State Of Andhra Pradesh vs M.R.K.R. Constructions And ...
2023 Latest Caselaw 1969 AP

         HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

           I.A. No.2 OF 2022 IN A.S. No.60 OF 2023

ORDER:

This Application is filed by the petitioner, respondent in the

Appeal and the decree holder in E.P. No.6 of 2014 in O.S. No.43 of

2010 on the file of the Court of IV Additional District Judge,

Kakinada, East Godavari District (for short, 'the trial Court'),

seeking permission to withdraw the amount i.e., Rs.8,78,993/-

lying in the account of E.P. No.6 of 2014.

2. The case of the petitioner is that he is the GPA holder of the

respondent-firm, who filed O.S. No.43 of 2010 on the file of the

Court of IV Additional District Judge, Kakinada, which was

decreed on 22.11.2012. The respondent/plaintiff filed E.P. No.6 of

2014 in O.S. No.43 of 2010 for execution of the decree.

Challenging the decree, the appellants/defendants filed the Appeal

before this Court. This Court after hearing the arguments, at the

time of admission, granted interim stay of operation of the

judgment and decree, dated 22.11.2012, in O.S. No.43 of 2010.

Pursuant to the direction of this Court in I.A.1 of 2017 (ASMP

No.3173 of 2017) in AS (SR) No.9651 of 2013, the appellants

AVRB,J IA No.2/2022 in AS No.60/2023

deposited Rs.8,78,993/- in the account of E.P. No.6 of 2014 in

O.S. No.43 of 2010 before the trial Court.

3. At the time of filing of the Appeal, appellants mentioned the

name of the respondent/plaintiff as M/s. M. Ramakrishna Reddy.

Now, the name of the firm has been changed to M.R.K.R.

Constructions & Industries Private Limited. Hence, this Petition to

direct the learned IV Additional District Judge, Kakinada to permit

the petitioner/respondent to withdraw Rs.8,78,993/- and to issue

cheque in the name of 'M.R.K.R. Constructions & Industries Private

Limited'.

4. When this I.A. and I.A. No.1 of 2022 to change the name of

the respondent/plaintiff in the grounds of Appeal are listed before

this Court, Sri Shashank Reddy, learned counsel, representing

learned Advocate General, sought time to get appropriate

instructions on 23.02.2023 with regard to the prayer of the

petitioner in this I.A. and I.A. No.1 of 2022 and after that both the

I.As. were listed several times and none represented for the

appellants/defendants. Under the aforesaid circumstances, I.A.

No.1 of 2022 was ordered and I.A. No.2 of 2022 is coming up 'for

pronouncement of orders'.

AVRB,J IA No.2/2022 in AS No.60/2023

5. Though Appeal was filed way back in the year 2013, it could

be numbered only in the year 2023, after passing appropriate

orders with regard to condonation of delay. As evident from the

certified copy of the impugned judgment, the present petitioner in

the capacity of the plaintiff filed O.S. No.43 of 2010 for recovery of

Rs.12,01,829/- and the suit was decreed. Challenging the same,

the appellants/defendants filed the present Appeal. As evident

from the proceedings sheet maintained before the High Court of

Judicature at Hyderabad for the State of Telangana and the State

of Andhra Pradesh, on 28.08.2018, there was an order in I.A. No.1

of 2017 (ASMP No.3173/2017), which shows that the appellants

advanced arguments that the total amount was of Rs.1.33 crores,

out of which Rs.1.25 crores was already paid and the balance of

Rs.8,00,000/- and odd is going to be paid. Learned Judge

appreciated the contentions and granted interim stay in view of the

undertaking given to pay the balance amount. It is altogether a

different aspect that though the time bound direction was given to

deposit the amount but later it was extended in I.A. No.1 of 2018.

So, it is transpired that in pursuance of the undertaking given

before the Court on 28.08.2018, the appellants deposited a sum of

Rs.8,78,993/- (before the executing Court), which amount is now

sought to be withdrawn by the petitioner/plaintiff. As evident from

AVRB,J IA No.2/2022 in AS No.60/2023

the arguments advanced by learned counsel for the appellants in

I.A. No.1 of 2017, the contention of the appellants that balance

amount was of Rs.8,00,000/- and odd. Admittedly, the

respondent/plaintiff filed the suit for recovery of Rs.12,01,829/-

and it was decreed. Challenging the same, the Appeal is filed.

6. Having regard to the overall facts and circumstances, this

Court is of the considered view that insofar as the amount

deposited by the appellants before the executing Court is

concerned, it is an admitted amount. Under the circumstances, it

is just and reasonable to permit the petitioner herein, who was the

plaintiff in O.S. No.43 of 2010 and decree holder in E.P. No.6 of

2014 to withdraw the amount without furnishing any security but

by filing a cheque petition before the executing Court in

accordance with law.

7. In the result, the Interlocutory Application is allowed

permitting the petitioner/plaintiff to file a cheque petition in E.P.

No.6 of 2014 in O.S. No.43 of 2010 on the file of the Court of IV

Additional District Judge, Kakinada. In such an event, the learned

Additional District Judge shall pass appropriate orders so as to

issue cheque in favour of the petitioner/plaintiff. The petitioner is

further directed to take appropriate steps to amend the name of

AVRB,J IA No.2/2022 in AS No.60/2023

the respondent/plaintiff as that of 'M.R.K.R. Constructions &

Industries Private Limited' in E.P. No.6 of 2014, if it is not amended

already before filing cheque petition and in that event the learned

Judge shall pass appropriate orders so as to amend the name of

the petitioner in the cause title of E.P. No.6 of 2014. No order as to

costs.

________________________________ JUSTICE A.V.RAVINDRA BABU Date: 17.04.2023 DSH