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M/s. Mahalaxmi Constructions Class-I Contractor, Represented by its Proprietor K.C. Krishnaiah, Since Dead by his LRs. & Others v/s Karnataka Neeravari Nigam Ltd., Bengaluru & Others

    Writ Petition Nos. 106016-106017 of 2018, 109712 of 2016 (GM-CPC)

    Decided On, 03 September 2020

    At, High Court of Karnataka Circuit Bench At Dharwad

    By, THE HONOURABLE MR. JUSTICE S.R. KRISHNA KUMAR

    For the Petitioners: Chetan Munnoli, Ramesh N. Misale, Advocates. For the Respondents: R1 to R3, Ramesh Misale, R4 & R5, Praveen K. Uppar, HCGP.



Judgment Text

(Prayer: This WP is filed Under Articles 226 and 227 of the Constitution of India, praying to issue a writ or order or Direction in the Nature of certiorari quashing the order dated 01.06.2018 on the preliminary issue in O.S.No.361/2005 pending on the file of Prl. Civil Judge (Sr.Dn) and Chief Judicial Magistrate, Belagavi at Belagavi Produced as per Annexure-A and etc.

This WP is filed Under Article 226 and 227 of Constitution of India, praying to issue a writ in the nature of certiorari or any other appropriate writ or order or direction quashing the impugned order of the learned Prl. Sr. Civil Judge & CJM Court, Belagavi dated 10.11.2016, passed in O.S.No.361/2005 Vide Annexure-A and etc.)

1. Both these petitions arise out of two separate interlocutory orders passed in a suit in O.S.No.361/2005 filed before the trial court by the petitioners-plaintiffs against the respondents- defendants for recovery of a sum of Rs.3,49,72,000/- together with interest at 18% per annum from the date of suit till realization.

2. For the purpose of convenience, parties are referred to by their respective ranks before the trial court. Briefly stated, the facts giving rise to the present petition are as follows: As stated above, the suit was filed in the year 2005 before the trial court. During the pendency of the suit, The Commercial Courts Act, 2015 (for short 'the Act of 2015') came into force w.e.f. 23.10.2015. Pursuant thereto, the trial court framed an additional issue No.1 with regard to ouster/bar of the jurisdiction of the trial court by virtue of the provisions of the said Act of 2015.

3. After hearing the parties on the aforesaid additional issue by treating the same as a preliminary issue, the trial court passed the impugned order dated 01.06.2018 holding that the said Act of 2015 barred the jurisdiction of the trial court to entertain and try the suit and consequently directed the plaint to be returned to the plaintiffs to present the same before the proper and competent court.

4. Subsequently, the plaintiffs filed an application IA.No.2 before the trial court seeking recall of the aforesaid order dated 1-6-2018. By the subsequent impugned order dated 21-7-2018, the trial court rejected the said I.A.No.2.

5. Aggrieved by the aforesaid impugned orders dated 1-6-2018 and 21-7-2018, plaintiffs have preferred W.P.Nos.106016-106017/2018.

6. Meanwhile, before the trial court passed the aforesaid impugned orders, the matter was posted for trial and plaintiffs examined two witnesses as PWs.1 and 2 on their behalf. During the course of cross-examination of PW.2 on 26-3-2016, learned counsel for the defendants sought to confront a letter dated 05.09.2001 issued by the Assistant Executive Engineer to the plaintiffs. The plaintiffs objected and opposed the same and after hearing both sides, the trial Court passed the impugned order dated 10-11-2016 refusing to permit the defendants to confront and mark the said letter dated 05.09.2001 in evidence during the course of cross-examination of PW-2.

7. W.P.No.109712/2016, is filed by the defendants assailing the aforesaid impugned order dated 10.11.2016 passed by the trial court refusing to permit the defendants to confront the aforesaid letter dated 05.09.2001 to PW-2 and mark the same in evidence.

8. I have heard the learned counsel for the petitioners and learned counsel for the respondents and perused the material on record.

9. Learned counsel for the petitioners submits that it is not in dispute that the suit was filed in the year 2005. It is also not in dispute that the Act came into force w.e.f. 23.10.2015. In this context, he invited my attention to Section 15 of the aforesaid act in order to contend that by virtue of Section 15(2), the suit which was pending as on the date of the coming into force of the aforesaid act, ought to have been transferred to the designated Commercial Court. It is therefore contended that the trial Court not only committed an error directing return of the plaint but also in dismissing IA.No.2 filed by the plaintiffs and as such the impugned orders passed by the trial Court deserves to be set aside and the suit be directed to transfer to the designated Commercial Court.

10. Per contra, learned counsel for the defendants would support the impugned orders passed by the trial Court.

11. Learned counsel for the defendants/petitioners in W.P.No.109712/2016 submits that the trial Court committed an error in refusing to permit the defendants to confront the letter dated 05.09.2001 written by the Assistant Executive Engineer to the plaintiffs during the course of cross-examination of PW-2 and mark the same in evidence. In this context, learned counsel invited my attention to the cross-examination of PW.2 (page No.30) in order to contend that PW.2 had admitted the aforesaid letter during the course of his cross-examination and consequently, the trial Court erred in refusing to permit the defendants to mark the said documents in evidence. In support of his submission, learned counsel places reliance of Section 65(b) of the Evidence Act, in order to contend that so long as PW-2 had admitted the said letter in his cross- examination, the same partakes the nature of secondary evidence as contemplated under Section 65(b) of the Evidence Act and as such the trial Court committed an error in refusing to permit the defendants to confront the letter dated 05.09.2001 written by the Assistant Executive Engineer to the plaintiffs during the course of cross-examination of PW-2 and mark the same in evidence.

12. Insofar as the impugned orders passed by the trial Court returning the plaint filed by the plaintiffs and rejecting IA.No.2 filed by the plaintiffs which are the subject matter of W.P.Nos.106016-106017/2018 are concerned, in my considered opinion, by virtue of Section 15(2) of the Act, the trial Court clearly committed an error not only directing the return of the plaint but also in rejecting the application filed by the plaintiffs to recall the said order, as held by this Court in the case of M/s.Popular Constructions Vs. Prasanna V.Ghotage, in WP.No.107184/2018 disposed of on 27.02.2019. Accordingly, the orders impugned in W.P.Nos.106016-106017/2018 are hereby set aside and the suit in O.S.361/2005 pending before the trial court is directed to be transferred to the designated commercial court.

13. Insofar as the order impugned in W.P.No.109712/2016 whereby the trial court refused to permit the defendants to confront the letter dated 05.09.2001 written by the Assistant Executive Engineer to the plaintiffs during the course of cross-examination of PW-2 and mark the same in evidence is concerned, having regard to the admission made by PW.2 during the course of cross-examination with regard to the said letter dated 05.09.2001 issued by the Assistant Executive Engineer to the plaintiffs, I am of the considered opinion that the trial Court committed an error in passing the impugned order dated 10- 11-2016 refusing to permit the defendants to confront the said letter to PW.2 and mark the same in evidence. Accordingly, the said order impugned in W.P.No.109712/2016 is also hereby set aside.

14. In the result, I pass the following;

ORDER

(a) Both the writ petitions in W.P.106016-106017/2018 and W.P.109712/2016 are hereby allowed.

(b) The impugned orders dated 01.06.2018 and 21.07.2018 (Annexure-A) in the writ petition Nos.106016-106017/2018 are hereby set aside.

(c) The impugned order dated 10.11.2016 in writ petition No.109712/2016 is also hereby set aside.

(d) The trial Court is directed to transfer the suit in O.S.NO.361/2005, presently pending before the trial Court to the designated Commercial Court in accordance with Sect

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ion 15(2) of the Commercial Courts Act, 2015. (e) The designated Commercial Court to whom the case will be transferred pursuant to this order is directed to proceed onwards with the matter from the stage at which the proceedings presently stand before the trial Court. (f) The Commercial Court is directed to permit the defendants to confront to PW-2 the letter dated 05.09.2001 written by the Assistant Executive Engineer to the plaintiffs and mark the said letter in evidence on behalf of the defendants. (g) It is made clear that the question of admissibility, proof, relevancy and probative value of the aforesaid letter dated 05.09.2001 which will be marked as an exhibit pursuant to this order is kept open to be decided at the time of final judgment by the Commercial Court. All rival contentions between the parties are kept open.
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