Mr. Naresh Jain vs Mr. Krishna Rani
2002 Latest Caselaw 276 Del

JUDGMENT

Sharda Aggarwal, J.

1. By this order I propose to dispose of the plaintiff's application under Order 12 Rule 6 read with Section 151 CPC.

2. The facts relevant for the purpose of deciding the present application are that the plaintiff filed the present suit for specific performance for Agreement to Seel dated 25th September, 1995 with regard to property No. 58, Block 'B' Derawal Nagar, Delhi situated in the lay out plan of Dera Ismail Khan Co-operative House Building Society Ltd., Delhi for a total consideration 63,50,000/-. A sum of Rs. 2,00,000/- was paid by the plaintiff before the formal execution of the agreement as advance money to the defendant on 23rd September, 1995. Another sum of Rs. 2,00,000/- was paid on 24th september, 1995 and a further sum of Rs.2,50,000/- was paid on 25th September, 1995 towards part payment of the sale consideration. The plaintiff had thus paid in all a sum of Rs. 6,50,000/- on three dates against receipts. The plaintiffs' case is that the defendant, who was required to obtain income tax clearance from the Income Tax Department, had failed to do so prior to 31st January, 1996, the date fixed for completion of sale transaction. The defendant was also to clear all the dues regarding house tax, electricity charges, ground rent etc. before the stipulated date for execution of sale deed. The plaintiff's averment is that the defendant failed to comply with the obligation on her part for executing the sale deed even though the plaintiff was ready and willing to perform his part of the contract. The plaintiff claims to have made repeated requests to the defendant to obtain income tax clearance but she kept on deferring the matter on one pretext or the other. The plaintiff issued notice dated 29th January, 1996 requesting the defendant to complete the pre-requisite obligation on her part so that the sale deed could be executed There was no response to the notice. Ultimately, defendant was finally called upon to execute the sale deed vide notice 23rd October, 1998. The defendant failed to respond to the notice nor did she give reply thereto.

3. After the service of summons of the suit, defendant filed written statement and the plaintiff filed replication thereto. Thereafter plaintiff moved the present application for passing of the decree on the basis of admissions made in the written statement.

4. In order to enable the Court to pass a judgment/ decree under Order 12 Rule 6 CPC on the basis of admissions in the pleadings, Court must come to the conclusion that there is clear and unequivocal admission of the defendant in respect of the claim of the plaintiff. Although Order 12 Rule 6 CPC is couched in wide terms but it can be acted upon only where admissions are clear, unambiguous and unqualified. If the defendant raises questions of fact or law, which are required to be considered at the time of trial of the case, no decree can be passed in terms of Order 12 Rule 6 CPC. Accordingly, pleadings of parties are required to be considered and scrutinised to find out if the decree for specific performance on the alleged admissions of the defendant can be passed in the present case.

5. The case of the plaintiff is that Agreement to Sell dated 25th September, 1995 was executed between the parties and a sum of Rs. 6,50,000/- were paid on three occasions against receipts. According to the terms of the agreement, defendant was required to obtain income tax clearance on or before 31st January, 1996 by which date, she had to execute the sale deed in favor of the plaintiff. The defendant was also required to clear the dues like electricity, water and house tax charges before 31st January, 1996. The defendant failed to comply with the obligation of obtaining income tax clearance certificate and clearing the dues prior to 31st January, 1996 and failed to execute the sale deed in favor of the plaintiff despite the fact that the plaintiff was ready and willing to perform his part of the contract i.e. to execute the sale deed and pay balance consideration.

6. The defendant in the written statement has denied the allegations made in the plaint. The defendant blames the plaintiff for non-performance of the contract alleging that it was the plaintiff, who had to take clearance from the Income tax Department on or before 31st January, 1996 and he having failed to do so, the agreement stood rescinded and the amount paid by the plaintiff stood forfeited. The defendant has in fact denied the agreement placed on record by the plaintiff as the correct agreement. It is alleged in the written statement that the stamp paper on which Agreement to Sell has been typed is dated 26th September, 1995 whereas the agreement is dated 25th September, 1995. The defendant further alleges that on account of breach of contract on the part of the plaintiff, defendant has suffered loss as she after receiving Rs. 6,50,000/- from the plaintiff had entered into an agreement to purchase land in Shahdara and paid a sum of Rs. 4,50,000/-. The defendant could not make the balance payment as she depended on the receipt of sale consideration from the plaintiff. As a consequence the sum of Rs. 4,50,000/- paid by her for purchase of land in Shahdara is likely to be forfeited. The written statement of the defendant reflects that there is no admission much less unambiguous and unequivocal admissions on the part of the defendant of the claim in the suit. The defendant has raised issues of facts which are required to be considered at the time of trial of the case. It is well settled that a judgment on admissions by defendant under Order 12 Rule 6 CPC is a matter of discretion and not a matter of right and where a case involves question of facts and law which cannot be conveniently disposed of on motion under the rule, the Court may in exercise of the discretion refuse the motion.

7. As discussed above, in the present case, the defendant has raised questions of fact and law, which can be decided only at the time of trial of the case. Therefore, in the facts of he present case, a judgment cannot be pronounced under Order 12 Rule 6 CPC on the basis of the alleged admissions in the written statement. The application is accordingly dismissed.