Sri Bollava Sathyashankara vs Mr. P. Manjunatha Upadhya

B.S. Patil, J.—In this civil petition, petitioner is seeking transfer of O.S. No. 55/2007 pending on the file of the learned Civil Judge (Sr. Dn.), Kundapur to the Court of learned Civil Judge (Sr. Dn.), Mangalore, D.K. District, where O.S. No. 47/2010 and O.S. No. 107/2010 are pending. Petitioner is the defendant in O.S. No. 55/2007 which is filed by the respondent herein seeking recovery of Rs. 5,52,765/- together with future interest thereon. The case of the plaintiff in the said suit is that defendant had borrowed a sum of Rs. 4,00,000/- from the plaintiff on 15.06.2004 by way of hand loan and failed to repay the same. When plaintiff demanded the defendant to pay the amount, defendant issued a cheque dated 14.05.2007 drawn on Vysya Bank Limited for a sum of Rs. 5,40,000/-, but the said cheque having been dishonoured on 03.06.2007, O.S. No. 55/2007 was instituted for recovery of the amount along with interest. It is also necessary to notice here that plaintiff has also filed a private complaint u/s 138 of the Negotiable Instruments Act for dishonour of cheque. Defendant has entered appearance and has filed his written statement. He has taken up a defence that the suit has been instituted to have unlawful gain in conspiracy with one K. Narayana Bhat, who had introduced the plaintiff to the defendant. He has urged that he had not borrowed any money, nor issued any cheque to the plaintiff to repay the said amount.

It is relevant to notice here that two other suits in O.S. Nos. 47/2010 and 107/2010 are filed by two other persons by name Ganesh Kamath and Kamalaksha Prabhu against the petitioner herein. Those suits are pending on the file of the Principal Civil Judge (Sr. Dn.), Mangalore, D.K. In those suits also plaintiffs have sought recovery of different sums of money based on the cheques issued by the very defendant/petitioner herein. In these cases also, petitioner has taken up similar contentions and similar defence alleging conspiracy, fraud and has urged the involvement of one K. Narayana Bhat. In sum and substance, defence of the defendant in all the three cases is similar. Indeed, it transpires that all the three persons namely Ganesh Kamath, Kamalaksha Prabhu and the present respondent Manjunatha Upadhya have together filed O.S. No. 10/2010 wherein they have sought for a declaration that the Settlement Deed executed by the petitioner herein in favour of his son was illegal. It is also relevant to notice here that private complaint filed u/s 138 of the Negotiable Instruments Act by the three plaintiffs are pending on the file of the J.M.F.C., Mangalore. It is also brought on record that petitioner herein has filed a complaint against the three plaintiffs and one K. Narayana Bhat alleging offence u/s 420 IPC which is pending on the file of the J.M.F.C., Mangalore.

In this background, counsel for the petitioner contends that as the proceedings in O.S. No. 55/2007 pending on the file of the learned Civil Judge (Sr. Dn.), Kundapur are at an initial stage and as common defence is taken up by the petitioner in all the three cases, coupled with the fact that the respondent has been attending the cases at Mangalore, it will be just and appropriate, if O.S. No. 55/2007 is transferred to Mangalore, D.K., so that all the three cases can be heard and disposed of in one Court.

Learned counsel for the petitioner relies on the judgment in the case of State Bank of India Vs. Ranjan Chemicals Ltd. and Another, to contend that in cases where common issues and common questions fall for consideration in two or more suits, it is appropriate that the said suits have to be tried together and disposed of by the same Court.

Learned counsel for the respondent strongly resists the prayer made in the petition. He submits that the plaintiff cannot be made to go over to Mangalore to prosecute the case which he has rightly and legally instituted at Kundapur. It is his submission that he cannot be forced to engage another counsel and face the ordeal of spending money to travel to Mangalore each time the case is listed there.

Having heard the learned counsel for both parties and on consideration of the materials on record, I find from the pleadings and the averments made in the plaints and written statements filed in the three suits that defence taken by the defendant is common in all the three suits; issues framed in all the three suits are similar and the nature of evidence to be adduced will be also similar. Hence, it is just and necessary that all the three suits are tried and decided by a common Court.

As regards the inconvenience and the hardship that the respondent apprehends, it has to be stated that he is already attending the case filed along with other two plaintiffs in O.S. No. 10/2010 at Mangalore which is filed against the very defendant/petitioner herein. Indeed a criminal case had been initially instituted at Kundapur by the respondent and the same was transferred to Mangalore at the instance of the respondent. In such circumstances, plaintiff cannot complain that he would be forced to travel to Mangalore only to attend this case.

To mitigate the hardship that the plaintiff --respondent herein may face in attending to the case at Mangalore, it can be observed that the Court at Mangalore shall accommodate the plaintiff by giving him the same dates on which the other cases will be posted, so that he can avoid repeated visits to Mangalore. Hence, this petition is allowed. O.S. No. 55/2007 is withdrawn from the file of the learned Civil Judge (Sr. Dn.), Kundapur and transferred to the Court of learned Civil Judge (Sr. Dn.), Mangalore, D.K., to be tried by the same Judge before whom the other two suits O.S. Nos. 47/2010 & 107/2010 are pending. The said Court shall dispose of all the three suits within a period of eighteen months from today. Petitioner who is the defendant in all the suits shall co-operate in expeditious disposal of the suits. Liberty is reserved to the respondent to request the Court below to post the matter as far as possible on the same dates on which the other suits will be listed. Both the parties are directed to appear before the learned Civil Judge (Sr. Dn.), Mangalore, D.K., on 21.04.2014.