Karnataka High Court
M/S Ventura Commodities Pvt Ltd vs Sri K Lakshminarayana on 20 August, 2018
Author: Chief Justice
Bench: Dinesh Maheshwari
W.P.No.12635/2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF AUGUST, 2018
BEFORE
HON'BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE
WRIT PETITION NO.12635 OF 2018 (GM-CPC)
BETWEEN:
M/S. VENTURA COMMODITIES PVT. LTD.
REGD. OFF: NO.C-112/116
1ST FLOOR, KAILASH INDUSTRIAL
COMPLEX, OFF. LBS MARG
PARKSITE, VIKHROLE (W)
MUMBAI - 400 079
BY ITS BUSINESS DEVELOPMENT MANAGER
SRI KUNTAL S. PATIL
AGED ABOUT 42 YEARS
... PETITIONER
(BY SRI MITHUN G.A., ADVOCATE)
AND:
1. SRI K. LAKSHMINARAYANA
S/O LATE M. KRISHNAPPA
AGED ABOUT 47 YEARS
R/AT NO.36, MALLIKARJUNA LANE
K.R. SHETTY PET
BENGALURU - 560 002.
2. SRI HEMANTH KULINKUMAR MAJETHIA
DIRECTOR
M/S. VENTURA COMMODITIES
PRIVATE LIMITED
UNIT NO.10/4, 6TH FLOOR
MITRA TOWERS, M.G. ROAD
BENGALURU - 560 001.
... RESPONDENTS
(SRI K.J. KAMATH & SRI K.G. KAMATH, ADVOCATES
R2 - SERVED)
W.P.No.12635/2018
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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 07.03.2018 IN O.S.NO.7481/2016 PASSED ON
I.A.NO.7 FILED BY THE DEFENDANTS UNDER ORDER XIV
RULE 5 OF CPC PENDING ON THE FILE OF THE LEARNED
LXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU VIDE ANNEXURE-A TO WRIT PETITION AND
ETC.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
By way of this writ petition, the defendant of a money recovery suit (O. S. No. 7481/2016 in the Court of LXIV Additional City Civil Judge, Bengaluru City) has questioned the order dated 07.03.2018 passed on I.A. No. 7 in the said suit, whereby the Trial Court has declined his prayer for recasting issue No. 3 and for framing 18 additional issues.
In this suit for money recovery, after pleadings of parties, the Trial Court has framed the following issues:
"1. Whether plaintiff proves that he has invested an amount of Rs.52,00,000/- as fixed deposit with defendants as averred in the plaint?
2. Whether plaintiff further proves that defendants agreed to pay interest @ Rs.13% p.a. on such fixed deposit?
3. Whether plaintiff further proves that defendants have not issued fixed deposit receipt for having deposited amount with the defendants?W.P.No.12635/2018 -3-
4. Whether suit is barred by law of imitation?
5. Whether plaintiff is entitle for money decree as sought for?
6. What Order or Decree?"
It appears that at the earlier stage in this suit, the defendant-petitioner moved an application - I.A.No.3 seeking reference of the matter to arbitration, while asserting that the dispute between the parties was required to be settled through arbitration. The said application was rejected by the Trial Court on 24.03.2017 and a revision petition filed against that order, being Civil Revision Petition No.229/2017, was dismissed by this Court on 31.08.2017 while observing that there was no impediment for the Court in entertaining the suit in question. Thereafter, when the matter was posted for cross- examination of PW.1, the defendant-petitioner filed the application in question - I.A.No.7, suggesting that issue No. 3 was required to be recast and as many as 18 additional issues were required to be framed in the matter. The proposed additional issues, as stated in the application, read as under:
"i. Whether plaintiff proves that defendants had offered fixed deposit services offering interest W.P.No.12635/2018 -4- of 13% on such deposits and allowing withdrawals within 48 hours?
ii. Whether plaintiff proves that defendant company had represented that the fixed deposit receipt will be handed over after obtaining the same from their head office?
iii. Whether plaintiff proves that he approached the defendant demanding for fixed deposit receipts despite passage of three months of deposit?
iv. Whether plaintiff proves at the time of obtaining the signature on the papers the defendant has deliberately not furnished and copy of the application and he was not allowed to read the same and was simply asked to sign on the dotted lines?
v. Whether plaintiff proves fraud and deceit on part of the defendant in obtaining signatures on undisclosed documents?
vi. Whether plaintiff proves that the defendant committed fraud by offering fixed deposit services at the rate of 13% interest p.a.?
vii. Whether suit is liable to be dismissed for lack of material facts and particulars in the plaint alleging fraud, deceit and forgery of which documents against the defendants as required under Order 6 Rule IV of C.P.C.?
viii. Whether defendant proves that the relationship between plaintiff and the defendant is only that of client and member for trading of commodities under NSEL?
ix. Whether plaintiff proves the signatures of plaintiff are forged?
x. Whether defendant proves that the plaintiff has already filed a claim petition before the Mumbai High Court registering claim before the Committee appointed by Bombay High Court towards refund money from NSEL invested through defendant?W.P.No.12635/2018 -5-
xi. Whether defendant proves that the plaintiff has been their client investing in trading of shares?
xii. Whether defendant proves that the relationship between the plaintiff and defendant is only that of Client-Member authorized to trade in NSEL as per NSEL Member Client Agreement?
xiii. Whether defendant is entitled for cost and exemplary damages on plaintiffs false and frivolous suit on false claim of fixed deposit?
xiv. Whether suit is not maintainable and is liable to dismissed for suppression of its claim registered before Lordship Justice Mr.V.C.Daga, Mr.Y.A.Thar Committee appointed by the Bombay High Court and filing this suit on the same cause of action suppressing the true facts before this Hon'ble court?
xv. Whether plaintiff proves that the defendant has cheated in similar fashion by offering fixed deposit returns as alleged by the plaintiff?
xvi. Whether suit is liable to be dismissed for non joinder for NSEL?
xvii. Whether this court lacks jurisdiction as per the NSEL Member-Client Agreement?
xviii. Whether the defendants proves that the electronic contract notes by email and digital logs were sent on daily basis to the plaintiff for trading of commodities in NSEL?"
The Trial Court has rejected the application so moved by the defendant-petitioner, while observing that the issues as framed were sufficient to decide the controversy between the parties.
Having heard learned counsel for the parties and having perused the material placed on record, this Court finds W.P.No.12635/2018 -6- the approach of the Trial Court largely justified, where it has rejected the application as made on behalf of the defendant suggesting needlessly that issue No.3 called for recasting and further suggesting unnecessarily as many as 18 additional issues, as if every single aspect occurring in the pleading was to be put to an issue. However, while going through the pleadings, this Court finds that one of the aspects of objections, as taken in paragraph 4(k) of the written statement, raising the question of jurisdiction, that only the Courts at Mumbai were having jurisdiction in the matter, need to be put to issue for just and effectual determination of all the questions involved in the matter. The application - I.A.No.7 is required to be allowed to that extent only.
However, it is also noticed that the suit is pending since the year 2016 and this issue as regards the jurisdiction of the Court has been raised by the defendant with reference to the bye-laws of National Spot Exchange Limited (NSEL), but there remains a question about the operation and effect of such bye-laws in the transaction of the parties. Therefore, this issue cannot be said to be a pure question of law so as to be determined at the initial stage. Hence, even if this issue is W.P.No.12635/2018 -7- ordered to be framed, it is also considered appropriate and hence, provided that the trial shall proceed further in the matter after framing of this issue of jurisdiction; and this issue shall also be determined at the time of final decision of the suit.
Subject to the observations foregoing, the impugned order dated 07.03.2018 is modified only to the extent that the proposed issue No.17 is ordered to be framed as issue No.4A in this matter.
The Trial Court, after recasting the issues as aforesaid, shall proceed with the matter in accordance with law and with reference to the observations made hereinabove.
The petition stands disposed of accordingly. No costs.
Sd/-
CHIEF JUSTICE ca