THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE N.V.SHRAVAN KUMAR
CIVIL REVISION PETITION No.1906 of 2023
ORDER: (per the Hon'ble the Chief Justice Alok Aradhe)
Mr. A. Venkatesh, learned Senior Counsel represents
Mr. M.S. Farhan, learned counsel for the petitioner.
Mr. Sharad Sanghi, learned counsel appears for
respondent No.1.
2. With the consent of the parties, the matter is heard
finally.
3. In this Civil Revision Petition preferred under Article
227 of the Constitution of India, the petitioner has assailed the
validity of the order dated 10.03.2023 passed by the learned
Judge of Principal Special Court in the Cadre of District Judge
For Trial and Disposal of Commercial Disputes at Hyderabad
(for short 'the Commercial Court') by which the application
namely, C.E.A.No.91 of 2022 in C.E.P.No.47 of 2017, seeking
leave to file surrejoinder has been dismissed.
4. Facts
giving rise for filing of this Civil Revision Petition briefly stated are that respondent No.1 filed Commercial Execution Petition No.47 of 2017 seeking to enforce judgment CJ & NVSK, J 2 C.R.P.No.1906 of 2023 and decree dated 30.10.2006 in O.S.No.588 of 2000 for a sum of Rs.5,41,90,053/-. The petitioner filed a detailed counter affidavit. Thereupon, respondent No.1 filed a detailed rejoinder along with an application, namely, C.E.A.No.8 of 2022 in C.E.P.No.47 of 2017, to receive the rejoinder. The aforesaid application was allowed on 01.04.2022. Thereafter, the petitioner filed C.E.A.No.91 of 2022 for taking the surrejoinder on record.
5. The Commercial Court by an order dated 10.03.2023 has rejected C.E.A.No.91 of 2022 on the ground that subsequent pleadings cannot be permitted as a matter of course. It has further been held that the original pleas cannot be permitted to be altered in the form of surrejoinder and the petitioner cannot be permitted to file surrejoinder only to deny the pleadings in the rejoinder.
6. Learned Senior Counsel for the petitioner has invited the attention of this Court to a chart mentioned in para 12 of the Civil Revision Petition to show the pleas which have been taken by the petitioner/judgment debtor No.2 in the rejoinder as well as the reply which has been filed by the petitioner.
CJ & NVSK, J 3 C.R.P.No.1906 of 2023
7. On the other hand, learned counsel for respondent No.1 has supported the impugned order passed by the learned Judge of the Commercial Court.
8. We have considered the submissions made on both sides.
9. There is no explicit provision under the Code of Civil Procedure with regard to filing of rejoinders and surrejoinders.
However, Order VIII Rule 9 CPC permits subsequent pleadings to be filed with the leave of the Court.
10. The relevant extract of para 12 of the Civil Revision Petition reads as under:
S.No. New plea raised by Respondent Rele Answer/Reply given by the Petitioner Rele No.1 herein/DHR in its Rejoinder vant herein/JDR No.2 in his Sur-Rejoinder vant Para Para No. No.
1. Petitioner herein/JDR 3(a) Petitioner herein/JDR No.2 4 No.2 has knowledge about did not have knowledge the passing of the decree; about the same and that the Petitioner herein/JDR Respondent No.1/DHR is No.2 is liable for perjury only harping upon the same. and contempt.
2. Respondent No.1 / DHR 4 The respondent No.1/DHR 5 made a new allegation that is a court bird and is into the petitioner herein/JDR habit of filing frivolous No.2 had given personal cases and prolonging guarantee for Hire litigation only to harass, Purchase Agreement on threaten its opposite parties behalf of respondent No.2 and that the petitioner herein and that respondent herein / JDR No.2 never No.1/DHR took steps to gave personal guarantee for serve suit notice in the Hire Purchase C.S.No.588 of 2000 on Agreement and that he various dates and the same never kept away from the CJ & NVSK, J 4 C.R.P.No.1906 of 2023 could not be served as service of notice.
petitioner herein/JDR
No.2 was keeping away
from service of notice.
3. Respondent No.1 / DHR 5(b) That the petitioner 6
alleged that the petitioner herein/JDR No.2 does not herein/JDR No.2 is have the sufficient means to promoter director in AJ pay the decree amount. That packaging limited and the petitioner herein/JDR also in AJ Cans Private No.2 is not the promoter Limited and that both director in either of the companies are having companies, whereas, he is crores of rupees of only a Director among turnover. Respondent many other Directors and No.1/DHR further alleged that his monthly that petitioner herein/JDR remuneration is Rs.50,000/- No.2 owns his residential and not Rs.20 to 25 lakhs as house in posh locality of alleged by the respondent Jubilee Hills and has an no.1/DHR. That the income of 20 to 25 lakhs residential house stands in per month. Further the name of his wife which allegation was made by was purchased almost over respondent No.1/DHR 30 years back out of her that companies are family own funds and that it is not concerns and that it is a a Joint Hindu family and joint Hindu family. that family members of petitioners herein/JDR No.2 are hardworking independent individuals having their own respective employments.
4. Respondent no.1/DHR 9 Criminal cases were 10 alleged that Economic registered under the Tamil Offenses Wing initiated Nadu Protection of Interest proceedings against it for of Depositors Act, 1997 non-payment of deposits against the Respondent and bonds as it was unable no.1/DHR and the to recover money from the Respondent no.1/DHR was borrowers, like the prosecuted for siphoning of petitioner herein/JDR money of innocent No.2 herein. investors.
5. Respondent no.1/DHR 10(a) Out of their own admission 11 stated that they revisited in the Paras under reply, their accounts and found petitioner herein/JDR No.2 that petitioner herein/JDR countered and controverted No.2 had made certain that he debts has been payments to respondent discharged and there is no no.1/DHR in view of liability that can be fastened CJ & NVSK, J 5 C.R.P.No.1906 of 2023 settlement in respect of upon the petitioner the criminal complaints herein/JDR No.2 filed under Sec.138 of the Negotiable Instruments Act.
6. Respondent no.1/DHR 10(b) -do- 11 further contended that payments were made in pursuance of criminal proceedings under Sec.138 of Negotiable Instruments act and that the same was towards compensation and cannot be categorized as payment under decree. Respondent no.1/DHR further cleverly mentioned that it has stated that payments received from petitioner herein/JDR No.2 are "Nil". 7. Respondent no.1/DHR 11(a) Petitioner herein/JDR No.2 12 contended that the contended that respondent Criminal Appeals filed no.1 herein/DHR has before the Hon'ble High received the payments Court were withdrawn on towards full and final the observation that the settlement and that the subject matter has been matter has been settled settled out of court and which was categorically that certain payments have recorded in the Criminal been made by the Appeals and that the Petitioner herein/JDR petitioner herein/JDR No.2 No.2 and that the alleged is not liable to pay any sums payments were towards of money to the respondent 'compensation' and not no.1 herein/DHR. towards the decree amount as such there cannot be full and final settlement of decree amount 8. Respondent no.1/DHR 12 Petitioner herein/JDR No.2 13 denied the fact that controverted the same by respondent no.1/DHR is a stating that other Directors going concern and further of the respondent no.2 contended that the decree company herein/JDR No.1 is joint and several and are equally liable and that it is not for the responsible and that CJ & NVSK, J 6 C.R.P.No.1906 of 2023 petitioner herein/JDR respondent no.1 No.2 to dictate against herein/DHR has a personal whom the decree needs to vendetta and has borne a be executed grudge against the petitioner herein/JDR No.2 due to which it is proceeding only against the petitioner herein/JDR No.2. 9 Respondent no.1/DHR 14 Petitioner herein/JDR No.2 15 contended that it filed responded by stating that criminal complaints not petitioner herein/JDR No.2 only against the petitioner himself was acquitted by the herein/JDR No.2 but also Hon'ble XI Metropolitan against other directors, Magistrate, Saidapet, suppliers and that there is Chennai which fact along no vindictive attitude that drives home the point that has been adopted by it the petitioner herein/JDR towards the petitioner No.2 is innocent and has a
herein/JDR No.2. clean record and is not liable to pay any amounts to the respondent no.1/DHR
10. Respondent no.1/DHR 19 Petitioner herein/JDR No.2 19 contended that petitioner countered the said allegation herein/JDR No.2 is not and new plea taken up by only immoral but also the respondent no.1/DHR shrewd and clever so as to by stating that the honest put the word 'diamonds' disclosure by the petitioner in the list of inventory of herein/JDR No.2 of even the assets in order to most microscopic thing, hoodwink the Hon'ble having some sort of value, Court. Further, it was which the petitioner again contended that the herein/JDR No.2 owns and petitioner herein/JDR possesses, goes to shows the No.2 has means to pay the bona fides of the petitioner decretal amount and that herein/JDR No.2. the properties held by the members of the family are estimated at a tune of Rs.500 crores
11. Thus, it is evident that by way of a rejoinder, certain new pleas were raised by respondent No.1 and it is therefore become necessary for the petitioner to rebut the same.
However, the aforesaid aspect of the matter has not been CJ & NVSK, J 7 C.R.P.No.1906 of 2023 appreciated by the learned Judge of the Commercial Court.
The impugned order therefore suffers from the vice of non-application of mind. It is accordingly set aside. The Commercial Court shall take on record the surrejoinder filed on behalf of the petitioner. Needless to state that respondent No.1 shall be at liberty to file additional pleadings if the law permits such filing of additional pleadings. Needless to state that if any such additional pleading is filed, the Commercial Court shall deal with the same on its own merits in accordance with law. The Commercial Court shall deal with the execution proceedings expeditiously.
12. Accordingly, the Civil Revision Petition is disposed of.
Miscellaneous applications, if any pending, shall stand closed. There shall be no order as to costs.
___________________ ALOK ARADHE, CJ ________________________ N.V.SHRAVAN KUMAR, J 6th NOVEMBER, 2023.
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