Telangana High Court

Ajay Agarwal vs M/S Integrated Finance Company ... on 6 November, 2023

Bench: Alok Aradhe, N.V.Shravan Kumar

     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

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

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

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

settlement in respect of upon the petitioner the criminal complaints herein/JDR No.2 filed under Sec.138 of the Negotiable Instruments Act.



     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





      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

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