Andhra Pradesh High Court - Amravati
Balina Srimannarayana vs S.R.R.Hospitalities Pvt.Ltd., on 6 August, 2021
1
HIGH COURT OF ANDHRA PRADESH
MAIN CASE No: C.R.P.No.852 of 2021
PROCEEDING SHEET
Sl. OFFICE
DATE ORDER
No NOTE
1. 06.08.2021 DR,J
C.R.P.No.852 of 2021
Notice before admission.
Post after four weeks.
_______
DR, J
I.A.No. 2 of 2021
Heard Sri M.V.Suresh Kumar, learned
Senior Counsel appearing for petitioner and
Sri J.Sravan Kumar, learned counsel
appearing for caveator/respondent.
Learned Senior Counsel mainly relied
on the orders passed by this Hon'ble Court as
well as the Hon'ble Supreme Court.
The petitioner/plaintiff filed O.S.No.173
of 2013 for eviction of the schedule property
and for recovery of Rs.2,05,11,560/- towards
arrears of rent and the said suit was decreed
by the Family cum-VIII Additional District
Judge, Ongole, Prakasam District on
27.12.2016. As against the said decree, the
respondent filed A.S.No.98 of 2017 before
this Court. Considering the grounds raised
therein by the respondent/appellant, this
Court passed an interim order in
A.S.M.P.No.264 of 2017 in A.S.No.98 of 2017
on 16.02.2017, which reads as follows:
"Learned Senior Counsel for the
appellant submits that his client will pay
Rs.1,00,00,000/-within ten (10) days from
today and the balance of Rs.2,00,00,000/-
within seven (7) weeks thereafter.
Accordingly, the judgment and decree of the
lower Court are suspended subject to the
following terms:
(a) The appellant shall deposit
Rs.1,00,00,000/- to the credit of
the E.P.No.8 of 2017 before the
lower Court within twelve (12) days
from today.
(b) The appellant shall also deposit
balance amount of Rs.2,00,00,000/-
within seven (7) weeks thereafter.
(c) The application/appellant shall
also deposit costs awarded under
the decree within the time
stipulated in „(b)‟ supra.
(d) The applicant/appellant shall
continue to deposit license fee/rent
at the rate of RS.5,25,000/- every
month in future.
(e) On deposit of the amounts, as
directed above, the respondent is
entitled to withdraw the said sum
without furnishing any security.
(f) In default of any of the above
conditions, as stipulated above,
regarding payments, the interim
order automatically stands vacated.
Without any further reference to
this Court."
Subsequently, the petitioner filed
vacate stay petition in the said appeal. After
elaboration, the Hon'ble Court has modified
the earlier order and passed an order, dated
30.07.2018 in I.A.No.3 of 2017
(A.S.M.P.No.1237 of 2017) in A.S.M.P.No.264
of 2017 in A.S.No.98 of 2017, as follows:
"As noted hereinabove, the Court
below had, in its order in I.A.No.1411 of
2013, directed the appellant to pay arrears
of rent at Rs.5,85,000/- per month from
01.12.2010 to 31.03.2012 at Rs.7,02,000/-
per month from 01.04.2012 to 31.03.2015,
and for the subsequent period, from
01.04.2015 to 31.03.2018, at Rs.8,42,400/-
per month.
While the rival submissions, put forth
by the learned Senior Counsel on either side,
shall be examined when the appeal is finally
heard, suffice it to modify the order of the
Division Bench, dated 16.02.2017 and direct
that the interim stay granted earlier shall
continue till the appeal is finally heard and
disposed of subject to the condition that the
appellant pays Rs.8,42,000/- each month to
the respondent-plaintiff from the date of the
order of the Division Bench i.e., 16.02.2017
till the appeal is finally disposed of since the
amount reflected in the order passed by the
Court below, in I.A.No.1411 of 2013 in
O.S.No.173 of 2013, dated 02.04.2015, was
not disputed even before the Supreme Court;
and the appellant herein had merely sought
four months time from the Supreme Court to
pay the said amount. The differential rent of
Rs.3,17,400/- per month (difference
between Rs.8,42,400/- as directed to be
paid by the Court below in its order in
I.A.No.1411 of 2013 in O.S.No.173 of 2013
dated 02.04.2015, which was confirmed by
the Supreme Court, and Rs.5,25,000/-),
shall be paid from 06.02.2017 till 31.07.2018
in two equal instalments, the first within
four (4) weeks from today and the balance
50% within four (4) weeks thereafter. The
appellant shall continue to pay the
respondent-plaintiff rent at Rs.8,42,400/-
each month thereafter, after deducting TDS
and remitting the deducted TDS amount to
the Income-Tax Department, till the appeal
is finally heard and decided. In default of
the conditions mentioned hereinabove, the
order now passed by us, and the interim
order passed earlier on 16.02.2017, shall
stand automatically vacated without any
further reference to this Court."
Learned Senior Counsel further stated
that while pendency of the suit, the petitioner
filed an application in I.A.No.1411 of 2013 in
O.S.No.173 of 2013 under Order XV-A read
with Section 94(E) and Section 151 of the
Code of Civil Procedure to direct the
respondent to deposit the arrears of rent and
for subsequent period. Ultimately, the
Hon'ble Supreme Court has considered the
said matter and passed the order on
16.10.2015, which is as follows:
"In furtherance of the prayer made by
learned senior counsel for the petitioner, we
hereby extend the period of payment of
arrears of rent, by four months from today,
subject to the condition that if arrears are
not paid within the aforementioned
extended/stipulated time, the defence of the
petitioner shall be deemed to be struck off."
As the respondent failed to make
deposits after passing of conditional orders by
the Hon'ble Supreme Court as well as the
High Court in appeals filed by the respondent,
the Division Bench of this Court passed an
order, dated 06.04.2021, in A.S.No.98 of
2017, which reads as follows:
"It appears that in spite of repeated
opportunities, the appellant has failed and
neglected to make deposits as per the earlier
orders of this Court. Execution proceedings
are pending and adjournments are sought
for in the said proceedings in view of the
prayers for extension of time to make
deposits. In order to see bona fides of the
appellant, he is directed to deposit 50% of
the arrears before the Court below by the
adjourned date."
After exhausting all remedies, the
respondent has filed the present E.A.No.56 of
2021 in E.P.No.278 of 2019 in O.S.No.173 of
2013 under Section 47 read with Section 151
of the Code of Civil Procedure before the
Judge, Family Court-cum-VIII Additional
District Judge, Ongole, to declare the
judgment and decree in O.S.No.173 of 2013,
dated 27.12.2016, is nullity and cannot be
executed and the same is allowed vide its
order, dated 07.07.2021.
Sri Jada Sravan Kumar, learned counsel
appearing on behalf of caveator/respondent
has mainly contended that on the basis the
document i.e, Sub-License Agreement, dated
09.02.2009, executed by the defendant, the
suit was decreed. The main contention of the
petitioner/plaintiff is that original document is
with defendant. After passing orders in
I.A.No.1411 of 2013, the petitioner/plaintiff
filed the said document. Hence, the very
contention of the petitioner/plaintiff is nothing
but obtaining a decree is by way of fraud.
Hence, the said decree itself has become
nullity and requested time to file all the
relevant documents to support his contention.
Considering the submissions made by
the learned Senior Counsel appearing on
behalf of the petitioner and also the learned
counsel appearing on behalf of the
caveator/respondent, on perusal of the
various orders passed by this Court as well as
Hon'ble Supreme Court and also on perusal of
memorandum of grounds mentioned in
A.S.No.98 of 2017, this Court came to
conclusion that after exhausting all the
remedies, E.A.No.56 of 2021 in E.P.No.278 of
2019 in O.S.No.173 of 2013 is filed and in
view of the observations made, the order
impugned in the revision, dated 07.07.2021,
stands suspended, for a period of eight (8)
weeks.
Post after four (4) weeks.
Meanwhile, the respondents are
directed to file their counter.
_______
DR, J
SPP
