HIGH COURT FOR THE STATE OF TELANGANA
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CIVIL REVISION PETITION NO.1907 OF 2022 Between:
M/s.SRI ABHIVRIDYASYA ASSOCIATES PVT.LTD., Office at 6-2-113/4, New Bhoiguda, Secunderabad, Rep.by its Director Mr. Nethi Srinivas, s/o. Nethi Ravinder, aged about 48 years, r/o.Secunderabad.
..... Petitioner/petitioner/ Plaintiff And SAHAN ENTERPRISES, Office at H.No.8-2-684/247, Road No.12, MLA Colony, Banjara Hills, Hyderabad, Rep.by its Proprietor Mr.Vedera Ravikanth Reddy.
.... Respondent/respondent/ Defendant DATE OF JUDGMENT PRONOUNCED : 17.11.2022 HON'BLE SRI JUSTICE P.NAVEEN RAO & HON'BLE SRI JUSTICE J.SREENIVAS RAO
1. Whether Reporters of Local Newspapers : No may be allowed to see the Judgments ?
2. Whether the copies of judgment may be : Yes
marked to Law Reporters/Journals
3. Whether Their Lordship wish to : No
see the fair copy of the Judgment ?
PNR,J & JSR,J
CRP No.1907 of 2022
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* HON'BLE SRI JUSTICE P.NAVEEN RAO
&
HON'BLE SRI JUSTICE J.SREENIVAS RAO
+ CIVIL REVISION PETITION NO.1907 OF 2022 %17.11.2022 # M/s.SRI ABHIVRIDYASYA ASSOCIATES PVT.LTD., Office at 6-2-113/4, New Bhoiguda, Secunderabad, Rep.by its Director Mr. Nethi Srinivas, s/o. Nethi Ravinder, aged about 48 years, r/o.Secunderabad.
..... Petitioner/petitioner/ Plaintiff and $ SAHAN ENTERPRISES, Office at H.No.8-2-684/247, Road No.12, MLA Colony, Banjara Hills, Hyderabad, Rep.by its Proprietor Mr.Vedera Ravikanth Reddy.
.... Respondent/respondent/ Defendant !Counsel for the petitioner : Sri A.Venkatesh, representing learned Counsel Sri Allam Ramesh Counsel for the Respondent: M/s. Resu Law Office appearing for the respondent.
<Gist :
>Head Note:
? Cases referred:
2010 (3) ALD 82 PNR,J & JSR,J CRP No.1907 of 2022 -3- HON'BLE SRI JUSTICE P.NAVEEN RAO & HON'BLE SRI JUSTICE J.SREENIVAS RAO CIVIL REVISION PETITION NO.1907 OF 2022 ORDER: (per Hon'ble Sri Justice P Naveen Rao) Heard learned counsel Sri A.Venkatesh, representing learned Counsel Sri Allam Ramesh for petitioner and M/s. Resu Law Office appearing for the respondent.
2. The petitioner is a Private Limited Company incorporated under the provisions of the Companies Act, 1956 engaged in the business of supply of variety of goods. The respondent is a proprietary concern of Mr. Vedera Ravikanth Reddy and engaged in the business of various goods. In the year 2017 the proprietor of the respondent approached the petitioner with a request to supply various baby care products which include clothes, quality baby soaps, Baby oil, Baby powder, Mosquito net, toys, napkins Diapers etc. The respondent claimed that it has secured a sub-contract for supply of baby care products kits titled as "KCR Kits". The respondent assured that it shall pay the invoice amounts to the petitioner within a week's time from the invoice date. It was also agreed by the respondent that, in the event of delay in payment of invoice amount to the petitioner, the entire outstanding amount should be paid by the respondent along with an interest @8% per annum for the entire delayed period.
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3. In terms of the agreement, the respondent placed orders for supply of Kits telephonically/personally through its proprietor and/or his representatives during the period from 2017 till 2019. Based on such orders, the petitioner supplied the materials from time to time and raised invoices. Total value of which comes to 7,61,51,841/- (Rupees seven crores sixty one lakhs fifty one thousand eight hundred and forty one only).
4. According to petitioner the respondent is the only customer of the petitioner and all the sales made by the petitioner are only to the respondent. The total sales made by the petitioner to the respondent are also reflected in the GSTR 1 form submitted by the plaintiff. The respondent has availed input Tax Credit benefit from the GST authorities basing on the GST taxes paid by the petitioner on the sales made by the petitioner to the respondent.
5. The petitioner maintained a running account in respect of its business transaction with the respondent in respect of supply of KCR kits from time to time to the respondent. The respondent used to make small payments to the petitioner as per its convenience after repeated follow-ups. The last payment made by the respondent to the petitioner was on 29.10.2019 for a sum of 15,00,000/- (Rupees fifteen lakhs only).
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6. It is submitted that the petitioner approached respondent on several occasions to clear the pending dues but the respondent dodged the payment on one pretext or another. The petitioner along with its staff members visited the respondent office several times and requested to clear the long pending dues but the respondent tried to impress the petitioner by saying that he has high contacts in the Government Department and will clear the pending dues at the earliest. Contending that inspite of requests made in person and legal notices issued demanding payment of outstanding dues the respondent did not comply, the petitioner instituted COS.No.24 of 2021 seeking for a recovery of 2,00,10,790.71/- (Rupees two crores ten thousand seven hundred and ninety and seventy one paisa only) excluding the interest @ 8% P.A., until full payment/realization from respondent herein.
7. Respondent filed counter to I.A.No.162 of 2021 in COS.No.24 of 2021. It is the case of petitioner that in the counter the respondent introduced several new pleas and presented a completely different picture before the Hon'ble Court in respect of the dispute that arose between the parties. To answer their new pleas petitioner sought leave of the Commercial Court to file rejoinder to the counter filed by the respondent. The petitioner also filed its rejoinder. Vide order dated 28.04.2022 the Commercial Court dismissed the I.A. Hence, this Revision.
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8. Learned counsel for petitioner would contend that the trial Court grossly erred in rejecting its application to seek leave to file rejoinder. The respondent has raised several new pleas and unless they are rebutted grave prejudice would be caused to petitioner during the trial.
9. He would submit that in the written statement respondent pleaded set-off. Therefore, petitioner is entitled to deny the same. Unless the plea of set-off is denied petitioner would be deprived of countering the claim of set-off. It is in the form of cross-suit and opportunity to deny the same is mandatory. The trial Court grossly erred in not appreciating that whatever rule applies to filing a written statement in a suit, applies in answer to set- off. This is clear from Rules 6 and 9 of Order VIII.
10. He would further submit that the trial Court grossly erred in not appreciating that as per Rules 34 and 35 of Civil Rules of Practice verification is not required for affidavits.
11. Per contra, according to counsel for respondent, the respondent only denied the contents of the plaint and therefore rejoinder is not permissible. The plaintiff has to state in clear terms all pleadings in the plaint and cannot go on adding new pleadings in the form of rejoinder under the garb of reply. The trial Court rightly exercised its discretion to reject the I.A.
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12. In paragraph 23 (b) of written statement in COS.No.24 of 2021 and in paragraph 24(b) of counter affidavit in I.A.No.162 of 2021 the respondent/defendant contended that as petitioner supplied defective products, MAA Yarn and Fibres deducted 22,80,368/-. It is also asserted that on the request of petitioner payment of 10,00,000/- was made to PNP Polytex Private Limited. It is also asserted that material was supplied with delay and therefore, plaintiff should pay the penalty @ 20% on total cost. In paragraph 23(c) and (d) of written statement and paragraph 24(c) and (d) of the counter in I.A.No.162 of 2021 the respondent asserted that defendant is entitled to receive penalty @ 20% due to delay in supply of the material. In paragraph (d) defendant gave calculation of amounts and records that 4,23,288/- is due from plaintiff only. In other words, the respondent make a claim that plaintiff is only due 4,23,288/- and not vice-versa. The petitioner asserts that these aspects were brought in for the first time and therefore, require rejoinder.
14. Filing of rejoinder is not a matter of course. Whenever plaintiff intends to file rejoinder to the written statement, he must seek leave of the Court under Order VIII Rule 9 of CPC. Wide discretion is vested in the trial court to permit or reject such a course. The primary objective of this provision is to curtail lengthy pleadings and to avoid unwarranted delays in commencement of trial. The rejoinder cannot be for mere denial of PNR,J & JSR,J CRP No.1907 of 2022 -8- assertions made in the written statement or to introduce new pleadings setting of a counter assertions by the defendants and so on. Therefore, discretion is vested in the Court to assess whether a rejoinder is required and only on being satisfied the Court may permit the plaintiff to file rejoinder.
15. Learned counsel for plaintiff/petitioner has taken us through the written statement/counter-affidavit to point out that certain assertions made in the written statement in COS.No.24 of 2021 and in the counter in I.A.No.162 of 2021 are not covered in the plaint and, therefore, require a rejoinder.
16. Learned single Judge of this Court considered this issue in Malgireddy Venkata Ramana Vs Thippana Narsi Reddy1. Paragraphs-7 and 12 read as under :
"7. In Gorantla Kondalarayudu Vs Marvel Orgaics [1997 (2) LS 322], a learned Single Judge of this Court has held that additional pleadings under Order 8, Rule 9 CPC include the additional plaint. Para.4 of the judgment needs to be noted and it is thus :
"4. Order 8, Rule 9 of CPC should not be confused by reading together that it permits only additional written statement by way of pleadings. Because the expression used therein is that no pleading subsequent to written statement shall be filed meaning thereby both plaint and written statement. Pleadings shall mean plaint and written statement as per Order 6, rule 1 CPC. In that context, the pleadings and additional pleadings in Order 8, rule 9 include the additional plaint also which can be either called as rejoinder or the reply in its real consequences."
12. The primary object of subsequent pleading is to supply what has been omitted inadvertently or unintentionally or to deny or clarify the facts stated in the pleadings of the opposite party. In the rejoinder the 1 2010 (3) ALD 82 PNR,J & JSR,J CRP No.1907 of 2022 -9- plaintiff can be permitted to explain the additional facts, which have been incorporated in the written statement. Application under Order 8, Rule 9 CPC cannot be treated as one under Order 6, Rule 17 CPC as both are contextually different."
17. We are in respectful agreement with the view expressed by learned single Judge in Malgireddy Venkata Ramana (supra). Similar view is taken in Punuru Vijaya Lakshmi Vs Punuru Venkata Reddy (CRP.No.3554 of 1998) and in Hafiz Mufti Mohammed Zahid Nasri Vs Mohammed Iqballudddin Ahmed and Others (CRP.Nos.207 and 231 of 2021).
18. On going through the averments in the re-joinder, we are satisfied that they are not contrary to the plaint averments and are intended to explain the assertions of the defendant in the written statement and in the counter respectively and the plaintiff is entitled to file rejoinder. It is not intended to procrastinate the proceedings or to widen the scope of the suit or change the nature or character of the suit.
19. The trial Court relied upon Order VI Rule 15A of CPC as amended and made applicable to commercial disputes before the Commercial Courts to hold that pleadings are not verified as prescribed in the Appendix-I appended to the Act and same is not valid.
PNR,J & JSR,J CRP No.1907 of 2022
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20. As rightly contended by learned counsel appearing for petitioner Sri A Venkatesh Order VI Rule 15A is only applicable to pleadings in the plaint and written statement, therefore, proforma prescribed in Appendix-I to the Act is not applicable when reply statement/rejoinder is filed. Further, reply /rejoinder when filed should deal with all the averments/ contentions urged in the written statement/counter affidavit. Merely because it is likely to swell number of pages and the record of the case, is no ground to deny filing of reply statement / counter if it is otherwise permissible. Having regard to the averments in the written statement/counter affidavit, petitioner is entitled to file reply statement/rejoinder. If already reply statement/ rejoinder is filed, the trial Court is directed to take the same on record and from that stage proceed further in the matter.
21. Accordingly, the revision petition is allowed. Miscellaneous Applications, if any pending, stand closed.
_____________________ P.NAVEEN RAO,J ______________________ J.SREENIVAS RAO, J Date: 17.11.2022 Rds/kkm PNR,J & JSR,J CRP No.1907 of 2022
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HON'BLE SRI JUSTICE P.NAVEEN RAO & HON'BLE SRI JUSTICE J.SREENIVAS RAO CIVIL REVISION PETITION NO.1907 OF 2022 Date: 17.11.2022 Rds/kkm