Sanjib Banerjee, J.
1. The plaintiff alleges that an employee had defalcated substantial sums by making fictitious entries in vouchers presented for payment and seeks judgment on admission on the basis of two undated documents written out by the employee and his father wherein the embezzlement is said to have been acknowledged and a promise made for refund.
2. The plaintiff says that between September, 2000 and December, 2002 the first defendant employee caused seven cheques to be issued by the plaintiff in favour of the defendant No. 6 (whether in the name of Dimensions or Dimensons) without the plaintiff having received any goods or services from the payee. It was only in 'the beginning of May 2003' that the plaintiff says that the alleged defalcation was detected in course of reconciliation of accounts. It is alleged that the first defendant caused certain vouchers to be prepared and presented to the accounts department and induced the accounts personnel of the plaintiff to issue cheques on the first defendant's representation that payments were due from the plaintiff to the sixth defendant on account of goods purchased or services received.
3. At paragraph 15 of the petition it is averred that upon the first defendant being apprised of the discovery of the misappropriation of funds of the plaintiff, the first defendant and his father, the third defendant, 'came to the office of the (plaintiff), and admitted their unconditional liability to pay the moneys misappropriated by the (defendant) No. 1 from the till of the (plaintiff).' The copies of the two documents said to have been written out by the first and third defendants are appended to the petition. The plaintiff has also relied on a complaint of May 12, 2003 made to the Park Street Police Station where the first defendant's written admission is referred to.
4. The plaintiff has attempted to trace the flow of the money corresponding to the seven cheques and the defendants other than the employee have been impleaded as the direct or ultimate recipients of the funds wrongfully caused by the first defendant to be paid out by the plaintiff. Subpoenas were issued to several banks for producing the relevant cheques or copies thereof and the documents tendered by the banks have been open to inspection. The plaintiff has mapped the course of the funds in a chart which has been annexed to a supplementary affidavit filed by it from which the plaintiff seeks to demonstrate that shortly upon each of the seven cheques issued by it having been encashed by the sixth defendant, the money flowed into the accounts of the other defendants or were paid in cash to the other defendants.
5. The first and third defendants accept in their respective affidavits that they had executed the two documents that the plaintiff has relied upon as written admission of the first defendant's guilt and offer of refund. The son and father, however, claim that such documents were obtained by coercion at the Park Street Police Station and should be altogether disregarded at this stage and the plaintiff should be required to establish first that the admission was voluntarily made by them.
6. The letters of the first and third defendants are in Bengali. The first defendant addressed his undated letter to the managing director of the plaintiff where he says that he made and cleared false bills in the name of the sixth defendant. He gives the particulars of the cheques that have been mentioned in the plaint and details how he used Rs. 28.25 lakh out of the total of Rs. 33 lakh in acquiring flats at Prasad Nagar and Beliaghata, a Maruti Zen car and making cash payments to his first wife, his alleged second wife, a brother of his second wife and a business partner. The letter proceeds to record the addresses of the second, third, fourth, fifth and ninth defendants. The first defendant thereafter undertakes to sell the Beliaghata and Udaynarayanpur properties, the car and his wife's movables and promises to make over the sale proceeds to the plaintiff within two months. The letter records the first defendant making over a postdated cheque for Rs. 1 lakh in favour of the company and signs off with a further acknowledgement of his guilt after detailing his four bank accounts. The third defendant's writing acknowledges 'the statement' of his son with a promise to refund the money with an initial installment of Rs. 10 lakh within two months and the balance by monthly installments of Rs. 5,000/-.
7. In his affidavit the first defendant has this to say as to his undated written admission, at paragraph 13:
13. With reference to the paragraph 15 of the said petition I say that I was forced and compelled under duress to write the said confessional statement which is against me. The Police of the Park Street P.S. and Mr. Ashish Dutta, Sr. Vice President Accounts and Finance of the company, the Deponent, Mr. Sushanta Banerjee, Mr. Koushik Sarkar, Mr. Santanu Ghosh and other management staffs of the Company were also present there including my father and threatened me in such a way when I had no other alternative but to sign such statement against myself which is totally inhuman. I say that I was forced to write the statement dictated by Ashish Dutta in order to give me punishment, taking advantage of that document. The atmosphere at that material time in the Police Station was so tensed that I was at the verge of losing consciousness but fortunately survived. The said statement was written at the threatening of Police and Mr. Ashish Dutta.
8. The father's version of things and the circumstances in which the writings were allegedly procured from his son and him appear at paragraph 6 of his affidavit:
6. With regard to the statements made in paragraph 15 of the said petition I emphatically deny that I myself ever went to the office of the plaintiff and admitted falsification of accounts and unconditional liability to pay the monies alleged to have misappropriated by the Respondent No. 1. It was in the evening of the 12th May, 2003 I was asked by the Police of Park Street P.S. to be present in the Police Station in connection with the alleged diary made by the plaintiff and when I had been there I saw my son Asis- Respondent No. 1 in the said Police Station. In my presence and in the presence of one Asish Dutta of the plaintiff company and some other persons unknown to me my son-Respondent No. 1 was threatened to give written confession of alleged misappropriation of the company's fund unless which he would meet dire consequences. My son was taken to another room in the Police Station and at that time I was not present in that room but the said Ashish Dutta was present. Surprisingly enough after taking the statement of the Respondent No. 1, I was asked and threatened by the Police to make confessional statement unless which I would be taken to custody. I am an old man and being frightened at the coercive attitude I had to make the Statement as dictated by Sri Ashish Dutta in the Police Station. There were some other persons present in the Police Station who are not known to me.
9. Both the first and third defendants question the plaintiff's assertion that the admissions were obtained at the office of the plaintiff and suggest that since the circumstances in which the two documents came to be executed appear to be shrouded in mystery and not free from doubt, it would be harsh to condemn them on the strength of such documents. The first defendant says that he was not in a position to prepare vouchers or cause such vouchers to be passed by the accounts officers of the plaintiff. He says that two accounting periods passed and two sets of audits were conducted by M/s. Lovelock & Lewes before the discovery of the alleged fraud. The first defendant attempts to prick holes in the plaintiff's case and question the allegation as to destruction of the vouchers by the first defendant by citing the manner of verification of the relevant averment and by juxtaposing the assertion in the ninth paragraph of the reply where the plaintiff has said that the payments in favour of the sixth defendant were fraudulently obtained against supplies of gyroshaker machines which the plaintiff never obtained from the sixth defendant. In short, the first defendant attacks the credibility of the case of fraud made out by the plaintiff and says that since the alleged admission is questionable, no decree may be made.
10. The first defendant says that shortly after the plaintiff's complaint on May 12, 2003, he was taken into custody and spent 82 days behind bars before obtaining bail. He refers to the date of the institution of the suit and his filing of his affidavit in November, 2003 to justify why he had not questioned the admission extracted from him prior to the filing of his affidavit.
11. The third defendant says that he is old and infirm and was forced to execute the writing upon seeing the plight of his son. There is no explanation from this retired school teacher as to why he could not make it convenient to question the writing obtained from him prior to his challenge thereof in his affidavit. The first defendant says that the first two of the seven cheques said to have been fraudulently obtained were issued more than three years prior to the date of the institution of the suit and the claim in respect thereof would be barred by the laws of limitation. The third defendant relies on Order VII Rule 6 of the Code of Civil Procedure and Section 18 of the Limitation Act, 1963 for the twin purpose of attacking the basis of the suit and questioning the reliability of the undated written admission executed by him. It is submitted that despite the third defendant putting a date to his forcibly-obtained admission, the plaintiff had chosen to deny the date in the affidavit-in-reply and oral evidence is required to be received.
12. The third defendant has referred to a judgment reported at 89 CWN 728 (Kapil Deo Pandey v. Vasudeb Devshankar Shukla) and has relied on paragraph 10 of the report:
10. The question before us is whether in a case like this the defendant is entitled to defend the suit unconditionally. The plaintiff solely relied on the acknowledgement dated 12th September, 1979. By a writing dated 12th September, 1979 the defendant allegedly confirmed and unconditionally acknowledged that a sum of Rs. 4,16,836.32p. with the agreed interest was due and payable by the defendant. The defendant categorically denied the confirmation or acknowledgement. The alternative case of the plaintiff that the account was stated by the said writing dated 12th September, 1979 has also been denied categorically by the defendant. The defendant has challenged the correctness, validity and genuineness of the said writing dated 12th September, 1979. The case of the defendant is that the signed paper has been utilized for the purpose of creating an acknowledgement. Thus the entire case of the plaintiff is based on the said document dated 12th September, 1979. If this document goes then the whole suit would fail. The question of limitation is also dependant on whether the document dated 12th September, 1979 is genuine or not. The question of jurisdiction has also been raised. Admittedly the defendant does not reside in Calcutta and the suit has been instituted under Clause 12 of the Letters Patent. The jurisdiction of this Court to entertain the suit will depend on whether any part of the cause of action has arisen within the jurisdiction of this Court or not. It has been alleged that the said writing dated 12th September, 1979 was issued from Calcutta and received by the plaintiff at Calcutta. Alternatively the account was stated in writing dated 12th September, 1979 by and between the plaintiff and the defendant in Calcutta within the jurisdiction of this Court. Thus that part of the cause of action which gives jurisdiction to this Court to entertain the suit will depend on whether the said writing dated 12th September, 1979 was issued from Calcutta and whether the account stated by the writing dated 12th September, 1979 was signed in Calcutta. Prima facie, therefore, the maintainability of the suit by the plaintiff, limitation and jurisdiction are some of the issues which are likely to arise in this suit. In such a case it cannot be said that the defendant is not entitled to defend the suit unconditionally.
13. The judgment was rendered in proceedings under Chapter XIIIA of the Rules on the Original Side of this Court, akin to the summary procedure recognised under Order XXXVII of the Code. The first defendant says that the tests in an application for judgment on admission would be much the same as in an application for summary judgment under Order XXXVII of the Code (or under Chapter XIIIA of the High Court Original Side Rules).
14. A recent judgment of this Court reported at 2008 CWN 461 (Unique International Pvt. Limited v. Dinesh Kumar Singhania) is next placed by the third defendant to say that since an order for security is possible on an application under Order XII Rule 6 of the Code, the tests in assessing the merits of the matter would be as in an application for summary judgment where the Court may set a condition for the defendant to furnish security and the matter to be relegated to a regular trial.
15. The first and third defendants submit that there is substantial, if not sufficient, security in the order of injunction restraining the disposal of the immovable properties and the plaintiff here should be left to await the protracted trial where the challenge to the documents can be better assessed.
16. The plaintiff has acknowledged receipt of a sum of Rs. 1 lakh (via the postdated cheque referred to in the first defendant's admission) and says its principal claim is to the extent of Rs. 32 lakh).
17. The grounds put fourth by the contesting defendants are not worthy of relegating the plaintiff's immediate entitlement to the sum of Rs. 32 lakh to trial. The facts narrated and the law cited by the first and third defendants do not merit detaining the plaintiff's claim to the sum of Rs. 32 lakh. In the fourth paragraph of the petition, the plaintiff has indicated the nature of relationship of the first defendant with the other defendants. The second defendant is said to be the brother-in-law of the first defendant; the fourth defendant is his wife; the fifth defendant is euphemistically referred to as 'a close relation' of the first defendant though the first defendant refers to the fifth defendant as his first wife; the defendant Nos. 7 and 8 are said to be a close friend of the first defendant and the father of such close friend, respectively; and, the ninth defendant is said to be the brother of the first defendant's wife. At the sixth paragraph of his affidavit the first defendant asserts that the averments in the first to fifth paragraphs of the petition are 'matters of record'. The seventh and eighth defendants appear to be the partners of the sixth defendant firm.
18. In response to the supplementary affidavit used by the plaintiff and the flow-chart tracing the destination of the defalcated funds indicated therein, the first defendant has denied and disputed the contents of the supplementary affidavit and denied 'that the statements annexed therein as Annexure 'A' thereto reveal true and correct picture'. In neither the original affidavit of November 17, 2003 or his subsequent affidavit of March 29, 2004, has the first defendant alluded to the details that finds mention in either his admission or in the flowchart following the defalcated funds to its recipients.
19. The purpose of Order XII Rule 6 of the Code is to shorten litigation and afford immediate relief to a claimant upon the Court's satisfaction that the claim or such part thereof as is admitted, is beyond question. It is for the defendant to explain away the admission cited against him but the assessment is as to the authenticity of the admission and not of the entire claim. The nature and extent of assessment depend on facts. If a plausible claim is found and corroboration thereof is discerned, even inferentially, in the admission, the plaintiff is entitled to judgment if the Court finds the document to be reliable. It is possible that there is no basis to the claim and the plaintiff's case is founded merely on an admission which is questioned by the defendant; where the tests may be different.
20. The burden is on the plaintiff to assert and demonstrate a rightful claim but upon an apparent admission the onus shifts, given the state of the evidence, and it is for the defendant to adequately question or raise sufficient doubts as to the authenticity of the admission to prompt the Court to ask the plaintiff to prove the document in the regular course. The assessment of the admission depends on the context. The entirety of the plaintiff's claim, in an application under Order XII Rule 6 of the Code, is not subjected to the strict tests as Order XXXVII of the Code or Chapter XIIIA of the Rules on the Original Side of this Court demand. The apparent proof of the claim in such a case is reflected in the admission and it is for the Court to adjudicate the authenticity of the document or the reliability of the contents thereof.
21. That the sixth defendant received the payments in respect of the seven cheques is beyond doubt. That the first defendant and his admitted relatives - the second, third, fourth, fifth and ninth defendants - are the contemporaneous recipients of monies from the sixth defendant remain unquestioned. That the first defendant and his retired school teacher father amassed substantial properties subsequent to the defalcated amount of Rs. 33 lakh finding its way to the sixth defendant, is unchallenged. The plaintiff, thus, establishes the parting of money by it, the receipt thereof by the sixth defendant firm of the close associates of the first defendant and the immediate channeling thereof to the first defendant and his relatives and associates.
22. It is such state of evidence that is apparent from the documents, that the first and third defendants were required to address. The only assertion of the first and third defendants is that their writings were coercively obtained from them at the prodding of the police. The first defendant's writing is not a single line or a parsimonious acknowledgment of guilt or indebtedness; it is detailed in its description of utilisation of funds, addresses of the beneficiaries of the ill-gotten money and a promise to repay.
23. The original affidavit-of-service makes interesting reading. The fifth, seventh and eighth defendants received the cause papers, with the eighth defendant receiving the petition on behalf of his son and their sixth defendant firm. The fourth defendant identified herself and accepted the papers for herself and on behalf of the first, second, third and ninth defendants. The affidavit-ofservice says that the fifth defendant spoke on the phone to the second and third defendants and thereafter accepted the copies of the plaint, petition and notice of motion on behalf of herself and her relatives.
24. The first and third defendants have responded to the notice accepted on their behalf by the fourth defendant, but the other defendants have neither used any affidavit nor appeared to contest.
25. It is in such state of the evidence that the first and third defendants' questioning of their admissions 'albeit their acceptance of their execution of the documents' has to be seen. The father and son insist that their challenge as to the authenticity of their admissions goes to the root of the matter and undoes all the contents thereof, yet there is no other attempt to detract from the particulars appearing in either admission. The nature of the admission is such that it is not unnatural for it to have been obtained upon confrontation. But confrontation would not amount to coercion and there is no magic in the use of the coercion mantra for all information obtained by alleged coercion to fall upon a mere assertion of coercion. Confession of guilt upon confrontation is acceptable human conduct. And a nudge or prompting to obtain a confession or admission is hardly the stuff that coercion is made of.
26. The ground of limitation is without basis. First, there is Section 17 of the Limitation Act, 1963. Next, it is noticeable that the third defendant in urging limitation has not referred to the schedule to the Act. The period of limitation in such a case would be reckoned from the time that the right to sue accrues. It is only upon it being apparent that a claim is lodged beyond the period of limitation that a reference to exclusion of time is necessary under Order VII Rule 6 of the Code. The plaintiff says that it discovered the defalcation only in the beginning of May, 2003; refers to the undated letters of admission issued thereafter by the first and third defendants; and, the suit was instituted in or about September, 2003. If the clock begins to run on the plaintiff from May 1, 2003 then limitation would set in only after April 30, 2006. The letters of admission and the institution of the suit were within four months of the plaintiff's discovery of the defalcation.
27. Section 18(2) of the Limitation Act provides for oral evidence to ascertain the date of an undated document of admission to assess whether there is a live claim. Such an exercise is required to be embarked upon if the claimant ascribes a date to the document of admission and the defendant ascribes another, and the effective date for reckoning limitation is between the two dates; or in a case where the claimant's right to pursue the claim hinges on the date. Oral evidence as to the date of a document is relevant if the claim hangs on the date of execution thereof. Once the author of the letter of admission acknowledges execution of the document and a date-band or a period is apparent within which limitation cannot be said to have set in, the exact date is immaterial. Since the two documents in this case must have been executed between May and September of 2003 and since the plaintiff asserts to have discovered the defalcation in the beginning of May, it matters little as to whether the documents were executed on May 1 or a day before the suit was filed. For the purpose of deciding any question of limitation and 'that is the entirety of the extent of Section 18(2) of the Act' no oral evidence is called for in the instant case.
28. It is of some importance that the first defendant has not urged the ground of limitation. The third defendant's endeavour to wish away the admission is discredited by the third defendant's inertia in assailing the document at any stage prior to it being sought to be used against him. The two documents are not mere admissions but are also unequivocal promises to pay. A promise to compensate for something done or a promise to pay a debt barred by limitation law, within the meaning of Section 25 of the Contract Act, can be enforced and unlike an acknowledgement of indebtedness under the Limitation Act does not merely enlarge the time to be reckoned for limitation.
29. It is understandable that the first defendant did not assert that the claim was barred by the laws of limitation. The post-dated cheque issued by the first defendant is dated June 9, 2003. Even if the period of limitation is set to start from the date of the first of the seven cheques referred to by the plaintiff, such payment of Rs. 1 lakh is within the period of three years therefrom. If the date on the cheque is not to be considered, and the date when the cheque was made over is to be reckoned, the point of limitation would be no good as the plaintiff's complaint of May 12, 2003 records the first defendant's written admission and, despite the first defendant's challenge, he has accepted execution of the document and the making over of the cheque.
30. There will be a decree in favour of the plaintiff jointly and severally against the defendant Nos. 1 and 3 in the sum of Rs. 32 lakh. The subsisting order of injunction will continue till actual payment of such sum by the said defendants to the plaintiff. The plaintiff will also be entitled to costs assessed at 800 GMs. The balance claim of the plaintiff, including on account of interest, will stand to trial. GA No. 3551 of 2003 is disposed of.
31. Urgent certified photostat copies of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.