M/S Mahajan Medical Systems Pvt Ltd vs Sri K N Sudeendra on 18 March, 2010

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Karnataka High Court

M/S Mahajan Medical Systems Pvt Ltd vs Sri K N Sudeendra on 18 March, 2010

Bench: S.N.Satyanarayana

IN THE HIGH COURT OF' KARNATAKA AT BANGALORE
DATED THIS THE 18"" DAY OF MARCH 2010

BEFORE

THE HON'BLE MRJUSTICE S.}x1.SA1YA1\:ARAjYAreAA.V  

C.R.P.NO.284;<2ot)g .. 3
BETWEEN: A  

M/S MAHAJAN MEDICAL SYSTEMS PVE'-.L'I'D,,"'_=  
NO.126,1EDOOR, D.R.TOWERS,=__  * ._
DISPENSARY ROAD, _  _ 

BANGALORE-- 1. '   -_   

REP. BY PIS MANAGING' DIRE;C'i"QR _  

SMT. RITA MAHAJAN.  = '  V"*V»--'i,v;.'V'"PETI'!'I0NER.

(By SR1§x'M_Lg':OSEP};I,  .. 

SRIKN SUCDEEISEDRA,'   ., 

S/O     

MAJOR,  H    M A

R/AT G/G G.\fIJENDRA BALAJI,

APARTMENTS I<'LA'F.NO}'F_--2',« 

711-I MAIN,"'S'R1RAM.EURAIy_£.,'~

 .--  '  RESPONDENT.

 » _ (E;;jL"SMjﬁ,AE_NAPUR1~3A BEVINJE, ADV.)

  ».T'r3s;i1S:V'4v1§§3:'JfI'£'ION FILED UNDER SECTION 115 OF
CODE -..OE CIVIL PROCEDURE, AGAINST THE ORDER

I)A'I"ED O3"jl1i'2009 PASSED ON 1.A.NO.3 IN EXECUTION
NO;.34/_200f9= ON THE FILE OF TEE CITY CIVIL JUDGE,
BANGALORE, DISMISSING THE 1.A.EO.3 FILED UNDER

 -   ORDER331 RULE 26 OF CODE OF CIVIL RROCEDURE.

   :'.«'TmS PE'I'I'I'iON HAVING BEEN HEARD AND
  RESERVED FOR ORDERS, THIS DAY THE COURT
  ERONOUNCED THE FOLLOWING:

" 'W1



ORDER

This is judgment debtor --- tenanfs revision the order dated 03.11.2009 in Execution ﬁle of the Court of 14th Addjtiona} (Jity_Civi1'Judgie:V {cCi:..:2s}_, 1' "

Bangalore on iA.N0s.2 to 5. H0\izever'rix;heii._Vthe' taken up for final hearing totlagﬁin f;resence{of..Counsei--.ii' for both parties, the Counsel "petitioner.haslvresiricted his prayer in this revision' pages ._by the triai court against its application".inV:'ii£\.}.il;o:;§? "eras filed under Order 21 stay of further proceedings proceedings, which is 26.9.2008 passed by this egress couVift'ldiii.»os;&e;~9242/2007". The dismissai of which is chaE§enged'*in'é'his revision. A ' V. ., 'V 2,: ejfacis leading up to the filing of this revision are herein is judgment debtor in Execution N0.l3=?l/2--(:)i)$3".llwl1ich is ﬁled by the respondent herein to h Ilercergutellihe decree of ejectment passed in OS.No.9242/2007 C.fl'"t.i'1Ae file of the 149* Additional City Civil Judge, CCH-28. V ,,.5a1f1g8lore. via?

-4- the proceedings, which resulted in passing of an exparte judgment and decree in the said suit on 26.9.2008 granting three months time to the petitioner herein to quit vacant possession of suit schedule premises to_ resApoi1?.ien._t'e M herein with further direction to paydarnages rate of. V Rs.Z5,000/-- per month from the date vacant possession of suit schediﬁe prem_.ises.V to "

said decree, respondent.herein...--1e$ried"--~execution petition on 5.1.2009, which is numberedasfE:;.:.iii¢;'34';'2oo9, in the said petition delivery w'arrant'was.:issued.by. eirecuting court. 4:."tPeti.ti"oner"s.: "case"'is that''' it was not aware of the original"-_sui_t as wet}. as_v'ie>;;eQution proceeding initiated by respondenti_Vhevreiri_._ Accdrdmg to the Director of the petitilonier, on 9.2'.2{)__(_)_9v at about 8.30 a.m., when she was her :h.u'sb_and to hospitaifor post surgery follow--up t1*eatrnent.«--'V."p:th:e,Vi'respondent came to the suit schedule 'V preI4niseVs.ppaIong with court Bailiff to execute delivery warrant execution No.34/2009, she being under distress . made an endorsement on the warrant seeking two weeks Wtirne to Voluntarily vacate the premises and left with her ""?

husband to hospital leaving her daughter behind. Upon her return from the hospital, she found her house 10Ci£t3ﬂ«._4b§l3l{td sealed, her daughter missing, later traced in . house. Petitioner, her family members were"'o11--..:street "

oniy wearing appareis. Later, on i._V0.2_;20:O9'rsshe' til?! executing court, sought for monthsl' timer.'to'.Ve:vacate§ the tenanted premises in her occéupation. 2' matter was adjourned to 11.2.2009,._"':en thatday'».respondentHv'appeared and sought me to file.f'1obj§¢ti;;ns'~-.2.i5§}3'.'32.2.2009. On 12.2.2009 the shara of the Bailiff order sheet showed that the respondent --~ decree up the premises in occupation of the petitioner and tiiesame was viewed seriously by the "v..exec.utir,ig court regarding the manner in which the delivery 4Ve:{:e'c3,1ted, hence posted the matter to 17.2.2009 to on Bailiffs report.

'A On 17.2.2009 the respondent herein to avoid consequences of civil and criminal actions persuaded Mahajan to enter in to compromise, to ﬁle a joint We ..7..

6. It is the case of petitioner that such arrangement is not provided under Order 2}. CPC and that after this ineident petitioner came to know that fraud is played respondent herein in securing exparte (:lecree_.-=.§V1__ga,'i'1isft--. . petitioner. Hence, the petitioner subseqaé:at1y.: fe,1ed""= Miscellanours Petition in 171/2009,' orzytifie 'ﬂied Court, Bangalore, seeking rec-a1i.._of the.eitparte'v'o1'der_Hpa_ssed in OS.No.9242/2007. Accordingto the pe'u'tio:ier,Vfthe joint memo was accepted the 'of'»se"ttiement was made by the decree holder th:ejVvfrV'aud committed in obtaining the decreef" Since-the said fraud came to th_e.umpetitioner subsequentiy.

miscellaneous invoking its statutory right pr0Vi,d€.d Grder°9ViR:ule 13 CFC for setting aside the 'JV'"-.expiartei,;decree with said iA.III filed a memo to by it.

2 A ' the case of petitioner that at the time of joint rnemo petitioner had tendered to the respondent a it dated cheque for Rs.50,000/--, petitioner after Wt .3- discovering the fraud, instructed the respondent not to present the said cheque, much against its instruction2s,gthe respondent presented the same, which he dishonoured, thereafter respondent herein-._V: instituhtedf V' proceedings under Section 138, N.IjAct."'v A

8. In the meanwhile, petitioner fgiie-dc' anapplication execution proceedings in IA.I?_i 'ur1der'Order 2,6 for _ > stay of execution proceeding}gbefore same was considered steps were for "'re--deliveI'y warrant of the suit schedule premises.'_--.Hence;. peijtioner ﬁied writ petition in i3o'7ie/.f_é,vQo_9_-- seeking this Court to take cognizance of tfiepracticed on defendant in original suit AV.Qs.NeLs_2g42/zoo'? tend aiso seeking initiating of i-.,corite'inp't of coartvvproceedings as well as deciaring the s_'_p'roTceediiig.s»V4"dated 17.2.2009 in Ex.No.34/2009 as not constituting: order within the meaning of Order 21 Rule 'r326 CP€i" "In the nieariwhiie, during the pendency of the said A ":A.»"'\.-'.T,Iv'iVf"}}(3titi0I1 the executing court passed order on ZfA.III. In View of that, the WP.No.iO7 18/2009 was dismissed on 'W:

* parties and perusal of entire record of the courts 'oeiow, this

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that the door of the said Advocate office was always closed. In the meanwhile, the Counsel for the petitioner submitted that the fraud or otherwise committed in representing the petitioner before the trial Court need not be gone in to in"--this revision, that he would conﬁne his arguments onlyppiriéj 3 of the order passed on IAJII in Ex.No.34/ Court decided to hear the parties and" it on the available records. A' in it

10. After hearing the for it the materiai availabie on record, "points 'that.-'arise for consideratio'n this are ' it

1)z'--.\7\?'hetVherV court..thelow was justiﬁed in rejecting the.._Vap.p1ication'ﬁnder Order 21 Rule 26 ore for i it Stay ofthevifurther proceedings and pass orders for éfreissue ofvﬂdeiivery warrant in respect of the suit premises pursuant to decree dated ::s».e9.'2"0o8?

gmyxrhat order '2 i --A':On appreciation of the arguments of the Counsel for ""3 -31- Court answers Point No.1 in the affirmative and point No.2 in dismissing the revision for the following reasons: T

11. The facts and circumstances of this case} . pecuiiar. Petitioner is a company represented by l"3irect,or' " "

Mrs.Rita Mahagan. She admits that the in possession of the suit scliedule piren1isesit'a'::dv,cshehas been in occupation and enjoyment' of the.'san_ie along with her family members 15.' as Director of petitioner company. ".f1.g;§-- paying rent regularly till To substantiate that, the attention of this Court to the pleaclingin the 'wheieyihere is no reference to arrears of rent. It ..stated',_ fro_n:1'the date of suit till date of ﬁling of ,.V_exe.;'§_i;Ltion. proceedings««to take delivery of possession of the suit =.sched£_1lej"prerr1ises rent was paid by cash. The oif'jt§V'iepetitioner that the rent was always paid by casiillcatinot be accepted in View of the documents produced 'the plaintiff at the time of ﬁling suit, wherein the letter

- by the petitioner clearly discloses that the payments " Wrnade at the initial period of tenancy are conﬁrmed by letters "*1 i it ~acoep{ted".'A

-;2- under which the cheques were sent to piaintiff. Further_,_ the notice which was sent by the piaintiff prior to ﬁlingv.of--._ti1e suit discloses that from the end of 2006 till issV:ie'A ~ notice the petitioner herein was i_n...iarrearsmof"rent} petitioner has not countered the 7sa.rne,A.ion'».tf1e:"'contrary;_i under the joint memo petitione,r-has accepted'é11e.j&rrea1:3s of . * rent/damages at at? sum of Rs.1,0(),0OO/-- at the and agreed to pay in installment the rent/damages amounting to 1: contention of the petitioner Viiri thievmatter of payment of rent suit and for the first time after of Rs.1,00,00{)/- was paid in F€bI'1:1&!"Vx 'A Whiieh the 3'oint memo cannot be as A 12.. fiirther contention of the petitioner that it was ﬁnot avvare of the suit and execution petition cannot be Viaccepted. As could be seen from the records, the petitioner herein who is defendant in OS.No.92-42/2007 has entered '""1..

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appearance through counsel by name Sri.V.K.Ray. On visual veriﬁcation of the signature of petitioner's »- Director, Mrs.Rita Mahajan, on the vakalath filed by said suit and also her signature on all the ~ applications, vakalath in execution _pi'ogceedi_-ngs" Viasdweiiv " "

as in execution petition and also inlthis"'revision"prirna:'"Eaciz€_' discloses that the signature of Director of * petitioner, on vakalath ﬁled V,_K.Ray «. loehaif of petitioner herein in the s1;iitt'.is..as the signature of SiIit.R1'ta Mahajan, Direct.or.ofv--.th.e herein in this proceedings. conten_tion'of':the petitioner that it was not procleedin in original suit cannot be accepted'; pp " "allegation of fraud against respondent securing"-eaiparte decree in 0S.No.9242/200'?

" V' be aecepted.VV""I"hVough there is allegation of fraud, it is The petitioner - Director when peisonaiiyllapgdeared in E;x;.No.34/2009 on 1o.a.2oo9 does 'ynot speak. of fraud, contrary to that she pieads for grant of 2 1,:/:"iZ1(lItl'f:'fiS time to voluntarily vacate. Even in this petition, she ' admits that she was persuaded by the respondent to settle bat?

-14- the dispute. She does not speak of fraud at that stage. It is only after ﬁling joint memo accepting arrears of rent at Rs.2,63,000/-- and making part payment of Rs.}.,00,000/--, the petitioner has come up with the theory of frau'd;.pto substantiate the same she is trying to make 3 noting in the order sheet in Ex.No.34/2009 dated _ which is contrary to the contents of;E3ai1lifi's._repo;1*tL"

13. It is also seen that at the of:

revision the Counsel for the p.etitioner"'prevailleVd this * it Court not to pursue the pmatterponi 'issue of notice to_i§V.K.Ray whose essential to know whether he was inst:Iic'ted or somebody else to file vakalath in" the V. said proceedings. The presence of 'C it would 'haired deﬁnitely decided the said issue. It is' that nowhere in the pleading Mrs.Rita }:that the signature on the vakalath ﬁled in "i..,OS.No;'92£;'¢2/2007 is not her signature. The Counsel for "petitioner in this petition, who according to his statement is the cousin of the said Mrs.Mahajan, admits before the court '"i

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that the signature on the vakalath filed in original siiit is that of his cousin, Mrs.Rita Mahajan. Und'er_ef.tl1e circumstance, no credence can be attached to the theo'r3reAo'f. . fraud committed by respondent herein' in see'Lir'irigi'_decree.Vfor ejectment in OS.No.9242/2007.

14. The further contenti0nﬂi:oi,V isiﬁithat the delivery warrant issued.._..':earl;%_ﬁer "already exeeuted, the respondent who had premises by putting lock4_o3n"t}fie hasivtakenvjApossession of the same. xroiontarily surrendered by the does not arise. It is further VeonteritioniofV"nei;itioner that the recording in the order. sheet in receiving the joint memo and ., ,,.,;_1eli'veri1ig. key of théjoreniises to the petitioner is not an "order;--tt1«erefo;€e,"inonwcompliance of terms of joint memo is not.__ '£='iolatioin_. 'of order, is without basis. Though the '*._petitioI:er':. has made several averrnents regarding alleged "observation of executing court regarding maintainability of gogint memo, the rioting on the order sheet does not 'Mi \ A. 6I"'£2004) 13 SCC 324, Subramanium Sethuraman V.

-15..

substantiate the same. The said allegations are_.-igotally baseless and selﬁserving, does not support the case:.j(5\bf:~.¢1;e petitioner. The petitioner in support of its the following reported decisions; _ V ﬂ V 1; (2006) 7 sec 416, Re -- fraud on court,'

2) (1962) 2 see 45%-...?fjrv.1f11alachetti~... Ragaram v. Timmaiachete. Radhgkvrishoeyya Chetty, Re- deﬁnition of decision. i

3) (2.o0§s19 Reriuzga :>:;'s" v. Maya Gzmguiy & C_ m power of High Court.

2;) (2oo4)7i3..j'se'C.2._:'e9'1,' Bharat Singh & Ors., v. «Nzirender 8: Ors., Re -- Revisional . .2 juI:fSdiCii0vfl of High Court.

5) vA2o(§()~--2 _ AIHC 4517, N.A.Ramakrishna V. ».:V':'I£,vN.:Pe..fEduranga Setty & Ors., Re -- Scope of _ Revision.

State of Maharashtra & Anti, Re --w Review. W

-18% of that the respondent voiuntarily deiivered the possession of scheduie premises to petitioner. "ﬁle perusal of the entire order sheet in original suit, execution proceedings and." the pleadings clearly discloses that there is no ": _ allegations of petitioner.

16. On the contrary, the records "clearlly ptiiatll'. the delivery warrant issued earlier inA:E-:§.li=Io..34 executed by the court Baiiifi "ﬁrst the respondent of the house aiong with therein at that time. is made the respondent to buy new locks' from respondent iocked the sehedulelupremishes himself and sealed the said locks ' is V"i's€£1rrend'ered to Court. Since "the parties in 'e;;ec1iticn"proéeedings ﬁled joint memo, respondent herein -- decree hovi;'ti¥,er:'.f£1i1lV. said proceeding had no objection for return key "i;o_7ti1e judgment debtor. Therefore, in effect, the delivery warrant issued in Ex.No.34/2009 is not ...Wexecuted and decree holder had not taken possession of the W

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schedule premises. Therefore, there is no impediment tothe executing court to order for reissue of delivery warr3r1t.._4i11_ Ex.N0.34/2009.

17. it is further seen from therecords,«'rtliei.'petitioner:1Va it herein after securing posses:sio._1'1 of a_schedule' }P.lT§_:II1i§;esd deliberately acted contrary to joint filed 1'7:.Vf.;2.2{)09.

The petitioner, at first petition in Misc.No.171/2009 on Civil Court, Bangalore, seeking recall of ex-

parte decree admitted arrears of joint memo, tried to secure vvlexufparte judgrnent and decree in Misc.No_, 1?1 After rejection of the said application the "vprese.nt iiA..i\£oA,IIl unVd'e'r'VOrder 21'Rule 26, CFC is ﬁled in triai Court after going through all the aver,;rients.in said application and after appreciating the 'Vfacts arzdicircurnstances of the case has rightly rejected the ":l:san1e"*and has further proceeded to re--issue delivery warrant "it .....

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giving ail the necessary assistance to the court Bailiff to effectively execute the decree in 0S.No.9242/2007.

18. On re--appreciation of the facts and_ci-rcLi1nstst1ces of the case, this Court finds that theye is revise the welbreasoned order passed b"y_the exec't;1etj:1g'coi;119tt in Ex.No.34/2009. Hence, the faitls'.-. '«:CIot1se1q}1entIy, the revision petition is 't1tsmis:--§ed§. ofv'ARs"V.v5,000/-- payable by the petitioner ' 1 ~ E f "* HEEQE

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