Delhi District Court
Smt. Satpal Kaur vs Aithent Techonologies Pvt. Lt on 14 May, 2007
1
IN THE COURT OF SH. GIRISH KATHPALIA,
ADDITIONAL DISTRICT JUDGE, DELHI
SUIT NO.85/06
SMT. SATPAL KAUR
....PLAINTIFF
versus
AITHENT TECHONOLOGIES PVT. LT
....DEFENDANT
ORDER
1. The proposition advanced by ld. Counsel for plaintiff is that an evasive denial in the written statement, which would amount to a deemed admission, is of such a nature which can compel the court to decree the suit under Order XII Rule 6 CPC. Despite the attention of ld. Counsel for plaintiff having been drawn vide order dated 02/02/07 to the law laid down by Hon'ble Delhi High Court in the case of EXPRESS TOWERS vs MOHAN SINGH, 133 (2006) DLT 260, ld. Counsel pressed for decree of the suit and concluded arguments on 09/05/07. Instead of filing a formal application under the provisions of Order XII Rule 6 CPC, ld. Counsel for plaintiff filed only the written arguments as the law does not mandate filing of a CS/85/06 Page 1 of 14 pages 2 formal application for this purpose. Reply was filed on behalf of defendant. I have heard ld. counsel for both the sides and perused the record.
2. Briefly stated, suit brought by plaintiff is for recovery of money against her former employer company. As per plaintiff, she worked with the defendant company from 28/09/93 to 25/11/03, her last post being the Senior Member Consulting Staff at a gross monthly salary of Rs.61,500/-. During the year 2001, on account of heavy infrastructure investments the defendant faced liquidity crunch which was compounded by delay in obtaining payments from abroad. In the end of March 2002 the defendant agreed with all its employees drawing gross salary above Rs.12,000/- per month to defer a part of their salary to the next financial year. The affected employees were also promised one month gross salary as minimum compensation bonus to compensate them for loss of increments, bank interest and other difficulties on account of deferment of salary. In respect of salary group of Rs.12,001/- to Rs.20,000/- per month, the decision to defer salary was reversed while the higher salary groups were CS/85/06 Page 2 of 14 pages 3 assured payment of their dues on review. With effect from 01/04/03, plaintiff's gross salary of Rs.61,500/- per month was restored but for arrears of deferred salary and bonus, the defendants sought time. On 23/11/04, plaintiff resigned from the defendant company and joined another company at a monthly salary of Rs.80,000/-. Since despite repeated demands, the defendant company has not been clearing their outstanding liability, plaintiff has brought the present suit.
3. Defendant in its written statement raised certain preliminary objections including territorial jurisdiction of this court on the grounds that employment as well as disbursal of salary of the plaintiff was at Gurgaon. Defendant mainly took a defence that there was no deferment of salary and rather it was a collective decision of management of the defendant which included the plaintiff to restructure the salary of plaintiff and other members of the management. Defendant pleaded that under the guise of term "deferred salary", the plaintiff has claimed the differential salary. Defendants pleaded that the one month gross salary had been agreed to be paid in the shape of loyalty bonus and not as any CS/85/06 Page 3 of 14 pages 4 compensation. Loyalty bonus, as per the defendant was not a legal liability but only a moral incentive for which no occasion has arisen till date. Defendants pleaded that suit deserves to be dismissed.
4. No replication was filed by plaintiff.
5. Relief under Order XII Rule 6 CPC has been sought by the plaintiff, on the basis of certain handpicked phrases and sentences from the written statement and documents, as described in the written arguments. It was argued on behalf of plaintiff that in letter Ex.D3 dated 04/05/04 the defendant has admitted its liability in the sentence "Aithent would pay an interest on the unpaid dues @ 5% per annum for the period of delay with effect from June 01, 2004". Besides, the defendant has also admitted its liability in reply dated 15/11/06 to plaintiff's application under Order X CPC (which application stood disposed of as not pressed) by stating that as and when the defendant makes profits, the same shall be gradually paid to its employees alongwith plaintiff. Since the defendant has failed to submit their upto date accounts, as per plaintiff the suit deserves to be decreed under Order XII Rule 6 CPC, CS/85/06 Page 4 of 14 pages 5 drawing adverse inference.
6. On behalf of defendant, it was argued that the request to decree the suit under Order XII Rule 6 CPC is absolutely frivolous and contrary to law, with the oblique purpose to avoid examination of the plaintiff in court. It was argued on behalf of defendant that there are no admissions in the pleadings which would call for decreeing the suit under Order XII Rule 6 CPC.
7. A division bench of Hon'ble Delhi High Court in the case of RAJKUMAR CHAWLA vs M/s LUCAS INDIAN SERVICES consolidated law on this aspect after analysing a number of judicial precedents and held that decree under Order XII Rule 6 CPC cannot be claimed as a matter of right by the plaintiff as it is a matter of discretion of the court which would not be invoked where the defendant has raised an objection going to the root of the case. Hon'ble High Court held as under:-
"The provisions of Order XII are intended to provide expeditious grant of decree in favour of a plaintiff in a suit or proceedings where the defendant has made any admission in the CS/85/06 Page 5 of 14 pages 6 pleadings or otherwise, orally or in writing of any amount due. The plaintiff would be entitled to a decree on the basis of such admission without waiting for completion of the trial. The provisions of Order XII Rule 6 were incorporated by way of amendment. The legislative object of these provisions is to curtail the period for determination of disputes between the parties to a suit and ensure that a decree on admission is passed without any unnecessary hindrance. The expression 'Admission' has been given a wider meaning and connotation so as to take within its ambit admissions made by a party in pleadings or otherwise, orally or in writing. These provisions thus are capable of liberal construction and without imposition of any unreasonable restriction, must be permitted to operate but the courts have to be careful while passing a decree on admission. The court essentially should look into the fact that all essential ingredients of an admission are satisfied before such a decree is passed in favour of any of the parties to the suit. Admission has to be unambiguous, clear and unconditional and the law would not permit admission by inference as it is a matter of fact.
CS/85/06 Page 6 of 14 pages 7 (emphasis supplied) Admission of a fact has to be clear from the record itself and cannot be left to the interpretative determination by the court, unless there was a complete trial and such finding could be on the basis of cogent and appropriate evidence on record. Rule 6 of Order XII certainly enable a party to obtain a speedy judgment fully or partially to which according to the admission of the defendant the plaintiff is entitled to."
It was further held:
"The power under Order XII 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 AIR 1971 SC 1081 CHANCHAL vs 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 CS/85/06 Page 7 of 14 pages 8 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 should decline in the cases of the later category."
8. In the case of J.R. SHARMA OVERSEAS vs ABNER PHARMACEUTICALS LTD. 117 (2005) DLT 405, Hon'ble Delhi High Court held that a mere admission by the defendant as regards execution of a document would not attract Order XII Rule 6 CPC where the defendant seeks to explain the document and the explanation if accepted, defendant would succeed.
9. In the case of COSMO FERRITES LTD vs UNIVERSAL COMMERCIAL CORPORATION, 2006 II AD (DELHI) 461 Hon'ble Delhi High Court held that before the court can act upon an admission, it has to be shown that the admission is an unequivocal, clear and positive admission; when a defence is set up which requires evidence for determination of the issues, provisions of Order XII Rule 6 CPC are not attracted and judgment cannot be made on plaintiff's asking.
CS/85/06 Page 8 of 14 pages 9
10. In the case of EXPRESS TOWERS vs MOHAN SINGH, 2006 IX AD (DELHI) 574, Hon'ble Mr. Anil Kumar, J. analysed various judicial pronouncements and consolidated the law on this aspect, holding:
"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 vested 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 CPC where the parties have conceded the rights of other parties. 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 CS/85/06 Page 9 of 14 pages 10 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."
(emphasis supplied)
11. Falling back to the present case, at the very outset it would be appropriate to record that pleadings cannot be read in piecemeal and have to be construed in their entirety. Reading the written statement in its entirety, it cannot be said that the defendant admits claim of the plaintiff on any count. It is certainly not a case of the defendant admitting liability to pay as contended by ld. Counsel for plaintiff.
12. Argument of ld. Counsel for plaintiff that defendant's case is that they admit liability to pay but state that the payment would be made as and when they are comfortable, is patently fallacious. Defendant has specifically pleaded in its written statement that the salary of high salary group had been restructured and not deferred. Even the restructuring of salary was a joint decision of the management, to which CS/85/06 Page 10 of 14 pages 11 plaintiff was a party as per the defendant. Defendant pleaded that what is being claimed by plaintiff is infact a differential salary under the guise of deferred salary. As regards bonus also, defendant has specifically pleaded that the same was only a moral incentive and not any compensation as alleged by plaintiff.
13. In view of pleadings of the defendant, it certainly cannot be said that defendant has made any admission of liability much less an unambiguous, clear and unconditional one. Merely because the defendant failed to submit its upto date accounts, which stand also is not totally correct, inference of admission cannot be drawn since the same is not permissible under law as described by the Hon'ble High Court in the case of RAJ KUMAR CHAWLA (supra).
14. It was also argued strenuously by ld. Counsel for plaintiff that since the defendant had made only evasive denials in the written statement, the same would amount to deemed admissions, calling for a decree under Order XII Rule 6 CPC. The argument is absolutely meritless in view of legal position as described above with the help of various judicial CS/85/06 Page 11 of 14 pages 12 precedents. The admission contemplated by Order XII Rule 6 CPC has to be an unambiguous, unequivocal, positive and clear, not merely a matter of inference or a deemed admission.
15. Furthermore, as held by the Hon'ble Delhi High Court in the case of EXPRESS TOWERS (supra), a court in its discretion can refuse to decree the suit under Order XII Rule 6 CPC when pleadings of the parties raise serious preliminary pleas likely to non suit a party. As mentioned above, defendant has taken a specific preliminary objection as regards territorial jurisdiction of this court. The issues as to whether the salary of plaintiff had been restructured or deferred and as to whether the bonus assured was only moral incentive or a compensation need to be decided only after full dress trial.
16. As held by Hon'ble High Court in the case of EXPRESS TOWERS (supra) the provisions of Order XII Rule 6 CPC are directory and not mandatory.
17. In view of above discussion, in my considered opinion this case is not fit to be decreed under Order XII Rule 6 CPC.
18. But there is another issue to be taken into consideration. As mentioned above, when the written CS/85/06 Page 12 of 14 pages 13 arguments seeking decree of suit under Order XII Rule 6 CPC were filed and arguments were partly heard, attention of ld. Counsel for plaintiff was specifically drawn to the law laid down by Hon'ble Delhi High Court in the case of EXPRESS TOWERS (supra). Even after going through the said judgment, ld. Counsel for plaintiff pressed his claim under Order XII Rule 6 CPC. The factual aspects as regards comparison of claim and the defence were discussed in detail in suit no.82/06 (suit of another employee of defendant, placed similarly to the plaintiff and represented by same set of counsel) vide order dated 30/03/07, wherein it was categorically observed that counsel for plaintiff has been wrongly interpreting the contents of written statement in all the similar suits between the defendant and its various employees. Despite that counsel for plaintiff insisted and pressed his claim of decree under Order XII Rule 6 CPC. Under these circumstances, claim of plaintiff was nothing but absolutely frivolous and deserves to be dismissed with heavy cost.
CS/85/06 Page 13 of 14 pages 14
19. In view of above discussion, claim of plaintiff for decree of suit under Order XII Rule 6 CPC is dismissed with a cost of Rs.5,000/-.
ANNOUNCED IN THE OPEN COURT ON 14th May 2007 (GIRISH KATHPALIA) ADDL. DISTRICT & SE SSIONS JUDGE DELHI CS/85/06 Page 14 of 14 pages