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2025 DIGILAW 457 (TS)

NCC Limited Formerly Nagarjuna Constructions Co. Ltd. v. National Institute of Technology NIT

2025-04-29

B.R.MADHUSUDHAN RAO, MOUSHUMI BHATTACHARYA

body2025
ORDER : Moushumi Bhattacharya, J. 1. The three Civil Revision Petitions arise out of a common order dated 05.08.2024 passed by the Special Judge for Trial and Disposal of Commercial Disputes, Rangareddy District at L.B. Nagar, in three Execution Applications - E.A.No.7 of 2024 in C.E.P.No.16 of 2023, E.A.No.8 of 2024 in C.E.P.No.17 of 2023 and E.A.No.9 of 2024 in C.E.P.No.18 of 2023 respectively. 2. The petitioner is the plaintiff/decree-holder and the respondent is the defendant/judgment-debtor. 3. The three E.As were filed by the petitioner under Rule 232 of the Civil Rules of Practice for withdrawing an amount of Rs.21,91,53,174/- deposited by the respondent/Judgment Debtor subject to the petitioner furnishing acceptable security in the Trial Court. 4. The brief facts leading to the filing of the present CRPs are as follows: 5. The petitioner filed three Commercial Original Suits – COS Nos.25, 26 and 27 of 2021 - against the respondent for payment for work done by the petitioner. The Suits were decreed by the Commercial Court in favour of the petitioner on 01.06.2023. The Commercial Court directed the respondent to pay Rs.3,58,61,671/-, Rs.1,18,51,315/- and Rs.13,60,97,344/- along with interest @ 12% per annum pendente lite and @ 6% per annum post-judgments till the date of realization in COS Nos.25, 26 and 27 of 2021 respectively. 6. The petitioner filed three Execution Petitions – C.E.P.No.17 of 2023 in C.O.S.No.25 of 2021, C.E.P.No.18 of 2023 in C.O.S.No.26 of 2021 and CEP No.16 of 2023 in C.O.S.No.27 of 2021 on 20.09.2023 for enforcement of the judgments passed in the three Suits. 7. The respondent filed First Appeals (Commercial Court Appeals) on 30.10.2023 i.e., COMCA Nos.47, 48 and 49 of 2023, challenging the judgments and decrees in C.O.S.Nos.25, 26 and 27 of 2021. 8. By orders dated 22.11.2023, the High Court granted stay of execution of the judgments and decrees subject to the condition of depositing of 50% of the decretal amounts. 9. The respondent filed a Memo dated 08.01.2024 in the Commercial Court in CEP Nos.16, 17 and 18 of 2023 stating that it has deposited the total amount as directed by the High Court, i.e., 50% of the decretal amount of Rs.21,91,53,174/- which included an amount of Rs.16,22,46,474/- in CEP No.16 of 2023, Rs.4,27,85,592 in CEP No.17 of 2023 and Rs.1,41,21,108/- in CEP No.18 of 2023. 10. 10. The High Court by its order dated 22.02.2024 permitted the petitioner to withdraw the amounts deposited by the petitioner subject to furnishing of security to the satisfaction of the Commercial Court. 11. The petitioner filed E.A.No.7 of 2024 in CEP No.16 of 2023, E.A.No.8 of 2024 in CEP No.17 of 2023 and E.A.No.9 of 2024 in CEP No.18 of 2023 under Rule 232 of the Civil Rules of Practice to issue cheques for the amounts and furnish security in the form of land admeasuring Acs.3.29 guntas and Ac.1.06 guntas totaling Acs.4.35 guntas in Survey No.160 of Janwada Village, Shankarpally Mandal at Ranga Reddy District, valued at Rs.39 Crores. The petitioner filed additional affidavits on 04.06.2024 offering some securities and also filed Unconditional Undertakings dated 08.07.2024 given by the Managing Director of the petitioner to return the amount in the event the respondent’s COMCAs being allowed. The Valuation Report reflecting the value of the land at Rs.39 Crores is also part of the Records. The property offered by the petitioner as security was purchased by M/s. Vaidehi Avenues Limited which is a wholly owned subsidiary of the petitioner vide Registered Sale Deed dated 10.06.2011. M/s. Vaidehi Avenues Limited was amalgamated with the petitioner pursuant to a Scheme of Amalgamation approved by the NCLT by an order dated 26.08.2021. 12. The Commercial Court by the impugned Common Order dated 05.08.2024 disposed of E.A.Nos.7, 8 and 9 of 2024 filed by the petitioner by holding that the security offered by the petitioner in the form of land can be accepted for an amount of Rs.5,13,00,000/- as opposed to Rs.21.91 Crores being 50% of the decretal amount. The present CRPs arise out of the said impugned common order dated 05.08.2024. 13. Learned Senior Counsel appearing for the petitioner submits that the Commercial Court failed to notice that the amount mentioned in the Annual Statement of the petitioner reflects the cost of the property at the time of purchase which was more than 12 years ago, as opposed to the present valuation of the property. Counsel submits that there have been multi-level developments on the land and the land offered is now a prosperous part of the city, with auctions of adjacent lands fetching amounts of up to Rs.100 Crores per acre in some cases. Counsel submits that there have been multi-level developments on the land and the land offered is now a prosperous part of the city, with auctions of adjacent lands fetching amounts of up to Rs.100 Crores per acre in some cases. Counsel submits that the cost of acquisition of the land in 2011, as per the Indian Accounting Standards, does not reflect the current value of the land. Counsel also points to findings in the impugned order which are contrary to the documents on record and that the Commercial Court misconstrued the statements in the Annual Report regarding the fair value of the land held in the name of the petitioner. 14. Learned counsel appearing for the respondent raises a preliminary point of the CRPs not being maintainable in view of section 8 of The Commercial Courts Act, 2015, which prohibits filing of a CRP against an interim order passed by a Commercial Court. Counsel also addresses on the merits of the CRPs in the context of the petitioner’s Valuation Report, which contradicts the official market values and the findings of the Commercial Court, which state that the land remains an agricultural land. Counsel submits that the petitioner should have offered Bank Guarantees equivalent to the amount claimed by the petitioner i.e., Rs.21.91 Crores, instead of offering land, the valuation of which is significantly lower than the claimed amount. 15. The issue of maintainability of the present Civil Revision Petitions (CRPs) should be answered first. 16. The bar contained in section 8 of The Commercial Courts Act, 2015 (‘the 2015 Act’) pertains to entertaining Civil Revision Petitions from an interlocutory order of a Commercial Court including any order on the issue of jurisdiction of the Commercial Court. Section 8 of the 2015 Act mandates that a challenge to an interlocutory order passed by a Commercial Court shall be filed in accordance with the statutory framework of section 13 of the 2015 Act. In other words, the correct route would be to file an appeal under section 13(1) or (1A) of the Act. 17. The Supreme Court in Shalini Shyam Shetty Vs. Rajendra Shankar Patil , [ (2010) 8 SCC 329 ] delineated the principles on the exercise of the High Court’s jurisdiction under Article 227 of the Constitution of India and limited the scope of such power in matters of interference in orders of Courts inferior to the High Courts. 17. The Supreme Court in Shalini Shyam Shetty Vs. Rajendra Shankar Patil , [ (2010) 8 SCC 329 ] delineated the principles on the exercise of the High Court’s jurisdiction under Article 227 of the Constitution of India and limited the scope of such power in matters of interference in orders of Courts inferior to the High Courts. The power to interfere was circumscribed within the boundaries of patent perversity, gross or manifest failure of justice or violation of the principles of natural justice. In other words, the Supreme Court held that the power of superintendence should be sparingly exercised only in fit cases i.e., to keep strict administrative control of the Courts within the territory of the High Court. 18. A Division Bench of this High Court in M.V.Ramana Rao Vs. N.Subash , [MANU/TL/0153/2019] considered the issue of maintainability of a CRP against the embargo contained in the 2015 Act and diluted the stricture contained therein by drawing a distinction between the power of revision under section 115 of The Code of Civil Procedure, 1908 (‘CPC’) and under Article 227 of the Constitution of India. The High Court held that the power of judicial review under Article 227 cannot be taken away by section 8 of the 2015 Act but cautioned against misuse of the power in undeserving cases. A Division Bench of the High Court of Andhra Pradesh expressed the same opinion i.e., section 8 of the 2015 Act is confined to a CRP filed under section 115 of the CPC and does not operate as a bar to the jurisdiction of a High Court under Article 227 of the Constitution of India. 19. In Blue Cube Germany Assets Gmbh And Co. KG Vs. Vivimed Labs Limited , [2019(2)ALD 671] , a Division Bench of the erstwhile High Court of Judicature at Hyderabad for the State of Telangana and Andhra Pradesh clarified that although the nomenclature given by the Court under Article 227 of the Constitution of India is ‘Civil Revision Petition’ it is not equivalent to a Revision Petition under section 115 of the CPC. It was further clarified that the power of judicial superintendence vested in a High Court under Article 227 of the Constitution cannot be equated to ordinary revisional jurisdiction. It was further clarified that the power of judicial superintendence vested in a High Court under Article 227 of the Constitution cannot be equated to ordinary revisional jurisdiction. The Court also clarified that the petitions filed under Article 227 in several High Courts are not referred to as ‘Civil Revisions’ but as ‘Writ Petitions (Civil)’. In other words, the Division Bench held that the nomenclature of ‘Civil Revision Petition’ to petitions filed under Article 227 would not fall within the statutory bar in section 8 of the 2015 Act. 20. The discussion becomes somewhat academic in view of the Supreme Court’s decision in Col. Anil Kak (Retd.) Vs. Municipal Corporation, Indore , [ (2005) 12 SCC 734 ] where it was held that a High Court is authorized to convert a petition filed under section 115 of the CPC to a proceeding under Article 227 of the Constitution on its own even without a motion in that behalf by the petitioner before it. 21. Therefore, the argument of the respondent that the CRPs are not maintainable in view of the bar in section 8 of the 2015 Act cannot be accepted. We accordingly hold that the CRPs are maintainable. 22. The respondent has relied on State of Telangana Vs. M/s.Siddartha Constructions Private Limited , [ 2024 (6) ALT 164 (DB) (TS)] . However, in that case, the Court noted that the petitioners did not have an answer as to why they have not filed any appeal under section 13(1) or (1A) of the 2015 Act and instead chose to file a CRP against the impugned order. Therefore, the Court also found that the bar contained in section 8 of the 2015 Act would fully apply to the facts before it and the petitioner cannot take refuge under Article 227 of the Constitution of India for maintaining the CRP. 23. We now propose to deal with the three CRPs on merits. 24. The Commercial Court in the impugned order was of the view that the security offered by the petitioner could only be accepted for a sum of Rs.5,13,00,000/-. In coming to this decision, the Commercial Court relied on the figures at paragraphs 3.4 and 3.5 of the Annual Report of the petitioner Company for the F.Y. 2022-2023. 24. The Commercial Court in the impugned order was of the view that the security offered by the petitioner could only be accepted for a sum of Rs.5,13,00,000/-. In coming to this decision, the Commercial Court relied on the figures at paragraphs 3.4 and 3.5 of the Annual Report of the petitioner Company for the F.Y. 2022-2023. The petitioner was hence given liberty to withdraw only an amount of Rs.4,27,85,592/- or Rs.1,41,21,108/- by furnishing the movable properties offered by the petitioner as security as opposed to the petitioner’s prayer for withdrawing Rs.21,91,53,174/-. 25. We have head learned Senior Counsel appearing for the petitioner and learned counsel appearing for the respondents on the issue of whether the security/land offered by the petitioner was sufficient for withdrawing Rs.21,91,53,174/-. 26. The petitioner has filed its Annual Report for the F.Y. 2022-2023 before this Court along with a Memo dated 30.08.2024. 27. To briefly recall the facts, the petitioner as the decree- holder, was permitted by the High Court by the order dated 22.02.2024 to withdraw the 50% of the decretal amount i.e., the sum of Rs.21,91,53,174/- which had been deposited by the respondent/judgment-debtor on furnishing of security to the satisfaction of the Commercial Court. The petitioner offered Acs.4-35 guntas of land in Sy.No.160 of Janwada Village, Shankerpalli Mandal claiming a valuation of Rs.39,00,00,000/- for the offered land along with an unconditional undertaking by the Managing Director of the petitioner Company to return the amount in the event respondent succeed in the Appeals. 28. The issue is whether the Commercial Court erred in holding that the security offered by the petitioner was unsatisfactory and was not equivalent to Rs.21,91,53,174/-. 29. Upon considering the relevant pages of the Annual Report of the petitioner Company for the F.Y. 2022-2023 it is clear that the Commercial Court fell into error on several counts. 30. First, the amount mentioned in the Annual Report which was relied upon by the Commercial Court is the cost of purchase of the property as purchased more than 12 years ago in 2011 and not the valuation of the property as on 2024. This would be clear from the Annual Report itself. Further, the amount mentioned in the Annual Report is for the entire extent of Acs.55-00 guntas of land as opposed to Acs.4-35 guntas which was the extent of land offered by the petitioner as security for withdrawing the amount. 31. This would be clear from the Annual Report itself. Further, the amount mentioned in the Annual Report is for the entire extent of Acs.55-00 guntas of land as opposed to Acs.4-35 guntas which was the extent of land offered by the petitioner as security for withdrawing the amount. 31. The fact that value of the property has increased since the date of purchase would also be evident from Government auctions in the vicinity which have fetched as much as Rs.100 Crores per acre in some cases. Government land on which such auctions have been held is situated within a radius of about 8-9 Kms from the land which was offered by the petitioner as security. 32. Moreover, it appears from paragraph 2.10 of the Annual Report that the value of Rs.5.13 Crores refers to the cost of acquisition of land including sale consideration, cost of stamp duty and registration charges of the property which were incurred by the petitioner at the time of purchase of the property as opposed to the market value of the property in 2024 when Acs.4-35 guntas of land was offered by the petitioner as security. The Commercial Court also failed to consider the Chartered Accountant’s Certificate and particulars of the same transactions filed by the petitioner which reflect that the amount mentioned in the Annual Report is sale consideration and registration charges for purchase of land of Acs.55-00 guntas across 20 registered Sale Deeds. 33. Senior Counsel appearing for the petitioner Company has placed a list of accredited Registered Valuers of the Insolvency and Bankruptcy Board of India (‘IBBI’) and has invited the Court to appoint any Registered Valuer from IBBI panel for the purpose of valuing the land offered by the petitioner at the petitioner’s cost. The objections raised by the respondent on the correct valuation of the property offered by the petitioner become irrelevant in the express bona fides shown by the petitioner Company with respect to such issue. 34. The fairness of the stand is sufficient to demolish all opposition to the valuation done on 17.03.2024 for Acs.04-35 guntas of land in Sy.No.160 of Janwada Village, Shankerpalli Mandal, Ranga Reddy District. The very fact that the petitioner is willing to undertake a fresh valuation of the security notwithstanding the valuation already been done on 17.03.2024 is sufficient to tilt the balance in favour of the petitioner and against the respondent. The very fact that the petitioner is willing to undertake a fresh valuation of the security notwithstanding the valuation already been done on 17.03.2024 is sufficient to tilt the balance in favour of the petitioner and against the respondent. The respondent cannot have any plausible objection to a fresh valuation being done by a Registered Valuer from Insolvency and Bankruptcy Board of India Panel. 35. In any event, the petitioner as the decree-holder is entitled to enjoy the fruits of the decree which presently is only 50% thereof. Petitioners in similar situations are permitted to withdraw amounts even without furnishing security in fit cases. 36. We are accordingly of the view that all three CRPs should be allowed and the impugned Common Order dated 05.08.2024 set aside by appointing one of the enlisted Registered Valuers under the category “Land and Building” for carrying out a fresh valuation of the land offered by the petitioner as security for withdrawing Rs.21,91,53,174/- deposited by the respondent/ Judgment-debtor. 37. We accordingly appoint Mr.Pothuganti Venkatram Rajesh, Registered Valuer, to value the land offered by the petitioner as security, within a period of 4 weeks from the date of this order. The Registered Valuer shall be permitted to take the assistance of the office bearers of the petitioner Company and the respondent and all other necessary support, if required. Costs of the valuation including the Registered Valuer’s fees shall be borne by the petitioner. 38. The scale of fees to be paid to the Registered Valuer shall be in accordance with the usual rates or the IBBI accepted rates, if any, or Rs.2,00,000/- whichever is higher. The Registered Valuer shall also be provided with all required assistance. The Registered Valuer’s Report shall be filed before the Trial Court for a fresh consideration of the security offered by the petitioner/decree holder. 39. It is made clear that the fresh valuation is being directed not by reason of any suspicion with regard to the figures furnished by the petitioner but on account of the conflicting interpretations of the petitioner’s Annual Report for the F.Y. 2022-2023. We deem it fit to order a fresh valuation as it is necessary that the security furnished should be to the satisfaction of the Commercial Court. 40. C.R.P.Nos.2714, 2715 and 2716 of 2024 are accordingly allowed in terms of the above. 41. Miscellaneous applications pending, if any, shall stand closed. We deem it fit to order a fresh valuation as it is necessary that the security furnished should be to the satisfaction of the Commercial Court. 40. C.R.P.Nos.2714, 2715 and 2716 of 2024 are accordingly allowed in terms of the above. 41. Miscellaneous applications pending, if any, shall stand closed. Interim orders, if any, shall stand vacated.