Koyakutty vs Nortech Infonet Pvt. Ltd
2022 Latest Caselaw 4803 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                 THE HONOURABLE MR.JUSTICE V.G.ARUN
 FRIDAY, THE 29TH DAY OF APRIL 2022 / 9TH VAISAKHA, 1944
                           OP(C) NO. 1451 OF 2017
 AGAINST THE ORDER/JUDGMENT IN OS 39/2015 OF ADDITIONAL
                           SUB COURT,NORTH PARAVUR
PETITIONER/S:

               KOYAKUTTY
               AGED 57 YEARS
               AGED 57 YEARS, S/O.MEZHUKKATTIL
               BEERAN,MEZHUKKATTIL, EDATHALA KARA, ALWAYE EAST
               VILLAGE,ALWAYE TALUK, ERNAKULAM DISTRICT.
               BY ADVS.
               SRI.ROSHEN.D.ALEXANDER
               SMT.TINA ALEX THOMAS

RESPONDENT/S:

    1          NORTECH INFONET PVT. LTD.
               34/115, NORTECH HOUSE (GURU BUILDING),ARAKKA
               KADAVU ROAD, EDAPPALLI, ERNAKULAM, PIN-682
               024,REPRESENTED BY ITS MANAGING
               DIRECTOR,MR.BENLEY NORONHA.
    2          BENLEY NORNHA
               MANAGING DIRECTOR, NORTECH INFONET PVT.
               LTD.,RESIDING AT GRACE LAND HOUSE, 46/2182-
               F,SAMAJAM ROAD, VADUTHALA, ERNAKULAM.682 023.
        THIS    OP     (CIVIL)      HAVING    BEEN   FINALLY   HEARD    ON
26.11.2021,          THE    COURT    ON   29.04.2022    DELIVERED      THE
FOLLOWING:
 O.P.(C) No.1451 of 2017

                             -2-




                          JUDGMENT

Dated this the 29th day of April, 2022 O.P.(C) No.1451 of 2017

Petitioner is the plaintiff in OS.No.39 of

2015 on the files of the Additional Sub Court,

North Paravur. the petitioner had entered into an

agreement for sale with the 1st defendant on

30.12.2013. As per the agreement, the petitioner

was to purchase plaint A scheduled property from

the first defendant, by exchanging plaint B

schedule property owned by the petitioner and

additionally paying an amount of Rs.1,25,00,000/-

towards sale consideration. The petitioner paid

the amount of Rs.1,25,00,000/- within time and

called upon the defendant to execute the sale

deed. The defendants failed to accede to the

request. Hence, the suit was filed seeking the

following reliefs;

"A) Directing the defendant to effect the sale of the plaint 'A' schedule property by a sufficient instrument and to hand over the possession together with all related document to the plaintiff.

O.P.(C) No.1451 of 2017

B) In case specific performance is decreed Rs.15,00,000/- (fifteen lakhs) as compensation for withholding the performance. C) In the alternative Rs.15,00,000/- (Rs. Fifteen lakhs) as damages for non performance of contract and re-payment of Rs.125,00,000/- (Rs One Crore twenty five lakhs) paid by the plaintiff to the defendant.

D) Interest from the date of agreement to that of payment.

E) To allow the plaintiff to recover from the defendant and their assets."

2. The defendant entered appearance and filed

Exhibit P2 written statement, admitting the

agreement and admitting to have received

Rs.1,25,00,000/- from the plaintiff towards the

agreed balance sale consideration for A schedule

property and stated that they had availed a loan

by mortgaging A schedule property. In the light

of the categorical admission in the written

statement regarding receipt of Rs.1,25,00,000/-

and the averment that the defendants had

mortgaged A schedule property as security for the O.P.(C) No.1451 of 2017

loan availed by them. Thereupon, the petitioner

filed Exhibit P3 interlocutory application under

Order 23 Rule 1 of CPC, for permission of the

trial court to abandon the relief of specific

performance. The court below granted the

permission sought for. While so, the suit was

listed for trial and decreed ex parte vide

Exhibit P4 judgment. Thereafter, the ex parte

decree was set aside at the instance of the

defendants and the suit listed for trial to

03.01.2017. On that day, the petitioner filed

Exhibits P5 and P6 interlocutory applications,

the former under Order 12 Rule 6 for passing a

decree permitting the plaintiff to recover the

admitted amount of Rs.1,25,00,000/-, and the

latter, to remove the case from the list. The

respondents filed objections to the applications

and by Exhibit P8 order, trial court dismissed

the Exhibits P5 and P6 applications, holding that

the question as to who had committed the breach O.P.(C) No.1451 of 2017

is relevant for determining the issues involved

in the suit and as the objections raised by the

defendants go to the root of the case, it is not

proper to exercise the discretion under Order 12

Rule 6. Hence this writ petition, challenging

Ext. P8.

3. Advocate Roshen D Alexander, learned

Counsel for the petitioner argued that in view of

the categorical admission in the written

statement of having received Rs. 1,25,00,000/-

towards sale consideration, the court below ought

to have passed a decree permitting the petitioner

to recover the admitted amount. It is pointed out

that, as the petitioner's application for

withdrawing prayers A and B was allowed, all that

was left for the trial court to consider, after

granting a decree for the admitted amount, was

the prayer for damages of Rs.15,00,000/- for the

loss sustained due to non-performance of the

contract. It is contended that the question as to O.P.(C) No.1451 of 2017

who among the parties had committed the breach

assumes relevance only in relation to the claim

for damages. According to the learned counsel, no

contention, which goes to the root of the case,

was raised by the defendants. The admission in

the pleading made it an appropriate case for

exercising the discretion under Order XII Rule 6.

To buttress the argument, reliance is placed on

the decisions in Uttam Singh Duggal and Co. Ltd

v. United Bank of India and others [(2000) 7 SCC

120] and Karam Kapahi and others v. Lal Chand

Public Charitable Trust and another [(2010) 4 SCC

753].

4. Despite service of notice, the respondents

have not appeared.

5. The admission in the written statement,

based on which the petitioner had sought a decree

permitting recovery of Rs.1,25,00,000/-, reads as

under;

O.P.(C) No.1451 of 2017

"It is true that there was an agreement pertaining to the A and B schedule properties owned by the defendants and the plaintiffs respectively. It is also correct that this defendant received Rs.1,25,00,000/- from the plaintiff through cheque towards agreed balance sale consideration of A schedule property."

6. The other contentions in the written

statement are that the pleadings are insufficient

to attract Section 16(c) of the Specific Relief

Act and failure of the plaintiff in getting B

schedule property converted as dry land is the

reason for non-performance of the contract. The

defendants also raised a contention that they

sustained incalculable damages due to non-

performance of the agreement and hence, the

plaintiff is not entitled to get interest or cost

from the defendants.

7. At the outset it is to be noted that the

contention in the written statement negating the

petitioner's right to seek specific performance O.P.(C) No.1451 of 2017

is of no avail now, since the court had permitted

the petitioner to give up the prayer in that

regard. Therefore, the prayers remaining for

consideration are for damages and repayment of

Rs.1,25,00,000/- paid to the defendant.

8. As far as the prayer for recovery is

concerned, there is clear admission in the

written statement odf having received

Rs.1,25,00,000/- towards sale consideration. In

fact, this position is accepted by the trial

court also. The reason for rejecting the

petitioner's prayer for grant of judgment based

on the admission is twofold. (i) The application

under Order 12 Rule 6 was made on the eve of the

day of the list and (ii) the question as to who

has committed the breach assumes relevance as far

as determination of the issues involved in the

suit is concerned. On the first aspect, the

petitioner's answer is that the suit had earlier

been decreed ex-parte vide Ext.P8 judgment dated O.P.(C) No.1451 of 2017

09.01.2016 and the ex parte decree was set aside

only on 23.11.2016. Prior to that the petitioner

had filed Ext.P3 application under Order 23 Rule

1 seeking permission to abandon the relief of

specific performance and the same was allowed by

the trial court. It was in such circumstances

that Ext.P6 application was filed under Order 12

Rule 6 on 3.1.2017. In this context it may also

be pertinent to note that even in their objection

to Exhibit P6, all that the defendants have

stated is that they never admitted receipt of

advance amount to the tune of Rs.1,25,00,000/- on

the basis of the impugned sale agreement, but had

admitted only receipt of the said payment by

means of cheque. The said vague statement does

not have the effect of altering or diluting the

admission in any manner.

9. The second aspect pointed out is that

the question as to who has committed the breach,

goes to the root of the case and unless that O.P.(C) No.1451 of 2017

question is decided, the prayer for judgement

based on the admission cannot be granted. In my

considered opinion, that question is relevant

only for deciding the prayer for damages and has

nothing to do with return of the advance amount.

10. Order 12 Rule 6 of CPC empowers the court

to make such order or give such judgment as it

may think fit, having regard to the admissions of

fact made either in the pleading or otherwise,

whether orally or in writing. Dilating on the

scope and ambit of Order 12 Rule 6, the Apex

Court has held in Karam Kapahi and others (supra)

as under;

"37. The principles behind Order 12 Rule 6 are to give the plaintiff a right to speedy judgment. Under this Rule either party may get rid of so much of the rival claims about "which there is no controversy" (see the dictum of Lord Jessel, the Master of Rolls, in Thorp v. Holdsworth [(1876) 3 Ch D 637] in Chancery Division at p. 640).

38. In this connection, it may be noted O.P.(C) No.1451 of 2017

that Order 12 Rule 6 was amended by the Amendment Act of 1976. Prior to amendment the Rule read thus:

"6. Judgment on admissions.--Any party may at any stage of a suit, where admissions of fact have been made, either on the pleadings, or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the court may upon such application make such order, or give such judgment, as the court may think just."

39. In the 54th Law Commission Report, an amendment was suggested to enable the court to give a judgment not only on the application of a party but on its own motion. It is thus clear that the amendment was brought about to further the ends of justice and give these provisions a wider sweep by empowering the Judges to use it "ex debito justitiae", a Latin term, meaning a debt of justice. In our opinion the thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right. However, the court always retains its discretion in the matter of pronouncing judgment."

11. The very object of Order 12 Rule 6 being O.P.(C) No.1451 of 2017

to enable the party to obtain a speedy judgment,

at least to the extent of the relief to which,

according to the admission of the defendant, the

plaintiff is entitled, the trial court went wrong

in denying such relief in spite of the

categorical admission in the written statement.

For the aforementioned reasons, the impugned

order is liable to be set aside.

12. Even though learned Counsel for the

petitioner contended that the decree on admission

should be passed by this Court itself and the

respondents directed to repay Rs.1,25,00,000/-

with interest, I deem it appropriate to leave

that exercise to the trial court.

In the result, the original petition is

allowed as under;

Exhibit P8 order is set aside. It is declared

that the petitioner is entitled for a decree on

admission under Order 12 Rule 6 of CPC. The trial

court shall take up O.S.No.39 of 2015 and pass a O.P.(C) No.1451 of 2017

judgment directing repayment of the advance

amount of Rs.1,25,00,000/- with appropriate rate

of interest. The judgment, as directed above,

shall be rendered as expeditiously as possible

and at any rate, within three months of receipt

of a copy of this judgment.

Sd/-

V.G.ARUN JUDGE Scl/ O.P.(C) No.1451 of 2017

APPENDIX OF OP(C) 1451/2017

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.NO.39/2015 ON THE FILES OF THE ADDITIONAL SUB JUDGE, NORTH PARAVOOR. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.39/2015 ON THE FILES OF THE ADDITIONAL SUB JUDGE, NORTH PARAVOOR. EXHIBIT P3 TRUE COPY OF THE PETITION FILED UNDER ORDER XXIII RULE 1.

EXHIBIT P4 TRUE COPY OF THE EX-PARTE JUDGMENT DAED 13.06.2016 IN O.S.NO.39/2015. EXHIBIT P5 TRUE COPY OF THE I.A.NO.22/2017 IN O.S.NO.39/2015 FILED UNDER ORDER XII RULE 6.

EXHIBIT P6 TRUE COPY OF THE I.A.NO.23/2017 TO REMOVE THE CASE FROM THE LIST.

EXHIBIT P7 TRUE COPY OF THE COUNTER AFFIDAVIT FILED IN I.A.NO.22/2017.

EXHIBIT P8 TRUE COPY OF THE ORDER DTD. 09.01.2017 IN I.A.NO.22/2017 IN O.S.NO.39/2015. EXHIBIT P9 TRUE COPY OF THE INTERIM ORDER DTD.

10.01.2017 IN O.P.NO.94/2017.