M/S. Sri Abhivridyasya ... vs Sahan Enterprises
2022 Latest Caselaw 5965 Tel

            HIGH COURT FOR THE STATE OF TELANGANA

                                 ********

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




                  * 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

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.

PNR,J & JSR,J CRP No.1907 of 2022

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).

PNR,J & JSR,J CRP No.1907 of 2022

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.

PNR,J & JSR,J CRP No.1907 of 2022

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.

PNR,J & JSR,J CRP No.1907 of 2022

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

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

2010 (3) ALD 82 PNR,J & JSR,J CRP No.1907 of 2022

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