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IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
M. SATYANARAYANA MURTHY, J.
TDM Infrastructure Pvt. Ltd. – Petitioner
Versus
Team Universal Infractech Pvt. Ltd. & Others – Respondents
Civil Revision Petition No. 2677 of 2016
Decided On : 30-09-2016
Contract and Specific Reliefs – Constitution of India, 1950 – Article 227 – Code of Civil Procedure, 1908 – Rule 3(5) – Order XXXVII – Sub-contract agreement – Liability of – Revision petitioner filed counter denying material allegations, while contending that the sub-contract was lump-sum contract for consideration on written terms and conditions and the work to be attended are part of main contract and such main contract embodies all ancillary and miscellaneous works connected thereto. He denied any liability to pay amount while pleading that the suit is rightly filed under summary procedure. It is further contended that respondents 1 to 3 have filed the interlocutory application without making out any grounds to defend. The defence set up by them is patently dishonest and unreasonable. The third respondent voluntarily without any coercion executed the document – At no point of time, the executants claimed that it was by force and coercion till the reply notice is caused. The long silence of the executants would demonstrate that the document was freely executed without any force or coercion and prayed to dismiss the petition – Trial court granted leave to defend suit under Rule 3(5) of Order XXXVII of CPC, since defendants made out a ground for granting leave to defend the suit filed under summary procedure under Order XXXVII of CPC – Challenged – Held, it is evident from the Order under challenge that the trial court did not mark any document, and in the absence of marking of any document, as required under Rule 60 of CRP, how the Court came to such conclusion that the defendants (respondents herein) made out a plausible or just and reasonable defence, while ignoring the document produced before the trial court along with the suit, is mystery – It is the duty of the Court to advert to the document including the basis of the claim under Order XXXVII of CPC, while deciding the application under Rule 3(5) of Order XXXVI of CPC and find out whether there is any justifiable defence in proposed defence set up by the defendants, but without adverting to any such document, the trial court came to such conclusion that the defendants made out a justifiable defence prima facie and granted unconditional leave to the defendants to defend the suit – Therefore, the Order passed by the trial court is without any basis – Hence matter is remanded to the trial court directing to follow the procedure prescribed under Rule 60 of CRP and decide the matter afresh considering all the documents available on record and pass appropriate orders, in accordance with law – Directions issued – Revision petition is disposed of. (Paras 17, 18 and 19)
1. This revision, under Article 227 of the Constitution of India, is filed challenging the common Order dated 11.03.2016 in I.A. Nos.1024 of 2015 and 173 of 2016 in O.S. No.573 of 2015 passed by the X Additional Chief Judge, City Civil Court, Hyderabad, whereby the trial court granted leave to the respondents 1 to 3, to defend the suit, while rejecting the request of the plaintiff to pass a decree.
2. The parties will hereinafter be referred to as the petitioner and respondents, for convenience of reference.
3. The revision petitioner herein is the first respondent, and the respondents 1 to 3 herein are the petitioners in I.A. No.1024 of 2015 and respondent No.4 herein is the petitioner in I.A. No.173 of 2016.
4. The respondents 1 to 3 herein filed an application under Rule 3(5) of Order XXXVII of the Code of Civil Procedure, 1908 (for short, ‘CPC’) seeking leave of the Court defend the suit while permitting to file written statement and counter claim. It is contended that respondent No.4 herein awarded a contract to the revision petitioner herein for execution of earth works, pavement works, structures, RE walls, Road furniture, Drainage works, etc., in section 2(KM 0+500 to KM 15+211 Guntur Bypass, KM 408 to KM 420_448 and Mangalagiri Bypass KM 0+000 to KM 13+495 (Old Chainages). The revision petitioner in turn sub-contracted the works like earth works, GSB, WMM, Structures, RE Wall works, Toll Plaza work, Plantation work etc., to second respondent represented by the third respondent and subsequently the second respondent company was amalgamated into the first respondent company with liabilities. The said sub-contract work was given under the letter of intent dated 17.06.2009.
5. The second respondent raised invoices for the work done on monthly basis till the termination of the agreement. The subcontract work was based on lump-sum contract and the period was three years. However, the sub-contract agreement was terminated just after seven months. The revision petitioner released a sum of Rs.4,46,27,777/-. The sub-contract was terminated on 05.02.2013. According to the second respondent, certain works executed by it were uncertified by the plaintiff and the amounts certified by the revision petitioner was arrived at by the revision petitioner himself ignoring various works executed by the second respondent. According to the second respondent, it is entitled to a sum of Rs.1,27,72,500/-. After the amalgamation of the company, the revision petitioner insisted the third respondent to come for settlement of account to Malasiya on 05.10.2012. Under the guise of meeting with the CEO, and CEO by threaten and duress, they obtained signatures on papers prepared by them. According to respondents 1 to 3, the revision petitioner arrived at Rs.3,50,40,308/- as the certified amount, unilaterally. The respondents 1 to 3 have issued a reply notice dated 18.12.2003 and demanded Rs.1,27,72,500/-. He also contended that the claim for recovery of suit amount is not based on any written contract. The suit cannot be filed under summary procedure, the alleged minutes dated 05.10.2012 cannot constitute the written contract and the same is under cloud and sought leave to defend the suit under Rule 3(5) of Order XXXVII of CPC
6. The revision petitioner filed counter denying material allegations, while contending that the sub-contract was lump-sum contract for Rs.106,13,89,476/- on written terms and conditions and the work to be attended are part of main contract and such main contract embodies all ancillary and miscellaneous works connected thereto. He denied any liability to pay Rs.1,27,72,500/- while pleading that the suit is rightly filed under summary procedure. It is further contended that respondents 1 to 3 have filed the interlocutory application without making out any grounds to defend. The defence set up by them is patently dishonest and unreasonable. The third respondent voluntarily without any coercion executed the document dated 05.10
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