Delhi High Court
Rajesh Kumar Dixit vs Somdutt Sharma (Since Dead) Thr ... on 1 May, 2018
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 1st May, 2018
+ RFA 259/2017 & CM. APPL. Nos. 8857/2017, 12364/2017
&12382/2017
RAJESH KUMAR DIXIT ..... Appellant
Through: Mr. Vijay Sharma, Advocate
(M.No.9717348305)
versus
SOMDUTT SHARMA (SINCE DEAD)
THR LRS & ORS. ..... Respondents
Through: Mr. M. L. Bajaj, Advocate
(M.No.9810987273)
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This is an appeal challenging the impugned judgment and order dated
7th November, 2016 by which the suit of the Respondents/Plaintiffs
(hereinafter, „Plaintiffs‟) has been decreed in the following terms:-
"11. Accordingly, the application filed by the
plaintiff U/o 12 Rule 6 of the CPC is hereby
allowed to the extent that a decree for the amount
of Rs.4,85,000/- is passed in favour of the plaintiff
and against the defendant alongwith the interest
@ 9% per annum from the date of institution of
the present suit till the date of the recovery of the
decreetal amount of Rs.4,85,000/- (Rs. Four
Lakhs and Eighty Five Thousands Only). Decree-
sheet be prepared accordingly by the Reader."
2. The Plaintiffs filed the subject suit for recovery of Rs.8,06,000/- along
with pendente lite and future interest. The Plaintiff also sought sale of the
property, documents of which were kept as security. The prayer sought in
the plaint is set out below:-
"(i) For recovery of Rs.806000/- (rupees eight lac
six thousand), by plaintiff from the defendant;
(ii) For ordering payment of pendentelite and
future interest, on principal, by the defendant of
the plaintiff, till satisfaction of the decree liable to
be passed;
(iii) For directing defendant to sell the Property
No.1877, Ward No.V, Situated at Gali Mata Wali
Cheera Khana, Nai Sarak Delhi, situated on
second floor with roof rights, upto sky heights,
with common rights of entrance, passage and
stairs, etc, raised on area of 58 sq. mtrs., for
recovery of plaintiff‟s due money payable by him;
alternatively, putting the defendant‟s referred
property to auction sale for recovery of the due
amount of the plaintiff from the defendant; and
(iv) Restraining defendant permanently, from
changing present status thereof till payment of
due money of plaintiff."
3. The Plaintiff along with plaint, filed a copy of a mortgage deed dated
8th May, 2013 along with the legal notice dated 6th May, 2014 issued by him
and the reply dated 21st May, 2014. 7
4. The Appellant/Defendant (hereinafter, „Defendant‟) filed his written
statement and made the following averments in the written statement:-
"4. That no alleged mortgage deed as relied upon
by the plaintiff, has ever been executed between
the parties at any point of time. Without prejudice
to the rights and contention of the defendant, the
contents of the said alleged mortgage deed are
self contradictory, as a result, the said alleged
mortgage deed cannot be relied upon, hence the
suit of the plaintiff is not maintainable and liable
to be dismissed."
Reply on merits:
........
2. .........It is submitted that there were good
friendly/family relations between the plaintiff and
the defendant was in need of money of Rs.5 lacs
somewhere in the month of May, 2013 and he
approached the plaintiff and demanded a sum of
Rs.5 lacs. Although there were good
friendly/family relations between the plaintiff and
the defendant but at that time the plaintiff put a
condition to lend the money to the defendant on
interest @3% p.m. and further told the defendant
to enter into a loan agreement. Since the
defendant was in dire need of money, hence the
accepted all the proposals put by the plaintiff.
The plaintiff handed over a sum of Rs.4,85,000/-
to the defendant after deducting the interest @3%
p.m. for the month of May, 2013 and obtained
signature of the defendant on blank stamp paper
and blank paper on the pretext of preparing the
loan agreement."
5. In view of the averments made in the written statement and the
admissions made in the documents, the Plaintiffs filed an application under
Order XII Rule 6 CPC seeking a judgement on admissions. In the meantime,
the Defendant also moved an application for amendment of the written
statement. The said application for amendment was dismissed by the Court
on 5th February, 2016, on the ground that, though the law on amendments is
quite liberal, the Defendant cannot be allowed to withdraw admissions made
in the written statement.
6. Thereafter, the application under Order XII Rule 6 CPC was allowed
by the Trial Court vide the impugned order.
7. The counsel for the Defendant has contended that a CM(M) Revision
Petition is pending before this Court challenging the order by which the
amendment application was dismissed. On this ground, it is prayed that the
hearing in this appeal may be adjourned. A similar submission was made on
17th March, 2017 on which date this Court had recorded that the present
appeal would be heard. Thereafter, notice was issued in the appeal. It is the
further submission of the Defendant that the reply dated 21st May, 2014 to
the legal notice was signed by Mr. Alok Bharti, Advocate without
instructions having been given by the Defendant. It is the Defendant's
submission that Mr. Alok Bharti, Advocate was in collusion with the
Plaintiffs as there were some property transactions between them. He further
submits that the stand of the Plaintiffs is contradictory, inasmuch as, in the
reply relied upon by the Plaintiffs the interest rate is 3% per month.
However, in the mortgage deed dated 8th May, 2013 relied upon by the
Plaintiffs, it has been mentioned that the loan is `without interest'. He further
submits that the admissions in the written statement being contrary to the
documents, the said admissions ought not to be held against him.
8. Ld. Counsel for Plaintiffs, however, submits that the admissions made
by the Defendant are categorical and clear. The Defendant having admitted
his signature on the mortgage deed, his only defence is that his signatures
were obtained on a blank paper. Mr. Bajaj further submits that the written
statement also has a categorical admission and hence the impugned
judgment has been passed.
9. The Court has heard the rival submissions of the parties. A perusal of
the reply to the legal notice shows that the admission by the Defendant is
clear and categorical. The same is extracted below:-
"It is submitted that there were good
friendly/family relations between your client and
my client and my client was in need of money of
Rs.5 lacs somewhere in the month of May, 2013
and he approached your client and demanded a
sum of Rs.5 lacs. Although there were good
friendly/ family relations between your client and
my client, but at that time your client put a
condition to lend the money to my client on
interest @ 3% p.m. and further told my client to
enter into a loan agreement. Since my client was
in dire need of money, hence he accepted all the
proposals put by your client. Your client handed
over a sum of Rs.4,85,000/- to my client after
deducting the interest @ 3% p.m. for the month of
May, 2013 and obtained signature of my client on
blank stamp paper and blank paper on the pretext
of preparing the loan agreement. My client in
good faith and keeping in view the friendly/family
relations put his signature on the blank
documents/paper brought by your client.
Thereafter my client continued to make the
payment of interest amount to your client
regularly and punctually every month to the tune
of Rs.15,000/- per month upto the month of April,
2014."
10. A similar admission, in fact, is contained even in the written statement
in paragraph 2. The written statement bears the signature of the Defendant
and the reply to the legal notice clearly states that it has been issued under
instructions of the Defendant. The plea of collusion does not appear to be
valid, inasmuch as the reply in the beginning, states as under:-
"Sir,
My client Shri Rajesh Kumar Dixit S/o Shri
Shyam Kishan Dixit R/o 1877, (Second Floor),
Gali Mata Wali, Chira Khana, Chandni Chowk,
Delhi-110006 has handed over to me your notice
dated 06.05.2014, which was received by him on
08.05.2014, issued by you on behalf of your client
Shri Somdutt Sharma S/o late Shri Beni Prasad
Sharma R/o 70-71, Krishan Kunj Part-I, Ground
Floor, Laxmi Nagar, Delhi-110092, and
instructed me to sent you the reply, which is as
under:-
The contents of your legal notice are not only
false and baseless but also the entire legal notice
is a bundle of lies and it seems that your client has
not given you the correct information to you".
11. The legal notice dated 6th May, 2014 was sent to the Defendant- Mr.
Rajesh Kumar Dixit. The postal receipt and the AD card are also in original
in the trial court record. The Defendant - Mr. Dixit had obviously handed
over this legal notice to Mr. Alok Bharti, Advocate for issuing a reply.
There is no other explanation as to how Mr. Alok Bharti came in possession
of this legal notice. Moreover, the written statement has been signed by the
Defendant and so is the Vakalatnama. It is, therefore, clear that the
Defendant has, in fact, engaged Mr. Alok Bharti as an advocate for issuing
the reply to the legal notice and also for filing his written statement before
the Court. He cannot be allowed to resile from the admissions made in the
said reply and in the written statement by merely alleging collusion between
the Plaintiffs and his own lawyer.
12. The law on this aspect is settled, i.e., that admissions could be made
either in the pleadings or otherwise as held in Daljeet Singh Anand Vs.
Harjinder Singh Anand [FAO (OS) 228/2008 decision dated 2nd
September, 2008] passed by a Division Bench of this Court. The
observation of this Court is set out below:-
"12. We have considered the respective
submissions. Law relating to passing of decrees
on the basis of admissions is well-settled and
hardly needs elaborate discussion. It is trite that
the admission has to be unequivocal, clear and
unambiguous. It is also well-settled that use of
expression „Otherwise‟ in Order XII Rule 6 CPC
permits the court to pass the judgment on the
basis of statement made by the parties not only on
pleadings but also de hors pleadings, i.e. either in
any document or even in the statement recorded
in the court under Order X Rule 1&2 of the CPC."
13. Counsel for the Defendant submits that even the reply to the
application under Order XII Rule 6 CPC ought to be considered. The settled
position under Order XII Rule 6 CPC is that the admissions could either be
in pleadings or in documents. In Assocham vs. Y. N. Bhargava [RFA
12/2011 decision dated 13th July, 2011] a reference to reply to application
under Order XII Rule 6 CPC has been made by the court in para 8 as the
admissions made in that case were in the said reply. The observation of the
Court is as under:-
"8. In view of the admission, facts which have
emerged from the record being the pleadings of
the suit, the documents including the legal notice
terminating tenancy and reply thereto, the
application under Order 12 Rule 6 CPC and reply
thereto (and which themselves are pleadings in
terms of Order 12 Rule 6 CPC by virtue of the
decision in the case of Uttam Singh Duggal
(Supra), the requirements of Order 12 Rule 6
CPC are complied with for the suit to be decreed
under the same."
14. The following are the clear and unequivocal admissions made by the
Defendant in the written statement and in the reply to legal notice.
That the parties had good family/friendly relations with each other.
That the Defendant was in need of Rs.5 Lakhs.
That despite the friendly relations between the parties, the Plaintiff
lent money to the Defendant on interest @ 3% per month.
That since the Defendant was in dire need of money he accepted the
conditions of the Plaintiff.
That the Plaintiff then gave a sum of Rs.4,85,000/- (after deducting
the interest for the first month) in May, 2013.
That the Defendant signed blank papers in view of the friendly
relations.
That the Defendant made payments regularly of Rs.15,000/- per
month up till April, 2014.
15. The above admissions are sufficient to hold that there is no serious
dispute as to the receipt of the loan. The suit was filed for a sum of
Rs.8,06,000/- which included principal of Rs.6,50,000/- and interest @ 24%
per annum. However, by the impugned judgment, the Trial Court has
passed a judgment on admissions only to the extent of Rs.4,85,000/- along
with the interest @ 9% per annum, which is the admitted amount. The
Defendant has only paid the interest amount as agreed between the parties
till April, 2014. The suit was, however, filed in June, 2014 and thus the
entire principal sum was due.
16. The Trial court has considered the pleadings and the documents. The
Trial Court has also noticed that the mortgage deed has been denied. The
Trial Court has, thereafter, proceeded to pass a judgment on admissions
under Order XII Rule 6 CPC as per the admitted stand of the Defendant. The
Defendant has made a categorical admission to the extent of receipt of
Rs.4,85,000/- both in the reply to the legal notice and thereafter in the
Written Statement. The Judgment of the Trial Court, therefore, warrants no
interference.
17. The appeal is, accordingly, dismissed. No order as to costs. All
miscellaneous applications also stand disposed of.
PRATHIBA M. SINGH
JUDGE
MAY 01, 2018/ab
