Delhi High Court
Sh. Sudesh Garg vs Sh. Dipendar Kumar Singhal on 2 December, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 366/2010
% 2nd December, 2011
SH. SUDESH GARG ..... Appellant
Through Mr. G.P. Thareja, Advocate.
versus
SH. DIPENDAR KUMAR SINGHAL ..... Respondent
Through Mr. D.P. Kaushik, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this Regular First Appeal (RFA) filed
under Section 96 Code of Civil Procedure, 1908 (CPC) is to the impugned
judgment of the Trial Court dated 18.3.2010 decreeing the suit for recovery
of money under Order 12 Rule 6 CPC. The suit for recovery has been
decreed under Order 12 Rule 6 CPC as the verification of the written
statement was found to be defective as therein the paragraphs of the written
statement were found to be verified both on knowledge and belief instead of
only on knowledge. The relevant portion of the impugned judgment reads as
RFA No. 366/2010 Page 1 of 5
under:
"Contention of Ld. Counsel for plaintiff are two fold.
Firstly, amendment late back to the date of relief to date
when the suit was initially instituted. Furthermore,
verification of the WS filed by defendant reads as
follows:
"I, Sudesh Garg, the defendant herein, do hereby verify
that the contents of paras 1 to 8 of the reply on merits are
true to my knowledge and belief and those of paras 9 and
10 and that of paras 1 to 4 of the preliminary objections
are based on the legal information received and believed
to be true, and that we have not suppressed any material
facts. Last para is the prayer to this Hon'ble Court."
Counsel for plaintiff has drawn the attention of this court
to provisions of Order 6 Rule 15(2) of CPC which reads
as under:
"The person verifying shall specify, by reference to the
numbered paragraphs of the pleading, what he verified of
his own knowledge and what he verified upon
information received and believed to be true".
It is stated by counsel for plaintiff that matter of para 1 to
8 of verification is based on knowledge and is not proper
verification. There is no proper verification on record
and cited on record the judgment report in "139 (2007)
DLT 55 (DB)" to the effect that:-
"We need not enter into detailed controversy as the
respondent has filed an affidavit enclosing therewith
letter dated 19th August, 2005. In this letter, it has been
specifically stated that the respondent has already
received the entire money from the Government of India
towards supply / sale of the two helicopters. The
aforesaid letter was filed along with affidavit dated 7 th
November, 2005 Ld. Counsel for the appellant, in these
RFA No. 366/2010 Page 2 of 5
circumstances, took repeated adjournments and at the
time of hearing, filed in the Court, a copy of the affidavit
dated 2nd March, 2007. In this affidavit it is stated that to
the best of the knowledge and belief of the appellant, the
respondent has not received money from the Government
of India under the Agreement dated 14th April, 2000 and
Letter of Credit of June, 2003 bearing
No.0096103DC028270. This affidavit as filed shows that
the appellant does not have full information and
knowledge and has merely presumed that the sale
consideration of the two helicopters has not been paid.
The said affidavit is no statement and affirmation under
oath that can be relied upon. In Sukhvinder Pal Bipan
Kumar V. State of Punjab, reported in (1982) 1 SCC 31,
it was observed that an affidavit asserting or denying
allegations as correct to the best of the deponent's
knowledge is no affidavit and is contrary to requirement
to Order 19 Rule 3 of the Code which requires the
deponent to disclose nature and source of his knowledge
with sufficient particularity. Moreover, the application
U/s 9 of the Act was filed in 2004 and till today, during
the last three years, the appellant has not invoked the
arbitration clause".
In view of that, there is no denial of the liability of
plaintiff. Plaintiff is entitled to decree U/o 8 Rule 3 CPC
and is accordingly decreed U/o 8 Rule 3 CPC based on
bills dated 10.10.2005 and 12.10.05 for a sum of
`4,29,249/- and `3,84,637/- along with cost, pendent lite
and future interest @ 12% per annum."
2. The facts of the case are that respondent / plaintiff filed a suit for
recovery of ` 9,44,104/- along with interest @12% per annum on the ground
that various jewelleries were purchased by the appellant / defendant. It was
pleaded that since the amounts for the purchases were not made, the subject
RFA No. 366/2010 Page 3 of 5
suit for recovery had to be filed. The appellant / defendant contested the suit
and denied that, the same were paid on the spot either by cash or cheque.
The liability with respect to the suit amount was denied. The parties are
related to each other.
3. A reference to the impugned judgment shows that vital issues of
entitlement of monies for goods supplied have been decided in a very
cursory way, by applying the provision of Order 12 Rule 6 CPC, which
could not have been applied. The provision of Order 12 Rule 6 CPC applies
only if there are admissions. A reference to the impugned order shows that
no admissions of the appellant have been discussed or referred to so as to
pronounce judgment under Order 12 Rule 6 CPC. In fact, there were no
admissions, inasmuch as the appellant / defendant had denied the liability in
the written statement. Such a suit can therefore only be decided at the stage
of final arguments after evidence is led by both the parties.
4. So far as the issue of verification to the written statement being
defective, it is settled law that the Code of Civil Procedure, 1908, is a
handmaid of justice and if there are any defects in verification, courts must
allow an opportunity to correct such defective verification. Suits involving
vital rights of parties cannot be disposed of without giving an opportunity to
correct the defective verification.
RFA No. 366/2010 Page 4 of 5
5. I, therefore, while allowing the appeal and setting aside the impugned
judgment, allow the appellant / defendant to file a written statement giving
the correct verification. This written statement be filed within a period of 4
weeks from when the case is now first listed before the competent court.
6. Parties are left to bear their own costs.
7. Parties to appear before the District & Sessions Judge, Delhi on 16th
January, 2012, when the District & Sessions Judge will mark the suit for
decision to a competent court in accordance with law.
8. The appeal is allowed and disposed of accordingly.
VALMIKI J. MEHTA, J.
DECEMBER 2, 2011
dk
