M/S Redington (India) Ltd. vs Modi Olivetti Ltd.
2001 Latest Caselaw 1043 Del

ORDER

V.S. Aggarwal, J.

1. M/s Redington (India) Ltd. has filed the present suit for recovery of Rs. 28,04,626.50. The suit has been filed against M/s Modi Olivetti Ltd.

2. It has been pleaded that the plaintiff was earlier known as Redington (India) Pvt. Ltd. and after 23rd April, 1998 was re-named as Redington (India) Ltd. The plaintiff carriers on the business of selling/marketing of computers and computer peripherals and allied products of various reputed companies. The defendant has been purchasing various goods/items from the plaintiff till March 1998. The defendant purchased goods being computer printers of Epson make and DFX 800 model against orders dated 7.5.1996, 21.5.1996 and 8.6.1996. As per payment terms, both the invoices were by means of negotiations of inland letters of credit. The defendant sent copies of letter of credit in favor of the plaintiff.

3. As desired by the defendant the goods were delivered at the defendant's branch at Secunderabad. The plaintiff was supposed to negotiate the aforesaid letter of credit within the stipulated time mentioned therein but due to oversight and inadvertence the letters of credit could not be encashed. As a consequence of which the plaintiff remained an unpaid seller. Despite request the payment is stated to have not been made and hence the present suit.

4. In the written statement filed, the civil suit as such has been contested. It has been alleged that the civil suit is barred by time. The plaintiff is not an unpaid seller because as per Section 45 of the Sales of Goods Act the whole price of the goods has been paid and tendered by means of two irrevocable letters of credit. The defendant cannot be blamed for the negligence, inaction and lathces on the part of the plaintiff.

5. It has further been pleaded by the defendant that the value of the letters of credit was Rs. 11,37,000/- and Rs. 12,45,000/- against order invoice value of Rs. 10,55,000/- and Rs. 11,84,000/-. The LOC was given in advance before the date of invoice or dispatch of goods as it was pre-condition set up by the plaintiff and LOC were sent in advance with each order which was a separate transaction. The plaintiff himself did not negotiate the letters of credit because of his oversight and inadvertence. Therefore, it is stated that it cannot blame the defendant.

6. An application under Order 12 Rule 6 Code of Civil Procedure had been filed pleading that suit of the plaintiff be decreed in terms of the said provisions because it is re-asserted that the plaintiff company sold to the defendant goods being computer printers of Epson make and DFX 8000 model. The defendant had opened two letters of credit but by mistake did not present the documents against the LCs and thus did not receive and since the defense is stated to be admitting the claims,the plaintiffs plea is that suit as such can well be decreed.

7. In the reply filed, the petition has been contested. It is alleged that original documents have still not been filed. The plaintiff is not an unpaid seller and there is no ground to claim or assert that in terms of Order 12 Rule 6, the suit of the plaintiff is liable to be decreed.

8. Order 12 Rule 6 permits a judgment to be pronounced on admissions. It reads:

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.

The reproduced portion of the relevant provisions of the Code of Civil Procedure show that if there is an admission of fact in the pleadings or otherwise, whether oral or in writing, the court can at any stage on the admission and without waiting for determination of any other question, pass the judgment in this regard.

9. The controversy herein was as to whether in the peculiar facts of the present case, the judgment should be pronounced keeping in view the fact that goods are admittedly received by the defendant.

10. This court in the case of Dena Bank vs. Bindal Construction (P) Ltd. 1991 Rajdhan Law Reporter 20 had considered the provision of Order 12 Rule 6 Code of Civil Procedure. It was held that admissions must be clear and unambiguous before under Order 12 Rule 6 a judgment can be passed. Similar conclusion was again written by this court in the case of Chitranjan Medicso vs. Union of India 1991 RLR (Note) 14.

11. Learned counsel for the plaintiff however urged that merely because false and vexatious defense has been taken should be permit this court to postpone the passing of the judgment and in support of this contentions strong reliance was placed on the decision of this court in R C Sachdeva & Ors. vs. Ramlal M. Trust, 1997 RLR Column 357. In the facts of that case, the court had come to the conclusion that there was no friable issue except for determination of damages for mense profits. On basis of the admissions made the decree was passed. The scope of Order 12 Rule 6 was explained inn paragraph 8 in following words:

The objection of this provision, obviously is to enable a party to obtain speedy judgment at least to the extent of the relief which according to the admission (s) of the opposite party. A plaintiff may move for judgment under this provision at any stage. This an be availed even after he has joined issues on the defense. The admission may be made "either in the pleadings or otherwise", i.e., the rule is wide enough to afford relief not only in case of admission mentioned in the pleadings but also de hors the pleading. Thus the admission contained in letters or other documents written or executed between the parties before the action is brought are also sufficient for the purpose of this rule.

12. Identical were the findings returned in the case of Laxmikant S(HUF) vs. M N Dastur Co. 1998 RLR 171.

13. The consequences are obvious. If the court comes to the conclusion that the defense offered is vexatious, false and not at all tenable and that even a decree can certainly be passed under Order 12 Rule 6 of the Code of Civil Procedure. But if there is a friable issue in that event the court would ordinarily refrain from pressing into service Order 12 Rule 6 Civil Procedure Code.

The controversy in the present case is as to if the plaintiff is unpaid seller or not. Arguments were advanced and reference was made to certain facts. At this stage, the court deems it unnecessary to probe into it because findings at this stage may be embarrassing for either party. However the apparent fact is that there is no ambiguous and clear admission that a decree can be passed straight away merely because the goods are admittedly received. There are other controversies that even arise from the written that has been filed. In that view of the matter, it would not be proper at this stage to pass the judgment on basis facts. The said IA 9587/2000 therefore must fail and is dismissed.

14. List it for framing of issues on 10th October, 2001.