Madras High Court
Dr. K. Padmanabhan And P. Vijayalakshmi vs W.S. Nisha on 22 March, 2002
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
JUDGMENT S. Jagadeesan, J.
1. By consent of both the counsel the appeal is taken up for final disposal. The appellants are the defendants in C.S.No.43 of 2000.
2.The respondent herein filed the said suit for recovery of a sum of Rs.15,00,000/- being the principle and a sum of Rs.13,50,000/- towards interest. Pending the suit, the respondent filed Application No.390 of 2000 for attachment of the immovable property of the appellants herein. When the Bailiff of the High Court went to the appellants' place to effect the attachment of the immovable property, the first appellant gave an undertaking letter that he will pay a sum of Rs.1,00,000/- by cash and for the balance of Rs.14,00,000/-he had given the post dated cheques on different dates. The Nazir produced the said letter of undertaking before the court and the first appellant also paid a sum of Rs.1,00,000/-. As the post dated cheques were given, the respondent requested the Bailiff to deter the execution of the attachment warrant for a period of three weeks. The appellants filed Application Nos.1316 and 1319 of 2001 to raise the attachment which were dismissed as infructuous on the ground that the Application No.390 of 2000 filed by the respondent for the attachment of the property was closed in view of the undertaking given by the appellants. Since the post dated cheques handed over by the appellants were bounced, the respondent filed another application 2046 of 2001 for attachment before judgment and the same was dismissed on 13.6.2001 on the ground that the earlier application for attachment was dismissed on the basis of the undertaking given by the appellants to pay the amount. Hence the respondent filed an application 3953 of 2001 to pass a decree against the appellants herein on the basis of the undertaking given by the first appellant. By order dated 7.12.2001 the said application was allowed and a decree was passed against the appellants herein. Aggrieved by the same the present appeal has been filed.
3.It is the contention of the learned counsel for the appellants that the undertaking given by the first appellant is neither absolute nor voluntary one. To avoid any unpleasantness in the hospital, the first appellant was obliged to give the letter of undertaking and ultimately such under taking cannot be taken as an admission. An admission as contemplated under Order 12, Rule 6 C.P.C must be an unequivocal one on the part of the appellants. Further the first appellant alone gave an undertaking. The second appellant was not a party to such undertaking and as such there cannot be a decree against both the appellants. When the second appellant did not join in the undertaking given by the first appellant, the admission is a truncated one and on the basis of such truncated admission, the decree cannot be passed even against the first appellant. The handing over of post dated cheques will not amount to an admission. At the best, the respondent may have cause of action to prosecute the first appellant under Section 138 of the Negotiable Instruments Act and as such the order of the learned Judge cannot be sustained.
4.On the contrary, the learned counsel for the respondent contended that the undertaking given by the first appellant is a clear admission of the liability of the appellants. When such admission is there, it is always open to the court to pass a decree either suo motu or on the application of the respondent. Having given a letter of undertaking, it is not open to the appellants to plead that the undertaking was given to avoid the order of attachment and the same cannot be taken as a clear admission of the liability. The learned Judge considered all these aspects and ultimately granted a decree which needs no interference.
5.The questions for consideration in these appeals are:
(1)Whether the undertaking given by the first appellant is an admission of his liability of the suit claim?
(2)Whether the same is binding on the second appellant also?
6.It may be worthwhile to refer Order 12 Rule 6 C.P.C which reads as follows:
"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 questions 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 sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.
HIGH COURT AMENDMENT (MADRAS): Re-number the existing Rule 6 as sub-rule 6(1) and insert the following as sub-rules (2) and (3).
(2)The court may also of its own motion make such order or give such judgment as it may consider just, having due regard to the admissions made by the parties.
(3)Whenever an order or judgment is pronounced under the provisions of this rule, a decree may be drawn up in accordance with such order or judgment and bearing, the same date as the day on which the order of judgment was pronounced."
7.It may not be out of place to refer the judgment of the Apex Court UTTAM SINGH DUGGAL v. UNITED BANK OF INDIA wherein the learned Judges have held as follows: "As to the object of Order 12 Rule 6, we need not say anything more than what the legislature itself has said when the said provision came to be amended. 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". We should not unduly narrow down the meaning of this Rule 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."
From the above judgment, it is clear that the object of this provision is to enable the plaintiff to get a speedy judgment on the basis of the admission made by the defendant.
8.Coming to the question of admission, sub-rule (2) of Rule 6 of Order 12 C.P.C is very clear as pointed out by the Apex Court that the admission may be either in the pleading or otherwise either oral or in writing. In this case, the first appellant had given the following letter of undertaking:
"This letter of undertaking executed by Dr.K. Pathmanaban S/o Late Kaliappa Pillai, Managing Director, Chennai Kaliappa Hospital having office at No.52, II Main Road, Raja Annamalaipuram, Chennai - 600028.
On a suit filed by Mrs.W.S. Nisha, the Hon'ble Court of Chennai, passed an order of attachment in application No.390/2000 dated 13trh March, 2001 and the bailiffs representing the High Court to execute the warrant of attachment served a copy of the warrant on me.
I hereby undertake to pay a sum of Rs.1,00,000/- (Rupees one lakh only) in cash today and I shall pay the balance of Rs.14,00,000/- as detailed below: Sl.No. Cheque No. Date Amount Rs.1.035831 27.3.2001 1,00,0002.035832 28.3.2002 1,00,0003.035834 29.3.2001 1,00,0004.035835 30.3.2001 1,00,0005.035836 2.4.2001 1,00,0006.035837 3.4.2001 1,00,0007.035838 4.4.2001 1,00,0008.035839 5.4.2001 1,00,0009.035840 6.4.2001 1,00,00010.035841 9.4.2001 1,00,00011.035842 10.4.2001 1,00,00012.035843 11.4.2001 1,00,00013.035844 22.3.2001 1,00,00014.035845 24.3.2001 1,00,000 If the cheques are not honoured as per the above schedule, the warrant of attachment may be executed. I request the Bailiffs to keep the warrant of attachment in abeyance for a period of three weeks in view of the payments referred to above. I shall pay the balance paying amount within a period of two months."
It is admitted by the first appellant that he gave such undertaking letter and also paid a sum of Rs.1,00,000/-. He also entrusted the post dated cheques to the respondent herein.
9.In the counter filed to the application what all he has stated is as follows:
"At Raja Annamalaipuram I have M/s. Chennai kaliappa hospital which is a fullfledged hospital with several beds, diagnostic apparatus, computers, surgical theatre. As I went abroad I could not attend the court and the court ordered an exparte attachment. The plaintiff accompanied the bailiff to attach the machineries, computers and surgical equipments in the hospital. As very critical surgery was undertaken by me at the time when the bailiff appeared, in the interest of the patient on whom I was conducting surgery, and in order to avoid the bailiff I gave these cheques myself not being liable to pay any amount to the plaintiff.
Thereafter I gave security of my immovable property and the attachment petition was closed."
From the above statement in the counter affidavit filed by the first appellant it is very clear that he had given the undertaking and he also gave the security of the immovable property consequent of which the attachment petition was closed.
10.Now the learned counsel for the appellants contented that the admission should be by way of pleadings and not otherwise. This contention of the learned counsel for the appellants in no way can be countenanced in view of the express words used in the statute and the interpretation given by the Apex Court in the case referred above. The admission need not be in the suit itself. It is enough if the defendant admits his liability in any form. Such admission can be used for the purpose of passing the decree.
11.If really the undertaking affidavit is not to be acted upon and the first appellant had given the same under some duress, he could have made the representation before the court when the application for attachment was closed. When no such representation was made before the court and the court acted upon the undertaking and closed the attachment application, then it is nothing but a fraud committed by the first appellant on the court. Having permitted the court to act upon the undertaking and allow the application filed by the respondent for attachment to be closed, it is too late for the appellant to make any such contention that the undertaking was not voluntary one and was given under duress. Since the learned Judge had elaborately discussed the question by referring to various authorities, we are of the view that it is unnecessary to repeat the same.
12.Coming to the next question regarding the binding nature of the second appellant, it could be seen that the second appellant did not separate herself from the first appellant to put forth her claim. The appellants are none other than the husband and wife. In the counter affidavit filed in the present application, the first appellant had sworn to the affidavit, clearly stating that the first appellant is filing the counter statement on behalf of the second appellant also. When that be so, there cannot be any dispute that the first appellant is acting on behalf of the second appellant also. Even in the proceeding both the appellants are represented by one and the same counsel. Hence it is clear that there is no conflicting interest among the appellants. In such case, the argument of the learned counsel for the appellants that the admission is a truncated one so far as the first appellant is concerned and there cannot be any decree on the basis of the said admission cannot be accepted. When both the appellants are jointly conducting the proceeding, it has to be taken that the first appellant is acting on behalf of the second appellant also and as such whatever the action done by the first appellant will be binding on the second appellant in equal terms.
13.Hence there is no merit in any of the contentions of the learned counsel for the appellants and accordingly the appeal is dismissed.