Cosmo Ferrites Limited vs Universal Commercial ...
2006 Latest Caselaw 58 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. This is an application filed by the plaintiff under Order 12 Rule 6 read with Section 151 of the Code of Civil Procedure, 1908 seeking the relief that the suit be decreed along with interest as prayed for in the plaint in terms of alleged admissions made by the defendants in their written statement/counter claim filed by them.

2. The plaintiff filed the present suit for recovery of Rs. 36,73,922.23 against the defendants, inter alia, on the ground that the defendant No. 1 and its partners, defendant Nos 2 and 3, approached the plaintiff and offered to sell Soft Ferrites which were being manufactured by the plaintiff. It is the plaintiff's case that the plaintiff and the defendants had a principle-to-principle relationship inasmuch as the defendants and, in particular, defendant No. 1 was the stockist for the plaintiff for the Delhi area. The plaintiff's allegation is that the goods were supplied in terms of their past practice on a principle-to-principle basis and invoices were raised from time to time. There was no difficulty with this arrangement till the year 1996 when, according to the plaintiff, despite supply of goods by the plaintiff to the defendants, the defendants have not paid for the same and that is why a sum of Rs. 36,73,922.23 which includes an amount of Rs. 23,85,497.95 by way of principal. The balance amount is on account of interest.

3. According to the learned counsel for the plaintiff, the defendants have not denied the supply of the items and, therefore, they are entitled to the price along with interest. And, it is on the basis of this that they are seeking judgment on admissions under Order 12 Rule 6.

4. Mr Sood, the learned counsel for the defendants, submitted that the defendants have not only filed a written statement denying the liability to pay any amount claimed by the plaintiff but they have also filed a counter claim for an amount of Rs. 28,98,641.00 against the plaintiff.

5. The learned counsel for the plaintiff contended that upon going through the entire written statement-cum-counter claim filed by the defendants, it would become apparent that the defendants have nowhere denied its liability towards the plaintiff and, therefore, dehors the question of the counter claim of the defendant, the plaintiff's suit can be decreed in terms of Order 12 Rule 6. The learned counsel for the plaintiff has relied upon the decisions of this court reported in:-

1) Delhi Jal Board v. Surendra P Malik 2003 III AD (Delhi) 419;

2) Uttam Chand v. Ramkishan 1989 RLR 257.

The latter case has been cited for the proposition that a counter claim constitutes a separate cause of action and, therefore, the same could be dealt with separately. It was also submitted by the learned counsel for the plaintiff that insofar as the plaintiff's claim is concerned that can be separated from the counter claim of the defendants and if there are admissions which entitle the plaintiff to a decree insofar as his claim is concerned then there is no impediment to the court passing an order on the plaintiff's claim under Order 12 Rule 6 while keeping the counter claim of the defendants alive for adjudication at a subsequent stage after evidence is led in the matter. The learned counsel for the plaintiff, referring to the decision in Delhi Jal Board (supra), submitted that the test specified in paragraph 9 thereof with regard to an application under Order 12 Rule 6 of the Code of Civil Procedure, 1908 stands fully satisfied in the present case. Paragraph 9 of the aforesaid decision i.e., Delhi Jal Board (supra) reads as under:

9. The test, therefore, is (i) whether admissions of fact arise in the suit, (ii) whether such admissions are plain, unambiguous and unequivocal, (iii) whether the defense set up is such that it requires evidence for determination of the issues and (iv) whether objections raised against rendering the judgment are such which go to the root of the matter or whether these are inconsequential making it impossible for the party to succeed even if entertained. It is immaterial at what stage the judgment is sought or whether admissions of fact are found expressly in the pleadings or not because such admissions could be gathered even constructively for the purpose of rendering a speedy judgment.

6. Upon a reading of the aforesaid judgment, it becomes clear that it is essential that the admissions must be plain, unambiguous and unequivocal and that when a defense is set up and it requires evidence for determination of the issues then the provisions of Order 12 Rule 6 are not applicable and a judgment cannot be passed on the plaintiff's asking.

7. The learned counsel for the defendants placed reliance on two decisions:-

1) Balraj Taneja and Anr. v. Sunil Madan and Anr. ;

2) J.R. Sharma Overseas Ltd v. Abner Pharmaceuticals Ltd. .

In my view, it would not be necessary to refer to the latter decision which is of a learned Single Judge of this court inasmuch as the reference to the Supreme Court decision would itself clinch the issue. The Supreme Court, in Balraj Taneja (supra), referred to Order 8 Rule 5 which deals with denials and observed that sub-rule (1) of Rule 5 provides that any fact stated 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 treated as admitted. It further observed that under Rule 3 of Order 8 it is provided that the denial by the defendant in his written statement must be specific with reference to each allegation of fact made in the plaint. A general denial or an evasive denial is not treated as sufficient denial and, therefore, the denial, if it is not definite, positive and unambiguous, the allegations of facts made in the plaint shall be treated as admitted under this Rule. In the context of the present case one finds that in paragraph 16 of the plaint, it is specifically pleaded that the said amount of Rs. 36,73,922.23 is claimed on account of the two components i.e. an amount of Rs. 23,85,447.95 on account of principal and the balance amount on account of the interest. In the written statement, in reply to paragraph 16 of the plaint, the contents thereof have been denied. It is also stated in the written statement that "it is reiterated that no amount is due to the plaintiff from any of the defendants as alleged or at all". Again, in paragraph 13 of the written statement, it is averred:-

it is denied that any sum much less a sum of Rs. 36,73,922.23 as alleged, is due to the plaintiff from the defendants.

8. In the written statement and the counter claim the defendants have categorically denied their liability to any amount claimed by the plaintiff. It is another matter as to whether the plaintiff is able to sustain its claim and as to whether the defendant is able to set up a good defense against the said claim as also established in his counter claim. The situation that obtains from a reading of the pleadings is that there is no specific admission and on the contrary there are specific denials as contemplated under the provisions of Order 8 Rule 5. Therefore, in view of this, it would be difficult to say that there are any admissions made by the defendants which would entitle passing a judgment on such admissions in favor of the plaintiff. In Balraj Taneja (supra) the Supreme Court also held with regard to the provisions of Order 12 Rule 6 that under the said Rule, the court can at an interlocutory stage of the proceedings pass a judgment on the basis of admissions made by the defendant. But, before the court can act upon an admission, it has to be shown that the admission is unequivocal, clear and positive. This rule, as observed by the Supreme court, empowers the court to pass judgment and decree in respect of admitted claims pending adjudication of the disputed claims in the suit. In the facts of the present case, I find that there are no admissions which can be regarded as unequivocal, clear or positive and, therefore, the plaintiff's application cannot be allowed. Accordingly, the same stands dismissed.