Kerala High Court
Rockey C Neroth vs M/S. Madonna Exports on 5 January, 2026
Author: T.R.Ravi
Bench: T.R.Ravi
OP(C) Nos. 2169 OF & 2170 OF 2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
MONDAY, THE 5TH DAY OF JANUARY 2026 / 15TH POUSHA, 1947
OP(C) NO. 2169 OF 2016
AGAINST THE ORDER DATED 09.08.2016 IN IA.NO.5029 OF 2015 IN
OS NO.540 OF 2013 OF SUB COURT, ERNAKULAM
PETITIONER:
ROCKEY C NEROTH
AGED 64 YEARS, S/O.LATE SRI.NEROTH JOHN CHANDY,
RESIDING AT NEROTH HOUSE, K.P.VALLON ROAD,
KADAVANTHRA, COCHIN-20, SOLE PROPRIETOR,
M/S.ROCKEY C.NEROTH, VI/124,
NEW TOWN, COCHIN - 692 002.
BY ADV SRI.K.P.SREEKUMAR
RESPONDENTS:
1 M/S. MADONNA EXPORTS
JEW TOWN, MATTANCHERY, COCHIN-2
REPRESENTED BY ITS PARTNER AND
AUTHORISED SIGNATORY GEORGE J THALIAYATH.
2 GEORGE J THALIYATH [DIED]
S/O.VAZHAPPALLIL JACOB, AGED 54,
THALIYATH HOUSE, H.NO.26/2522A,
THEVARA DESOM, ELAMKULAM VILLAGE,
KANAYANNUR TALUK,THEVARA P.O., PIN 682 013,
PARTNER, M/S.MADONNA EXPORTS,
JEW TOWN, MATTANCHERY, COCHIN - 2.
3 ANNIE GEORGE
W/O.GEORGE, AGED 49, THALIYATH HOUSE,
H.NO.26/2522A, THEVARA DESOM, ELAMKULAM VILLAGE,
KANAYANNUR TALUK,THEVARA P.O., PIN 682 013, PARTNER,
OP(C) Nos. 2169 OF & 2170 OF 2016
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M/S.MADONNA EXPORTS,JEW TOWN, MATTANCHERY, COCHIN - 2.
(IT IS RECORD THAT R3 IS THE LEGAL HEIR OF DECEASED 2ND
RESPONDENT VIDE ORDER DATED 05/12/2018 IN
IA.NO.02/2018)
*4 ADDL.R4. JACOB GEORGE,
AGED 28 YEARS
S/O. LATE GEROGE J. THALIYATH, THALIYATH HOUSE,
H. NO. 26/2522A THEVARA DESOM, ELAMKULAM VILLAGE,
KANAYANNUR TALUK, THEVARA P.O., PIN - 682 013
*5 ADDL.R5. ELIZA GEORGE,
AGED 24 YEARS
D/O.LATE GEROGE J. THALIYATH, THALIYATH HOUSE,
H. NO. 26/2522A THEVARA DESOM, ELAMKULAM VILLAGE,
KANAYANNUR TALUK, THEVARA P.O., PIN - 682 013
*(ADDITIONAL R4 AND R5 ARE IMPLEADED AS LRS OF DECEASED
2ND RESPONDENT AS PER ORDER DATED 05/12/2018 IN
I.A.1/2018) (RECALLED)
** THE ORDER DATED 05.12.2018 ALLOWING IA.NO.1/2018 IS
SUO MOTU RECALLED VIDE ORDER DATED 31.07.2023
*** ADDITIONAL RESPONDENTS 4 AND 5 ARE IMPLEADED AS
LEGAL HEIRS OF DECEASED 2ND RESPONDENT VIDE ORDER DATED
21.11.2025 IN IA.NO.1/2018
BY ADV SHRI.BIJU ABRAHAM
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 05.01.2026,
ALONG WITH OP(C).2170/2016, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
OP(C) Nos. 2169 OF & 2170 OF 2016
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2026:KER:245
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
MONDAY, THE 5TH DAY OF JANUARY 2026 / 15TH POUSHA, 1947
OP(C) NO. 2170 OF 2016
AGAINST THE ORDER DATED 09.08.2016 IN IA.NO.3861 OF 2015 IN
OS NO.540 OF 2013 OF SUB COURT, ERNAKULAM
PETITIONER:
ROCKEY C.NEROTH
AGED 64 YEARS, S/O LATE SRI NEROTH JOHN CHANDY,
RESIDING AT NEROTH HOUSE, K.P VALLON ROAD,
KADAVANTHRA, COCHIN 20, SOLE PROPRIETOR,
M/S ROCKEY C NEROTH, VI/124,
JEW TOWN, COCHIN 682 002.
BY ADV SRI.K.P.SREEKUMAR
RESPONDENTS:
1 M/S. MADONNA EXPORTS
JEW TOWN, MATTANCHERY, COCHIN 2,
REPRESENTED BY ITS PARTNER AND
AUTHORISED SIGNATORY GEORGE J THALIAYTH.
2 GEROGE J THALIYATH [DIED]
S/O VAZHAPPALLIL JACOB, AGED 54,
THALIYATH HOUSE, H.NO 26/2522A, THEVARA DESOM,
ELAMKULAM VILLAGE, KANAYANNUR TALUK,
THEVARA P.O, PIN 682 013, PARTNER,
M/S MADONNA EXPORTS, JEW TOWN,
MATTANCHERY, COCHIN 2.
3 ANNIE GEORGE
W/O GEORGE, AGED 49, THALIYATH HOUSE,
H.NO 26/2522A, THEVARA DESOM,
OP(C) Nos. 2169 OF & 2170 OF 2016
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ELAMKULAM VILLAGE, KANAYANNUR TALUK,
THEVARA P.O, PIN 682 013, PARTNER,
M/S MADONNA EXPORTS, JEW TOWN,
MATTANCHERY, COCHIN 2.
*4 ADDL.R4. JACOB GEORGE,
AGED 28 YEARS
S/O. LATE GEROGE J. THALIYATH, THALIYATH HOUSE,
H. NO. 26/2522A THEVARA DESOM, ELAMKULAM VILLAGE,
KANAYANNUR TALUK, THEVARA P.O., PIN - 682 013
*5 ADDL.R5. ELIZA GEORGE,
AGED 24 YEARS
D/O.LATE GEROGE J. THALIYATH, THALIYATH HOUSE,
H. NO. 26/2522A THEVARA DESOM, ELAMKULAM VILLAGE,
KANAYANNUR TALUK, THEVARA P.O., PIN - 682 013
*(ADDITIONAL R4 AND R5 ARE IMPLEADED AS LEGAL HEIRS OF
DECEASED 2ND RESPONDENT VIDE ORDER DATED 21.11.2025 IN
I.A.1/2018)
BY ADV SHRI.BIJU ABRAHAM
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 05.01.2026,
ALONG WITH OP(C).2169/2016, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
OP(C) Nos. 2169 OF & 2170 OF 2016
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T.R.RAVI.J
------------------------------------
OP(C) Nos.2169 & 2170 of 2016
-------------------------------------
Dated this the 5th day of January, 2026
JUDGMENT
OPC No.2169 of 2016 has been filed challenging Ext.P9 order, whereby an application filed by the petitioner for striking off paragraphs 2 to 8 in the written statement has been dismissed by the Court below. The petitioner had filed OS.No.540 of 2013 for realisation of amounts based on five dishonored cheques. The issuance of the cheques and its dishonor is not disputed. The respondents filed a written statement and also a counter claim alleging that the petitioner had borrowed an amount of Rs.50 lakhs on condition to repay the same within two years. The date of borrowal is stated to be 11.04.2009. The suit was filed in 2013, by which time, the period of limitation for claiming the amount of Rs.50 lakhs had already expired. The counter claim was preferred on 13.08.2014. According to the petitioner, the counter claim is barred by limitation. It is also submitted that no documents OP(C) Nos. 2169 OF & 2170 OF 2016 6 2026:KER:245 were placed on record to show the transaction on 11.04.2009. The petitioner hence contended that there is no scope for conducting any trial on the counter claim since there are no triable issues raised and there is also no scope for entertaining the counter claim, since it is barred by limitation. It is in the above circumstances that the prayer for striking off paragraphs 2 to 8 has been preferred. The petitioner contended before the trial Court that in view of the decision of this Court in Gwalior Rayons Silks Manufacturing Company Limited vs. Ramadas [1987 (2) KLT 1035], if the cause of action of the claim was barred by limitation on the date on which the counter claim was preferred, the Court cannot entertain the same and has to exclude it under Order 8 Rule 6C of Code of Civil Procedure and the plaintiff can request the Court to exclude the counter claim to be decided in an independent suit without being disposed of as a counter claim in the suit.
2. The Court below considered the arguments and noted that it is a case where the counter claim had already been entertained and issues have also been raised and hence OP(C) Nos. 2169 OF & 2170 OF 2016 7 2026:KER:245 the question of limitation has to be determined while adjudicating the counter claim and it is not proper for excluding the counter claim in the pre-adjudication stage by accepting the plea of limitation. It is also noted that the plaintiff had not prayed for striking off the counter claim or to exclude the counter claim and had only requested to strike off paragraphs 2 to 8 by alleging that no triable issue has been raised for determination. The Court found that in order to decide the entitlement of the petitioner to realise the plaint claim by appreciating the pleadings put forward by the respondents in the written statement, paragraphs 2 to 8 of the written statement are essential and hence it cannot be struck off. The said order is challenged in this original petition.
3. The counsel for the petitioner pointed out that in the counter affidavit filed by the respondents, it is stated that correct dates and details of entrustment of the cheques were not available while filing the written statement and the counter claim due to misplacement of the records by the previous Advocate and that the records have later been found and the OP(C) Nos. 2169 OF & 2170 OF 2016 8 2026:KER:245 same will be filed within a short time. It is also stated that if the pleadings are struck off on the basis of not raising any issue to that effect due to the omission of the Court, it will be the same fate in the suit since no triable issues had been raised in respect of the plaint claim. It is hence claimed in the counter affidavit that the allegations put forward by the plaintiff in the written statement and the petition for striking off the paragraphs is to be decided on merit after taking evidence based on the records and pleadings and that the petition has been filed to avoid answering interrogatories filed by the defendants. Ext.P6 is the counter affidavit filed by the respondents, wherein it is stated that the plaintiff had denied the acceptance of Rs.50 lakhs and in view of the denial by the plaintiff, the defendants are not able to adduce evidence and resist the claim effectively and it is necessary in the interest of justice to grant leave to the defendants to deliver interrogatories to the Court and to direct the plaintiff to answer the interrogatories. On the petition filed for delivering the interrogatories (IA.No.3861 of 2015), the Court below passed OP(C) Nos. 2169 OF & 2170 OF 2016 9 2026:KER:245 another order on 09.08.2016 allowing the application filed by the respondents and directing the petitioner to answer the interrogatories. The said order is challenged in OPC.No.2170 of 2016. Ext.P6 is the petition seeking to deliver interrogatories.
4. Heard the counsel for the petitioner and respondents.
5. Around 13 questions have been raised as interrogatories. I do not propose to go into the merits of the questions that have been raised. The reason stated in the affidavit in support of the IA.No.3861 of 2015 for delivering interrogatories is that the plaintiff had denied the claim of the defendants and hence they are not able to adduce evidence and resist the plaint claim. The suit is based on five cheques and the issuance of the cheques is not disputed by the defendants. As such, if the defendants have any explanation for issuing the cheques, it is for them to lead evidence, either by oral evidence through witnesses or by cross examination of the plaintiff. The reasons stated in the affidavit are not sufficient for issuance of interrogatories particularly since the OP(C) Nos. 2169 OF & 2170 OF 2016 10 2026:KER:245 plaintiff admits receipt of Rs.50 lakhs in 2009 and his case is that a counter claim on the basis of the said transaction is barred by limitation. The interrogatories would appear to be more for supporting the claim of payment of Rs.50 lakhs than as a defence regarding the claim made in the suit. I am hence of the opinion that it is not a fit case where the interrogatories be directed to be answered. The reasoning in Ext.P9 order in IA.No.3861/2015 is only that since the prayer to strike off the pleadings in the written statement has been rejected, the interrogatories can be permitted to be delivered. The reasoning is faulty since, even with the pleadings which were sought to be struck off by the plaintiff, the remedy of the defendants is to prove their case by leading positive evidence and to disprove the case of the plaintiff by cross examining him on the questions which are raised in the interrogatories. OPC No.2170 of 2016 is hence liable to be allowed.
6. In OPC.No.2169 of 2016, the reasoning for disallowing the prayer for striking off the evidence is that, paragraphs 2 to 8 in the written statement are required for the OP(C) Nos. 2169 OF & 2170 OF 2016 11 2026:KER:245 purpose of entertaining the claim of the petitioner/plaintiff. In paragraphs 2 to 8 of the written statement, the respondents have stated about the payment of Rs.50 lakhs to the plaintiff. The petitioner points out that a reading of the said paragraphs would not show about any transaction which needs to be tried. It is pointed out that in paragraph No.3, after stating that the plaintiff had borrowed Rs.50 lakhs from the defendants, it is stated that on the same day of giving Rs.50 lakhs, the plaintiff had also purchased antiques worth Rs.13,86,667/-. The paragraph refers to further purchases of Rs.1,88,333/- on two occasions. It is stated in the paragraph that the plaintiff had repaid the portions of the purchase price as well as portions of the amounts due towards the principal borrowed. What is stated is that an amount of Rs.7 lakhs was paid towards the principal amount on one instance and a sum of Rs.4,88,333/- inclusive of Rs.3 lakhs towards the principal amount was paid on another date. Further amounts of Rs.2 lakhs, Rs.1 lakh and Rs.50,000/- were paid on subsequent dates towards the principal amount. It is stated that further amounts of OP(C) Nos. 2169 OF & 2170 OF 2016 12 2026:KER:245 Rs.3,04,374/-, Rs.5 lakhs and Rs.3 lakhs were paid between 2009 and 2010. Curiously, the claim in the suit is based on five cheques dated 19.04.2011, 15.07.2011, 15.07.2011, 15.07.2011 and 15.07.2011 for the amounts of Rs.7 lakhs, 3 lakhs, Rs.75,000/-, Rs.4,88,333/- and Rs.3,50,000/-. The cheques dated 15.07.2011 are all bearing continuous numbers. The contentions in the written statement would suggest that after paying a sum of Rs.50 lakhs, the defendants had been supplying antiques to the plaintiff for an amount of Rs.13,86,667/-, Rs,1,88,333/- and Rs.1,88,333/- on three occasions and apart from supplying antiques, cheques have also been issued in 2011 for a total sum of Rs.19,13,333/-. The contentions are totally lay and comprehension. Even according to the respondents, the parties were having disputes from 2011 onwards. One fails to understand why a person who has already lent Rs.50 lakhs would go on supplying goods and issuing cheques to the borrower and that too not make a claim even after they have parted ways. Even if the suit goes to trial on the basis of the above written statement, I do not find any OP(C) Nos. 2169 OF & 2170 OF 2016 13 2026:KER:245 prejudice being caused to the plaintiff by the said pleadings.
7. In the above circumstances, I do not find any reason to interfere with the conclusion of the Court below that there is no necessity to strike off paragraphs 2 to 8. At the same time, I find that there is considerable force in the contention regarding the limitation in making the counter claim. In the above circumstances, the originals petitions are disposed of with the following directions;
1. OPC.No.2170 of 2016 is allowed and the order dated 09.08.2016 in IA.No.3861 of 2015 in OS.540 of 2013 on the file of the Sub Court, Ernakulam is set aside.
2. In OPC.No. 2169 of 2016; the order dated 09.08.2016 in IA.No.5029 of 2015 in OS.540 of 2013 on the file of the Sub Court, Ernakulam is confirmed to the extent it says that the pleadings contained in paragraphs 2 to 8 of the written statement are required for the purpose of determining the claim of the petitioner.
OP(C) Nos. 2169 OF & 2170 OF 2016
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3. The Court below is directed to decide the question of limitation raised by the petitioner against the counter claim as a preliminary issue and proceed with the trial thereafter.
4. The parties are directed to appear before the Court below on 28.01.2026.
Sd/-
T.R.RAVI
JUDGE
sn
OP(C) Nos. 2169 OF & 2170 OF 2016
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APPENDIX OF OP(C) NO. 2169 OF 2016
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PLAINT O.S.NO.540/2013,
DATED 27/11/2013.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT WITH
COUNTER CLAIM FILED BY THE RESPONDENTS IN O.S.NO.540/2013, DATED 13/08/2014.
EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT TO THE COUNTER CLAIN IN O.S.NO.540/13, DATED NIL. EXHIBIT P4 TRUE COPY OF THE I.A.NO.5029/2015 IN O.S.NO.540/2013, DATED 28/11/2015 FILED BY THE PETITIONER.
EXHIBIT P5 TRUE COPY OF THE COUNTER FILED BY THE
RESPONDENTS DATED 31/12/2015 IN
I.A.NO.5029/15 IN O.S.NO.540/2013.
EXHIBIT P6 TRUE COPY OF THE I.A.NO.3861/2015 IN
O.S.NO.540/2013 DATED 23/09/2015.
EXHIBIT P7 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY
THE PETITIONER DATED 28/11/2015 IN
I.A.NO.3861/2015 IN O.S.NO.540/2013.
EXHIBIT P8 TRUE COPY OF THE ANSWER SUBMITTED TO THE INTERROGATORIES DATED 23/09/2015 FILED BY THE PETITIONER.
EXHIBIT P9 TRUE COPY OF THE ORDER OF THE COURT BELOW DATED 09/08/2016 IN I.A.NO.5029/2015 IN O.S.NO.540/2013.
OP(C) Nos. 2169 OF & 2170 OF 2016
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APPENDIX OF OP(C) NO. 2170 OF 2016
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PLAINT O.S NO 540/2013 DATED
27-11-2013
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT WITH
COUNTER CLAIM FILED BY THE RESPONDENTS IN O.S NO 540/2013 DATED 13-08-2014 EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT TO THE COUNTER CLAIM IN O.S NO 540/13 DATED NIL.
EXHIBIT P4 TRUE COPY OF THE I.A NO 5029/2015 IN O.S NO 540/2013, DATED 28-11-2015 FILED BY THE PETITIONER, DATED 27-11-2013 EXHIBIT P5 TRUE COPY OF THE COUNTER FILED BY THE RESPONDENTS DATED 31-12-2015 IN I.A NO 5029/2015 IN O.S NO 540/2013 EXHIBIT P6 TRUE COPY OF THE I.A NO 3861/2015 IN O.S NO 540/2013 DTED 23-09-2015 EXHIBIT P7 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER DATED 28-11-2015 IN I.A NO 3861/2015 IN O.S NO 540/2013 EXHIBIT P8 TRUE COPY OF THE ANSWER SUBMITTED TO THE INTERROGATORIES DATED 23-09-2015 FILED BY THE PETITIONER.
EXHIBIT P9 TRUE COPY OF THE ORDER OF THE COURT BELOW DATED 09-08-2016 IN O.A NO 3861/2015 IN O.S NO 540/2013.