Telangana High Court
Kyori Oremin Ltd vs Dbs Bank Ltd on 30 October, 2024
Author: P.Sam Koshy
Bench: P.Sam Koshy
THE HONOURABLE SRI JUSTICE P.SAM KOSHY
CIVIL REVISION PETITION No.2656 of 2024
ORDER:
Heard Mr. B.Nalin Kumar, learned Senior Counsel appearing on
behalf of Mr. P.Boppanna, learned counsel for the petitioner and
Ms. Purnima Kamble, learned counsel appearing on behalf of
Mr. T.Vijaya Kumar Reddy, learned counsel for the respondent.
2. The instant Civil Revision Petition under Article 227 of the
Constitution of India has been filed by the petitioner assailing the order
dated 02.07.2024 passed by the VI Additional District and Sessions
Judge, Ranga Reddy District at Kukatpally, in I.A.No.627 of 2023 in
O.S.No.242 of 2022.
3. Vide the impugned order, the Trial Court has allowed the petition
filed by the petitioner herein under Oder XXXVII Rule 3 read with
Section 151 of CPC conditionally to the extent of the leave to defend
being granted subject to deposit of 1/4thof the Suit amount by
09.08.2024 to the credit of the Suit.
4. It is this condition of payment of 1/4th of the Suit amount by the
Trial Court which is under challenge in the instant Revision Petition.
5. The brief facts relevant for disposal of the instant Revision
Petition are that the respondent (plaintiff before the Trial Court) filed a
Suit vide O.S.No.773 of 2019 before the Principal District Judge, Ranga
Reddy District, under Order XXXVII of the CPC for recovery of
Rs.16,52,92,434.20/- from the petitioner along with interest at the rate
of 5% per annum from 19.07.2019 till the date of realization. The said
Suit was later transferred to the VI Additional District and Sessions
Judge and was renumbered as O.S.No.242 of 2022. The petitioner is an
intermediary for and on behalf of the seller, namely Intra Asia Trading
Private Limited, and the buyer in the instant case is a company based
at Hong Kong namely Novita Trading Limited. The transaction between
the seller and buyer was a High Sea transaction and the transaction
pertained to merchant trading where the goods were shipped from one
country to another. It is said that two Bills of Exchange for an amount
of USD 1,045,000 were payable by the petitioner in favour of the
respondent DBS Bank Ltd. It is the further case that the seller Intra
Asia Trading Private Limited has assigned certain debts payable by way
of Bills of Exchange drawn on its buyers to the respondent. Accordingly
two Bills of Exchange bearing Ref. No.INTRA/KOI/662/15-16 and
INTRA/KOL/663/15-16 were drawn.
6. Pursuant to the transaction between the buyer and the seller, the
respondent forwarded the Bills of Exchange to the Bank of the
petitioner i.e. the Indian Overseas Bank for acceptance. However, in
spite of repeated reminders by the respondent, the Bills of Exchange
could not be honored which led to filing of the Suit. The said Suit was
filed under Order XXXVII of the CPC treating it to be a summary Suit.
7. It is contended by the learned Senior Counsel for the petitioner
that the petitioner immediately entered appearance and at the first
instance itself filed I.A.No.627 of 2023 seeking leave to defend and also
seeking permission to bring factual matrix on record. It was further
contended by the learned Senior Counsel that the alleged banking
document is not binding upon the petitioner. It was also contended by
the learned Senior Counsel that the petitioner is not liable to pay any
amount to the respondent.
8. The further contention of the learned Senior Counsel was that the
petitioner has not entered into any commercial transaction either with
Intra Asia Private Limited, the seller, nor was there any commercial
transaction with Novita Trading Limited, the buyer. Further, no
commercial transaction had in fact occurred in the territories of India
which would had made the petitioner even remotely connected to honor
the Bills of Exchange. It was also the contention of the learned Senior
Counsel that the sale contract between the seller and the buyer
contains an arbitration clause; therefore, the Suit on that count also
was not sustainable. It was also the contention that as long as the
petitioner has not given an endorsement to the respondent, the Bills of
Exchange have no binding on the petitioner.
9. Lastly, it was contended by the learned Senior Counsel for the
petitioner that there is also no previty of contract between the petitioner
and the respondent. The petitioner had also raised the plea of limitation
so far as the maintainability of Suit is concerned.
10. With all the aforesaid contentions and objections, the learned
Senior Counsel for the petitioner prayed for leave to defend under Order
XXXVIII Rule 3 read with Section 151 of CPC.
11. Learned counsel for the respondent, on the other hand, opposing
the Revision Petition clearly contended that such mechanism of making
Bills of Exchange by intermediaries is a common feature in mercantile
system. Learned counsel for the respondent referred to the document
dated 01.03.2016 wherein the petitioner was reflected as a drawee and
the seller Intra Asia Private Limited was shown as the drawer. In the
document enclosed along with the Revision Petition, the learned
counsel for the respondent referred to a document which was a swift
message wherein the narrative states that the Bank of the petitioner
had undertaken stating "we will make the payment on due date". The
due date reflected was 29.07.2016, as would again be reflected from the
documents enclosed in the Revision Petition.
12. Learned counsel for the respondent further referred to document
dated 28.07.2016 wherein the petitioner itself had sent a
correspondence to the seller i.e. Intra Asia Private Limited seeking
extension of time for making payments in terms of the invoices raised
by the seller. According to the learned counsel for the respondent, there
were also other correspondences showing that the petitioner had sought
for installments in making the payments.
13. Based on the said correspondences, it was the contention of the
learned counsel for the respondent that the impugned order being
strictly in accordance with the procedures applicable in a summary
Suit, particularly for the claim on the basis of a bill of exchange, the
impugned order does not warrant any interference.
14. Having heard the contentions put forth on either side and on
perusal of records, at the outset, what is reflected is that the impugned
order passed by the Trial Court is one on a petition i.e. I.A.No.627 of
2023 filed by the petitioner themselves. It was the petitioner who had
sought leave to defend in a summary Suit filed under Order XXXVII of
CPC. Further, from the correspondences that have been made by the
petitioner to the respondent and also to the seller; the issuance of Bills
of Exchange is not in dispute. The petitioner having acknowledged
payment to be made is not in dispute and the petitioner having sought
extension of time for the payments to be made pursuant to the invoices
raised by the seller again is prima facie admitted.
15. In the teeth of the aforesaid factual matrix of the case, when we
look into the provisions of Order XXXVII of CPC, it clearly gives an
indication of the Suit of summary in nature to be permissible, if it is
based upon the Bills of Exchange. Since it is a claim based upon the
Bills of Exchange, the respondent had the liberty of filing either a
summary Suit or an ordinary Suit. Moreover, it has been by now a
settled position of law that merely because the defendant files a counter
claim, it would not detract the case in any manner, nor would the Suit
filed as summary Suit be treated as a regular Suit. The view of the
various Courts in a summary Suit is that if the loss is capable to be
calculated arithmetically or if the Suit is clearly indicating the
determinable sum, the summary Suit would still be maintainable.
16. Reading of proviso of Sub-Rule 5 of Rule 3 of Order XXXVII of
CPC, would also fortify the order of the Trial Court, as the said proviso
clearly empowers the Court hearing the summary Suit to grant leave to
defend upon the defendant depositing the admitted dues. In addition,
clause (b) of Sub-Rule 6 also empowers the Court hearing the case to
direct the defendant to give such security and within such period as
may be fixed by the Court.
17. The view of the Trial Court stands fortified by a decision of the
Division Bench of this High Court in the case of Neha International
Ltd. vs. DBS Bank Ltd. 1. The said judgment of the Division Bench of
this High Court was further affirmed by the Hon'ble Supreme Court in
SLP(C) No.17972 of 2023 decided on 25.08.2023.
18. So far as the judgments cited by learned counsel for the petitioner
in G. Vasu vs. Syed Yaseen Sifuddin Quadri 2, Mallavarapu
Order dated 21.06.2023
in Civil Revision Petition No.1680 of 2023
AIR 1987 Andhra Pradesh 139
Kasivisweswara Rao vs. Thadikonda Ramulu Firm and Others 3 and
B.L. Kashyap and Sons Limited vs. JMS Steels and Power
Corporation and Another 4; when we look into the factual matrix of
those judgments and the impugned orders and the provisions of law
under challenge in those judgments and the context in which those
judgments were decided, it would clearly reflect that they were under
entirely different contextual backdrop or under different statutory
provisions and those cases were thus clearly distinguishable on facts
itself.
19. For all the aforesaid reasons, facts and circumstances of the case
and the judicial precedents, this Court is of the firm opinion that no
strong case for interference with the impugned order is made out by the
petitioner. The instant Civil Revision Petition thus being devoid of
merits, stands dismissed.
20. It has been brought to the notice of this Court that the
conditional order dated 02.07.2024 in I.A.No.627 of 2023 in O.S.No.242
of 2022, passed by the VI Additional District and Sessions Judge,
Ranga Reddy District at Kukatpally, has not been complied with till
(2008) 7 Supreme Court Cases 655
(2022) 3 Supreme Court Cases 294
date and the prescribed period has also expired. In the interest of
justice, the petitioner is granted two more weeks' time for compliance of
the above conditional order passed by the Trial Court. No costs.
21. As a sequel, miscellaneous petitions pending if any, shall stand
closed.
__________________
P.SAM KOSHY, J
Date: 30.10.2024
GSD
