Delhi District Court
Mrs. Neelam Sethi vs Mr.Satish Kumar Beri & Ors on 17 April, 2009
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IN THE COURT OF SH. CHANDRA BOSE:
ADDITIONAL DISTRICT JUDGE-05(NORTH) : DELHI
Suit No. : 52/07
Mrs. Neelam Sethi
...Plaintiff
VERSUS
Mr.Satish Kumar Beri & Ors.
...Defendants
ORDER
1. By this order I shall dispose of the application filed on behalf of plaintiff u/o.12 Rule 6 r/w. Sec. 151 CPC.
2. In the application under disposal the plaintiff has prayed that Hon'ble Court may be pleased to pronounce the judgment and decree the suit on the basis of the admissions of the defendants, in favour of the plaintiff and jointly and severally against the defendants with cost.
3. It is stated in the application that by way of present suit, plaintiff is claiming 1/4th of 2931 shares the late father of plaintiff and defendant no.1, left in defendant no.2 company. In probate case no.137/2000, the defendant no.1 had claimed 1/8 //2// probate of residential property C-99, Defence Colony, New Delhi and also claimed entire shareholding of 2931 shares on the basis of of a Will purported to have been executed by him before his death. The said probate case was being contested by only plaintiff and her brother Sh.Harish Kumar Berry and the eldest sister decided to remain silent. Sh.Harish Kumar Berry invested a sum of Canadian Dollar (CAD) 5000/- in defendant no.2 as against undertaking and agreement that he would be alloted 40% shareholding in the company and shall also be appointed as its NRI Director and a similar agreement and undertaking had also been made with plaintiff. During pendency of probate case, Sh.Harish Kumar Berry filed a Company Petition u/s.397 & 398 of the Companies Act, 1956 against defendant no.2 and its Directors. Vide orders dt.23.08.2004 and 28.11.2004, the Company Law Board decided the matter in favour of Sh.Harish Kumar Berry. The defendants no.1 & 2 and other two directors filed an appeal against said order of C.L.B. During the pendency of probate case, the defendant no.1 surreptitiously sold the portion of residential property C-99, Defence Colony, New Delhi and shifted to Noida. When matter was still pending before the C.L.B., the defendant no.1 and his family surreptitiously sold the defendant no.2 company lock, stock and barred by 2/8 //3// transferring its entire shareholding including the 2931 shares of the late father lying in trust with him to defendants no.3 to 6. The defendant no.1 concealed this fact of sale in probate proceedings and before C.L.B. During pendency of Appeal filed against judgment and orders of C.L.B, the matter was referred for mediation wherein a global settlement was arrived at but that settlement was completely frustrated. Sh.Harish Kumar Berry pulled out of said settlement and same was rendered infructuous and non est and he filed Contempt application CCP (Co) No.19/05 before Hon'ble High Court. The defendant no.1 decided to settle the matter with his brother Sh.Harish Kumar Berry only to the exclusion of two sisters and finally, it was decided that defendant no.1 would pay to Sh.Harish Kumar Berry a sum of Rs.23 lacs as full and final settlement towards all his claims against defendant no.2 as well as defendant no.1. On 23.10.2005 statements of two brother were recorded before Hon'ble High Court. However, vide order dt.26.09.2005, the probate case was disposed as infructuous since the defendant had already sold and disposed of both the properties forming subject matter of said probate case. While the said settlement was only in respect of claim of Sh.Harish Kumar Berry against defendant no.2 to the exclusion of both the sister, in the present suit, defendants 3/8 //4// have taken the defence that payment of Rs.23 lacs to Sh.Harish Kumar Berry included the claim of both the sisters. Hence, there is a tacit admission on behalf of defendants as to the claim of plaintiff. Since, there is an admission in respect of plaintiff's claim and the order dt.20.10.2005 of Hon'ble High Court has not settled her claim, the plaintiff is entitled to a decree jointly and severally against defendants.
4. Defendant no.1 filed reply to the application wherein he has stated that suit of plaintiff is barred by limitation. It is stated that plaintiff was duly represented by her lawyer in the mediation and also before the Hon'ble High Court mediation and now she cannot be allowed to get away with her baseless story. It is stated that plaintiff cannot lay any claim on the share of the later father since she has neither objected to the Will of her later father nor claimed her rights to the share. It is stated that plaintiff has never invested in the business. Hence, the contents of the application are beyond the scope of order 12 Rule 6 CPC. The defendant no.1 has nowhere admitted that he has paid the amount of Rs.23 lacs only to Mr.Harish Kumar Beri but on contrary in WS filed by defendant no.1 at para e,g,I, 19 of parawise reply, 25, 32, the said fact has been elaborated. It is stated that settlement reached between the 4/8 //5// parties were enhanced to Rs.23 lacs with the inclusion of the sisters.
5. I heard and considered the submissions of Ld.Counsels for parties on the application under disposal.
6. In case law namely Balraj Taneja & Anr., Appellants vs Sunil Madan & Anr., Respondents, (1999) 8 Supreme Court 396, it has been held by the Hon'ble Supreme Court that:-
"Court ought not to act blindly or mechanically upon admission of a fact made by the defendant in his written statement and ought not to pass judgment merely because a written statement has not been filed. It ought to be cautious and only on being satisfied that there is no fact which needs to be proved despite deemed admission, should proceed to pass a judgment."
7. In case law namely Manisha Commercial Ltd., Plaintiff vs. N.R. Dongre & Anr., defendants, 85(2000) Delhi Law Times 211, it has been held by Hon'ble High Court of Delhi that:
"Even on admitted facts it is highly debatable whether judgment should be delivered as pleaded in the plaint. Since facts are not in contest, dispense with trial and proceed to stage of 'final arguments' is wholly inappropriate to permit any party to employ Order XII, Rule 6, 5/8 //6// CPC where vexed and complicated questions or issues of law have arisen."
8. In case law namely State Bank of India, Applicant v. M/s. Midland Industries and others, Opposite Party, AIR 1988 Delhi 153, it has been held that "Undoubtedly Rule 6 of Order 12 has been couched in a very wide language. However, before a court can act under R.6, admission must be clear, unambiguous, unconditional and unequivocal. Moreover a judgment on admission by the defendant under order 12 rule 6 is not a matter of right and rather is a matter of discretion of the Court, no doubt such discretion has to be judicially exercised. If a case involves questions which cannot be conveniently disposed of on a motion under this rule, the Court is free to refuse exercising discretion in favour of party invoking it. Where the defendants have raised objections which to go the root of the case, it would not be proper to exercise this discretion and pass a decree in favour of plaintiff. The rule is not intended to apply where there are serious questions of law to be asked and determined. Likewise where specific issues have been raised in spite of admission on the part of the defendants, the plaintiff would be bound to lead evidence on those issues."
9. In case law namely Dena Bank, Plaintiff v. M/s. Bindal Construction (Pvt.) Ltd., Defendant, AIR 1992 Delhi 171, it has been held that "The case could not be disposed of on motion under O.12, R.6 without leading evidence and decree could not be passed against defendants in terms of alleged admissions where there is no 6/8 //7// clear unequivocal admission in respect of liability of defendants and further the issues framed involve determination of question of facts which cannot be disposed of on motion u/o.12, Rule 6 of CPC, 1908 and without leading evidence in support the facts."
10. It is submitted by Ld.Counsel for defendants that Hon'ble Supreme Court in case of Razia Begum vs. Anwar Begam, reported in AIR 1958 SC 886, has held that admission if made has to be clear, unambiguous, definite and unequivocal. He submits that in the present case, there is no admission so far as the shareholding of the plaintiff is concerned and for the same, the plaintiff cannot under any stretch of imagination, claim that defendant has admitted to the same. He further submits that suit of the plaintiff is time barred and is hit by res judicata since the same subject matter of the present suit is similar to that of the porbate case filed by defendant no.1 wherein plaintiff despite getting opportunity failed to take steps and now she cannot open the issue which is intended to be decided by way of present suit. He further submits that in view of case laws relied by him, the application of the plaintiff cannot be allowed.
11. Ld.Counsel for plaintiff submits that in WS, the 7/8 //8// claim of plaintiff of 1/4th share holding of her late father, has not been denied and defence taken by defendant no.1 is that all the claims of plaintiff is to settle and therefore, a decree of declaration to the effect that sale on 19.11.2004 or on any other date of 2913 shares of defendant no.2 company to defendants no.3 and 6 is liable to be quashed, may be passed.
12. Considering submissions of Ld.Counsels for both the parties and the case laws mentioned as above, I am of the considered opinion that the application of plaintiff cannot be allowed on the ground that questions of fact and law are involved which can be decided after evidence of both the parties. It can only be decided after evidence whether suit is time barred or it is hit by doctrine of res judicata. It cannot be also allowed since there is no clear unambiguous admission on the part of defendants.
13. In view of reasons and discussions as above, the application filed by plaintiff u/o.12 Rule 6 r/w. Sec. 151 CPC is dismissed.
Announced in open Court (CHANDRA BOSE)
17.04.2009 ADJ-05 (North) : THC/DELHI
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