Karnataka High Court
M/S Cimec Enterprises vs M/S Sree Gururaja Enterprises Pvt Ltd on 22 January, 2014
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR.JUSTICE H.BILLAPPA
WRIT PETITION NO.18 OF 2014 (GM-CPC)
&
WRIT PETITION NOS. 217 & 219 OF 2014
BETWEEN:
M/S. CIMEC ENTERPRISES
ENGINEERS AND CONTRACTORS
A REGISTERED PARTNERSHIP FIRM
HAVING ITS OFFICE AT
NO.35, 2ND CROSS
BHEEMA JYOTHI LIC COLONY
BASAVESHWARA NAGAR
BANGALORE-560079.
REPRESENTED BY ITS MANAGING PARTNER
SRI B.N.NAGARAJU.
... PETITIONER
(BY SRI SUBRAMANYA S. ADV.)
AND:
1. M/S. SREE GURURAJA ENTERPRISES PVT. LTD.
HAVING ITS REGISTERED OFFICE AT NO.173/174
SUBHEDHAR CHATRAM ROAD
SESHADRIPURAM
BANGALORE-560004
REPRESENTED BY ITS DIRECTORS.
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2. SRI M.N.NARASIMHAMURTHY NAYAK
DIRECTOR
SREE GURURAJA ENTERPRISES PVT. LTD.
RESIDING AT GURU KRUPA
OPPOSITE DDPI OFFICE
DR.RADHAKRISHNA ROAD
S.S.PURAM
TUMKUR-561001.
3. SRI J.R.SRINIVAS
DIRECTOR
SREE GURURAJA ENTERPRISES PVT. LTD.
NO.3, 5TH CROSS, SUDARSHAN NILAYA
CUBBONPET
BANGALORE-560002.
... RESPONDENTS
(BY SRI MADHUKAR DESHPANDE, ADV. FOR R-1;
SRI VIVEKANANDA, ADV. FOR R-2; AND
SRI C.M.PONNACHA, ADV. FOR R-3)
***
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
CALL FOR RECORDS AND SET-ASIDE THE ORDER OF THE
HON'BLE CITY CIVIL JUDGE AT BANGALORE DATED
20.12.2013, IN O.S.NO.3290/09 AT ANNEXURE-K IN
DISMISSING THE APPLICATIONS FILED BY THE PETITIONER
U/S.151 OF CPC., 1908 U/O. 18 RULE 2 R/W. 151 OF CPC.,
1908 & U/O. 7 RULE 14 R.W SEC.151 OF CPC., 1908.
THESE WRIT PETITIONS COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
In these writ petitions under Articles 226 and 227 of the Constitution of India, the petitioner has called in question, the order dated 20-12-2013, passed by the Trial Court in O.S.No.3290/2009 on interlocutory applications under Section 151 of C.P.C, Order XVIII Rule 2 read with Section 151 of C.P.C and Order VII Rule 14 read with Section 151 of C.P.C. vide Annexure-K
2. By the impugned order at Annexure-K, the Trial Court has rejected the applications filed by the petitioner under Section 151 of C.P.C, Order XVIII Rule 2 read with Section 151 of C.P.C and Order VII Rule 14 read with Section 151 of C.P.C.
3. Aggrieved by that, the petitioner has filed these writ petitions.
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4. Briefly stated the facts are:
The petitioner has filed suit in O.S.No.3290/2009 for recovery of a sum of Rs.1,40,00,000/- (Rupees one crore forty lakh only) with interest at 18% p.a. and other reliefs.
The parties have led their evidence. At the stage of arguments, the petitioner has filed applications under Section 151 of C.P.C, Order XVIII Rule 2 read with Section 151 of C.P.C and Order VII Rule 14 read with Section 151 of C.P.C. to re-open the case, recall the witness and produce additional documents. The Trial Court by its order dated 20-12-2012 has rejected the applications.
Therefore, these writ petitions.
5. The learned counsel for the petitioner contended that the impugned order cannot be sustained in law. He also submitted that there was a raid by the Sale Tax Authorities and the Books of Accounts were seized and the documents sought to be produced by the petitioner were 5 with the Chartered Accountant and therefore, the petitioner was not able to produce the documents. Without considering this, the impugned order has been passed and therefore, the impugned order cannot be sustained in law. In the interest of justice, the petitioner may be allowed to produce the documents.
6. As against this, the learned counsel for respondent No.1 submitted that the impugned order does not call for interference. He also submitted that the Court directed the respondent No.3 to adduce his evidence. Thereafter, the respondent No.2 led his evidence and thereafter, respondent No.1 led its evidence. Though the petitioner had sufficient time to produce the documents during the Trial, the petitioner has not produced the documents and therefore, the petitioner cannot be allowed to produce the documents. The documents were available with the petitioner through out the trial. Further, he 6 submitted that there is a direction by this Court to dispose of the matter by 31-1-2014 and the petitioner is aware of this. He also submitted that if the petitioner is allowed to produce the documents and it would affect the entire proceedings. Therefore, the impugned order does not call for interference.
7. The learned counsel for the respondent No.2 submitted that he adopts the argument of the learned counsel for the respondent No.1.
8. The learned counsel for the respondent No.3 submitted that he opposes the application.
9. I have carefully considered the submissions made by the learned counsel for the parties.
10. The point that arises for my consideration is, whether the impugned order call for interference?
11. It is relevant to note, the suit is for recovery of a sum of Rs.1,40,00,000/- (Rupees one crore forty lakh 7 only) with interest at 18% p.a. and other reliefs. The parties have led their evidence. After the completion of petitioner's evidence, the Trial Court has directed the respondent No.3 to lead his evidence. The respondent No.3 has led evidence. Thereafter, the respondent No.2 has led his evidence. Thereafter, the respondent No.1 has led its evidence. During the Trial, the petitioner was in custody of the documents. It is stated in the affidavits filed in support of the applications that the documents were with the Chartered Accountant of the petitioner. It is clear that the documents were available. In spite of that, the petitioner has not produced the documents. At the stage of arguments, the petitioner has filed applications to re-open the case, recall the witness and produce the documents. The Trial Court has rejected the applications. This Court in RAJGOPAL & CO. v. K.N.NARASIMHA MURTHY, disposed of on 3-4-2013 in W.P.Nos.50852- 8 50854/2012 (GM-CPC) has referred to the decision of the Hon'ble Supreme Court reported in 2013 AIR SCW 1564. It reads as follows:
"9. If we apply the principles enunciated in the above case and the limitation as explained with regard to the application under Order XVIII Rule 17, the applications filed by the plaintiff have to be rejected. However, learned counsel for the respondent by placing heavy reliance on a subsequent decision, namely, K.K.Veluswamy v. N.Palanisamy, (2011) 11 SCC 275: (2011 AIR SCW 2296), submitted that with the aid of Section 151, CPC, the plaintiff may be given an opportunity to put additional evidence and to recall PW-1 to prove those documents and if need arises other side may be compensated. Accordingly to him, since the High Court has adopted the said course, there is no need to interfere with the same.
xxx xxx xxx 9
11. The perusal of the materials placed by the plaintiff which are intended to be marked as bills have already been mentioned by the plaintiff in its statement of account but the original bills have not been placed on record by the plaintiff till the date of filing of such application. It is further seen that during the entire trial, those documents have remained in exclusive possession of the plaintiff but for the reasons known to it, still the plaintiff has not placed these bills on record. In such circumstance as rightly observed by the Trial Court at this belated stage and that too after the conclusion of the evidence and final arguments and after reserving the matter for pronouncement of judgment, we are of the view that the plaintiff cannot be permitted to file such applications to fill the lacunae in its pleadings and evidence led by him. As rightly observed by the trail Court, there is no acceptably reason or cause which has been shown by the plaintiff as to why these 10 documents were not placed on record by the plaintiff during the entire trial. Unfortunately, the High Court taking note of the words "at any stage" occurring in Order XVIII Rule 17 casually set aside the order of the trial Court, allowed those applications and permitted the plaintiff to place on record certain bills and also granted permission to recall PW-1 to prove those bills. Though power under Section 151 can be exercised if ends of justice so warrant and to prevent abase of process of the court and Court can exercise its discretion to permit reopening of evidence or recalling of witness for further examination/cross- examination after evidence led by the parties, in the light of the information as shown in the order of the trial Court, namely, those documents were very well available throughout the trial, we are of the view that even by exercise of Section 151 of CPC, the plaintiff cannot be permitted."11
12. Similarly, the Hon'ble Supreme Court in M/S. BAGAI CONSTRUCTIONS v. GUPTA BUILDING. MATERIAL STORE reported in 2013 AIR SCW 1564 has observed as follows at para - 11:
"xxx Though power under Section 151 can be exercised if ends of justice so warrant and to prevent abuse of process of the court and Court can exercise its discretion to permit reopening of evidence or recalling of witness for further examination/cross-examination after evidence led by the parties, in the light of the information as shown in the order of the trial Court, namely, those documents were very well available throughout the trial, we are of the view that even by exercise of Section 151 of CPC, the plaintiff cannot be permitted.
At para - 12, the Hon'ble Supreme Court has observed as follows:
" xxx xxx We are satisfied that the plaintiff has filed those two applications before the Trial 12 Court in order to over come the lacunae in the plaint, pleadings and evidence. It is not the case of the plaintiff that it was not given adequate opportunity. In fact, the materials placed show that the plaintiff has filed both the applications after more than sufficient opportunity had been granted to it to prove its case. During the entire trial, those documents have remained in exclusive possession of the plaintiff, still plaintiff has not placed those bills on record. It further shows that final arguments were heard on number of times and judgment was reserved and only thereafter, in order to improve its case, the plaintiff came forward with such an application to avoid the final judgment against it. Such course is not permissible even with the aid of Section 151 of C.P.C."
13. The decision of the Hon'ble Supreme Court is squarely applicable to the facts of the present case. The documents were available with the Chartered Accountant 13 of the petitioner. The petitioner could have produced the documents but has failed to do so. It is only after the conclusion of the Trial, at the stage of arguments, the petitioner has filed applications. The Trial Court taking into consideration the circumstances of the case and that the documents were available with the petitioner through out the trial has rejected the applications. I do not find any error or illegality in it. Therefore, the impugned order does not call for interference. There is no merit in these writ petitions and therefore, they are liable to be dismissed.
Accordingly, the writ petitions are dismissed.
Sd/-
JUDGE kvk