In The High Court At Calcutta Ordinary Original Civil Jurisdiction Original Side GA877of 2012 CS299of 2011 Barnwal Marketing & ORS.-vs.Gee Pee Infotech PVT.LTD.Present : The Hon’ble Justice Arijit Banerjee For the petitioner : Mr.Dhruba Ghosh, Adv.Mr.Sarathi Dasgupta, Adv.Mr.Asoke Basu, Adv.For the respondent : Mr.S.S.Bose, Adv.Mr.Kuldip Mullick, Adv.Heard On : 1st, 12th and 16th September, 2014 Judgment On : 07/11/2014 Arijit Banerjee, J.
(1) This application has taken out by the plaintiff/petitioner praying for a judgment upon admission against the respondent for the sum of Rs.54,05,000/-.
(2) The petitioner’s Case: The petitioner’s case is that a tripartite agreement dated September 19, 2009 was entered into by and between the petitioner, the respondent and the respondents C & F agent Sunrise Telelinks PVT.LTD.wherein the petitioner was appointed by the respondent as a super distributor for mobile handsets/phones in various parts of West Bengal.
According to the said arrangement the petitioner was required to fiRs.pay the price of the products and then collect the products from Sunrise and then distribute the same.
In or about July 2010, the respondent approached the petitioner with request for a loan of Rs.50 lakhs repayable on demand with 3 per cent interest per month for expansion of the business of the respondent.
The petitioner agreed to advance such loan and transferred the amount of Rs.50 lakhs to the respondent’s bank by way of RTGS on August 2, 2010.
On the same day, the petitioner also handed over a sum of Rs.50 lakhs in cash to the respondent on account of advance to be made to Sunrise.
The said money was then paid by the respondent to Sunrise against which the petitioner collected goods from time to time.
(3) The respondent failed to make payment on account of interest on the said loan.
From February 2011, the petitioner repeatedly called on the respondent to arrange for repayment of the said loan of Rs.50 lakhs along with interest but the respondent kept on requesting for time to make such repayment.
On or about April 9, 2011 the respondent handed over to the petitioner a post dated cheque of Rs.50 lakhs towards the principal amount and another post dated cheque for Rs.4,05,000/- towards service of interest for three months.
Both the cheques were dated July 1, 2011.
At the time of handing over the said cheques the respondent’s representative duly acknowledged the fact that those cheques were being made over for payment of the loan by endorsing the same on Photostat copies of the cheques (Annexures “B” and “C” to the petition).(4) Thereafter, the respondent started adopting various evasive tactics in order to avoid repayment to the petitioner.
By an email dated June 7, 2011, the respondent alleged that the petitioner owed to Sunrise a sum of Rs.57,75,443.76 towards the purported dues for products delivered to the petitioner on credit.
The petitioner denied such allegation.
(5) On June 29, 2011, discussion was held between the petitioner and the respondent whereat the respondent confirmed that the petitioner may deposit the post dated cheques dated July 1, 2011.
Accordingly, the petitioner deposited the said two cheques on June 30, 2011 so that the same becomes due for clearance on the next day i.e.July 1, 2011.
(6) On June 30, 2011, the petitioner received another email from the respondent again claiming that the petitioner owed money to Sunrise and therefore, the petitioner should not deposit the said two cheques.
By its email dated July 1, 2011 the petitioner denied such allegations.
(7) Both the post dated cheques dated July 1, 2011, were dishonoured on presentation on the instruction of the respondent.
(8) Thereafter, there was further exchange of correspondence between the petitioner and the respondent and the petitioner caused to be issued notice under Section 138 of the Negotiable Instruments Act for dishonour of the aforesaid two cheques.
In the reply to the notice under Section 138 of the Negotiable Instruments Act, the respondent contended, inter alia, that the cheque of Rs.50 lakhs had been given by the respondent to the petitioner as security deposit and it could not be encashed by the petitioner since it received goods from Sunrise value of which was in an excess of Rs.50 lakhs.
(9) The respondent is deliberately trying to confuse the sum of Rs.50 lakhs paid in advance on account of goods which was handed over to the petitioner and the sum of Rs.50 lakhs advanced by way of loan which was directly transferred to the bank account of the respondent.
The question of the respondent giving a security deposit to the petitioner does not arise and the purported defence sought to be adopted by the respondent is mala fide, misconceived and false.
(10) On the basis of the above, the petitioner filed the present suit and took out the instant application for final judgment and decree on admission for a sum of Rs.54,05,000/- being the aggregate of the amounts of the two cheques which were dishonoured.
The respondent’s Case: (11) In its affidavit-in-opposition the respondent has denied the entire case of the petitioner.
The respondent alleges that even if the petitioner was to take delivery of Gee Pee Phones from Sunrise against advance payment of price, yet on various occasions the petitioner had taken delivery of goods on credit from Sunrise.
As a result, Rs.70 lakhs (approx) became due and payable by the petitioner to Sunrise around end of July 2010.
At this stage, on August 2, 2010, the petitioner paid Rs.50 lakhs to the respondent which was in the nature of security for the respondent’s products which were being lifted by the petitioner from Sunrise on credit terms with substantial sums already due and payable.
(12) In or about February 2011, the petitioner discontinued its super distribution business for the respondent’s products.
On accounts being taken it was found that Rs.57,75,443.76 was due and payable by the petitioner to Sunrise.
There were discussions and negotiations between the petitioner, the respondent and Sunrise and an agreement was reached on 1st April, 2011 on the following terms:“(i) The petitioner agreed to repay Rs.57,75,443.76 to Sunrise and assurance was given by the petitioner that this amount would be paid latest by 30 June, 2011.
(ii) Till such time as the petitioner pays the said sum of Rs.57,75,443.76 to Sunrise, the respondent would retain the said sum of Rs.50 lacs.
(iii) In case the amount is repaid, the respondent would refund the said sum of Rs.50 lacs with interest calculated at the rate of 3% per month from 1st April, 2011 upto the date of repayment.
(iv) As and by way of security, the respondent issued to the petitioner two several cheques for Rs.50 lacs (principal) and Rs.4,05,000/- (interest) being cheques Nos.844351 and 844352 both drawn on ICICI Bank Limited.
(v) These cheques were thereafter filed up as agreed between the parties with the date 1st July, 2011.
This covers interest amount of Rs.4,05,000/- for the period from 1st April 2011 till 30th June, 2011.
In case of earlier repayment of Rs.57,75,443.76 by the petitioner to Sunrise, the respondent would also thereafter repay as soon as possible the said sum of Rs.50 lacs with interest at the rate of 3% per month calculated upto that date.
The aforesaid agreement has been subsequently recorded in the respondent’s letter of 5th July, 2011.” (13) The petitioner failed to make payment to Sunrise.
Sunrise issued notice by email dated 6th June, 2011 to the petitioner demanding payment.
The petitioner falsely and dishonestly by letter dated 30th June, 2011 denied the amount due and outstanding to Sunrise.
Under those circumstances, the respondent by a notice dated 30th June, 2011, informed the petitioner that payment against the said post dated cheques had been stopped.
(14) Since the petitioner failed to make payment to Sunrise, the respondent paid a sum of Rs.54,05,000/- to Sunrise by way of necessary adjustment in the running and current account maintained between Sunrise and the respondent.
The petitioner has, thus, received the full benefit of the sum of Rs.50 lakhs which was payable by the respondent to the petitioner by way of payment of the petitioner’s due to Sunrise.
(15) It is further contended on behalf of the respondent that this Court does not have the territorial jurisdiction to receive or try the above suit as no part of the plaintiff’s cause of action has arisen within the jurisdiction of this Court.
It is denied by the respondent that it carries on business on 19th Synagogue St.
Kolkata, within the jurisdiction of this Court.
Court’s View: (16) In brief, the petitioner’s case is that it had advanced two sums of Rs.50 lakhs each to the respondent, on the same day i.e.August 2, 2010.
Firstly, Rs.50 lakhs was advanced by way of loan to the respondent carrying a monthly interest of 3% and repayable on demand.
Such money was transferred by RTGS to the respondent’s bank account.
Subsequently, Rs.50 lakhs in cash was handed over to the respondent on the same day on account of advance to be paid to Sunrise that was duly paid to Sunrise and the petitioner lifted goods against the said sum.
Initially, the respondent failed to pay the monthly interest or the principal sum on demand but after much persuasion the respondent handed over two post dated cheques both dated July 1, 2011 for Rs.50 lakhs and Rs.4,05,000/- towards payment of the principal sum and three months’ interest.
These cheques were, however, dishonoured on presentation.
According to the petitioner issuance of these two cheques amounted to admission on the part of the respondent that at least a sum of Rs.54,05,000/- is due and payable by the respondent to the petitioner.
I am inclined to agree with the petitioner’s contention.
It is settled law now after the amendment of Order 12 Rule 6 of the Code of Civil Procedure that admission need not be only in pleadings.
Admission in any other form, written or oral, would be a good ground for the court to pass a final judgment and decree upon admission.
(17) The case sough to be made out by the respondent in its affidavit-inopposition is not credible.
There was no reason or occasion for the respondent to furnish security to the petitioner in the form of the two cheques which were subsequently dishonoured.
The respondent has, in my opinion, concocted a story which is not acceptable.
This is unfortunate but nothing new.
We have often come across stories being churned out in a desperate attempt to raise a defence to a claim.
The present case seems to be one of such examples.
(18) The defence of the respondent as noted above, in my opinion, is completely incongruous and also vague, nebulous and convoluted.
I have no hesitation in saying that the defence is moon shine.
In my opinion, no triable issue has been raised by the defendant and it will be a travesty of justice to relegate the petitioner’s claim in this application to trial.
The object of Order 12 Rule 6 of the Code of Civil Procedure is to enable a party to obtain a speedy judgment at least to the extent of the admission made by the other party.
If frivolous defences are allowed to stand in the way of the plaintiff obtaining expeditious judgment to the extent of the admission made by the defendant, the purpose of Order 12 Rule 6 would be defeated.
Recalcitrant parties to a litigation often raise disputes and defences only with a view to protracting the litigation and delaying grant of relief to the other party.
This cannot be encouraged.
(19) For the reasons aforestated, I am inclined to allow the present application.
(20) However, before pronouncing the final judgment on this application, I will be failing my duty if I do not dilate on a legal issue that I had raised at the beginning of hearing of this application.
The question that troubled me, was whether a pre-suit admission by the defendant would be a good ground for the court to pass a judgment on admission or must the admission be post-suit?.
I had accordingly requested the Ld.
Counsel for both the parties to assist the court in this regard.
It may be noted that the admission that the plaintiff relies on in the present occasion is pre-suit admission.
Ld.
Counsel for both the parties have cited several authorities and it will be unfair if I do not discuss them even if briefly.
(21) Ld.
Counsel for the plaintiff cited the case of Hampden-vs.-Wallis reported in Vol.
XXVII Ch.D.251.
It would appear from that case that the usual practice in the English Courts was to rely only on an admission made after the institution of the suit that is an admission made in the couRs.of the action.
However, Chitty, J.
perhaps for the fiRs.time relied on a pre-suit admission made by the defendant and in a money suit by the plaintiff ordered the admitted amount to be paid into Court.
(22) In the case of Porrett-vs.-White reported in Vol.
XXXI Ch.D.52, the court passed a judgment upon admission since the defendant did not answer the affidavit of the plaintiff filed in support of the application for judgment upon admission.
Non-traversal of the statements made in the plaintiff’s affidavit was taken to be sufficient admission.
(23) In the case of Uttam Singh Duggal & Co.Ltd.-vs.-United Bank of India reported in (2007) SCC120the Supreme Court upheld the judgment on admission passed by the High Court and the Appellate Court relying on a minutes of meeting of the defendant company which was a pre-suit admission.
The Supreme Court, however, in paragraph 15 of the judgment stated that even without referring to the expression ‘otherwise’ in Order 12 Rule 6(1) of the CPC, an inference could be drawn in the case on the basis of the pleadings raised in the case in the shape of the applications under that Rule and the answering affidavit which clearly reiterated the admission.
Thus, interpretation of the expression ‘otherwise’ became unnecessary.
In paragraph 17 of the judgment the Supreme Court held as follows:“Since we have considered that admission for passing the judgment is based on pleadings itself it is not necessary to examine as to what kinds of admissions are covered by Order 12 rule 6 CPC.” (24) In the case of Magma Leasing Limited-vs.-S.
& S.
Industries & Enterprises LTD.reported in 2001 (1) CLJ254 this court passed a judgment upon admission on the basis of facts admitted by the defendant prior to institution of the suit and not denied in the affidavit in opposition filed by the defendant to the application for judgment upon admission.
(25) In the Case of National Textile Corporation Ltd.-vs.-Ashval Vaderaa reported in 167 (2010) DLT602 the Delhi High Court passed a judgment upon admission on the basis of admission made by the defendant in the pleadings.
However, in the judgment, the Ld.
Judge observed that ‘admissions may be contained in documents written or executed between the parties before the action is brought or even from the statements of parties recorded in the court, including statements recorded under Order X Rule 1 CPC.’ (26) In the case of R.N.Sachdeva-vs.-Ramlal Mahajan Charitable Trust reported in 1997 (41) DRJ698 the Ld.
Judge observed that the admission contained in letters or other documents written or executed between the parties before action is brought are also sufficient for the purpose of Order 12 Rule 6 of the CPC.
(27) In the last two Delhi High Court decisions the Ld.
Judge held that pre-suit admissions may be sufficient grounds for passing a judgment and decree under Order 12 rule 6 of CPC.
With respect those judgements are of persuasive value and not binding on this Court.
(28) However, in the case of Peerless Abasan Finance Ltd.-vs.-M/S.Gagan Polymers (P) LTD.reported in 2002 (4) ICC194 in paragraph 6 of the judgment K.J.Sengupta, J.
held as follows: “I have considered the entire submissions made in both the two applications, I would like to pronounce combined judgment on the issue in its entirety.
As far as the plea of Mr.Mitra that I cannot pronounce judgment relying on a document being the letter which was written before filing of the suit is concerned, I am of the view that the aforesaid piece of evidence, which is sought to be relied on admission, is an acceptable admission within the meaning of Order 12 Rule 6 of the Code of Civil Procedure, as the word ‘otherwise’ means and includes any piece of admission whether it is made before filing of the suit or subsequently.” (29) I am, thus, bound by the principle of precedent and stare decisis to follow the judgment of Sengupta, J.
to the effect that a pre-suit admission would be ground enough for the court to pass a judgment and decree under Order 12 Rule 6 of the CPC.
(30) Ld.
Counsel for the respondent cited the following decisions:(i) Cosmo Ferrites Ltd.-vs.-M/S.Universal Commercial Corporation, reported in AIR2006Delhi 320.
(ii) Western Coalfields Ltd.-vs.-M/S.Swati Industries, reported in AIR2003Bombay 369.
(iii) Rajender Soni-vs.-Mahabir Prasad, reported in 2011 AIR CC1347 (iv) Balraj Taneja-vs.-Sunil Madan, reported in AIR1999SC3381 (v) M/S.Jeevan Diesels & Electricals Ltd.-vs.-M/S.Jasbir Singh Chadha (Huf).reported in AIR2010SC1890 (31) The aforesaid decisions do not throw any light on the legal question raised by this Court and as such I refrain from discussing those decisions.
The decisions are authority for the proposition that the admission must be clear, unambiguous and unconditional before the Court can pass a judgment and decree relying on such admission.
(32) In view of the aforesaid GA No.877 of 2012 succeeds and is allowed.
There will be a judgment and decree for a sum of Rs.54,05,000/- in favour of the plaintiff.
There will also be a decree for interim interest and interest on judgment on the decreed sum at the rate of 12 per cent per annum from the date of institution of the application till the date of payment of the decreetal amount.
The defendant will pay to the plaintiff costs of this application assessed at 1000 gMs.This application, thus, stands disposed of.
(Arijit Banerjee, J.) Later: Stay as prayed for is considered and refused.
(Arijit Banerjee, J.)