Delhi High Court
Shri Vinod Krishan Khanna vs A.B.C. Indo ??? Us Academy And Others on 31 March, 2009
Author: Anil Kumar
Bench: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No.2168/2006
% Date of Decision: 31.03.2009
Shri Vinod Krishan Khanna .... Plaintiff
Through Mr. Vinod K. Srivastava, Advocate.
Versus
A.B.C. Indo - US Academy and others .... Defendants
Through Mr. M. K.Sreegesh, Advocate.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported in NO
the Digest?
ANIL KUMAR, J.
*
1. This is an application by the plaintiff/applicant under Order XII Rule 6 of Code of Civil Procedure seeking a decree for a sum of Rs.25.00 lakh on the basis of admissions made by the defendants and for decision of the remaining amount in accordance with the pleas and contentions of the parties.
2. The plaintiff has filed the above-noted suit for recovery of Rs.38.10 lakh. The plaintiff contended that defendant No.1 was a sole proprietorship concern of defendant No.2. The plaintiff was induced and lured to become a partner with defendant No.2 and his wife, defendant No.3 and he invested substantial amount of money in the CS(OS) No.2168/2006 Page 1 of 11 partnership. The partnership dated 20th February, 2003 incorporated the terms of partnership between the parties. On account of differences between the parties, the plaintiff decided to retire from the partnership with effect from 2nd July, 2003 and a deed of dissolution dated 2nd July, 2003 was executed between the parties. The accounts were settled upto 2nd July, 2003 and on settlement of the amount, an amount of Rs.20.00 lakh was found due and payable by defendants No.1 to 3 to plaintiff. The defendants contended that they were unable to pay the amount immediately, therefore, the amount of Rs.20.00 was to be treated as loan carrying interest of Rs.15,000/- per month. The amount of Rs.20.00 lakh thus became payable on or before 31st March, 2004 with interest of Rs.15,000/- per month.
3. The plaintiff contended that he was handed over four cheques dated 15th February, 2004; 28th February, 2004; 15th March, 2004 and 30th March, 2004 for the sum of Rs.5.00 lakh each. Out of the four cheques only one cheque was cleared and encashed and other cheques were dishonoured on account of payment stopped by the defendants and/or on account of remarks that the cheque amount exceeded arrangement.
4. The plaintiff/applicant contended that at the time of handing over cheques of Rs.5.00 lakh each, defendants had also handed over a cheque bearing No.150640 dated 30th May, 2004 for a sum of Rs.1.35 lakh drawn on Corporation Bank, Vasundhra Enclave, Delhi-10096 CS(OS) No.2168/2006 Page 2 of 11 which was towards the interest at the rate of Rs.15,000/- per month on the amount of Rs.20.00 lakh for the period 1st April, 2003 to 31st March, 2004. The plaintiff/applicant contended that the concessional rates of interest was agreed as the defendants had assured that the dues would be cleared as promised by them.
5. The plaintiff/applicant further contended that in July 2004, defendant No.2 came to Delhi and handed over to the plaintiff four cheques for Rs.1.20 lakh (Rs.30,000/- each). Two of the cheques were dated 15th August, 2004 and 15th September, 2004 which were dishonoured with the remarks "exceeds arrangement".
6. The plaintiff pleaded that the defendants in terms of the dissolution deed dated 2nd July, 2003 had agreed to pay additional interest at 3% per month in case of dishonour of any of the cheques on presentation. Since the amounts which had become due from defendants were not paid, the plaintiff gave a notice dated 29th November, 2005 which was not replied. However, defendants No.2 and 3 by a letter dated 21st July, 2004 had admitted that out of the four cheques of Rs.5.00 lakh each and the fifth cheque of Rs.1.35 lakh only one cheque of Rs.5.00 lakh was encashed. The notice dated 25th August, 2006 was also received from defendants' counsel making false allegations which was replied by the plaintiff by reply dated 12th September, 2006.
CS(OS) No.2168/2006 Page 3 of 11
7. The plaintiff contended that as the defendants had not been paying the amounts despite representation made time and again, therefore, yet another settlement was arrived at between the plaintiff and the defendants, whereby plaintiff agreed to receive a sum of Rs.25.00 lakh only although the plaintiff was entitled to more amount as on 1st November, 2005. According to the plaintiff, a draft agreement was sent to the defendant No.2, however, the defendants did not agree for the same and the defendants sent another draft where they wanted that there shall not be any liability of defendant no.3 and also sought extension of period of payment. The proposed terms and settlement were not acceptable to plaintiff. Since the amount due from the defendants were not paid, the plaintiff thus filed the suit for recovery of Rs.38.10 lakh.
8. The plaintiff contended that in the written statement, the defendants have made the following admissions.
a) In para 14 on page 5 (Internal) "Subsequently a deed of dissolution dated 2nd July, 2003 was duly executed between both of them. As per terms of the dissolution 2nd defendant had agreed to pay a sum of Rs.20,00,000/- (Rupees twenty lakhs only) to the plaintiff. 4 post dated cheques, were also issued to the plaintiff in this nexus, as per his demand....
b) In para 14.5 (4th line onwards) "In result, 2nd defendant was unable to pay the said agreed amount immediately. Out of the above mentioned 4 cheques only one cheque was cleared...."
c) In para 16 CS(OS) No.2168/2006 Page 4 of 11 "That with the noble intention to settle the matter amicably 2nd defendant had approached the plaintiff. At last both of them came to a settlement as 2nd defendant has agreed to pay and plaintiff has agreed to receive a sum of Rs.25,00,000/- in full and final settlement of and in consideration of the amount payable by the 2nd defendant on the dissolution of the firm....."
9. The plaintiff has also relied on the admissions made by the defendants in the documents which were admitted on 6th May, 2008. The defendants admitted the partnership deed dated 2nd July, 2003, it was exhibited as P1. The defendants also admitted that the cheques dated 15th February, 2004; 15th March, 2004 and 30th March, 2004 for Rs.5.00 lakh each which were returned on presentation. The defendants also admitted the cheque of Rs.1.35 lakh which was given towards the interest which was also dishonoured. The cheques were exhibited as P2 to P5.
10. The defendants also admitted the cheque of Rs.30,000/- dated 15th August, 2004 and notice which was exhibited as P8 given on behalf of plaintiff demanding a sum of Rs.35,36,500/-. The defendants have also admitted their letter dated 21st July, 2004 which was exhibited as P9. In the said letter which was exhibited as P9, the defendants admitted four cheques for Rs.5.00 lakh each and one cheque for Rs.1.35 lakh was given to the plaintiff out of which only one cheque for Rs.5.00 lakh had been encashed. The defendants thus agreed that an amount of Rs.16.35 lakh remained due. For the amount of Rs.16.35 lakh, the defendants contended that an amount of Rs.35,000/- each CS(OS) No.2168/2006 Page 5 of 11 per month shall be paid from July 2004 to November 2004 shall be given and a sum of Rs.15.00 lakh shall be given on 1st November, 2004. The defendants also agreed to pay interest at the rate of 3% per month in terms of the deed of the dissolution of partnership deed dated 2nd July, 2003 which was admitted by the plaintiff and which was exhibited as P1.
11. The application is contested by the defendant who filed the reply dated 19th March, 2009. Referring to deed of dissolution, defendants agreed that a sum of Rs.20.00 lakh with interest at 3% per month was payable out of which Rs.5.00 lakh was paid by defendants to the plaintiffs on account only one cheque being honoured out of four cheques. The defendants further contended that an amount of Rs.90,000/- was paid towards the interest amount of Rs.1.35 lakh and consequently there is no admission of liability by the defendants and the plaintiff is not entitled for a decree of Rs.25.00 lakh on the basis of alleged admission.
12. This cannot be disputed that, according to the plaintiff, on 1st November, 2005 he had agreed to accept Rs.25.00 lakh out of the total amount due to him from the defendants. All the terms of the settlement, however, could not be agreed as for payment of Rs.25.00 lakh as on 1st November, 2005, the defendants desired that no liability should be fastened on defendant No.3 which was not acceptable to the plaintiff. This also cannot be disputed that out of Rs.20.00 lakh, an CS(OS) No.2168/2006 Page 6 of 11 amount of Rs.5.00 lakh was paid and the balance amount of principal of Rs.15.00 lakh as per the dissolution deed dated 2nd July, 2003 has not been paid nor the interest at the rate of 3% on the unpaid amount has been paid.
13. It is no more res integra that before a court can act under Order XII Rule 6, admissions 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 non-suit a party, a court in its discretion can refuse to pass a decree. It can also be not disputed that the court is vest with discretion to ask for independent corroboration of a fact not specifically denied in the pleadings considering the peculiar nature of the facts and circumstances of the case. At the same time, the court can suo moto pass judgment under Order XII Rule 6 where the parties have conceded the rights of other parties.
14. The admissions made in the pleadings have to be taken as a whole and not in part. The provisions of Order XII Rule 6 are discretionary and not mandatory and it is not incumbent on the courts in all cases to pass a judgment upon admission. Specially, if a case involves questions which cannot conveniently be disposed of but an application under this rule or if the case is such that it is not safe to pass a judgment on admission, the court may in exercise of its discretion refuse the motion.
CS(OS) No.2168/2006 Page 7 of 11
15. In AIR 1986 SUPREME Court 1509, Dudh Nath Pandey Vs. Suresh Chandra Bhattasali the Apex Court had held that the admission must be taken as a whole and it is not permissible to rely on a part of admission ignoring the other. In this matter, the appellate court had given a finding that the plaintiff's claim was barred by limitation and had dismissed the suit and plaintiff feeling aggrieved took up the matter to the High Court. This finding was, however, reversed by the High Court relying on an admission of the defendant in the written statement and the evidence of the witnesses produced on behalf of defendant. The Supreme Court on merits had held that High Court was not right in relying upon the alleged admission as the admission ought to have been taken as a whole and it was not permissible to rely on a part of the admission. In AIR 1971 SUPREME COURT 1542, Chikkam Koteswara Rao Vs. Chikkam Subbarao and others the Apex Court had held that the admissions must be clear in their meaning holding that before right of a party can be considered to have been precipitated on the basis of an alleged admission by him, the implication of the statement made by him must be clear cut and conclusive. In 1997 (V) AD (DELHI) 627, Madhav Leasing Finance (P) Ltd. Vs. Erose Educational Infotech Pvt. Ltd. a single Judge of this Court had held that a decree under Order XII Rule 6 cannot be passed unless the admission made is clear cut and unambiguous.
CS(OS) No.2168/2006 Page 8 of 11
16. What are the categorical admissions of the Defendants? The defendants have admitted that the partnership between the parties was dissolved on 2nd July 2003. On the date of dissolution, a sum of rupees 20 lakhs was due from defendants to plaintiff. The defendants had also agreed to pay interest at the rate of Rupees 15,000 per month till 31st March,2004 on the said amount. Out of rupees 20 lakhs, the defendants have paid Rs. 5,00,000/- only. Therefore an amount of Rupees 15 lakhs is due as principal which was found due on 2nd July, 2003.
17. On 21st July, 2004 the defendants had agreed to pay the principal amount along with interest at 3% per month. The letter dated 21st July, 2004 is admitted by the defendants without any reservation. The principal amount due to the plaintiff is Rupees 15 lakh. Another check of rupees 1.35 lakhs towards interest at the rate of Rs.15,000 per month for nine months was given. This cheque was not honored. The plaintiff has admitted that an amount of Rs. 90,000 was given in cash in lieu of said cheque. Therefore an amount of Rupees 45,000/-, became due on 31st March, 2004 as balance amount of interest which fact has not been denied by the defendants and which fact also emerges from the documents admitted by the defendants. On the said amount, principal and interest, the defendants also agreed to pay interest at the CS(OS) No.2168/2006 Page 9 of 11 rate of 3% per month by letter dated the 21st July, 2004 which letter is admitted by the defendants.
18. Therefore, there are categorical admissions on the part of the defendants to pay rupees 15 lakhs as principal amount and rupees 45,000 as the balance interest up to 31st March, 2004.
19. The defendants have also made categorical admission to pay interest at the rate of 3% per month on the amount due to the plaintiff from the defendants as on 31st March, 2004. Thus the defendants have admitted payment of 3% per month interest from 1st April, 2004 on the said amount of Rs.15,45,000/-. Therefore there is a admission to pay interest at the rate of 3% per month from 1st April 2004 till the institution of the suit on the said amount.
20. The plaintiff/applicant has prayed for a decree for rupees 25 lakhs on the basis of admissions made by the defendants in the plaint and the documents. The plaintiff has contended that a settlement was arrived at between him and the defendant no.2 for payment of Rs.25,00,000/-. The defendants have denied the same on the ground that the alleged settled amount was payable only if the plaintiff had accepted that the defendant no.3 was not liable and if the plaintiff had given more time to pay the amount. In the circumstances, though the CS(OS) No.2168/2006 Page 10 of 11 notice given by the plaintiff has been admitted, however, the defendants have also admitted the notice given by their counsel which is produced by the plaintiffs. Therefore, there are no such admission on the part of the defendants to pay a settled amount of Rs.25,00,000/- as has been alleged by the plaintiff so as to decree the suit for a sum of Rs.25,00,000/-. Admission must be taken as a whole and it is not permissible to rely on a part of admission ignoring the other. However, there are admission for an amount of Rs.15,45,000/- as on 31st March, 2004 and an interest @ 3% per month on the said amount.
21. Therefore, the suit of the plaintiff is decreed for a sum of Rs.15,45,000/- till 31st March, 2004 and interest at the rate of 3% per month on the said amount from 1st April, 2004 till filing of the suit. The plaintiff is also awarded pendent lite and future interest @ 12% per annum from the date of institution of the suit till realization of the decreetal amount. Parties are however, left to bear their own costs. As far as the other balance suit amount out of Rs.38.10 lakh is concerned, the same shall be decided in accordance with law. With these direction the suit is partly decreed. Decree sheet be drawn.
March 31, 2009 ANIL KUMAR, J.
'Dev'
CS(OS) No.2168/2006 Page 11 of 11