SRI V K AMBIKAN S/O LATE V A KUMARAN vs. BRITANNIA INDUSTRIES LTD

1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 11TH DAY OF SEPTEMBER, 2012 BEFORE THE HON’BLE MR.JUSTICE AJIT J GUNJAL CIVIL PETITION NO.138 OF 2007 BETWEEN: SRI V K AMBIKAN S/O LATE V A KUMARAN AGED ABOUT 66 YEARS R/AT II-D, 'OAK WOOD' SKY LINE CITY PARK JAWAHAR NAGAR KADAVANTHARA COCHIN - 682 020. ...PETITIONER (BY M/S: BOPANNA & GIRI, ADVOCATES) AND: BRITANNIA INDUSTRIES LTD HAVING ITS REGISTERED OFFICE AT NO.5/1A, HUNGERFORD STREET CALCUTTA – 700 017 AND EXECUTIVE/CORPORATE OFFICE AT BRITANNIA GARDEN AIRPORT ROAD, VIMANAPURA BANGALORE. ...RESPONDENT (BY SRI: T S SATISH, ADVOCATE FOR M/S: PRA LAW OFFICERS) THIS CIVIL PETITION IS FILED UNDER ORDER XLIV OF THE CODE OF CIVIL PROCEDURE PRAYING TO PERMIT THE PETITIONER TO FILE RFA NO.1722/2006

2 AS AN INDIGENT PERSON AGAINST THE JUDGEMENT AND DECREE DATED 15.10.2005 PASSED BY THE XXXI ADDL. CITY

CIVIL

JUDGE,

BANGALORE,

IN O.S.NO.3007/1997, IN THE INTEREST OF JUSTICE AND EQUITY. THIS CIVIL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING: O R D E R A summary suit is instituted by the respondent under Order XXXVII of the Code of Civil Procedure to recover an amount of Rs.2,14,18,079.84/- with costs as well as current interest at 17% per annum from the date of the suit till realisation. The petitioner herein has contested the proceedings, but however, the contention of the petitioner was rejected, more so having regard to the fact that the claim was admitted by issuing various cheques towards discharge of the said amount. Hence, the suit was decreed with costs and all the defendants to the lis were directed to pay the decreetal amount with 17.5% interest per annum from the date of suit till realisation.

3 The said judgment and decree is called in question in RFA No.1722/2006. In the said proceedings, an application is moved under Order XLIV Rule 1 of the Code of Civil Procedure to sue as indigent person, inasmuch as he does not possess any property which would generate income and has no means to pay the requisite Court fee of Rs.4,89,762/-. Having regard to the situation, a direction was issued by this Court in the present proceedings to the Registrar Administration to hold an enquiry as contemplated under Order XLIV Rule 1 of the Code of Civil Procedure. The enquiry is conducted by the Registrar Administration of this Court and a report is filed indicating that the petitioner possesses means to pay the requisite Court fee. The said report is placed on record. 2. I have heard the learned counsel for the petitioner as well as Mr.Ariga, learned

4 Addl. Govt. Advocate for the State and Mr.G.L.Vishwanath, learned counsel for the respondent. 3. Learned counsel for the petitioner submits that the petitioner does not possess any immovable property or movable property, much less cash. He submits that Order XLIV of the Code of Civil Procedure would squarely apply. Hence, submits that the petitioner may be permitted to sue as an indigent person. 4. Mr.Ariga, learned Addl. Government Advocate for the State, submits that a Memo is filed before this Court indicating that petitioner's annual income is Rs.2,50,000/- and further, he is paying Rs.9,000/- as rent for the premises which he is occupying. He further submits that extensive evidence was let-in before the Enquiry Officer and a finding is recorded, with reference to the documents

5 produced, that the petitioner is not an indigent person and he is capable of paying the requisite Court fee. 5. Learned counsel for the respondent submits that the decree passed by the trial Court is joint and several, inasmuch as all the defendants in the suit were directed to pay the decreetal amount. He further submits that the children of the petitioner are well placed and have all settled abroad. 6. I have perused the Enquiry Report as well as the material which was placed before the Enquiry Officer. Apparently, to attract the provisions of Order XLIV of the Code of Civil Procedure, the petitioner is required to prove that he is an indigent person and he is not in a position to pay the requisite Court fee. Sub-Rule 3 of Order XLIV of the Code of Civil Procedure also contemplates that if the

6 Government Pleader or the respondent disputes the truth of the statement made in such affidavit, an inquiry into the question shall be held by the appellate Court, or, under the orders of the appellate Court, by an Officer of that Court. In the circumstances, the enquiry was conducted. It is not a case where the petitioner pleads that he was denied an opportunity. Indeed he participated in the proceedings. Apparently, it is also to be noticed that the petitioner would depose in his evidence that he owns and possess immovable property, that is Sy.No.76/11, a building comprised therein measuring 2.700 cents (1 acre 9 guntas) at Rameshwara Village. He was doing business as one of the partners of VAK Engineering Company, Cochin, Kerala. It is also deposed that the said partnership firm for its business purpose availed credit facilities from Lord Krishna Bank, Cochin, and to secure the loan, he and his wife offered the said

7 property as collateral security apart from the personal guarantees. It is also deposed that the said property was sold and the claim of Lord Krishna Bank was satisfied in a sum of Rs.36,17,000/-. Apparently, the Enquiry Officer has relied on Exs.P-8 and P-9, the statement of accounts of Ernakulam District Co- operative Bank for the period 5.4.2008 to 1.7.2010 which shows that the petitioner has made various deposits and withdrawals from time to time. The Enquiry Officer has recorded a finding that sometimes, the deposits made were more than Rs.1,00,000/- and upto Rs.2,00,000/- and on various dates, withdrawal is also made. A perusal of the finding of the Enquiry Officer and also the Statement of accounts of South Indian Bank which goes to show that the petitioner has made various deposits ranging from Rs.1,00,000/- to Rs.5,00,000/- and he has also withdrawn on several occassions. It might be that the petitioner may not own any

8 immovable properties but nevertheless, the statement of accounts which he had made available during the course of enquiry, Exs.P-8 to P-10 clearly discloses that various sums of amounts were deposited and withdrawn in two separate accounts. It is also to be noticed that the income tax returns are produced at Exs.P-11 and P-12 which discloses that the petitioner had paid a sum of Rs.5,112/- and Rs.44,214/- as income tax for the period 2009- 10 and 2010-11 respectively. The various documents disclose that that the petitioner does have substantial income and by any stretch of imagination cannot be termed as an indigent person who is not in a position to pay the requisite Court fee to prosecute the appeal before this Court. 7. Further the statement of accounts of South Indian Bank Limited goes to show that from 1.2.2010 to 28.2.2011, the petitioner has

9 the

transaction

the

extent

of Rs.24,81,640.93/-. The Enquiry Officer has also placed reliance on the report issued by the competent authority from Ernakulam indicating that the petitioner is residing at Oakwoods Skyline City Park, Flat IID, Kadavanthra, on a monthly rent of Rs.9,000/- and he is an Electrical Contractor earning Rs.2,50,000/- per annum. If any decision is required, one can refer to the decision rendered by this Court in the case of DR.D.HEMACHANDRA

SAGAR

ANR.

V/S. D.PRITHVIRAJ & ANR. (AIR 2004 KARNATAKA 33), wherein

identical

questions

fell

for consideration. 8. Having regard to the evidence which is let-in, in my view, it cannot be said that the petitioner is not in a position to pay the requisite Court fee. To my mind, he does not attract any of the provision of Order XLIV Rule

10 1 of the Code of Civil Procedure. Consequently, the petition stands rejected. The petitioner is directed to pay the Court fee within a period of four weeks from today. SD/- JUDGE KM