K.M. Construction vs J.V.G. Finance Ltd. (In ...
2003 Latest Caselaw 429 Del

JUDGMENT

Mukul Mudgal, J.

1. This is an application under Order XII Rule 6 of the Code of Civil Procedure, 1908 (hereinafter referred to as `the CPC') by the plaintiff praying for passing of a judgment/decree in the sum of Rs.17,91,000/- in respect of dishnoured cheques of the defendant. The plaintiff has filed a suit for recovery of Rs.15,86,909.69 with interest at 18% per annum. The defendant in the written statement filed a counter claim of Rs.4,48,024.00 with interest.

2. The plaintiff's claim in the present application is based on the 5 dishonoured cheques which totalled Rs.9 lacs. The plaintiff/applicant is claiming with interest a sum of Rs.17,91,000/- in this application as it is the case of the plaintiff/applicant that the said amount is an admitted amount on account of the fact that in the written statement liability of the defendant has been admitted and no plea of issuance of cheque by mistake has been made.

3. Mr. Luthra, the learned counsel for the Official Liquidator (OL) who now represents the defendant company subsequent to the OL's appointment as provisional liquidator, has contended in reply that the application is not maintainable as these cheques never formed part of the plaint and far from admission of the claim of the plaintiff in the written statement, in fact a counter claim has been made against the plaintiff. He has further submitted that the amount now sought to be claimed by these cheques was not referred to in the plaint and these were filed subsequently as documents and no Court fees has also been paid on the aforesaid cheques not figuring in the plaint. It has also been submitted that para 21 of the plaint which relates to causes of action accruing to the plaintiff nowhere avers about the dishnour of the cheques while several other causes of action to support the averments in the plaint have been made.

4. The relevant paragraph in the plaint is para 13 which reads as follows:

"That the plaintiff brought to the notice of the defendant vide letter dt. 12.5.93 duly acknowledged by the defendant. It was specifically mentioned by the plaintiff that the road which were constructed by the plaintiff has been cultivated by the farmers. Even the plaintiff brought to the notice of the defendant all these facts well before 12.5.1993 and on various other dates. The plaintiff has filed the said documents before this Hon'ble Court Along with the plaint. Even sewerage drawing was not provided, it was again repeated that even payment as per Schedule are not being made and even the cheque issued by the defendants were being dishonoured by their banker on presentation for payment."

5. In my view it is evident that there is just a general averment of cheque(s) issued by the defendant company being dishonoured but there is no clear averment that the cheques issued in respect of the claim raised in the plaint and detailed in the plaint were dishonoured. These cheques forming part of the application do not figure in the plaint. The learned counsel for the OL/defendant was, therefore, justified in submitting that this may at best be construed as a general averment regarding the precarious financial status of the defendant company but cannot be construed such an averment the non-denial of which may warrant orders under Order XII Rule 6 CPC. In fact the defendant is not required to rebut the averments about the cheques as the cheques which formed part of this application were not even mentioned in the plaint and in respect of a suit of 1993, were filed only on 25th April, 1998 in the form of original documents.

6 Therefore, in so far as this application under Order XII Rule 6 CPC is concerned, even a perusal of paragraph 21 of the plaint makes it clear that nowhere in the averments regarding cause of action, dishonouring of these cheques has been mentioned though the other ingredients of causes of action leading to the suit have been specifically mentioned therein.

7. Order XII Rule 6 of the CPC reads as under:

"Rule 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."

8. The learned counsel for the plaintiff/applicant, Mr. Harish Uppal has sought to sustain the claim on the basis of the phrase `otherwise' in the above Rule 6 by submitting that dehors the pleadings under Order XII Rule 6 of the CPC, the claim raised in the application can still be founded and indeed sustained. Mr. S.K. Luthra, the learned counsel, appearing for the OL/defendant has however submitted that the phrase `otherwise' has to be read in the context of the averments in the plaint and claims made under Order XII Rule 6 nevertheless must fall within the ambit of the claim made in the plaint.

9. The relevant legal position in this aspect is enumerated in paras 8, 9 & 11 in Shikharchand and Others vs. Mst. Bari Bai and others .

10. The learned counsel for the defendants-appellants attempted to repel the aforesaid contention of the plaintiffs on two grounds. In the first place it was urged that the case of the defendants as pleaded in the written statement is that after the expiry of the original lease on 26-1-59 the defendants were to continue in possession of the property as tenants-holding over until the fresh lease-deed was executed and that the fresh period of 10 years was to be computed not from the date on which the original lease expired but from the date on which the lease-deed was executed. We do not find any merit in this contention. The written statement is not at all clear on this point inasmuch as it has not been pleaded that the fresh term of 10 years was to commence from the date of the execution of the lease-deed and not from the date of the expiry of the original lease. However in paragraph 11 of the reply dated 10-3-1959 to the application for appointment of receiver as well as in paragraph 1 of the reply dated 29-6-1970 to the plaintiff's application for judgment on admission under Order 12, Rule 6 the defendants clearly stated that fresh term of lease was to commence from the date of the expiry of the first lease. Even in the application for recording the compromise under Order 23, Rule 3 of the Code of Civil Procedure, it is stated in clause 'J' of paragraph 1 that the period of lease shall be 10 years starting from 25th January, 1959. This contention must, therefore, be rejected.

11. The word "otherwise" in the said provision clearly indicates that it is open to the Court to base the judgment on statements made by the party not only in the pleadings but also de hors the pleadings. Such admissions may be made either expressly or contructively.

12. It is no doubt true that ordinarily the plaintiff is entitled to a relief only on the basis of the cause of action stated in the plaintiff but is open to the Court in suitable cases to afford a relief on the basis of the case as set up by the defendant. In such a case there is prejudice to the defendant because the relief legitimately springs from the case as set up by him.

"The rule undoubtedly is that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other wise was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit."

13. The above judgment does hold that the judgment under Order XII rule 6 of the Civil Procedure Code can be based on a statement made by the parties dehors the pleadings and such admissions could be either expressed or constructive. The above judgment also lays down that the court cannot grant relief to the plaintiff on a case which was not pleaded but in case the defendant himself put forward such a plea in answer to the plaintiff's claim than the court can grant relief.

14. In the present case there has been no admission made by the defendant qua the 5 dishonoured cheques which have been relied upon by the plaintiff in the present application. The defendant obviously could not have met such a plea in its written statement nor could have made any plea in the written statement that the issuance of cheques had been by mistake.

15. I am thus of the view that since these cheques have not been mentioned in the plaint and there is no specific averment of dishonour of the 5 cheques, in the plaint, and said 5 cheques were filed much later than the plaint in the form of original documents, the pleadings of the parties cannot be construed to amount to an admission contemplated by Order XII Rule 6. In my view, the phrase `otherwise' in Order XII Rule 6 CPC must obviously arise from the pleas enumerated in the plaint even though it may not specifically find mention in the plaint or may arise even from an averment in the written statement of the defendant. Consequently the defendants have had no occasion to deal with the reason for bouncing of the cheques in their written statement. In any case I am of the view that the plea whether the bounced cheques relied upon by the plaintiff in this application would fall within the ambit of the plaint cannot be determined at this stage so as to warrant an order on admission under Order XII Rule 6 CPC and this issue can only be determined after evidence is led and the suit is decided finally. Accordingly I am satisfied that the plaintiff/applicant has been unable to show any admission on behalf of the defendant and the present application under Order XII Rule 6 CPC is, therefore, dismissed.