Karnataka High Court
The National Small Industries ... vs M/S India Agencies (Regd) on 28 September, 2022
Author: V.Srishananda
Bench: V.Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE Mr. JUSTICE V.SRISHANANDA
REGULAR FIRST APPEAL NO.1270 of 2010 (MON)
BETWEEN:
THE NATIONAL SMALL INDUSTRIES CORPORATION LTD,
THE COMPANY REGISTERED UNDER THE COMPANIES ACT,
1956, WHOLLY OWNED BY GOVERNMENT OF INDIA,
HAVING ITS REGISTERED OFFICE AT NSIC BHAVAN,
OKHLA INDUSTRIAL ESTATE, NEW DELHI-110 020
AND HAVING ONE OF ITS BRANCH OFFICES AT NO.C-424,
PEENYA 1ST STAGE, BEHIND PEENYA POLICE STATION,
BANGALORE-560058, REP. BY ITS SENIOR BRANCH
MANAGER SRI. M.L.PRAKASHA.
...APPELLANT
(BY SRI. S.KRISHNASWAMY, ADVOCATE)
AND:
1. M/S INDIA AGENCIES (REGD)
"SPRINGDALE", NO.51, RESIDENCE ROAD,
1ST CROSS, BANGALORE-560 025.
REP. BY ITS POWER OF ATTORNEY HOLDER
SRI. M.PADMANABHAN.
2. M/S SHRI RAGHAVENDRA GARMENT,
NO.304, 9TH B CROSS,RAMAKRISHNANAGAR,
BANGALORE.REP. BY ITS PROPREITRIX,
SMT. SUSHEELA BAI..
...RESPONDENTS
(BY SMT. SHOBHA BHAVIKATTI, ADVOCATE FOR C/R1;
R2 DELETED V/O DATED 02.08.2013)
2
THIS REGULAR FIRST APPEAL FILED U/S 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 05.02.2010 PASSED IN
O.S.NO.17741/2005 ON THE FILE OF THE XXVI ADDL. CITY CIVIL JUDGE,
MAYOHALL, BANGALORE, DIRECTING THE SUIT FOR RECOVERY OF
MONEY.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Case called out.
2. Shri S Krishnaswamy filed objections to I.A.No.1/2022 filed by learned counsel for respondent/plaintiff under Order XLI rule 27 of CPC.
3. Heard both parties.
4. This appeal is by the defendant, who has suffered money decree in O.S.No.17741/2005, wherein the Trial Court directed the defendant/appellant to pay a sum of Rs.22,94,365/- with future interest at 6% per annum. The dispute between the parties would reveal that there was supply of Button stitch machine with a brand name 'Juki' and same was supplied according to the plaintiff to 3 Shri. Raghavendra Garments, situated at Ramakrishna Nagar, as against the delivery address being at Mysuru and plaintiff raised the bill for payment with the first defendant. According to the defendant, invoice cum delivery challan bearing No.117 dated 24.07.2003 for a sum of Rs.3,00,252/- which is the actual bill, no delivery has taken place as per the agreement at Mysuru and therefore, the defendant has not obliged to honour the invoice. Ultimately the Trial Court considered the rival contentions and decreed the suit. Being aggrieved by the same, the appellant is before this Court.
5. During the course of argument, it is noticed that delivery receipt is not produced before the Trial Court, which is a document which would have bearing on the result of the suit. So also the defendant took a contention that plaintiff being represented by one of its partners through Power of Attorney was not on the partnership deed registered with the Registrar of Firms as contemplated under Section 69 of the 4 Partnership Act and therefore, the suit itself was not maintainable.
6. In order to meet the said contention, learned counsel for the plaintiff has filed an application under Order XLI Rule 27 of CPC with a copy of Form No.1 registered with Registrar of Companies showing name of plaintiff. Admittedly, it is a copy and the same need to be proved in accordance with law before the Trial Court. Without such documents being on record, the dispute among the parties cannot be properly adjudicated. Therefore, need has come to accept the additional evidence on record. Hence this Court is of the considered opinion that the application i.e., I.A.No.1/2022 filed under Order XLI Rule 27 of CPC needs to be allowed.
7. The only objection of the other side is that it is only an after thought of the plaintiff and the same ought to have been filed before the Trial Court. Since the appellant/defendant relied on the fact that the person, who 5 represented the plaintiff firm is not registered with the Registrar of Firms, this aspect would go to the very root of the matter only on the basis of production of document. This Court cannot held that plaintiff has complied the legal requirement of filing suit. Moreover the defendant need to be given an opportunity to cross-examine on the additional evidence. Therefore, viewed from any angle, this Court is of the considered opinion that the matter requires fresh consideration before the Court of law by setting aside the impugned judgment.
Accordingly, I.A.No.1/2022 is liable to be allowed. The plaintiff is permitted to lead additional evidence in terms of the application i.e., I.A.No.1/2022.
Needless to emphasise that the defendant has the right to cross-examine, if additional evidence is produced by the plaintiff. In view of production of additional document, the matter requires consideration afresh for proper adjudication. 6 Consequently, the appeal needs to be allowed by setting aside the impugned judgment. Hence, the following:
ORDER The appeal is allowed.
I.A.No.1/2022 is also allowed. The matter is remitted to the Trial Court for fresh disposal of the suit in accordance with law.
Since the suit is of the year 2005, the trial Court is also directed to dispose of the suit afresh in accordance with law before 31.01.2023.
Needless to emphasise that the parties shall cooperate for early disposal of the suit.
Permissible refund is allowed. So also the appellant is permitted to withdraw the amount in deposit under due identification.
Sd/-
JUDGE Psg*