Telangana High Court

K.Rajgopal Rao vs M/S.Otira Pharmaceuticals Pvt. ... on 3 October, 2023

Bench: K. Sarath

                                       1
                                                                      SK,J
                                                  CRP.No.262 & 264 of 2022

     IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
                                  *****

CIVIL REVISION PETITION Nos.262 and 264 of 2022 CRP No.262 of 2022

Between:

K.Rajgopal Rao ...Petitioner AND

1. M/s. Otira Pharmaceuticals Pvt. Ltd and another ...Respondents

CRP No.264 of 2022

Between:

K.Rajgopal Rao ...Petitioner

AND

1. M/s.Chemsol Labs Pvt. Ltd., and another ...Respondents

COMMON ORDER PRONOUNCED ON: 03.10.2023

SUBMITTED FOR APPROVAL:

THE HON'BLE SRI JUSTICE K.SARATH

1. Whether Reporters of Local newspapers : Yes/No may be allowed to see the Judgment ?

2. Whether the copies of judgment may be : Yes/No marked to Law Reports/Journals

3. Whether Their Lordship/Ladyship wish to : Yes/No see the fair copy of judgment

_____________________ JUSTICE K.SARATH

SK,J CRP.No.262 & 264 of 2022

THE HON'BLE SRI JUSTICE K.SARATH

+CIVIL REVISION PETITION NO.262 OF 2022

%Dated 03.10.2023

# K.Rajgopal ...Petitioner

and

$ M/s. Otira Pharmaceuticals Pvt. Ltd., and another ...Respondents

+CIVIL REVISION PETITION NO.264 OF 2022

%Dated 03.10.2023

# K.Rajgopal ...Petitioner

and

$ M/s. Chemsol Labs Pvt. Ltd., and another ...Respondents

! Counsel for Petitioners : Sri Vedula Srinivas, In both the CRPs Learned Senior Counsel appearing for Smt.Vedula Chiralekha

^ Counsel for Respondent No.1 : Sri P.Krishna Arjun In both the CRPs

< GIST :

> HEAD NOTE :

? Cases referred :

1. AIR 1987 ORISSA 79

2. 2015 (6) ALD 739 (DB)

3. (2001) 10 SCC 703

SK,J CRP.No.262 & 264 of 2022

THE HON'BLE SRI JUSTICE K.SARATH

CIVIL REVISION PETITION Nos.262 and 264 of 2022

COMMON ORDER:

1. The Civil Revision Petition No.262 of 2022 is filed

being aggrieved by the docket order dated 17.01.2022

passed in E.P.No.27 of 2019 in O.S.No.414 of 2023 on

the file of XII Additional Chief Judge, City Civil Court.

2. The Civil Revision Petition No.264 of 2022 is filed

being aggrieved by the docket order dated 17.01.2022

passed in E.P.No.28 of 2019 in O.S.No.415 of 2023 on

the file of XII Additional Chief Judge, City Civil Court.

3. Since the revision petitioner in both the Civil

Revision Petitions is one and the same and the issue to

be adjudicated is also one and the same, they are heard

together and being disposed of by way of this common

order.

SK,J CRP.No.262 & 264 of 2022

4. The respondent No.1 in C.R.P No.262 of 2022

herein filed a suit in O.S.No.414 of 2018 on the file of

Chief Judge, City Civil Court against M/s. Vensa

Laboratories Private Ltd., representing by its Managing

Director, for recovery of Rs.24,40,808/- and the said

suit was decreed by judgment dated 30.07.2018.

Subsequently, the respondent No.1 filed E.P.No.27 of

2019 against the Revision Petitioner, who said to have

worked as Managing Director in the Judgment-Debtor

Company. The revision petitioner contested the E.P

and the Court below attached the house property of the

Civil Revision Petitioner.

5. Likewise, the respondent No.1 in C.R.P No.264 of

2022 herein filed a suit in O.S.No.415 of 2018 on the

file of Chief Judge, City Civil Court against M/s. Vensa

Laboratories Private Limited represented by its

Managing Director, for recovery of Rs.24,24,908/- and

SK,J CRP.No.262 & 264 of 2022

the said suit was decreed by judgment dated

30.07.2018. Subsequently, the respondent No.1 filed

E.P.No.28 of 2019 against the Revision Petitioner, who

said to have worked as Managing Director in the

Judgment-Debtor (for short 'J.Dr') Company. The

revision petitioner contested the E.P and the Court

below attached the house property of the Revision

Petitioner through impugned order. Being aggrieved by

the impugned orders, the petitioner came with the

present revisions.

6. Heard Sri Vedula Srinivas, Learned Senior

Counsel for Vedula Chitralekha, learned Counsel for

the Revision petitioner and Sri P.Krishna Arjun, the

learned Counsel for the respondent No.1 in both the

petitions.

7. The learned Senior Counsel for the revision

petitioner submits that the Court below erred in

SK,J CRP.No.262 & 264 of 2022

allowing the execution petition as the schedule property

does not belong to the J.Dr., and as a matter of fact the

attached property is the exclusive property of the Civil

Revision Petitioner, who is the Former Managing

Director of J.Dr firm. Further the Decree Holder (D.Hr)

did not impleaded the Civil Revision Petitioner either in

the suit or the Execution Petitions. The Court below

ought to have called upon the D.Hrs to show that the

subject property belongs to the J.Dr-company instead

of placing the burden on the J.Dr to prove that the

property does not belong to it. The Court below failed

to see that the property of the former Managing Director

of the J.Dr cannot be brought to sale for the discharge

of decretal amount due from the J.Dr to the D.Hr, more

particularly when the said Managing Director has not

been impleaded either to the suit or to the E.P.

Proceedings.

SK,J CRP.No.262 & 264 of 2022

8. The learned Senior Counsel for the petitioner

further submits that the execution petition is not filed

in the proper form in accordance with Order-XXI, Rule-

66 and 64 of Civil Procedure Code. The property

mentioned in the execution petition does not belongs to

the J.Dr Company and the said property is the

absolute, exclusive and personal property of the

revision petitioner, who worked as the Managing

Director of the J.Dr Company. The said property is

covered under Sale Deed No.815 of 2001 on the file of

SRO, Bowenpally and Sale Deed No.544 of 2002 on the

file of SRO, Kukatpally. The decree was passed against

the J.Dr company only, but not against the persons

represented by the J.Dr company and hence the decree

to be treated as estate decree passed against the J.Dr

company and its properties and therefore, both the

Civil Revision Petitions are liable to be allowed by

setting the impugned orders.

SK,J CRP.No.262 & 264 of 2022

9. The learned Senior Counsel for the Revision

Petitioner in support of his contentions placed reliance

on the following Judgment:

1. Hrushikesh Panda Vs., Indramani Swain and another 1

10. On the other hand the learned Counsel for the

respondents No.1 contends that the Court below rightly

allowed the execution petitions attaching the

immovable property of the petitioner, being the

Managing Director of the J.Dr. Company. The

execution petition was filed on 03.01.2019 and sought

attachment of immovable property of the petitioner and

the same is not erroneous. The petitioner being the

Managing Director of the respondent No.2-Company

gave evidence admitting the liability and even sought

lenience of the trial Court to pay the decretal amount in

installments. The order of attachment was passed by

AIR 1987 ORISSA 79

SK,J CRP.No.262 & 264 of 2022

the Execution Court on 17.01.2022 and the petitioner

having filed counter in the Execution Petition and

having contested the matter, clandestinely sold the

property on 28.01.2022 through document

No.318/2022 on the file of Sub-Registrar, Balanagar,

Hyderabad. The fact of sale was not brought to the

notice of this Court by the petitioner and thereby played

fraud on this court. The Court below having

considered the counter filed by the Judgment-Debtor

and having heard the counsel for the parties, has

rightly passed an order attachment of property on

17.01.2022 under Order XXI, Rule-54 of CPC and the

same does not warrant any interference by this Court.

11. The learned Counsel for the respondents No.1

further submits that as the decree and judgment was

passed on admission, no appeal can be filed and the

respondents.No.1 having waited for nearly three years

SK,J CRP.No.262 & 264 of 2022

filed the execution petitions on 03.01.2019 seeking

attachment of immovable property of the petitioner and

the execution court having given sufficient time, has

rightly passed an order of attachment of immovable

property. The petitioner in the capacity of Managing

Director of Respondent No.2 (J.Dr. Company) came into

witness box, gave evidence and sought time to pay the

decreetal amount in the form of installments and he

cannot plead ignorance of suit and therefore the court

below has rightly passed an order of attachment under

impugned orders and there are no valid grounds in the

petitions and requested to dismiss both the Civil

Revision Petitions.

12. The learned Counsel for the respondent in support

of his contention, placed reliance on the following

Judgment:

SK,J CRP.No.262 & 264 of 2022

Shakthi Concrete Industries, Hyderabad & Anr. Vs. Ganesh Gupta 2

13. After hearing both sides and upon perusing the

record this Court is of the considered view that the

petitioner earlier worked as Managing Director of M/s

Vensa Laboratories Pvt Ltd. The respondents No.1 in

both the petitions filed two different suits for recovery

of money against the respondent No.2-company. In

both the matters the petitioner herein filed written

statements admitting that the defendant-company

received the material from the plaintiff-companies, but

due to some unavoidable circumstances the defendant

was unable to pay the amounts to the plaintiff-

companies in time and he is willing to pay the amounts

as per the schedule in easy installments only as per the

invoices raised by the plaintiff-companies. Thereafter

the petitioner filed chief-affidavits in both the suits,

before the Court below on 05.12.2017 and gave an

2015 (6) ALD 739 (DB)

SK,J CRP.No.262 & 264 of 2022

undertaking, and the relevant portions of the chief-

affidavits are as follows:

"3. I submit that I and my company willing to pay the amounts as per the schedule in easy installments only as per invoice raised by the plaintiff,. It is submitted that I and my other directors of the company are ready to pay the amount as agreed by me as per the invoice mentioned in the plaint for the actual materials received.

5. I submit that I and my other directors are not disputing about the legal notice dated 25.03.2013 and I submit that I and my other directors are very fair enough in paying the admitted invoice amounts as per the invoice raised by the plaintiff in easy installments as of now I am not running the said business in the above said company".

14. A close reading of the chief-affidavit and cross-

examination of the revision petitioner, as DW1 in the

suits, shows that he has given undertaking before the

Court below that he and other directors are fair enough

to pay the amount as per the schedule in easy

installments as per the invoice raised by the plaintiff-

companies without interest by his company as he is not

SK,J CRP.No.262 & 264 of 2022

running the said business in the said company and

basing on the said admission of the petitioner the suits

were decreed.

15. As the petitioner or the defendant-company failed

to pay the decretal amount the respondent

Nos.1/plaintiffs were constrained to file the Execution

Petitions for realization of the decretal amount by

attaching the immovable property, which was in the

name of the petitioner. Once the petitioner has given

an undertaking before the Court below in the written

statements as well as in the chief-affidavits and in the

cross-examination to pay the amount personally, now

he cannot take a ground that he is not a party either in

the suit or in the execution petition and cannot

question the attachment of the property. The judgment

relied on by the learned counsel for the petitioner in

Hrusihkesh Panda Vs. Indramani Swain and another

SK,J CRP.No.262 & 264 of 2022

(supra 1) is not apply to the instant case, as the

petitioner has given an undertaking to pay the amount

before the Court below.

16. Moreover, the respondent No.1 in their counters

brought to the notice of this court that after passing the

impugned orders in E.P.Nos.27 and 28 of 2022 dated

17.01.2022, the petitioner sold the E.P. schedule

property on 28.01.2022 to third parties and filed these

revision petitions, without disclosing the same before

this Court and claiming that he is the owner of the

property as on the date of filing of the Civil Revision

Petitions, which clearly shows that the petitioner

suppressed the said fact and obtained interim orders

from this court.

SK,J CRP.No.262 & 264 of 2022

17. The principles laid down by the Hon'ble Supreme

Court of India in Western Press Pvt. Ltd., Mumbai

Vs., Custodian and others 3 apply to the instant case.

The relevant portions of the said judgment are as

follows:

"9. The questions, which loom large for consideration in this appeal, are as to what are the legal consequences flowing from the consent order of the Special Court dated 5.7.95 and the affidavit filed by Mr. Milan Dalal on 28.7.95 as the Chairman of the appellant-company? and do they suffer any legal infirmities such as want of registration, want of authority and mistake of fact so as to render them either non-est or unenforceable? If it is held that the consent order dated 5.7.1995 and the affidavit dated 28.7.1995 are binding upon not only the parties but upon the appellant, as one who has undertook to abide by certain consequences and such an undertaking was given to secure any or some benefit for any one or more of the parties from the Court, the facts such as the appellant not being itself a party in the proceedings before the Court and it was only a third party and that the property in question is of the appellant and that the appellant is neither a notified party nor one claiming through such notified party or the judgment debtor pale into

(2001) 10 SCC 703

SK,J CRP.No.262 & 264 of 2022

insignificance and are rendered wholly irrelevant in determining the actual issues arising.

13.. ..... ....... The consent order as also the undertaking given in this case would squarely fall within the exempted category of 'any decree or order of the Court envisaged under Section 17 (2) (vi) and take it outside the excepted category of cases for the simple reason that it does not deal with, as such, any immovable property envisaged in the manner of clause (b) of Section 17 (1) of the Registration Act. In the first instance, the decree/order in question does not comprise any immovable property as such. In any event, in a matter like the one before us where the consent order which came to be passed on agreement as well as the undertaking given in pursuance thereof, was an undertaking to the Court, the words subject-matter of the suit need not be confined to the subject-matter of the plaint or subject- matter of the dispute alone, but would include all that which is made to become part of the proceedings in order to finally and effectively settle all the disputes between the parties. Shorn of all these unnecessary controversies now raised, we are also of the view that in a case where an item of property is referred to in an undertaking given to the Court as one which can be proceeded against in the event of the judgment- debtor failing to pay the decretal amount within the stipulated time, the immovable property does not get ipso facto affected or suffer in anyone of the manner envisaged

SK,J CRP.No.262 & 264 of 2022

under Section 17 (1) so as to require compulsory registration.

(emphasis added)

18. The finding of the above judgment squarely apply

to the facts of instant case that in both the suits, the

petitioner has given personal undertaking in the written

statements, chief-affidavits as well as in the cross-

examination for repayment of the suit amounts

personally and now he cannot take a different stand

that the trial Court cannot attach the property of the

petitioner.

19. In view of the same, now the petitioner cannot