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Adhunik Ispat Limited v/s Triveni Infrastructure Development Co. Limited

    GA No. 1264 of 2010 & CS No. 2 of 2010
    Decided On, 14 January 2011
    At, High Court of Judicature at Calcutta
    For the Petitioner: D.N. Sharma, Nilay Sengupta, Advocates. For the Respondent: Siddhartha Mitra, Sr. Adv., Mr S. S. Bose, S. Dutta, Advocates.

Judgment Text

The plaintiff has applied for judgement on admission primarily on the basis of the ledger accounts for the period of April 1, 2009 to July 24, 2009 as acknowledged by the defendant by affixing its rubber-stamp thereto on August 12, 2009.

The plaintiff claims to have supplied TMT bars to the defendant?s Faridabad construction site. The plaintiff has relied on the two purchase orders issued by the defendant and the various challan-cum-invoices that the plaintiff raised which the defendant received without any protest. The plaintiff claims a sum of Rs.1,55,14,191.66 of which a sum of Rs.1,44,81,432.66 was apparently admitted by the defendant to be due to the plaintiff in the ledger accounts. The remaining sum is claimed on the basis of two cheques issued by the defendant which were dishonoured upon presentation in view of the stop-payment instructions issued by the defendant to its bank.

There are several anomalies in the petition which have been pointed out by the defendant. But most of these anomalies are irrelevant in the present context. For example, the petition speaks of two purchase orders and refers to the first of them requiring an amount of one lakh MT TMT bars to be supplied to the defendant. The copy of the first purchase order clearly specifies the quantum to be 300 MT. Again, the plaintiff has said that it supplied the entire complement of TMT bars requisitioned under the two purchase orders by July 3, 2009, but has later on in the petition claimed that since the defendant failed to furnish postdated cheques the plaintiff refused to effect supply of about 458 MT of the 500 MT of goods under the second purchase order.

At paragraph 14 of the petition the plaintiff has detailed the payments made by the defendant. Against the total billed amount of Rs.2,11,97,441/-, the defendant is said to have made payment of Rs.56,83,250/- leaving the balance unpaid. The claim in the suit is for such balance price of goods sold and delivered.

That the petition has been prepared without sufficient care is evident from the amount claimed to be due at paragraph 15 thereof. Paragraph 14 of the petition spells out the value of the total supplies effected and the amount paid by the defendant. The billed amount is said to be Rs.2,11,97,441/- and the amount paid by the defendant is said to be Rs.56,83,250/-. But the balance claimed at paragraph 15 is of Rs.1,55,14,191.66p which is inexplicable as neither the billed amount nor the paid amount reflects any fraction of a rupee.

The entire basis of the claim founded on the defendant?s admission is captured in paragraph 18 of the petition:

? 18. Your petitioner states that all along from time to time the defendant/respondent had acknowledged and/or admitted its liability to pay its dues to the petitioner. In this regard a balance confirmation and/or acknowledgement of the debt as on August 12, 2009 was issued which certified that a total sum of Rs.1,44,81,432.66 remained due and payable to the petitioner by the defendant. A copy of the said balance confirmation and/or acknowledgement as on August 12, 2009 is annexed hereto and marked with the letter ?F?. Your petitioner states that when the said balance confirmation statement was issued, the two post-dated cheques for a sum of Rs.5,02,084/- and Rs.5,30,637/- aggregating to a sum of Rs.10,32,757/- were pending encashment yet the petitioner gave credit for the same while preparing the said statement and/or balance confirmation. As on such date i.e. August 12, 2009 your petitioner did not deposit the said two post-dated cheques stated above as per the request of the defendant. Your petitioner states that the said two post-dated cheques upon being presented for encashment thereafter but were dishonoured due to the reason ?payment stopped? as is morefully stated hereinafter. Thus, the correct position of the balance confirmation statement should read as Rs.1,55,14,191.66 (i.e. Rs.1,44,81,432.66 plus Rs.10,32,757/-).? The ledger accounts appear at pages 95-96 of the petition. The ledger accounts bear the rubber-stamp of the defendant at both pages, though the initials appear to be different. The second page bears the date August 12, 2009 written in hand across the rubber-stamp just below the signature. The last two entries in the ledger accounts relate to the two cheques of value of Rs.5,02,084/- and Rs.5,30,673/-, respectively, that had made over by the defendant to the plaintiff and credited as payment in the ledger accounts even though they had not been presented for encashment at the time the accounts were apparently prepared. Copies of the two cheques have been appended to the petition. Both the cheques were apparently presented in July, 2009 and dishonoured on the ground of insufficient funds and again presented in October, 2009 and dishonoured on the ground that payment in respect thereof had been stopped by the drawer. But the factum of the presentation of the two cheques in July, 2009 is not referred to in the petition and altogether disowned at paragraph 18 thereof. The memoranda of dishonour of July, 2009 have been included as part of annexure G to the petition but there is no reference to the same in the body of the petition. The cheques were dishonoured subsequent to the period covered by the ledger accounts.

Apart from paragraph 18 of the petition there is a solitary sentence at paragraph 26 thereof which is in support of the present prayer made by the plaintiff:

?Your petitioner states that the claim of the petitioner is entirely admitted by the defendant as would appear from the balance conformation and /or ledger statement prepared by the petitioner and certified by the defendant as referred to above.?

The plaintiff had earlier applied for judgement on admission and attachment before judgement by way of GA No. 35 of 2010. On that application an ex-parte order was obtained on February 12, 2010 by which a receiver was appointed for ascertaining the extent of the Faridabad project of the defendant that may have been encumbered or alienated and the defendant was restrained from parting with possession or creating any third party interest in respect of its Faridabad project ?equivalent to the claim of the petitioner for the sum of Rs.1,55,14,191.66 ??. The order recorded that the ledger accounts relied upon by the plaintiff had been prepared by the defendant. Such order was vacated on March 3, 2010 on the basis of an undertaking furnished on behalf of the defendant to the effect that three flats at the real estate project would not be dealt with or otherwise encumbered or transferred by the defendant till such time the undertaking was discharged by this Court. A copy of the affidavit of undertaking has been appended to the defendant?s affidavit-in-opposition to the present petition.

The defendant?s affidavit has first questioned the authority of the court to receive the present action. Such point has, however, not been canvassed at the hearing. The defendant has thereafter said that the supplies made by the plaintiff were in dispute and were not admitted. It has said that the supplies were not according to the specifications and were not accompanied by test certificates. It has claimed that most of the material could not be utilised and had resulted in sub-standard construction at the site for which the defendant is likely to suffer a huge loss. It has asserted that it drew the attention of the plaintiff to the substandard supplies on repeated occasions and apparently also expressed its willingness to return the material. As to the ledger accounts and the defendant?s apparent admission of the claim, which form the basis of the present petition, the following averments have been made in the defendant?s affidavit:

?The Plaintiffs has sought to rest its case on a purported statement of account dated August, 12, 2009. The said statement of account was maintained in the usual course of business and by no stretch of imagination can be construed as an admission of liability under the provisions of Order XII Rule 6 of CPC.? [paragraph 3 (xiii)]

?With reference to the allegations contained in paragraph 18 of the said petition, it is denied that at any time the Plaintiff requested the Defendant to confirm the balance outstanding towards the Plaintiff or that the Defendant has acknowledged the purported dues of the Plaintiff, as alleged or at all. It is denied that on August 12, 2009 the Defendant acknowledged or certified the dues of Rs. 1,44,81,432.66 or any part or portion thereof, as alleged or at all. It is denied that any date was certified by the Defendant or that two cheques for Rs.5,02,084.00 and Rs.5,30,673.00 were not deposited as per the request of the Defendant, as alleged or at all. It is denied that any debt remained at Rs. 1,55,14,191.66 or any part or portion thereof, as alleged or at all.? [paragraph 17]

?With reference to the allegations contained in paragraph 19 of the said petition, it is denied that the Defendant failed to keep its promise, as alleged or at all. On October 26, 2009 the Plaintiff with malafide intention and after a gap of substantial period of time deposited the cheques totaling a sum of Rs.10,32,757/-. The cheques issued without any consideration in as much as no payment was due against the defective supplies made by the plaintiff.? [paragraph 18]

?? It is denied that the claim of the petitioner is admitted by the Defendant or that any alleged admission would appear from the balance conformation or ledger statement prepared by the petitioner or that any alleged balance conformation or ledger statement has been certified by the Defendant, as alleged or at all. ?? [paragraph 23]

The defendant says that the case with which the plaintiff has come to Court is flawed. The defendant refers to the several anomalies in the petition and suggests that the primary case of admission is based on the defendant?s alleged certification of the ledger accounts. The defendant says that it has asserted in its affidavit that it did not certify the ledger accounts. The defendant has also relied on several judgements to press home its point that the mere receipt of a document from the claimant would not amount to admission of the contents thereof. The defendant says that the document does not carry any assertion on its behalf that would substantiate or amount to the acceptance of the contents thereof. The defendant insists that since the plaintiff has claimed that the defendant has certified the ledger accounts and the defendant has denied the same, the foundation of the present petition is on slippery ground and has to be tested upon oral evidence being adduced. The defendant contends that since it has disputed the bills and has raised doubts as to the quality of the supplies, the mere affixation of its rubber-stamp on a set of accounts prepared by the plaintiff can not be made the basis for making a premature decree. As to the scope of Order XII Rule 6 of the Code of Civil Procedure, the defendant has placed the judgments reported at (2000) 7 SCC 120 (Uttam Singh Duggal and Co. Ltd v. United Bank of India); (2010) 4 SCC 753 (Karam Kapahi v. Lal Chand Public Charitable Trust) and (2010) 6 SCC 601 (Jeevan Diesels & Electricals Ltd v. Jasbir Singh Chadha). The defendant insists that the rule embodied in Order XII Rule 6 of the Code applies only where there is a clear admission of facts which it is impossible for the party making it to succeed in dislodging. In all three cases brought by the defendant, the rationale behind the principle has been explained. In Uttam Singh Duggal the first respondent bank before the Supreme Court relied on a balance-sheet of the appellant, the minutes of a meeting of its board of directors and a letter communicating the resolution and minutes of such meeting. The Supreme Court noticed that no explanation had been proffered by the appellant as to the circumstances in which the admission had been made so as to take it out of the category of admissions which created a liability. The Court found that without entering into any discussion on the meaning of the expression ?or otherwise? appearing in the relevant Rule, the quality of the denial in the affidavit used by the appellant in the trial court warranted a judgment being made on the basis of appellant?s deemed admission. In Karam Kapahi the Supreme Court referred to several English and Indian decisions on such aspect and observed that the 54th Law Commission Report suggested the amendment that is now reflected in the Rule to further the ends of justice and give the provision a wider sweep to use it ex debito justitiae. The Supreme Court, however, cautioned that the Court retained a discretion in the matter of pronouncing judgment on the basis of the Rule. In Jeevan Diesels the Supreme Court held that as to whether there was any clear admission could not be decided on the basis of any judicial precedent but had to be assessed on the facts of each case.

For an admission to be made the basis of a judgment against the person making it the admission has to be clear, unequivocal and unambiguous. An admission has also to be taken as a whole and cannot be divorced from any condition attached thereto. The principle recognised in Order XII Rule 6 of the Code is founded on the fundamental rule of evidence that admission is the best form of evidence. Section 17 of Evidence Act, 1872 defines an admission to be a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances as referred to in the Act. There are two elements as to judgment on admission: the first is the factum and then there is the inference drawn from the fact and the liability consequent thereupon. If the factum is established, the maker of the admission is afforded an opportunity to explain it away or dispute the liability that is the corollary to the admission. If the factum is not proved, the matter ends. It is only upon the factum of admission being established that the maker thereof is called upon to explain how the logical consequence thereof should not fasten upon such maker. The very definition under Section 17 of the Evidence Act contemplates that admission has to be an overt act of the maker thereof. If a person is bombarded with hourly letters of his alleged indebtedness to the author of the letters and if he does nothing in pursuance thereof there would be no admission of any indebtedness on his part. If, on the other hand, he were to append his signature to one of the letters where the quantum of indebtedness is specified, that may amount, in some circumstances, to be an admission.

Since as to whether or not there is any admission depends on facts, the primary facts in the present case have to be seen. Shorn of the details, what appears to be the undisputed position in this case is that the defendant placed orders for supply of goods on the plaintiff and the plaintiff effected certain supplies, raised bills in respect thereof and received some payments. The petition is unhappily prepared; and so is the affidavit filed by the defendant. The petition has used the word ?certified? in preference to a host of more appropriate words. But the expression has been used in the sense of acknowledgment or admission and not in the sense of formal certification, though it is a matter of little importance on the state of the documentary evidence available. In simple words, the plaintiff has said that it prepared the ledger accounts and the defendant accepted the accounts by affixing its rubber-stamp thereto (see paragraph 26 of petition). The defendant has asserted that such statement of accounts was maintained in the usual course of business but has questioned its use as admission on its behalf. The defendant has not denied that the impression of the rubber-stamp that both pages of the document carry as that of the defendant?s. What appears plain from the defendant?s affidavit is that the defendant was aware of the ledger accounts since they are said to have been made in the usual course of business; that the defendant was forwarded a copy thereof; and, that the defendant affixed its rubber-stamp thereto and made over the stamped document to the plaintiff. There is no averment to the contrary in the defendant?s affidavit. The defendant has made no attempt to discredit the document or its contents but has argued in its affidavit that whatever it has done in relation to the document would not amount to the defendant acknowledging or certifying the dues. It is the factum of certification that has been denied by the defendant and no attempt has been made to otherwise question the propriety of the document or assail the contents thereof. The defendant has also not disowned the signatures that figure across the rubber-stamp on either page of the relevant document. The second part of the plaintiff?s claim of the defendant?s admission rests on the two cheques that were issued by the defendant and were dishonoured upon presentation. Irrespective of the plaintiff?s failure to refer to the dishonour of the two cheques in July, 2009, there is the assertion of the cheques being dishonoured upon presentation in October, 2009. The defence of the defendant to the dishonoured cheques is that they had been issued without consideration in view of the defective supplies made by the plaintiff.

In case of both the ledger accounts and the two cheques, the factum of admission is established. The defendant received the ledger accounts and the overt act on its part was to affix its rubber-stamp to both pages thereof and make over the same to the plaintiff. That the two cheques had been drawn by the defendant and made over to the plaintiff is also not denied in the defendant?s affidavit. Such state of affairs on affidavit evidence permits the assessment to progress to the second aspect ? as to whether the defendant has been able to explain away the apparent admission in either case.

The defendant?s affidavit is replete with bald assertions of alleged defective supplies; of the goods not adhering to the specifications demanded and its complaints to the plaintiff on such count. For a start, since the ledger accounts were received by the defendant after the entire complement of goods was supplied and all bills in such regard had been raised, conventional wisdom would demand that even the barest acknowledgement of the ledger accounts would be accompanied by a written assertion complaining of the quality of the goods, if the defendant genuinely harboured a grievance on such score. Even in the absence of any contemporaneous complaint, subsequent correspondence may have been addressed by the defendant evidencing any reservation on account of the claim. It is difficult to accept the defendant?s contention since despite the receipt of the ledger accounts and the defendant?s admitted affixation of its rubber-stamp thereto there was no subsequent complaint as to the quality of the goods prior to its affidavit being filed. In between, there was a notice under Section 434 of the Companies Act and a further notice under Section 138 of the Negotiable Instruments Act that the defendant received from the plaintiff. The unsubstantiated allegations as to the defective quality of the goods would tell upon the credibility of the defence both as to the factum of the admission and the liability as a consequence thereof.

Order XII Rule 6 of the Code bestows wide powers on the civil court to sift through unworthy defences and spend precious court time only on such aspects of the claim that call for adjudication. The spirit embodied in the rule can not be whittled down to suggest that every denial of the factum of admission or every dispute of the consequent liability merits to be pushed to trial. In respect of the dishonoured cheques, a mere assertion in this case that they were issued without consideration flies in the face of the admitted transaction and the uncontroverted receipt by the defendant

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of the bills raised by the plaintiff. The Negotiable Instruments Act recognises that a presumption arises upon a cheque being issued that it had been so done for valid consideration. The rebuttal of the presumption cannot be by a single phrase denial of the cheques having been issued for no consideration received. Unworthy claims and frivolous defences abound the tomes that from part of the civil court?s records in pending cases. Recalcitrant parties are now given to take advantage of the known delay in the judicial process which may not be the judiciary?s own doing. On a party?s application based on the principle recognized in Order XII Rule 6 of the Code, the opponent is afforded a chance to both discredit the admission and explain away the liability thereunder. In Uttam Singh Duggal the Supreme Court found that the quality of the defence was such that the admission virtually appeared in the affidavit filed on behalf of the defendant in that case. It is by the same test that the factum of admission of the ledger accounts and the two cheques stands established in the present case. And, there is no attempt by the defendant to explain away the admission save the bald assertion as to the poor quality of goods or lack of consideration in relation to the cheques. After all, the goods were not supplied subsequent to the ledger accounts being admitted by the defendant or subsequent to either of the cheques being issued. GA No. 1264 of 2010 succeeds. There will be a decree in favour of the plaintiff in the sum of Rs.1,55,14,191/- which will carry interest at the rate of 9 per cent per annum from August 12, 2009 until payment. The plaintiff is undeserving of costs on this application. Since nothing further remains in the suit, CS No. 2 of 2010 is disposed of without any order as to costs. The undertaking furnished by the defendant will continue till such time that the entire payment is made to the plaintiff. Urgent certified photocopies of this judgment, if applied for, be made available to the parties subject to compliance with all requisite formalities. (Sanjib Banerjee, J.) Later: The defendant seeks a stay of the operation of the decree which is declined.