Thomson Press (India) Ltd. vs M/S. Megh & Company & Ors.
2000 Latest Caselaw 49 Del

ORDER

Vikramajit Sen, J.

1. This application has been filed under the provisions of Order XII, Rule 6, although at the time of arguments Order VIII Rule 5 of the CPC was also pressed into support by learned counsel for the Plaintiff. It is prayed in the application that the suit be decreed since, in the Written Statement filed on behalf of Defendants 3 and 4, the statements of facts contained in the plaint have been admitted. Defendants 3 and 4 have filed a Reply to this application in which it has been submitted that the Written Statement should be read as a whole and that if so read it would not reveal any admission on their part. In support of this submission learned counsel for Defendants 3 & 4 relied on Dudh Nath Panday (Dead by L.R's) Vs. Suresh Chandra Bhattasali (Dead by L.R's), . This case undoubtedly sets down the proposition canvassed by him. However, it has to be seen, in the facts and circumstances of the present case, whether in fact admissions have been made in the Written Statement of the averments contained in the plaint; Conversely whether the facts stated therein have not been categorically denied as envisaged in the provisions of the Civil Procedure Code. The relevant provisions of the Code are set out hereinbelow:

"O. VIII, Rule 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 such decree shall bear the date on which the judgment was pronounced."

"O. XII, R.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 won 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."

2. On a reading of the Written Statement as a whole it will be seen that the statements contained in the plaint have not been denied. Two grounds of defense can be extracted from the Written Statement even if it is read holistically. Firstly, that it "appears" that "this office", (presumably referring to Defendants 3 and 4), had not issued any printing order to the Plaintiff with effect from 17th draw onwards and secondly, that an agreement between Defendants 1 and 2 on the one part and Defendants 3 and 4 on the other, stipulated that the expenses, such as those covered by the claim in the suit, would be borne and incurred, exclusively by Defendants 1 and 2.

3. In respect of the first defense, learned counsel for the Plaintiff has drawn my attention to a letter dated 7.10.1989 addressed to the Plaintiff by Defendant No.1 placing orders of the printing of lotteries for 35 to 38th draw; and to another letter dated October 17, 1989, pertaining to the 39th to 42nd draw. Learned counsel for the Plaintiff also relied on the letter dated 14.3.1989 addressed on behalf of Defendants 3 and 4 to the Plaintiff. This letter notified the Plaintiff that M/s. Megh & Company, Defendant No.1, had been appointed as the organising agent for the lotteries by that Defendant, and that Defendant No.1 was permitted to lift the printed tickets subject to certain conditions which are reproduced below :

1. To print 5 (five) lakhs tickets in three series @ Rs.1/- each i.e. total of 15 (fifteen) lakhs tickets amounting to Rs.15 lakhs for each weekly lottery draw. The numbering of the tickets should be from 1,00,000 to 5,99,999 in each series.

2. To print the tickets with alphabetical notations as given in Annexure I for each series and to allow the Organising Agent to lift the printed tickets at least one month before the commencements of each draw subject to furnishing of the certificates of completion of supplies of the printed tickets to the undersigned.

3. To print the approved prize structure and conditions at the back of each and every ticket as detailed in Annexure II.

4. Each and every ticket shall carry the facsimile signatures of the present Special Secretary to the Govt. of Meghalaya, Excise, Registration, Taxation & Stamps Deptt. Shri N.N. Mookherjee, I.A.S.

5. The tickets should bear the seal of the Director Meghalaya State Lottery, Shillong in half portion of the counterfoils and the tickets.

6. The size of each ticket shall be 6-5 cms and 16 cms with security marks in the number portions of the ticket and counter-foil as usual.

4. None of the above Clauses contain any stipulation that the tickets ought not to be released by the Plaintiff till payment was received, or that, by a reading of the so called Agreement inter se the Defendants, the liability for payment of printing of tickets and cost of paper would be the liability of only Defendants 1 to 2. It is perhaps for this reason that the word "appears" has been employed in the Written Statement since a perusal of the pleadings and documents filed do not definitely disclose that no orders beyond the 17th draw had been placed on the Plaintiff. Both Orders VIII and XII enjoin and mandate that a clear and unequivocal denial must be made in the Written Statement. I am unable to find any such statement or specific denial in the pleadings of the Defendants either in the Written Statement or even in the Reply to the present application. Furthermore there is no explanation given by the learned counsel for Defendants 3 and 4 as to why the liability in the present case, even if it was created by Defendants 1 and 2, should not be payable by defendants 3 and 4 who were undoubtedly the Principals in these transactions. Learned counsel for the Plaintiff also emphasised that a notice dated 3.9.1992 was addressed to and served upon all the Defendants but no reply thereto was given. It would be reasonable to hold that the two grounds mentioned above which could possible be extracted from the Written Statement, would have been thumped and clearly stated in reply to this notice. It would be reasonable to assume against the correctness of the contentions now raised before me since neither of these grounds were put forward by Defendants 3 and 4 in reply to this notice. The letter dated 4.3.1989 addressed by the Director, Meghalaya State Lotteries to the Plaintiff has already been adverted to above. Learned counsel for contesting Defendants has not argued, nor is there any foundation established in their pleadings, that their agents viz. Defendants 1 and 2, acted beyond their engagement as agents. The disputes inter se the Defendants is no justification for not passing a decree in the present claim. This is not a case where liability has been fastened exclusively upon Defendants. It would be proper to state that learned counsel for Defendants fairly did not dispute in the course of oral arguments the genuineness of the documents mentioned above and did not press this argument.

5. The second ground has been substantially met already. It is not the case of the Defendants that the Plaintiff were signatories to the Agreement dated 28.12.1988 in which, Defendants 3 and 4 appear to place the liability covered by the suit solely on Defendants 1 and 2. Learned counsel for the Defendants was unable to show any averment in the Written Statement which specifically mentioned that the Plaintiff was aware of this Agreement and/or that there was any explicit or tacit understanding between the parties hereto that the liability for the cost of the printing of the tickets would be borne only by Defendants 1 and 2. The Agency Agreement between Defendants is also not the subject of controversy in these proceedings.

6. Therefore, reading the Written Statement as a whole, as undoubtedly enjoined by law, I am unable to accept the contentions of the learned counsel for the Defendants that triable issues have arisen in this case. A perusal of the Written Statement does show that the averments in the plaint have been admitted. Alternatively the contents of the Written Statements, as have been sought to be impressed by learned counsel for the contesting Defendants, are no evasive as to be contrary to the provisions of Order VIII, Rule 5 and do not raise any issues which require a trial.

7. The application is accordingly allowed and a decree as prayed for in the plaint is passed against the Defendants jointly and severally. The Plaintiff will also be entitled for the costs of the suit.