Shri Vinod Krishan Khanna vs A.B.C. Indo ??? Us Academy And ...
2009 Latest Caselaw 1080 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             CS(OS) No.2168/2006

%                      Date of Decision: 31.03.2009

Shri Vinod Krishan Khanna                               .... Plaintiff
                    Through Mr. Vinod K. Srivastava, Advocate.

                                  Versus

A.B.C. Indo - US Academy and others                  .... Defendants
                     Through Mr. M. K.Sreegesh, Advocate.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.    Whether reporters of Local papers may be               YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                  NO
3.    Whether the judgment should be reported in              NO
      the Digest?


ANIL KUMAR, J.

*

1. This is an application by the plaintiff/applicant under Order XII

Rule 6 of Code of Civil Procedure seeking a decree for a sum of Rs.25.00

lakh on the basis of admissions made by the defendants and for

decision of the remaining amount in accordance with the pleas and

contentions of the parties.

2. The plaintiff has filed the above-noted suit for recovery of

Rs.38.10 lakh. The plaintiff contended that defendant No.1 was a sole

proprietorship concern of defendant No.2. The plaintiff was induced

and lured to become a partner with defendant No.2 and his wife,

defendant No.3 and he invested substantial amount of money in the

partnership. The partnership dated 20th February, 2003 incorporated

the terms of partnership between the parties. On account of differences

between the parties, the plaintiff decided to retire from the partnership

with effect from 2nd July, 2003 and a deed of dissolution dated 2nd July,

2003 was executed between the parties. The accounts were settled upto

2nd July, 2003 and on settlement of the amount, an amount of Rs.20.00

lakh was found due and payable by defendants No.1 to 3 to plaintiff.

The defendants contended that they were unable to pay the amount

immediately, therefore, the amount of Rs.20.00 was to be treated as

loan carrying interest of Rs.15,000/- per month. The amount of

Rs.20.00 lakh thus became payable on or before 31st March, 2004 with

interest of Rs.15,000/- per month.

3. The plaintiff contended that he was handed over four cheques

dated 15th February, 2004; 28th February, 2004; 15th March, 2004 and

30th March, 2004 for the sum of Rs.5.00 lakh each. Out of the four

cheques only one cheque was cleared and encashed and other cheques

were dishonoured on account of payment stopped by the defendants

and/or on account of remarks that the cheque amount exceeded

arrangement.

4. The plaintiff/applicant contended that at the time of handing over

cheques of Rs.5.00 lakh each, defendants had also handed over a

cheque bearing No.150640 dated 30th May, 2004 for a sum of Rs.1.35

lakh drawn on Corporation Bank, Vasundhra Enclave, Delhi-10096

which was towards the interest at the rate of Rs.15,000/- per month on

the amount of Rs.20.00 lakh for the period 1st April, 2003 to 31st

March, 2004. The plaintiff/applicant contended that the concessional

rates of interest was agreed as the defendants had assured that the

dues would be cleared as promised by them.

5. The plaintiff/applicant further contended that in July 2004,

defendant No.2 came to Delhi and handed over to the plaintiff four

cheques for Rs.1.20 lakh (Rs.30,000/- each). Two of the cheques were

dated 15th August, 2004 and 15th September, 2004 which were

dishonoured with the remarks "exceeds arrangement".

6. The plaintiff pleaded that the defendants in terms of the

dissolution deed dated 2nd July, 2003 had agreed to pay additional

interest at 3% per month in case of dishonour of any of the cheques on

presentation. Since the amounts which had become due from

defendants were not paid, the plaintiff gave a notice dated 29th

November, 2005 which was not replied. However, defendants No.2 and

3 by a letter dated 21st July, 2004 had admitted that out of the four

cheques of Rs.5.00 lakh each and the fifth cheque of Rs.1.35 lakh only

one cheque of Rs.5.00 lakh was encashed. The notice dated 25th

August, 2006 was also received from defendants' counsel making false

allegations which was replied by the plaintiff by reply dated 12th

September, 2006.

7. The plaintiff contended that as the defendants had not been

paying the amounts despite representation made time and again,

therefore, yet another settlement was arrived at between the plaintiff

and the defendants, whereby plaintiff agreed to receive a sum of

Rs.25.00 lakh only although the plaintiff was entitled to more amount

as on 1st November, 2005. According to the plaintiff, a draft agreement

was sent to the defendant No.2, however, the defendants did not agree

for the same and the defendants sent another draft where they wanted

that there shall not be any liability of defendant no.3 and also sought

extension of period of payment. The proposed terms and settlement

were not acceptable to plaintiff. Since the amount due from the

defendants were not paid, the plaintiff thus filed the suit for recovery of

Rs.38.10 lakh.

8. The plaintiff contended that in the written statement, the

defendants have made the following admissions.

a) In para 14 on page 5 (Internal)

"Subsequently a deed of dissolution dated 2nd July, 2003 was duly executed between both of them. As per terms of the dissolution 2nd defendant had agreed to pay a sum of Rs.20,00,000/- (Rupees twenty lakhs only) to the plaintiff. 4 post dated cheques, were also issued to the plaintiff in this nexus, as per his demand....

b) In para 14.5 (4th line onwards)

"In result, 2nd defendant was unable to pay the said agreed amount immediately. Out of the above mentioned 4 cheques only one cheque was cleared...."

c) In para 16

"That with the noble intention to settle the matter amicably 2nd defendant had approached the plaintiff. At last both of them came to a settlement as 2nd defendant has agreed to pay and plaintiff has agreed to receive a sum of Rs.25,00,000/- in full and final settlement of and in consideration of the amount payable by the 2nd defendant on the dissolution of the firm....."

9. The plaintiff has also relied on the admissions made by the

defendants in the documents which were admitted on 6th May, 2008.

The defendants admitted the partnership deed dated 2nd July, 2003, it

was exhibited as P1. The defendants also admitted that the cheques

dated 15th February, 2004; 15th March, 2004 and 30th March, 2004 for

Rs.5.00 lakh each which were returned on presentation. The defendants

also admitted the cheque of Rs.1.35 lakh which was given towards the

interest which was also dishonoured. The cheques were exhibited as P2

to P5.

10. The defendants also admitted the cheque of Rs.30,000/- dated

15th August, 2004 and notice which was exhibited as P8 given on behalf

of plaintiff demanding a sum of Rs.35,36,500/-. The defendants have

also admitted their letter dated 21st July, 2004 which was exhibited as

P9. In the said letter which was exhibited as P9, the defendants

admitted four cheques for Rs.5.00 lakh each and one cheque for

Rs.1.35 lakh was given to the plaintiff out of which only one cheque for

Rs.5.00 lakh had been encashed. The defendants thus agreed that an

amount of Rs.16.35 lakh remained due. For the amount of Rs.16.35

lakh, the defendants contended that an amount of Rs.35,000/- each

per month shall be paid from July 2004 to November 2004 shall be

given and a sum of Rs.15.00 lakh shall be given on 1st November, 2004.

The defendants also agreed to pay interest at the rate of 3% per month

in terms of the deed of the dissolution of partnership deed dated 2nd

July, 2003 which was admitted by the plaintiff and which was exhibited

as P1.

11. The application is contested by the defendant who filed the reply

dated 19th March, 2009. Referring to deed of dissolution, defendants

agreed that a sum of Rs.20.00 lakh with interest at 3% per month was

payable out of which Rs.5.00 lakh was paid by defendants to the

plaintiffs on account only one cheque being honoured out of four

cheques. The defendants further contended that an amount of

Rs.90,000/- was paid towards the interest amount of Rs.1.35 lakh and

consequently there is no admission of liability by the defendants and

the plaintiff is not entitled for a decree of Rs.25.00 lakh on the basis of

alleged admission.

12. This cannot be disputed that, according to the plaintiff, on 1st

November, 2005 he had agreed to accept Rs.25.00 lakh out of the total

amount due to him from the defendants. All the terms of the

settlement, however, could not be agreed as for payment of Rs.25.00

lakh as on 1st November, 2005, the defendants desired that no liability

should be fastened on defendant No.3 which was not acceptable to the

plaintiff. This also cannot be disputed that out of Rs.20.00 lakh, an

amount of Rs.5.00 lakh was paid and the balance amount of principal

of Rs.15.00 lakh as per the dissolution deed dated 2nd July, 2003 has

not been paid nor the interest at the rate of 3% on the unpaid amount

has been paid.

13. It is no more res integra that before a court can act under Order

XII Rule 6, admissions must be clear and unambiguous. When the

admission is not clear and unequivocal and the pleadings of the parties

raise serious preliminary pleas which are likely to non-suit a party, a

court in its discretion can refuse to pass a decree. It can also be not

disputed that the court is vest with discretion to ask for independent

corroboration of a fact not specifically denied in the pleadings

considering the peculiar nature of the facts and circumstances of the

case. At the same time, the court can suo moto pass judgment under

Order XII Rule 6 where the parties have conceded the rights of other

parties.

14. The admissions made in the pleadings have to be taken as a

whole and not in part. The provisions of Order XII Rule 6 are

discretionary and not mandatory and it is not incumbent on the courts

in all cases to pass a judgment upon admission. Specially, if a case

involves questions which cannot conveniently be disposed of but an

application under this rule or if the case is such that it is not safe to

pass a judgment on admission, the court may in exercise of its

discretion refuse the motion.

15. In AIR 1986 SUPREME Court 1509, Dudh Nath Pandey Vs.

Suresh Chandra Bhattasali the Apex Court had held that the admission

must be taken as a whole and it is not permissible to rely on a part of

admission ignoring the other. In this matter, the appellate court had

given a finding that the plaintiff's claim was barred by limitation and

had dismissed the suit and plaintiff feeling aggrieved took up the

matter to the High Court. This finding was, however, reversed by the

High Court relying on an admission of the defendant in the written

statement and the evidence of the witnesses produced on behalf of

defendant. The Supreme Court on merits had held that High Court was

not right in relying upon the alleged admission as the admission ought

to have been taken as a whole and it was not permissible to rely on a

part of the admission. In AIR 1971 SUPREME COURT 1542, Chikkam

Koteswara Rao Vs. Chikkam Subbarao and others the Apex Court had

held that the admissions must be clear in their meaning holding that

before right of a party can be considered to have been precipitated on

the basis of an alleged admission by him, the implication of the

statement made by him must be clear cut and conclusive. In 1997 (V)

AD (DELHI) 627, Madhav Leasing Finance (P) Ltd. Vs. Erose

Educational Infotech Pvt. Ltd. a single Judge of this Court had held that

a decree under Order XII Rule 6 cannot be passed unless the admission

made is clear cut and unambiguous.

16. What are the categorical admissions of the Defendants? The

defendants have admitted that the partnership between the parties was

dissolved on 2nd July 2003. On the date of dissolution, a sum of rupees

20 lakhs was due from defendants to plaintiff. The defendants had also

agreed to pay interest at the rate of Rupees 15,000 per month till 31st

March,2004 on the said amount. Out of rupees 20 lakhs, the

defendants have paid Rs. 5,00,000/- only. Therefore an amount of

Rupees 15 lakhs is due as principal which was found due on 2nd July,

2003.

17. On 21st July, 2004 the defendants had agreed to pay the principal

amount along with interest at 3% per month. The letter dated 21st July,

2004 is admitted by the defendants without any reservation. The

principal amount due to the plaintiff is Rupees 15 lakh. Another check

of rupees 1.35 lakhs towards interest at the rate of Rs.15,000 per

month for nine months was given. This cheque was not honored. The

plaintiff has admitted that an amount of Rs. 90,000 was given in cash

in lieu of said cheque. Therefore an amount of Rupees 45,000/-,

became due on 31st March, 2004 as balance amount of interest which

fact has not been denied by the defendants and which fact also emerges

from the documents admitted by the defendants. On the said amount,

principal and interest, the defendants also agreed to pay interest at the

rate of 3% per month by letter dated the 21st July, 2004 which letter is

admitted by the defendants.

18. Therefore, there are categorical admissions on the part of the

defendants to pay rupees 15 lakhs as principal amount and rupees

45,000 as the balance interest up to 31st March, 2004.

19. The defendants have also made categorical admission to pay

interest at the rate of 3% per month on the amount due to the plaintiff

from the defendants as on 31st March, 2004. Thus the defendants have

admitted payment of 3% per month interest from 1st April, 2004 on the

said amount of Rs.15,45,000/-. Therefore there is a admission to pay

interest at the rate of 3% per month from 1st April 2004 till the

institution of the suit on the said amount.

20. The plaintiff/applicant has prayed for a decree for rupees 25

lakhs on the basis of admissions made by the defendants in the plaint

and the documents. The plaintiff has contended that a settlement was

arrived at between him and the defendant no.2 for payment of

Rs.25,00,000/-. The defendants have denied the same on the ground

that the alleged settled amount was payable only if the plaintiff had

accepted that the defendant no.3 was not liable and if the plaintiff had

given more time to pay the amount. In the circumstances, though the

notice given by the plaintiff has been admitted, however, the defendants

have also admitted the notice given by their counsel which is produced

by the plaintiffs. Therefore, there are no such admission on the part of

the defendants to pay a settled amount of Rs.25,00,000/- as has been

alleged by the plaintiff so as to decree the suit for a sum of

Rs.25,00,000/-. Admission must be taken as a whole and it is not

permissible to rely on a part of admission ignoring the other. However,

there are admission for an amount of Rs.15,45,000/- as on 31st March,

2004 and an interest @ 3% per month on the said amount.

21. Therefore, the suit of the plaintiff is decreed for a sum of

Rs.15,45,000/- till 31st March, 2004 and interest at the rate of 3% per

month on the said amount from 1st April, 2004 till filing of the suit. The

plaintiff is also awarded pendent lite and future interest @ 12% per

annum from the date of institution of the suit till realization of the

decreetal amount. Parties are however, left to bear their own costs. As

far as the other balance suit amount out of Rs.38.10 lakh is concerned,

the same shall be decided in accordance with law. With these direction

the suit is partly decreed. Decree sheet be drawn.

March 31, 2009                                          ANIL KUMAR, J.
'Dev'