Dimension Next Infocom (P) Ltd vs Samsung India Electronics Ltd And ...
2012 Latest Caselaw 2899 Del

*              HIGH COURT OF DELHI: NEW DELHI

%                                         Judgment decided on: 02.05.2012

+              I.A. No.1117/2012 in CS(OS) No.357/2007


DIMENSION NEXT INFOCOM (P) LTD               ..... Plaintiff
                  Through   Mr.M.S. Vinayak, Adv. with
                            Mr. Vivek Sharma, Adv.


                      Versus


SAMSUNG INDIA ELECTRONICS LTD. AND ORS
                                                            ..... Defendants
                              Through     Mr. Joy Basu, Adv. with
                                          Mr. Niraj Singh, Adv.

CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

1. By this order, I propose to dispose of the present application filed by the plaintiff under Order XII Rule 6 of the Code of Civil Procedure, 1908. The plaintiff has filed the suit for recovery of dues amounting to Rs.29,21,796/- with pendentelite and future interest @ 18% p.a.

2. The plaintiff submits that in paragraph 13 of the written statement, the defendants have admitted the email dated 30.09.2004 wherein the contents of the letter were -

"Hi Sanjay, Rent would be stopped from October onwards. I suggest let me take a clarity and get back to you. Please do not continue with rent till then."

Thus, the plaintiff states that it was admitted itself by the defendants that rent was payable till October 2004.

3. The plaintiff further states that in paragraph 7 in the written statement the defendants, have admitted the arrangement of payment and also admits that bills were raised by the plaintiff on the defendants. The relevant extract from the written statement is as follows:-

"it is correct that the plaintiff had started the Samsung Brand shop with effect from 22nd February 2000. It is correct that as per agreement, a sum of Rs. 2,50,000/- and Rs. 1,50,000/- was to be paid by the answering defendants to the plaintiff as compensation for using the plaintiff outlet as their exclusive brand shop for the year 2001 and for the year 2002 and 2003 respectively. It is correct that bills were raised by the plaintiff on defendant No. 1."

4. The plaintiff further states that on the basis on the admissions made by the defendants in their written statement a decree for money recovery may be passed.

5. Reply has been filed by the defendants. In the reply it is stated that the plaintiff have filed the present application with a malafide intention. The defendants further states that no fresh agreement for the year 2004 was executed for the usage of the outlet.

6. The defendants submit that the suit filed by the plaintiff is not maintainable, as no cause of action is mentioned. It is further averred that on 02.03.2001 an agreement was executed by and between the parties for using the plaintiff's showroom as defendants' brand shop. The said agreement expired in the month of December 2001. A fresh agreement was executed on 30.01.2002 for the year 2002 and on 30.01.2003 for the 2003 respectively. Thereafter no further agreement was executed.

7. Therefore, the defendants submit that the issues framed by this Court are triable issues and cannot be adjudicated merely on admissions of few facts in the written statement.

8. The issues were framed on 08.08.2011in presence of the plaintiff. The issues are as follows:-

a. Whether the defendants discontinued with the outlet of the plaintiff as their brand shop? If yes from which date? OPP b. Whether the plaintiff is entitled for compensation on account of the use of the plaintiff's showroom by defendants for their brand shop? If yes, then at what rate? Whether the defendant is liable to pay interest @ 18% on the said amount of compensation? OPP c. Whether there was any agreement between the parties beyond 31.12.2003 for use of the plaintiff's showroom? OPP d. Whether the plaintiff is entitled for recovery of a sum of Rs.1,55,000/- towards promotion scheme and star power from defendants? OPP e. Any other relief"

9. Despite of various opportunities granted to the plaintiff, no evidence by way of affidavit was filed. Vide order dated 01.11.2011, cost of Rs.10,000/- was imposed.

10. Admittedly, there was no fresh contract between the parties. On reading of e-mail dated 30.09.2004, it appears that the defendants' intention was to remind the plaintiff that there is no agreement for the year 2004 and also mentioned that further instruction would be taken from the authorities concerned. In para-17 of the written statement, it was also stated that TDS certificate against bill for the month of March, 2004 was issued by the defendants on 14.04.2004 but no payment has been

made. It was issued as due credit for the said TDS certificate has been availed by the plaintiff while filing the return of Income-Tax.

11. The learned counsel appearing on behalf of the defendants has argued that it was done due to oversight, but the fact of the matter is that there was no agreement between the parties after 2003. The learned counsel has referred the judgment of the Division Bench of this Court in the case of Mrs. Vijay Gupta & Ors. vs. Ashok Kumar Gupta, reported in AIR 2007 Delhi 166, in which it has been held as under:-

"Civil P.C. (5 of 1908), O. 12, R. 6 - Judgments on admissions - Pre-requisites for passing a decree on admission is existence of certain unambiguous and clear admission - Pleading or a document has to be construed or read as a whole to see its effect - One or two lines cannot be permitted to be taken out of context and used as an admission of a party entitling the other for passing of a judgment upon admission."

The relevant para of the said judgment reads as under:-

"7. The term 'Admission' in Section 70 of the Evidence Act relates only to admission of a party in the course of the trial of the suit and not to the attestation of a document by the party executing it. The essential feature of admission is that it should be 'Concise and deliberate act'. It must not be something which was not intended and was not the intention of the party. Pre-requisite to admission are unconditional, unambiguous and intend the same to be read and construed as admission. The scope of admission of a claim is also explained under Order IX Rule 8 of the Code of Civil Procedure, which contemplates that there must be a claim as laid down in the plaint which is admitted, for the ground stated therein and not simply an admission of cause of action. The legislative intent is clear from the provisions of the Code that an admission has to be unambiguous and clear.

The Black's Law Dictionary explain the word 'Admission' as follows:

"Admission: Any statement or assertion made by a party to a case and offered against that party; an acknowledgment that facts are true.

Admission against interest. A person's statement acknowledging a fact that is harmful to the person's position as a litigant. An admission against interest must be made either by a litigant or by one in privity with or occupying the same legal position as the litigant."

12. Without deciding the contentions raised by the parties on merits, and after having gone through pleadings and the judgment referred above by the learned counsel for the defendants, I am of the view that there is no specific existence of unambiguous and clear admission in the written statement by the defendants. Therefore, the discretion under Order XII, Rule 6 CPC in the present case cannot be exercised. The application of the plaintiff is liable to be dismissed.

13. The application is disposed of.

CS(OS) No.357/2007

One final opportunity is granted to the plaintiff to file the affidavit(s) as evidence within four weeks. List before the Joint Registrar on 14.05.2012 the date already fixed.

MANMOHAN SINGH, J.

MAY 02, 2012