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Judgment
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.
With the consent of the parties, the matter is heard finally.
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.
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 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.
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.
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.
On the other hand, learned counsel for respondent No.1 has supported the impugned order passed by the learned Judge of the Commercial Court.
We have considered the submissions made on both sides.
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.
The relevant extract of para 12 of the Civil Revision Petition reads as under:
S.No.
New plea raised by Respondent No.1 herein/DHR in its Rejoinder
Relevant
Para No.
Answer/Reply given by the Petitioner herein/JDR No.2 in his Sur-Rejoinder
Relevant
Para No.
1.
Petitioner herein/JDR No.2 has knowledge about the passing of the decree; Petitioner herein/JDR No.2 is liable for perjury and contempt.
3(a)
Petitioner herein/JDR No.2 did not have knowledge about the same and that the Respondent No.1/DHR is only harping upon the same.
4
2.
Respondent No.1 / DHR made a new allegation that petitioner herein/JDR No.2 had given personal guarantee for Hire Purchase Agreement on behalf of respondent No.2 herein and that respondent No.1/DHR took steps to serve suit notice in C.S.No.588 of 2000 on
various dates and the same could not be served as petitioner herein/JDR No.2 was keeping away from service of notice.
4
The respondent No.1/DHR is a court bird and is into the habit of filing frivolous cases and prolonging litigation only to harass, threaten its opposite parties and that the petitioner herein / JDR No.2 never gave personal guarantee for the Hire Purchase Agreement and that he never kept away from the service of notice.
5
3.
Respondent No.1 / DHR alleged that the petitioner herein/JDR No.2 is promoter director in AJ packaging limited and also in AJ Cans Private Limited and that both companies are having crores of rupees of turnover. Respondent No.1/DHR further alleged that petitioner herein/JDR No.2 owns his residential house in posh locality of Jubilee Hills and has an income of 20 to 25 lakhs per month. Further allegation was made by respondent No.1/DHR that companies are family concerns and that it is a joint Hindu family.
5(b)
That the petitioner herein/JDR No.2 does not have the sufficient means to pay the decree amount. That the petitioner herein/JDR No.2 is not the promoter director in either of the companies, whereas, he is only a Director among many other Directors and that his monthly remuneration is Rs.50,000/- and not Rs.20 to 25 lakhs as alleged by the respondent no.1/DHR. That the residential house stands in the name of his wife which was purchased almost over
30 years back out of her own funds and that it is not a Joint Hindu family and that family members of petitioners herein/JDR No.2 are hardworking independent individuals having their own respective employments.
6
4.
Respondent no.1/DHR alleged that Economic Offenses Wing initiated proceedings against it for non-payment of deposits and bonds as it was unable to recover money from the borrowers, like the petitioner herein/JDR No.2 herein.
9
Criminal cases were registered under the Tamil Nadu Protection of Interest of Depositors Act, 1997 against the Respondent no.1/DHR and the Respondent no.1/DHR was prosecuted for siphoning of money of innocent investors.
10
5.
Respondent no.1/DHR stated that they revisited their accounts and found that petitioner herein/JDR No.2 had made certain
payments to respondent no.1/DHR in view of settlement in respect of the criminal complaints filed under Sec.138 of the Negotiable Instruments Act.
10(a)
Out of their own admission in the Paras under reply, petitioner herein/JDR No.2 countered and controverted that he debts has been
discharged and there is no liability that can be fastened upon the petitioner herein/JDR No.2
11
6.
Respondent no.1/DHR 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”.
10(b)
-do-
11
7.
Respondent no.1/DHR contended that the Criminal Appeals filed before the Hon’ble High Court were withdrawn on the observation that the subject matter has been settled out of court and that certain payments have been made by the Petitioner herein/JDR No.2 and that the alleged payments were towards ‘compensation’ and not towards the decree amount as such there cannot be full and final
settlement of decree amount
11(a)
Petitioner herein/JDR No.2 contended that respondent no.1 herein/DHR has received the payments towards full and final settlement and that the matter has been settled which was categorically recorded in the Criminal Appeals and that the petitioner herein/JDR No.2 is not liable to pay any sums of money to the respondent no.1 herein/DHR.
12
8.
Respondent no.1/DHR denied the fact that respondent no.1/DHR is a going concern and further contended that the decree
is joint and several and that it is not for the petitioner herein/JDR No.2 to dictate against whom the decree needs to be executed
12
Petitioner herein/JDR No.2 controverted the same by stating that other Directors of the respondent no.2 company herein/JDR No.1
are equally liable and responsible and that respondent no.1 herein/DHR has a personal vendetta and has borne a grudge against the petitioner herein/JDR No.2 due to which it is proceeding only against the petitioner herein/JDR No.2.
13
9
Respondent no.1/DHR contended that it filed criminal complaints not only against the petitioner herein/JDR No.2 but also against other directors, suppliers and that there is no vindictive attitude that has been adopted by it towards the petitioner herein/JDR No.2.
14
Petitioner herein/JDR No.2 responded by stating that petitioner herein/JDR No.2 himself was acquitted by the Hon’ble XI Metropolitan Magistrate, Saidapet, Chennai which fact along drives home the point that the petitioner herein/JDR No.2 is innocent and has a clean record and is not liable to pay any amounts to
the respondent no.1/DHR
15
10.
Respondent no.1/DHR contended that petitioner herein/JDR No.2 is not only immoral but also shrewd and clever so as to put the word ‘diamonds’ in the list of inventory of assets in order to hoodwink the Hon’ble Court. Further, it was again contended that the petitioner herein/JDR No.2 has means to pay the decretal amount and that the properties held by the members of the family are estimated at a tune of
Rs.500 crores
19
Petitioner herein/JDR No.2 countered the said allegation and new plea taken up by the respondent no.1/DHR by stating that the honest disclosure by the petitioner herein/JDR No.2 of even the most microscopic thing, having some sort of value, which the petitioner herein/JDR No.2 owns and possesses, goes to shows the bona fides of the petitioner herein/JDR No.2.
19
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 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 Court shall deal with the same on its own merits in accordance with law. The Commercial Court shall deal with the execution proceedings expeditiously.
Accordingly, the Civil Revision Petition is disposed of. Miscellaneous applications, if any pending, shall stand closed. There shall be no order as to costs.