Calcutta High Court
South Calcutta Diesels Private Limited vs Manjula Devi Dugar on 18 June, 2015
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
GA No.1767 of 2012
With
CS No.103 of 2012
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SOUTH CALCUTTA DIESELS PRIVATE LIMITED
Versus
MANJULA DEVI DUGAR
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 18th June, 2015.
Appearance:
Mr. Abhrajit Mitra Sr. Adv.
Mr. Jishnu Chowdhury, Adv.
Mr. Soumabho Ghosh, Adv.
Ms. Sonia Sharma, Adv.
Mr. Jishnu Saha Sr. Adv.
Ms. Arpita Saha, Adv.
Ms. Ruby Jiswal, Adv.
The Court: The claim in the suit is arising out of price of goods sold and delivered.
The defendant was a sole selling agent of Bosch India Ltd. The petitioner used to
purchase diesel engines sold under the logo Bosch through the defendant. The plaintiff
from time to time disburse diverse amounts on various dates out of which it is claimed
that the defendant has failed to deliver the goods for the advance made for a sum of
Rs.26,20,034.65. The plaintiff has relied upon various communications which, inter
alia, included a communication dated 3rd March, 2012 in which the plaintiff has
asserted that after going due credit to all the space effected by the defendant against
payment made by the plaintiff in advance a sum of Rs.26,00,034.65 is lying with the
said defendant as advance. Since 1st April, 2009 there is no contemporaneous denial of
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the said letter. In the affidavit in opposition the defendant disputes non-delivery of
goods covered under five bills all dated 30th August, 2008 aggregating Rs.28,14,750/-
and submits that deliveries have been effected against the said bills. In support of the
said contention, Mr. Jishnu Saha, learned Senior Counsel appearing on behalf of the
defendant, submits that the statement of account disclosed in this proceeding would
establish that the defendants have received those goods covered under the said five
invoices. It is submitted that initially in paragraph 11 of the affidavit in opposition it has
been stated that the respondent has paid its VAT dues in respect of each of the sales
above and such VAT deposits are evidenced by the receipts forming annexure D to the said affidavit.
The defendant, however, subsequently by a supplementary affidavit retracted from the said statement, since they had no other option as the document at page 200 would staring at their face and show that the VAT has not been paid in respect of the said bills. The supplementary affidavit has been filed seemingly with a view to resist the application filed by the plaintiff for sanction to prosecute and creating a cloud over the defence and giving a hazy picture about delivery of goods. The defendant is also unable to establish the goods covered under the said five bills, in fact, have been delivered.
It is submitted that the documents disclosed in annexure E to the affidavit in opposition would show that vat in fact has been paid for the said five bills, although the last page of the statement of accounts at page 200 would show otherwise. There are inherent contradictions in the defence sought to be raised in this proceeding.
Under such circumstances, in my view, the defendant has failed to disclose any defence far less bona fide on the basis of which the claim in the suit can be relegated to trial.
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Mr. Jishnu Saha the learned Senior Counsel, would submit that this is not an application in the nature of Chapter 13A of the Original Side Rules and accordingly, the discretion that would vest in the Court in considering such application would not be applicable while deciding an application for judgment upon admission. I am unable to accept the said submission. The amendment of order 12 Rule 6 by the amendment Act of 1976 would show that the Court is required to find out whether there is any admission of fact either in the pleading or otherwise whether orally or in writing. This amendment has widened the power of the Court.
Order 12 Rule 6 Code of Civil Procedure empowers the Court to pass a decree for judgment upon admission whenever such admission is sufficient for the grant of relief prayed for. The scope and amplitude of the power of the Court under the amended provision have been elaborately discussed in Uttam Singh Duggal & Co. Ltd. versus Union of India reported at 2000 (7) SCC 120. In the said decision a contention was raised on behalf of the bank that admissions under Order 12 Rule 6 should only be those made in the pleadings and the effect of the admissions can only be considered at the trial of the main suit. The Hon'ble Supreme Court was considering transactions connected with the construction of dormitories and other buildings for a university in Iraq. In the application for judgment upon admission the plaintiff relied upon the balance sheet of the plaintiff for the year ending 31st March, 1989 with reference to certain schedules; minutes of the meeting of the Board of Directors of the Bank and letter dated 4th June, 1990 communicating the resolution and minutes of the meeting held on 30th May, 1990. The Hon'ble Supreme Court negated the contention that the resolution or minutes of the meeting of the Board of Directors, resolution passed thereon and the letter sending the said resolution to the respondent bank cannot amount to a pleading or come within the scope of the Rule as such statements are not made in the 4 course of the pleadings or otherwise. It is stated in the said decision that when a statement is made to a party and such statement is made before the Court showing admission of liability by an application filed under Order 12 Rule 6 and the other side had sufficient opportunity to explain the said admission and if such explanation is not accepted by the Court, the trial Court is not helpless in refusing to pass a decree. In paragraph 12 and 15 of the said decision the Hon'ble Supreme Court discussed the scope of Order 12 Rule 6 of the Code of Civil Procedure as well as the expression otherwise which finds place in the said section.
It is stated that in the Objects and Reasons set out while amending the said Rule, it is stated that "where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule 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 defendant, the plaintiff is entitled". The said provision should not be unduly narrowed down as the object is to enable a party to obtain speedy judgment. Where the 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.
Even without referring to the expression "otherwise" in Rule 6 of Order 12 CPC, an inference was drawn on the basis of the pleadings raised in the case in the shape of the applications under that Rule and the answering affidavit which clearly reiterates the admission. If that is so, interpretation of the expression "otherwise" becomes unnecessary.
The said view was reiterated in Karam Kapahi and Others versus Lal Chand Public Charitable Trust and Another, reported at 2010 (4) SCC 753. In the said decision 5 it was stated, "The principles behind Order 12 Rule 6 are to give the plaintiff a right to speedy judgment. Under this Rule either party may get rid of so much of the rival claims about "which there is no controversy." In the 54th Law Commission Report, an amendment was suggested to enable the court to give a judgment not only on the application of a party but on its own motion. The amendment was brought about to further the ends of justice and give these provisions a wider sweep by empowering Judges to use it "ex debito justitiae". The thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right. However, the court always retains its discretion in the matter of pronouncing judgment. If the provision of Order 12 Rule 1 is compared with Order 12 Rule 6, it becomes clear that the provision of Order 12 Rule 6 is wider inasmuch as the provision of Order 12 Rule 1 is limited to admission by "pleading or otherwise in writing" but in Order 12 Rule 6 the expression "or otherwise" is much wider in view of the words used therein namely "admission of fact . . . either in the pleading or otherwise, whether orally or in writing". In the present case where the controversy is between the parties on an admission of non- payment of rent, judgment can be rendered on admission by the court. The provision under Order 12 Rule 6 of the Code is enabling, discretionary and permissive and is neither mandatory nor is it peremptory since the word "may" has been used. Thus in a given situation, as in the instant case, the said provision can be applied in rendering the judgment."
In the instant case as stated above the defendant had admitted at page 200 of the affidavit in opposition that no VAT has been paid in respect of the five bills and at the same time had failed to demonstrate even prima facie that the goods covered under the said five bills were delivered to the plaintiff. There is a failure of consideration. In the supplementary affidavit the statement made in the original affidavit that VAT has been 6 paid in respect of the said five bills were retracted which goes to show that no VAT in fact has been paid for the said five bills. The payment of VAT would be a prima facie evidence that the goods have been supplied. The supplementary affidavit was filed seemingly with a view to get rid of the application filed by the plaintiff for perjury as the defendant would be unable to establish that goods in fact were supplied under the said five bills. While the defendant had paid VAT for all the earlier transactions, curiously no VAT has been paid for the present transaction covering five bills. There are inconsistent pleadings with regard to the payment of VAT in respect of the aforesaid five bills.
Under such circumstances, in my view the plaintiff is entitled to a judgment upon admission for a sum of Rs.20,61,050/-. The suit is decreed in part. The balance claim is relegated to trial. The defendant shall file written statement within four weeks from date.
The department is directed to draw up the decree as expeditiously as possible. GA no.1767 of 2012 is allowed.
Urgent certified website copies of this order, if applied for, be urgently supplied to the parties subject to compliance with all requisite formalities.
(SOUMEN SEN, J.) sp/