Himachal Pradesh High Court
M/S Apple Valley Developers And Others vs M/S Coastal Projects Ltd. And Others on 12 May, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
C.S. No. 44 of 2015 a/w OMP No.
.
46 of 2016.
Decided on: 12th May, 2016.
M/s Apple Valley Developers and others ....Plaintiffs
of
Versus
M/s Coastal Projects Ltd. and others ...Defendants
Coram
rt
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 Yes
For the Plaintiffs : Mr. R. L. Sood, Senior Advocate, with
Mr. Arjun Lall and Mr. Sanjeev
Kumar, Advocates.
For the Defendants : Ms. Jyotsna Rewal Dua, Senior
Advocate, with Ms. Charu Bhatnagar,
Advocate.
Tarlok Singh Chauhan, Judge (Oral)
OMP No. 46 of 2016
The applicants/plaintiffs have filed this application under Order 12 Rule 6 read with Section 151 of the Code of Civil Procedure for decreeing the suit.
2. It is averred that the defendants have filed written statement in answer to the plaint wherein the defendants have admitted the claim as set out in the plaint as there is no denial to the crucial averments set forth by the plaintiffs. It is further averred that the suit of the plaintiffs otherwise deserves to be decreed on the basis of the following admissions that have been 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes ::: Downloaded on - 15/04/2017 20:20:40 :::HCHP 2 made in the written statement vis-à-vis the averments made in the plaint which are as follows:
.
"a) That the contents of para 1 to 4 of the plaint have not been denied to the corresponding paras of the written statement on merits. Thus, it stands admitted that the defendant No.1 Company through its Branch Offices commenced business with the plaintiffs for the supply of of explosive and other connected materials and also for carrying/transporting the same to their work sites.
b) That the contents of para 4 of the plaint having not been denied, is an admission on the part of the defendant rt that a mutual and running account was maintained regarding financial/commercial dealings between the plaintiffs and the defendant. Further, that the said account has been debated with the amounts relating to the material supplied to the defendants and transportation of the same by way of explosive vans.
c) That, the specific averments made in para-5 of the plaint pertaining to the actual amount due from the two project sites. The defendant has only made a denial simplicitor and has qualified its liability to pay on the alleged unethical approach of the plaintiff, alleged frequent breakdown of their "explosive van" (incidentally the plaintiff has been operating not only one explosive van but 25 No. of explosive vans the details of which are annexed hereto as Annexure A-1). Further, that the blasting material was allegedly not supplied in time which allegedly affected the work flow of the defendant company. Whereas the plaintiff has specifically claimed a total sum of Rs.42,90,292.36 paise as due from the plaintiff on 30.06.2015 alongwith pendente lite and future interest, however, there is no denial qua this claim of the plaintiff which has been set forth in detail.
d) That the contents of para-6 of the written statement constitutes no denial of the contents of the para-6 of the plaint. The alleged false defense set up is that allegedly due to the alleged non-performance and alleged non ::: Downloaded on - 15/04/2017 20:20:40 :::HCHP 3 delivery of material by the plaintiff, the projects were allegedly adversely affected. However, the same does not constitute any denial to the contents of para-6 which .
in law stand admitted.
e) That most importantly, the contents of para-8 of the plaint stand admitted by the defendants. The letter No. HPPCL/EIC/SKHEP/DB(HRT) 2014-2013-2023, dated 9.7.2014 addressed by the official of the defendant No.1 of Company to the Managing Director, recommending that payments be made to the plaintiffs stands admitted.
Thus, also the suit deserves to be decreed on the basis rtof the admissions made in the written statement."
3. The defendants in their reply have raised certain preliminary objections wherein it is alleged that the application is devoid of any merit and is based on frivolous and vexatious grounds and, therefore, deserves to be dismissed as such. Insofar as the various admissions as set forth above are concerned, the defendants have filed the following corresponding replies:
"a) That the contents of this sub para are specifically denied. It is again reiterated that the claim of the plaintiff has not been admitted by the defendant in its' written statement. The defendant had in it's preliminary submission specifically stated that the defemdant-
Company was constructing the Sawra Kuddu Hydro Electric Power Project (SKHEP), 111 MV located in the village Sawra, P.O. Hatkoti, Tehsil Jubbal, Shimla, Himachal Pradesh. The client was Himachal Pradesh Power Corporation Ltd. (HPPCL) and the work order was issued to plaintiff-Company for supply of explosive materials for construction of tunnel works. The plaintiff- Company never delivered blasting materials/explosives on scheduled time which resulted in huge losses for the defendant Company. Because of this, the men and machinery of the defendant company remained idle for ::: Downloaded on - 15/04/2017 20:20:40 :::HCHP 4 days and months and as a result Company failed to achieve the milestone set by the client, HPPCL. And due to the non-availability of material at time due to the .
plaintiff, affected the cash flow at site and eventually HPPCL terminated contract and took over the work on January 09, 2014.
b) That the contents of the para are denied and it is submitted that the defendant had admitted that there of was contract between them but had further stated that construction materials even when arrived, arrived late at sites from beginning and no improvement was noticed rt after repeated requests in this regard to the plaintiff. It was the plaintiff's lethargic attitude which led to the heavy losses for the defendant. As a result of late delivery the men and machinery remained idle at number of occasions. All these factors affected the progress of work at aforesaid site and defendant Company failed to achieve the milestones in scheduled time. Power Corporation has also imposed liquidated damage (L.D.) charges on defendant due to this delay.
The plaintiff is estopped from filing the suit.
c) That the contents of this para are specifically denied and it is submitted that the plaintiff had misunderstood and had wrongly interpreted the contents of written statement. The defendant in reply to para 5 had specifically stated that "that contents of this para are wrong and denied in toto". Further as far as explosive vans are concerned, it is submitted ................
d) That the contents of this para are specifically denied and it is submitted that justifiability of defense will be determined at the time of hearing by this Hon'ble Court. The defendant has denied the contents of the para in it's written statement.
e) That the contents of this para are specifically denied and further stated the plaintiff had miss-understood the contents of the written statement and had interpreted the contents wrongly. Further submitted that the defendant in his written statement had admitted the ::: Downloaded on - 15/04/2017 20:20:40 :::HCHP 5 content of the para of plaint to the extent that payments to the plaintiff-Company were only made from other sources with the only objective to complete both the .
projects of national repute in time and payment was made to the plaintiff-Company from account of defendants No. 5 and 6, whereas the money was infused in the account of defendants No. 5 and 6 from other sources by the defendant-Company."
of I have heard learned counsel for the parties and gone through the records of the case carefully.
rt
4. At the outset, it is necessary to highlight the object of including Rule 6 to the provision of Order 12 CPC, which after amendment 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 question 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."
5. A perusal of the aforesaid order makes it clear that the Court may at any stage of the suit either on an application of any party or of its own motion and without waiting for the determination of any question between the parties give such judgment as it may think fit when admission of facts either in the pleadings or otherwise, whether orally or in writing. What is ::: Downloaded on - 15/04/2017 20:20:40 :::HCHP 6 important is that unequivocal and unambiguous admission must be made by a party either in the pleadings filed before the court or .
in any other document.
6. This provision was introduced by Amendment Act 104 of 1976 in the interest of speedy justice and this was so held by the Hon'ble Supreme Court in Uttam Singh Dugal and Co. Ltd.
of vs. Union Bank of India and others AIR 2000 SC 2740 wherein in para 12 it was held as under:
rt "12. As to the object of the Order XII 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 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."
7. The position of law thereafter was lucidly explained by the Hon'ble Supreme Court in Karam Kapahi and others vs. Lal Chand Public Charitable Trust and another (2010) 4 SCC 753 wherein it was held as under:
"37. 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' [See the dictum of Lord Jessel, the Master of Rolls, in Thorp versus Holdsworth in (1876) 3 Chancery Division 637 at 640].::: Downloaded on - 15/04/2017 20:20:40 :::HCHP 7
38. In this connection, it may be noted that order 12 Rule 6 was amended by the Amendment Act of 1976. Prior to amendment the Rule read thus:-
.
"6. Judgment on admissions. - Any party may, at any stage of a suit, where admissions of facts have been made, either on pleadings or otherwise, apply to the Court for such judgment or order as upon such admission he may be entitled to, without waiting for the determination of any of other question between the parties and the Court may upon such application make such order or give such judgment, as the Court may think just."
39. rt 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. It is thus clear that 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 justitial, a Latin term, meaning a debt of justice. In our opinion 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.
40. 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 in as much 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'.
**** **** ****
45. Order 12 Rule 6 of the Code has been very lucidly discussed and succinctly interpreted in a Division Bench judgment of Madhya Pradesh High Court in the case of Shikharchand and others Vs. Mst. Bari Bai and others reported in AIR 1974 Madhya Pradesh 75. Justice G.P. Singh (as His Lordship then was) in a concurring judgment explained the aforesaid rule, if we may say so, very authoritatively at page 79 of the report. His Lordship held:
(AIR para 19) ::: Downloaded on - 15/04/2017 20:20:40 :::HCHP 8 "... I will only add a few words of my own. Rule 6 of Order 12 of the Code of civil Procedure corresponds to Rule 5 of Order 32 of the Supreme Court Rules (English), now rule 3 .
of Order 27, and is almost identically worded (see Annual Practice 1965 edition Part I. p. 569). The Supreme Court Rule came up for consideration in Ellis v. Allen (1914) 1 Ch
904. In that case a suit was filed for ejectment, mesne profits and damages on the ground of breach of covenant against sub-letting. Lessee's solicitors wrote to the plaintiff's of solicitors in which fact of breach of covenant was admitted and a case was sought to be made out for relief against forfeiture. This letter was used as an admission under rule rt 5 and as there was no substance in the plea of relief against forfeiture, the suit was decreed for ejectment under that rule. Sargant, J. rejected the argument that the rule is confined to admissions made in pleadings or under rules 1 to 4 in the same order (same as ours) and said:
'The rule applies wherever there is a clear admission of facts in the face of which it is impossible for the party making it to succeed.' Rule 6 of Order 12, in my opinion, must bear the same construction as was put upon the corresponding English rule by Sargent, J. The words "either on the pleadings or otherwise" in rule 6 enable us not only to see the admissions made in pleadings or under Rules 1 to 4 of the same order but also admissions made elsewhere during the trial." (Emphasis added)
46. This Court expresses its approval of the aforesaid interpretation of Order 12 Rule 6 by Justice G.P. Singh (as His Lordship then was). Mulla in his commentary on the Code has also relied on ratio in Shikharchand (supra) for explaining these provisions.
48. However, the provision under Order 12 Rule 6 of the Code is enabling, discretionary and permissive and is neither mandatory nor it is peremptory since the word "may" has been used. But in a given situation, as in the instant case, the said provision can be applied in rendering the judgment."::: Downloaded on - 15/04/2017 20:20:40 :::HCHP 9
8. In light of the settled position of law, let me now .
consider whether the plaintiffs have made out a case for obtaining a decree under Order 12 Rule 6 CPC.
9. The plaintiffs have filed a suit for recovery of Rs.42,90,292.36 paise alongwith interest at the rate of 18% per of annum from the date of filing of the suit till the recovery of the decretal amount as also costs of the suit.
10. rt It is averred that the defendant No.1 is a Company and is incorporated under the Companies Act and approached the plaintiff No.1 firm and its partners plaintiffs No. 2 and 3 for supply of explosive and other connected materials. The defendants had issued two work orders i.e. No. PHP/JNW/Lot PB-4A/CED Sainj/05 dated 6.9.2011 in favour of the plaintiffs for hiring of explosive vans of 1 MT capacity at the PHEP Stage II Hydro Project and another work order bearing No. CPPL/SKHEP/W/315/123 dated 6.8.2009.
11. The plaintiff No.1 had opened a mutual and running account which was maintained by it regularly, in the ordinary and regular course of business, in which the entries have been regularly made. This account relates to the financial/commercial dealings between the plaintiffs and defendant No.1 and its branches i.e. defendants No. 5 and 6. The accounts of the defendants have been duly debited with the supplies made to them as also to the transportation charges by way of providing of explosive vans. In turn, all the payments received from the ::: Downloaded on - 15/04/2017 20:20:40 :::HCHP 10 defendant No.1 through defendants No. 5 and 6 have been credited regularly to the said accounts from time to time.
.
12. The plaintiff in para 5 of the plaint has spelled out the amounts as are due from the defendants and have averred as under:
A : Coastal Projects Ltd. Sawra Kuddu H.E. Project of
(i) Amount due on account of explosive and 9,59,576.00 other materials supplied and security.
(ii) Amount due on account of vehicle hire 8,24,732.00 (explosive van) charges.
rt
(iii) Interest calculated upto 30.6.2015. 16,49,040.78 Total of (i),(ii) and (iii) 34,33,348.78 B : Coastal Projects Ltd. PHEP Sainj
(i) Amount due on account of vehicle hire 4,97,484.60 charges.
(ii) Security Withheld. 64,774.00
(iii) Interest calculated upto 31.3.2015. 2,94,684.98 Total of (i),(ii) and (iii) 8,56,943.58 Grand Total of A and B above: 42,90,292.36
13. The corresponding para of the written statement reads thus:
"5. That the contents of this para are wrong and denied in totality. Further to the content of this para, it is submitted that unethical approach of plaintiff, frequent breakdown of their explosive van and untimely delivery of blasting materials/ explosives were the various reasons which affected the works and cash flow of the defendant Company."
14. It would be evident from the perusal of para-5 of the written statement reproduced above, that there is no specific denial to what has been stated in para-5 of the plaint wherein the ::: Downloaded on - 15/04/2017 20:20:40 :::HCHP 11 plaintiffs have clearly spelled out the amount due to it from the defendants.
.
15. What would be the effect of the defendants not coming with a specific denial to a specific averment was considered by me in FAO No. 63 of 2014 titled as Pushpa Devi and others vs. Kesri Ram and others, decided on 8th August, 2014, in the of following manner:
"26. Order 8 Rules, 3, 4 and 5 reads as follows:
rt "3. Denial to be specific. - It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
4. Evasive denial. - Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received.
And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.
5. Specific denial. - (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. (2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader. (4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and ::: Downloaded on - 15/04/2017 20:20:40 :::HCHP 12 such decree shall bear the date on which the judgment was pronounced.
The provisions of Rule 3 has to be read with Rule 5 of Order 8 .
and reading both rules together, it is clear that every allegation of fact in the plaint, if not denied specifically and denied expressly would be deemed to have been admitted. The written statement must deal with specific allegation of fact in the plaint and when the defendant denies any such fact, he must do so expressly and specifically. If his denial of a fact is not specific but evasive, the of said fact shall be taken to have been admitted. The allegations set out in the plaint, have to be traversed in the written statement which must deal specifically with each allegation of fact in the rtplaint."
16. Thus, what appears to be more than settled is that the provisions of Rules 3 and 5 of Order 8 provide that every allegation of fact in the plaint, if not denied specifically or by necessary implication in pleading of the defendant, would be deemed to be admitted. This will be a constructive admission by pleading. Thus, an admission could be either express or constructive.
17. Order 15 Rule 1 CPC provides that where the parties are not at issue on any question of law or fact, the Court can pronounce the judgment at once.
18. Even Order 14 Rule 1 provides for framing of issues where material proposition of fact and/or of law arise out of the pleadings, which need investigation, that the issue will be framed so as to decide after trial by giving parties opportunities to adduce such relevant evidence as they may think necessary and proper.
The material proposition of law or fact would mean such issues which are relevant and necessarily arise for deciding the controversy involved. If there is no controversy, then the Court ::: Downloaded on - 15/04/2017 20:20:40 :::HCHP 13 would not be bound to frame issues as that would only cause unnecessary and avoidable inconvenience to the parties and .
would also amount to wastage of valuable Court time.
19. Having noticed the averments contained in para 5 of the plaint and its corresponding written statement, it can safely be held that the defendants have no defence and moreover, if at all of the defendants were aggrieved by any of the act(s) and conduct of the plaintiffs, they should have raised a counter claim. In absence rt of any counter claim and in view of the implied admission to the amount as claimed by the plaintiffs, the defence raised by the defendants thus needs no investigation and, therefore, a decree for recovery can thus be passed in the given facts and circumstances.
20. Resultantly, the present application is allowed and the suit of the plaintiffs is decreed against the defendants for recovery of a sum of `42,90,292.36 alongwith interest at the rate of 18% per annum from the date of filing of the suit till recovery of the decretal amount and a decree is accordingly hereby passed in favour of plaintiff No.1 and against the defendants with costs.
Decree sheet be prepared accordingly.
The suit is decreed in the aforesaid terms. Interim orders passed by this Court from time to time are vacated. All pending applications, if any, also stand disposed of.
May 12, 2016 ( Tarlok Singh Chauhan),
(GR) Judge
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