Meenu Upadhyay vs Kanwar Pal Singh
2015 Latest Caselaw 1623 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CS(OS) 929/2013

       MEENU UPADHYAY                        ..... Plaintiff
                   Through: Mr. Surjeet Singh Malhotra with Mr.
                   Prateek Kr. Srivastava and Mr. Anshu Bhanot, Advs.

                           versus

       KANWAR PAL SINGH                     ..... Defendants
                    Through: Mr. Vijay Chopra, Adv.

%                                   Date of Decision: 25th February, 2015

CORAM:
HON'BLE MR. JUSTICE MANMOHAN

                           JUDGMENT

MANMOHAN, J: (Oral)

IA 17984/2013

1. The present application has been filed under Order 12 Rule 6 CPC on behalf of the plaintiff seeking a decree on admission.

2. It is pertinent to mention that the present suit has been filed for recovery of Rs.32,35,000/- along with interest @ 18 per cent per annum with damages and costs.

3. Learned counsel for the plaintiff/applicant states that not only is the receipt of the amount of Rs.32,35,000/- admitted in the written statement, but the defendant in response to the legal notice had agreed that he was ready to repay the amount received from the plaintiff.

4. Since learned counsel for the plaintiff has laid considerable emphasis on the reply dated 28th March, 2013 to the legal notice, relevant portion of the same is reproduced hereinbelow:-

".....Therefore we want to make it clear that in spite of the fact that we are not at fault yet for the sake of humanity and society we are ready to bear some losses and ready to pay your money to you but for the same you will have to wait for some time so that I can get my earnest money back and arrange for more money....."

5. In support of his submission, learned counsel for plaintiff-applicant relies upon the judgment of this Court in Rajneesh Jain vs. Pumbkin Academy of Digital Arts Pvt. Ltd & Ors., MANU/DE/7302/2011 wherein it has been held as under:-

"12. It is trite law that a Court can pass a judgment under Order XII Rule 6 CPC on the basis of statement made by the parties and not only on the pleadings but also de hors the pleadings that is either in any document or even in the statement recorded in the Court. In the case of ITDC Ltd. v. M/s Chander Pal Sood & Son, reported at 2000 DLT 337 (DB), a Division Bench of this Court while interpreting the provisions of Order XII Rule 6 CPC has held in para 17 that "....Order XII Rule 6 of the Code gives a very wide discretion to the Court. Under this Rule the Court may at any stage of the suit either on the application of any party or of its own motion and without discrimination of any other question between the parties can make such order giving such judgment as it thinks fit on the basis of admission of a fact made in the pleadings or otherwise whether orally or in writing. ...." (Also see Rajiv Srivastava v. Sanjit Tuli and Anr., 119 (2005) DLT 202 (DB)."

6. However, learned counsel for the defendant has drawn this Court's attention to the amended written statement wherein it is stated that the letter dated 28th March, 2013 had been written by the defendant No. 1 under undue pressure and influence and threats extended to him on behalf of the plaintiff

and her husband to return the earnest money deposited and on wrong legal advice given by the erstwhile counsel of defendant No. 1. The relevant portion of the amended written statement relied upon by learned counsel for defendant is reproduced hereinbelow:-

"7........It is submitted that the defendant No.1 under undue pressure and influence and threats extended to him on behalf of plaintiff and her husband to return the earnest money deposit and on wrong legal advice given by the erstwhile counsel of defendant No.1 that the litigation languishes for years, the defendant No.1 was compelled to write a letter dated 28.03.2013 to the plaintiff conditionally agreed to return the earnest money deposit of his part which the defendant No.1 retracted the same to the plaintiff and her husband to pay the balance amount of Rs.70,00,000/- and the get the sale deed executed in their favour otherwise, plaintiff's entire earnest money deposit is forfeited upon failure on the part of the plaintiff in paying the balance amount of Rs.70,00,000/-. It is submitted that in absence of any steps taken on behalf of the defendant No.1 the said cause of action under the letter dated 28.03.2013 is vitiated on account of undue pressure and influence and threats and fraud on behalf of plaintiff and her husband as would be proved at the stage of evidence and hence the present suit is not maintainable and ought to be dismissed........"

7. Having heard learned counsel for parties, this Court is of the view that admissions whether in the pleadings or otherwise than in the pleadings can be explained by the parties and the said explanation cannot be rejected till either the evidence establishes so or until the explanation falls in the category of manifestly absurd.

8. In the present case since a defence/explanation of the alleged admission has been given in the amended written statement, the averment in response to the legal notice cannot be treated as an admission entitling the plaintiff to a

decree under Order XII Rule 6 CPC.

9. It is also settled law that a decree under Order 12 Rule 6 CPC can be passed only if the admission is clear and categorical. In Jeevan Diesels and Electricals Limited Vs. Jasbir Singh Chadha (HUF) and Another, (2010) 6 SCC 601 the Supreme Court while dealing with the ambit of Order 12 Rule 6 CPC has referred to a large number of English and Indian judgments. The relevant portion of the said judgment is reproduced hereinbelow:-

"13. In this connection reference may be made to an old decision of the Court of Appeal between Gilbert v. Smith [(1876) 2 Ch D 686 (CA)] . Dealing with the principles of Order 40 Rule 11, which was a similar provision in English Law, James, L.J. held: (Ch D p. 687) "... if there was anything clearly admitted upon which something ought to be done, the plaintiff might come to the court at once to have that thing done, without any further delay or expense."

14. Mellish, L.J. expressing the same opinion in Gilbert case [(1876) 2 Ch D 686 (CA)] made the position further clear by saying:

"it must, however, be such an admission of facts as would shew that the plaintiff is clearly entitled to the order asked for".

The learned Judge made it further clear by holding: (Gilbert case [(1876) 2 Ch D 686 (CA)] , Ch D p. 689) "... The rule was not meant to apply when there is any serious question of law to be argued. But if there is an admission on the pleadings which clearly entitles the plaintiff to an order, then the intention was that he should not have to wait, but might at once obtain any order...."

15. In another old decision of the Court of Appeal in Hughes v. London, Edinburgh and Glasgow Assurance Co. [(1891) 8 TLR 81 (CA)] , similar principles were laid

down by Lopes, L.J. wherein His Lordship held: "judgment ought not to be signed upon admissions in a pleading or an affidavit, unless the admissions were clear and unequivocal".

Both Esher and Fry, L.JJ. concurred with the opinion of Lopes, L.J.

16. In yet another decision of the Court of Appeal in Landergan v. Feast [(1886) 55 LT 42 (CA)] , in an appeal from the Chancery Division, Lindley and Lopes, L.JJ. held that a party is not entitled to apply under the aforesaid rule unless there is a clear admission that the money is due and recoverable in the action in which the admission is made.

17. The decision in Landergan [(1886) 55 LT 42 (CA)] was followed by the Division Bench of the Calcutta High Court in Koramall Ramballav v. Mongilal Dalimchand[(1918-19) 23 CWN 1017] . Sanderson, C.J. speaking for the Bench, accepted the formulation of Lopes, L.J. and held that admission in Order 12 Rule 6 must be a "clear admission".

18. In J.C. Galstaun v. E.D. Sassoon & Co. Ltd. [27 CWN 783] , a Bench of the Calcutta High Court presided over by the Hon'ble Sir Asutosh Mookerjee, J. sitting with Rankin, J. while construing the provisions of Order 12 Rule 6 of the Code followed the aforesaid decision in Hughes [(1891) 8 TLR 81 (CA)] and also the view of Lopes, L.J. in Landergan [(1886) 55 LT 42 (CA)] and held that these provisions are attracted "where the other party has made a plain admission entitling the former to succeed. This rule applies wherever there is a clear admission of the facts on the face of which it is impossible for the party making it to succeed."

In saying so His Lordship quoted the observation of Sargent, J. in Ellis v. Allen [(1914) 1 Ch 904 : (1911-13) All ER Rep 906] . (See CWN p. 787.)

19. Similar view has been expressed by Broadway, C.J. in Abdul Rahman and Bros. v. Parbati Devi [AIR 1933 Lah 403] . The learned Chief Justice held that before a court can act under Order 12 Rule 6 CPC the admission must be clear and unambiguous.

10. Since in the present case, the defendant/non-applicant has set up the defence that the aforesaid letter had been executed under undue pressure and influence and threats, this Court is of the view that no decree can be passed at the present stage. Consequently, the present application is dismissed. However, the plaintiff is given liberty to raise this issue/argument at the stage of trial and final hearing.

CS(OS) 929/2013 & IA 17985/2013 Learned counsel for the plaintiff prays for an adjournment to file a fresh application.

In the interest of justice, adjourned to 28th July, 2015.

MANMOHAN, J FEBRUARY 25, 2015 NG