SRI M K KUMARA v. SRI A PUTTASWAMY

(BY SRI. K R SATHISH.,ADVOCATE) AND: V.K. SRINIVASA KUMARA S/O LATE ANKEGOWDA AGED ABOUT 65YEARS R/A VALAGEREHALLI VILLAGE KASABA HOBLI, MADDUR TALUK, MANDYA DISTRICT – 571 425. …PETITIONER …RESPONDENT (BY SRI.HONNALIGE GOWDA.,ADVOCATE) THIS W.P IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 11/09/2023 PASSED ON IA NO. XI IN O.S. NO. 120/2022 PENDING BEFORE ADDL SENIOR CIVIL JUDGE AND JMFC MADDUR, VIDE ANNEXURE-E TO THE W.P. AND ALLOW THE IA NO. XI IN O.S. NO. 120/2022 PENDING BEFORE ADDL. SENIOR CIVIL JUDGE AND JMFC MADDUR. THESE PETITIONS ARE COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING: - 3 - NC: 2024:KHC:8910 WP No. 27024 of 2023 C/W WP No. 26956 of 2023 ORDER This petition by the defendant in O.S.No.110/2022 on the file of the Addl. Senior Civil Judge & JMFC, Maddur, is directed against the impugned order passed on I.A.No.11 whereby the said application filed by the petitioner-defendant under Section 10 of CPC r/w section 151 of CPC seeking stay of the further proceedings till disposal of PCR.No.404/2022 was dismissed by the Trial Court.

2. Heard learned counsel for the petitioner and learned counsel for the respondent and perused the material on record.

3. A perusal of the material on record will indicate that the respondent-plaintiff instituted the aforesaid suit against petitioner-defendant for recovery of Rs.8,54,600/- together with the interest and other reliefs. In addition to contesting the said suit by filing his written statement, the petitioner also filed an application invoking Sections 10 and 151 of CPC and thereby seeking stay of further proceedings in the suit pending disposal of the Criminal proceedings in PCR No.404/2022 said to have been initiated by the petitioner on 24.03.2022 prior to institution of the Civil suit. The said application having been opposed by the respondent-plaintiff, - 4 - NC: 2024:KHC:8910 WP No. 27024 of 2023 C/W WP No. 26956 of 2023 the Trial Court proceeded to pass the impugned order rejecting the application by holding as under: Order on IA- VI The defendant has filed an application under section 10 read with section 151 of CPC to stay the further proceedings of this case till the disposal of PCR No. 404/2022 on the file of 2nd additional Civil Judge and JMFC, Maddur.

2. The plaintiff has filed the objections.

3. Heard both the parties.

4. Now the point that arise for the consideration of this court is “ Whether the defendant has made grounds to s t a y t h e p r o c e e d i n g s o f t h i s c a s e t i l l t h e d i s p o s a l o f P C R 4 0 4 / 2 2 o n t h e f i l e o f 2 n d additional Civil Judge and JMFC, Maddur?

5. On hearing both and perusal of necessary materials on record, this court answers the above point in the negative for the following: REASONS

6. Point No.1: Along with the application, the defendant has filed an affidavit sworn to by him. In the said affidavit, it is stated by him that the plaintiff has filed the suit for recovery of mo n e y . Th e d e f e n d a n t h a s f i le d t h e w ri t t e n s t a t e me n t - 5 - NC: 2024:KHC:8910 WP No. 27024 of 2023 C/W WP No. 26956 of 2023 a n d denied the entire allegations of the plaint. It is further say of the defendant that there is no money transaction between him and p l a i n t i f f . T h e r e w a s t r a n s a c t i o n b e t w e e n h i m a n d o n e V K Jagadish, who is the friend of the plaintiff. The defendant was in need of finance and hence he approached the said Jagadish for loan of Rs. 50,00,000/-. Sri. VK Jagadish agreed to pay the said a m o u n t w i t h i n t e r e s t a t t h e r a t e o f 2 % p e r m o n t h . B u t h e demanded the blank cheques as security. With great, difficulty the defendant agreed to issue the cheques and accordingly he has issued 5 cheques of HDFC bank. The defendant has further contended that he has paid the interest till 2020. But he has not paid the interest only for 4 months as there was Covid-19 and other problems. At that t ime, said Jagadish took him to Mr. Siddaiah and manged to give loan through the said Siddaiah. At that time also, the said Jagadish demanded for one cheque and 6 on demand promissory notes and consideration receipts. Now, by misusing the said cheques and pronotes the said Jagadish has got filed the suits and criminal cases through his friends by name Swamy, Nagesh, B. Puttaswamy, Srinivas Kumara Hemakumar, Biligowda and A Puttaswamy. It is further say of the defendant that he has filed a private complaint before II additional civil j u d g e a n d J M F C i n P C R N o . 4 0 4 / 2 2 a n d s a m e i s p e n d i n g consideration before the said court. Now the present case is pending for cross examination. If the cross examination - 6 - NC: 2024:KHC:8910 WP No. 27024 of 2023 C/W WP No. 26956 of 2023 of Pw1 is done in this case, his defense will be prejudiced in this case and in other cases pending for consideration. If he succeeds in the private complaint, the present case of the plaintiff and other cases will be collapsed. The order of the criminal court would have direct effect on the plaintiff and other 7 persons. Therefore, the proceedings of the present case has to be stayed till the disposal of the criminal/private complaint case and hence, this application.

7. The plaintiff has denied the entire allegations of the application filed by the defendant. The sum and substance of the objections is that the defendant had borrowed a sum of Rs. 6,00,000/- from the plaintiff for his family legal necessities and in this regard he has executed a pronote, in the presence of the a t t e s t i n g w i t n e s s e s . T h e d e f e n d a n t j u s t f o r d r a g g i n g t h e p r o c e e d i n g s h a s f i l e d t h i s a p p l i c a t i o n . T h e d e f e n d a n t b y watching the case had come with the written statement only when the case was posted for cross examination of Pw1. After this court allowing the said application, the defendant has also f i l e d a n a p p l i c a t i o n u n d e r o r d e r V I I ru l e 1 1 ( a ) o f C P C f o r rejection of the plaint. Without pressing the said application, now the defendant has filed present application. The defendant has neither paid the cost nor conducted the cross examination. The plaintiff has contended that filing of the private compliant - 7 - NC: 2024:KHC:8910 WP No. 27024 of 2023 C/W WP No. 26956 of 2023 is nothing to do with this case. The defendant has not come to the court with clean hands. The defendant has not satisfied i n g r e d i e n t s o f t h e p r o v i s i o n s o f t h e l a w . Therefore, the application is liable to be dismissed.

8. At the out set, it is pertinent to note that it is well settled principle of law that findings of a Civil Court are binding on the criminal court whereas the findings of the criminal court would not be binding on the civil court. The civil court will have to decide the dispute before it independently and have to come to the independent conclusion on the basis of the evidence lead before it. In the present case, it is pertinent to note that, the defendant has not disputed the signature on the promissory note involved in the present case. When signature is admitted, under section 118 and 139 of negotiable instruments act 1881, the presu mption would come into f orce. It would be burden upon the defendant to rebut the said presumption. Until then, the presumption would continue to operate. Such being the case, the defendant will have to prove his defense what has been raised in the written statement. The defendant without doing so cannot ask for staying the proceedings by invoking section 10 of CPC. Basically, it is pertinent to note that as rightly contended by the plaintiff section 10 is applicable only when there are two civil suits pending. Section 10 cannot be invoked in between - 8 - NC: 2024:KHC:8910 WP No. 27024 of 2023 C/W WP No. 26956 of 2023 criminal and civil proceedings. Even for the sake of arguments it is taken that it can be applied, the proceedings of the criminal case will have to be stayed till the completion of the civil proceedings, but not the civil proceedings.

9. Learned counsel for the defendant in his arguments relied upon a two decisions. First decision is reported in AIR 1954 SC 397 (MS Sherif case). But in the said decision, the q u e s t io n w a s n o t w it h re g a rd t o s e c t io n 1 0 CP C. Th e s a id decision has been rendered with regard to illegal detention of one Govindan and Damodaran by the appellants. In that decision Hon’ble Supreme court has discussed the powers under section 475 of Code of criminal procedure section 195(3) of IPC. But in this case Hon’ble Supreme Court has not laid down any principle of law that the when there are civil as well criminal proceedings are pending, the civil proceedings have to be stayed. Therefore, t h e f a c t s o f t h e r e l i e d c a s e a n d p r e s e n t c a s e c a n b e distinguishable. Therefore, the said decision is not useful to the defendant.

10. Another decision relied upon by defendant is AIR 1988 SC 2118. In this decision, there were two proceedings pending against same person. One is departmental proceedings and another one is criminal proceedings. Hon’ble Supreme court after examining the facts and circumstances of the - 9 - NC: 2024:KHC:8910 WP No. 27024 of 2023 C/W WP No. 26956 of 2023 e a rlie r d e c is io n s , s t a y e d th e d is c ip lin a ry p ro ce e d ing s . Bu t staying disciplinary proceedings is totally different than stayinga c i v i l c a s e . T h e r e f o r e , t h i s d e c i s i o n a l s o i s n o t applicable to the case on hand and hence not useful to the defendant.

11. Moreover, it is most significant to note, that the issue involved in the present case and involved the criminal case which pending against Mr. Jagadish a n d p r e s e n t p l a i n t i f f a r e t o t a l l y d i f f e r e n t . T h e i s s u e i n present case is whether the defendant has borrowed l o a n f r o m t h e p l a i n t i f f a n d w h e t h e r t h e r e i s r e g a l l y r e c o v e r a b l e d e b t o r n o t ? I n t h e c r i m i n a l c a s e , t h e question is whether the plaintiff has misused the alleged b l a n k p r o n o t e a n d c o m m i t t e d f r a u d a g a i n s t t h e defendant? Under circumstances this court does not find a n y m e r i t s i n t h e a p p l i c a t i o n a n d h e n c e i t i s l i a b l e t o b e dismissed. Accordingly, point No.1 is answered in Negative and proceed to pass the following. ORDER IA No.XI filed by the defendant U/S 10 read with section 151 of CPC is hereby hereby dismissed. Cal for cross examination by 22/9/2023.” - 10 - NC: 2024:KHC:8910 WP No. 27024 of 2023 C/W WP No. 26956 of 2023

4. A perusal of the impugned order will indicate that the Trial Court has come to the correct conclusion that Section 10 is not invocable for the purpose of seeking stay of previously instituted criminal proceedings and that the same would apply only if there is a previously instituted suit between the same parties. The Trial Court has also taken into consideration the rival contentions of the parties and come to the correct conclusion that the proceedings before the Trial Court were Civil in nature whereas the proceedings initiated by the petitioner were criminal proceedings in PCR No.404/2022 and consequently, the question of staying the Civil suit till disposal of the Criminal proceedings would not arise in the facts and circumstances of the instant case. Under these circumstances, I am of the considered opinion that the impugned order passed by the Trial Court cannot be said to suffer from illegality or infirmity nor can the same be set to occasioned failure of justice warranting interference in the present petition.

5. It is also relevant to state that in the said private complaint in PCR No.404/2022 filed by the petitioner, the learned magistrate has referred it for investigation under Section 156 (3) CRPC and the report has not been received so far. It is therefore clear that - 11 - NC: 2024:KHC:8910 WP No. 27024 of 2023 C/W WP No. 26956 of 2023 there is no previously instituted suit/proceedings between the parties to as to warrant stay of O.S.No.110/2022 till conclusion of investigation.

6. It is however stated that all rival contentions between the parties in suit and criminal proceedings are kept open and no opinion is expressed on the same. SD/- JUDGE DHA List No.: 1 Sl No.: 10