitioners herein as the Respondent in the Plaint in Paragraph No.6 and 7 has admitted that Crl.A.No.2086/2019 is pending between the parties. Further, the Respondent is also contesting the criminal case initiated by the Respondent numbered as C.C.No.33799/2018 before the learned Magistrate. Despite having means to find out the correct address of the Petitioners, The Respondent has proceeded to file an application to take summons through paper publication. The Respondent herein has got notice issued in E.P.No.448/2023 through e-mail. It is evident that the Respondent was always aware of the said e-mail address. However the Respondent in the suit did not make attempts to take steps through e-mail. Therefore, the 15 Com.Misc.1/2024 Respondent has played fraud on this Hon'ble Court and the Petitioner hereby obtaining an ex-parte decree by not obtaining proper service of summons in the suit.
9. The Respondent has not filed objections, but filed memo stating that, Petition may be allowed subject to condition to deposit of Decreetal amount with Interest.
10. Since, the Respondent has not denied the case of the Petitioner, it is proved that, the Petitioner is not residing in the Address to which the Court summons has been sent in Com.O.S.84/2020. So, there is a sufficient reason for non appearance of the Petitioner in Com.O.S.84/2020. The Petitioner was due to bonafide reason, non appeared before this Court in Com.O.S.84/2020. Hence, the Petitioner has made out a ground to allow the Petition and set aside the Judgment and Decree passed in Com.O.S.84/2020. However, inconvenience caused to the Respondent is to be compensated by imposing cost. Accordingly, I answer Point No.1 as 'Affirmative'.
11. Point No.2 : -Therefore, I proceed to pass the following Order.
15 Com.Misc.1/2024 ORDER The petition filed U/O 9 R 13 of CPC is hereby allowed with cost of Rs.3,000/-. Office is directed to restore the Com.O.S.No.84/2020 subject to payment of cost.
(Dictated to the Stenographer, typed by her directly on computer, verified and then pronounced by me in open Court on this the 25th day of March 2025).
sd/-
(SUMANGALA S BASAVANNOUR), LXXXII Addl.City Civil & Sessions Judge, Bengaluru.
15Com.Misc.1/2024 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER PW-1 Nikhil Ranjan LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE PETITIONER Ex.P.1 E-mail dtd.03.02.2020 Ex.P.2 Printout of picture of notice Ex.P.3 C/C of Plaint of Com.O.S.No.84/2020 Ex.P.4 C/C of Order sheet of Com.O.S.No.84/2020 Ex.P.5 65B certificate Ex.P.6 C/C of Judgment and Decree of Com.O.S.No.84/2020 LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENT NIL LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE RESPONDENT NIL sd/-
(SUMANGALA S BASAVANNOUR), LXXXII Addl.City Civil & Sessions Judge, 15 Com.Misc.1/2024 Bengaluru.