Delhi District Court
Sh. Annat Jain vs Sh. Sandeep Saraf & Ors on 14 March, 2011
IN THE COURT OF SH. RAKESH KUMAR :ADJ03(C): DELHI
Suit No.1340/08
Sh. Annat Jain ..... Plaintiff.
Versus
Sh. Sandeep Saraf & Ors. .....Defendants.
14.03.2011
ORDER
Present: Ld. counsel for parties.
1. Vide this order I shall dispose of an application U/o 12 R 6 r/w S 151 CPC filed by the plaintiff interalia making a prayer that from the facts emerging from the pleadings and the documents filed by the defendants themselves, decree for the recovery for the sum of Rs.12,90,000/ may be passed in favour of the plaintiff and against the defendants both jointly and severally with interest and cost.
2. The instant suit for declaration, mandatory and permanent injunction has been filed by the plaintiff and against the defendant and the same is pending adjudication.
3. It is submitted in the application that at the time when the present suit was initially filed by the plaintiff, the plaintiff was in Sh. Annat Jain Vs. Sh. Sandeep Saraf & Ors. (Suit No.1340/08) Page no. 1 of pages 14 physical possession of the Mercedes car bearing No.DL1CC9943 which was sold by the defendant No.1 to the plaintiff as the defendant No.2 and 3 had handed over the said car for sale to the said defendant No.1. The said car purchased by the plaintiff against the payment of valuable sale consideration of Rs.12,90,000/. The said amount was paid by the plaintiff to the defendant No.1, the Sales Agent of the defendant No.2 and 3 to whom the said defendant No.2 and 3 handed over the car for sale. The manner of payment of the said amount of Rs.12,90,000/ has also been fully disclosed by the plaintiff in the plaint. It is further submitted that alongwith the suit, the plaintiff had also sought interim injunction against the defendants restraining the defendants from taking away or dispossessing the plaintiff from the physical possession of the said car. The Court vide its order dated 01.11.2001 r/w Order dated 10.12.2001 was pleased to restrain the defendants from dispossessing the plaintiff from the possession of the car or from the said car being seized by the police on the strength of a complaint dated 06.08.2001 made by the defendant No.2 and 3 and the said complaint was culminated into the FIR bearing No 243/2001. The said order of stay was challenged by the defendant No.2 and 3 by way of filing an appeal in the Hon'ble High Court of Delhi being F.A.O(OS) No. 108/2002 and therein Sh. Annat Jain Vs. Sh. Sandeep Saraf & Ors. (Suit No.1340/08) Page no. 2 of pages 14 obtained an exparte order and immediately thereafter, the defendant No. 2 and 3 represented through their advocate pounced on the premises of the plaintiff on the night intervening 26.03.2002 and 27.03.2002 in the company of the police and took away the said Mercedes car and later on took the custody of the said car from the police as registered owners thereof. Later on the defendant No.2 and 3 after having taken the physical custody of the car from the plaintiff have been utilizing the said car and also withdrew their Appeal F.A.O(OS) No.108/2002 passed against the order of the Ld. Single Judge. Under the circumstances, the plaintiff then applied for the amendment of the plaint and sought in the alternative, the refund/recovery of Rs.12,90,000/ paid by the plaintiff for the purchase of said Mercedes car above referred and has prayed for decree to be passed in favour of the plaintiff and against defendant No.1 to 3 jointly and severally for the refund of the said sum of Rs.12,90,000/ together with interest @ 12% per annum besides other relief. It is further claimed that from the written statement filed by the defendant No.2 and 3 and the documents filed by the said defendant No.2 and 3 the following facts stand established and admitted by the said defendant No.2 and 3: Sh. Annat Jain Vs. Sh. Sandeep Saraf & Ors. (Suit No.1340/08) Page no. 3 of pages 14
(i).The defendant No. 2 and 3 filed their aforesaid complaint dated 06.08.2001 addressed to Mr. Dinesh Bhatt DCP, Economic Offence Wing, which was later on converted to FIR NO 243/2001.
(ii).That the defendants had given the said car bearing registration No. DL1CC9943 for sale to the Dealer nd (defendant No.1) who is a dealer of 2 hand cars for sale whose address also furnished by the said defendants in para 2 of their said complaint.
(iii).The said defendants further admitted that they had full knowledge of the fact that the said Mr. Saraf (defendant No. 1) had sold the said car, though no sale letter has been signed by them till said date.
(iv).The defendants further admitted that when the said defendants threatened Mr. Saraf to take action for recovery of their sale amount, Mr. Saraf issued to them a post dated cheque for 13,00,000/ dated 21.07.2001 alongwith the covering letter confirming the sale of the said car.
It is further claimed that defendant No.2 and 3 have further admitted in their said complaint dated 06.08.2001 that the defendants Sh. Annat Jain Vs. Sh. Sandeep Saraf & Ors. (Suit No.1340/08) Page no. 4 of pages 14 accepted the said cheque of Rs.13,00,000/ issued by the defendant No.1 and presented the same for payment in their bank on 21.07.2001, but the defendants received letter from defendant No.1 on 24.07.2001 requesting the said defendants to present the said cheque after one week but by the time the said defendants received the intimation from the defendant No.1, the cheque had already been presented for payment by the defendant No.2 and 3 and the same was dishonoured for insufficient funds. The defendants have further admitted in the said complaint that they further wrote letter dated 25.07.2001 confirming to the defendant No.1 that they would be redepositing the said cheque for collection of payment in their bank on 28.07.2001 and the defendant No.1 gave the assurance that regarding the encashment of the said cheque. Defendant No.2 and 3 further admitted in their complaint that the said cheque was again bounced for insufficient funds and had been trying to contact the defendant No.1 but he was not traceable and was reported to be away to Kolkata. From the forgoing admissions, it is conclusively established that the defendant No.2 and 3 had handed over the car in question for sale to defendant No.1 and the defendant No.1 had accordingly sold the same to the plaintiff for valuable consideration and received the payment from the plaintiff. The application is Sh. Annat Jain Vs. Sh. Sandeep Saraf & Ors. (Suit No.1340/08) Page no. 5 of pages 14 supported by the affidavit of Sh. P.C.Jain, the attorney of the plaintiff.
4. The application has been strongly contested by the defendant No.2 and 3 by filing the reply wherein it is claimed that present application filed by the plaintiff is nothing but an abuse of the process of law which has been filed at the crucial stage when the case is fixed for admission/denial of documents. The application is liable to be dismissed with heavy cost as the plaintiff herein has not disclosed the true facts of the case which are as under:
(i).That the defendant No. 3 is registered owner of Mercedes Benz Car which is admitted fact.
(ii).That as explained in the written statement as well as various pleadings that he defendant No. 2 and 3/applicants herein had handed over the Mercedes Benz Car to a car dealer i.e defendant No. 1 who was dealing with sale and purchase of old car, in June 2001 for finding suitable purchaser of the car. However, the plaintiff in collusion with the defendant No. 1 illegally took away the Mercedes Benz Car of defendant/applicants without knowledge and consent of the defendant No. 2 and 3.
(iii).The defendant No. 1 after handing over the car in Sh. Annat Jain Vs. Sh. Sandeep Saraf & Ors. (Suit No.1340/08) Page no. 6 of pages 14 question to the plaintiff, fraudulently disappeared from his place of business.
(iv).When the defendant No. 2 came to know that his car is missing, he filed a complaint in August, 2001 which was converted into FIR NO. 243/01 with PS Tughlaq Road, Crime Branch, New Delhi.
(v).The police authorities as aforesaid, investigated the matter and pursuance to aforesaid FIR, they found the Mercedes Benz Car lying with the plaintiff.
(vi). It is further the case of the plaintiff that he had taken the Mercedes Benz Car on the basis of alleged MOU dated 20.02.2001 allegedly executed between the plaintiff and defendant No.1 and admittedly the defendant No.2 and 3 are not party to MOU dated 20.02.2001. The said MOU was in respect of BMW car allegedly taken by plaintiff from defendant No.1 and not regarding Mercedes Benz Car.
(vii).Besides taking various averments, the defendant No.2 and 3 herein by way of written statement and other pleadings and documents, the defendant No.2 and 3 had brought to the notice of this court that Sh. Annat Jain Vs. Sh. Sandeep Saraf & Ors. (Suit No.1340/08) Page no. 7 of pages 14 defendant No.2 and 3 had never dealt with the plaintiff herein nor it is the case of the plaintiff that he ever met the defendant No.2 and 3. The handing over of the Mercedes Benz car by the defendant No.1 to plaintiff is illegal as defendant No.2 and 3/applicants never sold the Mercedes Benz car to plaintiff which is also admitted case. It is also admitted fact that the plaintiff never paid any consideration amount to the answering defendant No.2 and 3 in respect of Mercedes Benz car belonging to the answering defendant No. 2 and 3/applicants herein.
(viii).It is submitted that the court after passing of interim order dated 22.03.2002 in FAO(OS) No. 108.02 had heard the matter on 03.09.2002. The Court had enquired from the counsel of the defendants No.2 and 3 as to whether the aforesaid Mercedes Benz Car has been released by the competent court on Superdari. When it was informed to the Division Bench that the car has already been released to the defendant No. 2 and 3 by the competent court of jurisdiction on the Superdari, the Hon'ble Division Bench therefore was Sh. Annat Jain Vs. Sh. Sandeep Saraf & Ors. (Suit No.1340/08) Page no. 8 of pages 14 of the view that since the car has already been release to defendant No.2 and 3 nothing survives in the appeal. Therefore, the defendant No.2 and 3 withdrew the appeal and the same was accordingly dismissed as not pressed.
(ix).In fact the plaintiff cannot/could seek any relief of directions to defendant No.2 and 3 for payment of alleged sum of Rs.12.90 lacs especially in the circumstances, admittedly when not a single penny had been paid by the plaintiff to defendant No.2 and 3/applicants.
It is further claimed that the defendant No.1 Sandeep Saraf was neither agent or representative of defendant/non applicant nor he had any authority to sell the case without permission from the answering defendant. It is therefore not open to the plaintiff to file present application which is nothing but an abuse of the process of the court, the same may be dismissed with heavy cost.
5. I have heard the rival submissions of Ld. counsels for parties and carefully gone through the entire material placed on record.
Rule 6 of Order XII of Code of Civil Procedure reads as under: Sh. Annat Jain Vs. Sh. Sandeep Saraf & Ors. (Suit No.1340/08) Page no. 9 of pages 14 R.6. Judgment on admissions.-(1).
Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2). Whenever a judgment is pronounced under subrule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the said judgment was pronounced.
The object of Order XII Rule 6 CPC is wide enough to afford relief dehors the pleadings.
In 1997 AIHC 3774 (Delhi), it was held, "the provisions of Order XII Rule 6 CPC has to be exercised very carefully and sparingly and only in exceptional circumstances."
In AIR 2000 SC 2740, it was held, "the object of the Rule 6 is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the Sh. Annat Jain Vs. Sh. Sandeep Saraf & Ors. (Suit No.1340/08) Page no. 10 of pages 14 defendant, the plaintiff is entitled. The Court should not unduly narrow down the meaning of this Rule, as the object is to enable a party to obtain speedy judgment. Where other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed."
In 2006 V AD (DELHI) 667 titled as Charanjit Singh Vs. Kehar Singh it was held in para no.8 as under: "8. It is also a settled principle of civil jurisprudence that judgment on admission is not a matter of right and rather is a matter of discretion of a Court. Where the defendant has raised objection which will go to the very root of the case, it would not be appropriate to exercise this discretion. The use of the words 'May' and 'make such orders' or 'give such judgment' spells out that power under these rules are discretionary and use of discretion would have to be controlled in accordance with the known judicial cannons."
The Hon'ble High Court of Delhi in IA No. 5912/2004 in CS (OS) 1578 of 2002 titled as Express Towers Vs. Mohan Singh Sh. Annat Jain Vs. Sh. Sandeep Saraf & Ors. (Suit No.1340/08) Page no. 11 of pages 14 decided on 22.8.2006 (MANU/DE/8926/2006), has held as under: "19. It is no more res integra that before a court can act under order 12 rule 6, admission must be clear and unambiguous. When the admission is not clear and unequivocal and the pleadings of the parties raise serious preliminary pleas which are likely to nonsuit a party, a court in its discretion can refuse to pass a decree."
In RFA No. 724/2005 titled as Charanjit Singh Vs. Kehar Singh decided on 11.5.2006 (MANU/DE/8646/2006), it has been held by Hon'ble Delhi High Court that: "6. The powers under order 12 rule 6 of the Code has to be exercised judicially on the facts and circumstances of each case. The admission on the basis of which the Court wishes to pass a decree has to be unambiguous, clear and unconditional. There is no doubt that in a suit there can be more than one decree passed at different stages and each decree being separate and independent is enforceable in accordance with law, was the principle stated by MANU/ Sh. Annat Jain Vs. Sh. Sandeep Saraf & Ors. (Suit No.1340/08) Page no. 12 of pages 14 SC/0505/ 1970 Chanchal V. Jalaluddin. Admission understood in its common parlance still must be a specific admission. There is very fine distinction between unambiguous and specific admission on the one hand and vague averments of facts which, if proved, could even tantamount to an admission on the part of a party to the suit. The Court has to consider the need for passing a decree on admission under these provisions only in the cases of first category and normally decline in the cases of the later category."
6. After giving my thoughtful consideration to the rival submissions made by Ld. counsels for the parties and perusing the entire relevant material placed on record, I have come to the considered opinion that the admission on the basis of which the Court wishes to pass a decree has to be unambiguous, clear and unconditional and at this stage it would not be appropriate to exercise the discretion, as sought by the plaintiff in the present application as the admissions, upon which the decree U/o 12 R 6 CPC is sought, are not unambiguous, clear and unconditional. Further, it is well settled principle of civil jurisprudence that the judgment on admission Sh. Annat Jain Vs. Sh. Sandeep Saraf & Ors. (Suit No.1340/08) Page no. 13 of pages 14 is not a matter of right, rather, is a matter of discretion of a Court and where the defendants have raised objections which will go to the very root of the case, this discretion can not be exercised. In view of the aforesaid, I do not find it a fit case to exercise my discretion, as sought by the applicant in the application moved U/o 12 R 6 CPC. Accordingly, the same is hereby dismissed.
7. With this the application stands disposed off.
8. Now the case be put up on 26.05.2011 for admission denial and framing of issues.
(RAKESH KUMAR) ADJ03(CENTRAL) DELHI/14.03.2010 Sh. Annat Jain Vs. Sh. Sandeep Saraf & Ors. (Suit No.1340/08) Page no. 14 of pages 14