JUDGMENT The plaintiff has filed this suit, inter alia, praying for a decree for a sum of Rs. 88,507.85 p. and for other reliefs. 2. The plaintiff's case is that on the basis of a Written Agreement dated 8th April, 1971 made between the plaintiff on the one part and the defendant on the other part, as mentioned in the said Agreement, the plaintiff permitted its extensive office room equipped with bath-room, canteen, lunch room, telephone PBX. intercommunication telephone system, air-conditioning machine, teleprinter service, Telex facilities, cyclostyling machine, accounting machine and other office equipment and furniture along with established organisations with executive staff having specialised qualification and clerical subordinates and watch and ward staff to be made available to the defendant-company for establishment of its office in consideration of the defendant's agreeing to pay to the plaintiff a sum of Rs. 21,000/- per month as fees for facilities to be granted to the defendant-company and the said Agreement is Annexure "A" to the plaint. 3. The plaintiff's further case is that the defendant has paid all the dues of the plaintiff upto 30th September, 1975 but failed and neglected to pay such charges as were payable under the said Agreement for the period from October, 1975 to December, 1975 and also some small charges which were incurred on behalf of the defendant in January and March, 1976. 4. The plaintiff has also annexed a Statement of Claim being Annexure E to the plaint which is set out hereinbelow : AUCKLAND JUTE COMPANY LTD Rs. Genl/34 1.10.75 Service Charges September, 1972 21,000.00 " /35 " Sundry Office Exp. " 999.00 " /44 3.10.75 Rent of Pathuriaghat Gadown... 1.4.75 to 30.9.75 249.36 " /50 10.11.75 Service charges...October, 1975 21,000.00 " /51 " Sundry Office Exp. 1,000.00 " /56 26.11.75 Service charges...November, 75 21,000.00 " /57 " Sundry Office Exp. 998.00 " /69 1.12.75 Rent of Pathuriaghat...October to November 75 83.12 " /72 23.12.75 Service charges. December 75 21,000.00 " /73 " Sundry Office Exp. " 1,000.00 " /84 18.2.76 Postage stamps. January 76 95.25 " /107 27.2.76 Rent of Pathuriaghat Godown... December 75 41.56 " /126 31.3.76 -do- March 76 41.56 ________ 88,507.85 5. 998.00 " /69 1.12.75 Rent of Pathuriaghat...October to November 75 83.12 " /72 23.12.75 Service charges. December 75 21,000.00 " /73 " Sundry Office Exp. " 1,000.00 " /84 18.2.76 Postage stamps. January 76 95.25 " /107 27.2.76 Rent of Pathuriaghat Godown... December 75 41.56 " /126 31.3.76 -do- March 76 41.56 ________ 88,507.85 5. The defendant filed Written Statement, inter alia, stating that the company continued in possession of the suit premises uptil 31st December, 1975 and that the defendant has paid legitimate dues to the plaintiff upto 30th September, 1975 and that the plaintiff's claim has been fully paid and/or liquidated and/or satisfied by due and proper adjustment made by the defendant as stated in the Written Statement. 6. At the first stage of hearing the following two issues were framed :– 1. Is the plaintiff entitled to a decree for the sum of Rs. 88,507.85 P. as claimed in the plaint ? 2. To what other relief or reliefs is the plaintiff entitled? 7. Thereafter, another additional issue was framed being Issue No. 1(a) which is set out below :– 1 (a). Has the defendant paid and/or liquidated and/or satisfied the plaintiff's claim by due and proper adjustment made by the defendant? 8. For the sake of convenience all the above issues are taken together. Neither party adduced any evidence in this suit. 9. Mr. Kar appearing on behalf of the plaintiff referred to the statements made in paragraph 10 of the plaint, which is as follows :– 10. There is now due and owing from the defendant to the plaintiff a sum of Rs. 88,507.85 paise as per particulars set out in Annexure 'E' to the plaint. The plaintiff will rely on the copy bills in respect of such claims at the hearing of the wit. 10. Mr. Kar also referred to paragraph 8 of the Written Statement, which is set out below :– 8. Each and every allegation contained in paragraph 10 of the plaint is denied. The defendant also denies the correctness, legality and validity of Annexure 'E' to the plaint. 11. Mr. Kar also refers to paragraphs 4 and 7 of the Written Statement as under :– 4. Save and except that the defendant continued in possession of the suit premises until 31st December, 1975, each and every allegation contained in paragraph 5 of the plaint is denied. 7. 11. Mr. Kar also refers to paragraphs 4 and 7 of the Written Statement as under :– 4. Save and except that the defendant continued in possession of the suit premises until 31st December, 1975, each and every allegation contained in paragraph 5 of the plaint is denied. 7. Save and except that the defendant has paid the legitimate dues of the plaintiff up to 30th September. 1975, each and every allegation contained in paragraph 9 of the plaint is denied. The defendant also denies and disputes the correctness, legality and validity of the statement being Annexure 'E' to the plaint. It is denied that all the bills in respect of the alleged claim as contained in the said statement or otherwise were duly tendered to the defendant or that the defendant accepted the same as alleged. 12. Mr. Kar also refers to Order 8, Rule 5 of the Civil Procedure Code and submits that if the allegations made in the plaint are not denied specifically or by necessary implication, or stated to be not admitted in the pleading by the defendant, the same shall be taken to be admitted except as against the person under disability. 13. Mr. Kar submits that the charges at the rate of Rs. 21,000/- per month is not disputed by the defendant, nor the agreement dated 8th April, 1971 is denied and the defendant has admitted that the defendant has paid the dues upto 30th September, 1975 and that the defendant was in occupation upto December, 1975 which is admitted in paragraph 4 of the Written Statement. Thus, according to Mr. Kar, the plaintiff is entitled to a decree for the sum of Rs. 88,507.85p. as referred in Annexure "E" to the plaint. 14. However, apart from service charges @ Rs. 21,000/- for the months of October, 1975, November, 1975 and December, 1975, there is no admission on the part of the defendant in the Written Statement and the rest of the items referred to in Annexure "E" to the plaint has not been proved by the plaintiff and Mr. Kar fairly conceded that in view of the aforesaid fact, the plaintiff is only entitled to a decree for Rs. 63,000/- being the service charges for the months of October, 1975, November, 1975 and December, 1975. 15. Mr. Kar fairly conceded that in view of the aforesaid fact, the plaintiff is only entitled to a decree for Rs. 63,000/- being the service charges for the months of October, 1975, November, 1975 and December, 1975. 15. Mr. Barin Ghosh, appearing on behalf of the defendant submitted that the plaintiff is not entitled to any relief in the suit as the plaintiff has not produced any independent witness to prove the plaintiff's claim. Mr. Ghosh further submits that by the statement made in paragraph 9(i), which is set out hereinbelow, the defendant has disputed the plaintiff's claim and as such Order 8, Rule 5 of the Civil Procedure Code is not attracted in this case. 9(i). The defendant states that the alleged claim of the plaintiff has been, as stated above, fully paid and/or liquidated and/or satisfied by due and proper adjustment made by the defendant in the manner aforesaid and the plaintiff is not entitled to any decree against the defendant as claimed or otherwise or at all. 16. Mr. Ghosh relied upon the following decisions :– (1) AIR 1964 Madhya Pradesh p. 231 (2) AIR 1962 Orissa p. 174 (3) AIR 1966 Rajasthan p. 177 17. Mr. Ghosh submits that since the defendant has made a specific averment that the defendant has fully paid and/or liquidated and/or satisfied by due and proper adjustment made by the defendant, as stated in previous paragraph i.e. from paragraph 9(a) to 9(h), the Court should hold that the defendant has denied the plaintiff's claim by necessary implication. 18. I have carefully considered the decisions referred to by Mr. Ghosh and I hold that the said decisions have no bearing so far as this case is concerned. 19. Mr. Kar on behalf of the plaintiff submits that by making a plea of payment and/or adjustment in the Written Statement in paragraph 9(i) the defendant has in fact admitted the plaintiff's claim and has taken up a plea of payment or adjustment and Mr. Kar refers to section 103 of the Evidence Act which reads as follows :– S. 103–The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 20. Mr. Kar refers to section 103 of the Evidence Act which reads as follows :– S. 103–The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 20. Mr. Kar submitted the burden of proof that the defendant has made payment and/or liquidated and/or satisfied the plaintiff's claim by due and proper adjustment is to be proved by the defendant as the burden of proof of that said particular fact lies on the defendant, who wishes the Court to believe about such payment and/or adjustment. 21. I hold that the plea of payment and/or adjustment, as made in the Written Statement by the defendant, the onus is on the defendant to prove such payment and/or adjustment. In this case the defendant has failed to discharge the said onus and the fact remains that the plaintiff claimed for service charges for three months. i.e., October, November and December, 1975, is admitted due by the defendant. 22. Mr. Ghosh appearing for the defendant, referred to the decisions reported in (4) AIR 1956 SC 593 , (5) AIR 1955 Cal 465 , (6) 50 CWN 439 and (7) AIR 1966 Cal 605 and argued that the Written Statement should be considered as a whole. Mr. Ghosh submitted that if the Court of Law accepts a part of the evidence of an witness and rejects another part but a pleading cannot be so dissected but must be taken both as a whole or left alone altogether. He further submitted that if a written statement contains an admission of certain facts which are favourable to the plaintiff but contains a denial of other facts favourable to him or an assertion to other facts, which are unfavourable, the plaintiff must, if he wants to avail himself of the admission, take not only the first set of facts as truly stated but also the second set of facts. 23. The proposition of law enuntiated in the decision reported in AIR 1955 Cal 465 has no bearing so far as this suit is concerned. In the present case, the defendant has admitted that the defendant has defaulted in making the payment of the service charges for the three months, i.e., October. 23. The proposition of law enuntiated in the decision reported in AIR 1955 Cal 465 has no bearing so far as this suit is concerned. In the present case, the defendant has admitted that the defendant has defaulted in making the payment of the service charges for the three months, i.e., October. November and December, 1975 and the defendant has taken a definite plea of payment and/or adjustment in paragraph 9 (i) and as such by such plea it cannot be urged that the same constitutes by necessary implication that the plaintiff's case has been denied by the defendant. In the instant case, so far as service charge for the said three months was not required to be proved by the plaintiff as there was no specific denial in the Written Statement as required under Order 8, Rule 5 of the C.P.C. and apart from that there is admission in the Written Statement that the defendant remained possession upto December, 1975 and did not make any payment on account of service charge after September, 1975. 24. So far as the plaintiff's claim in respect of other items in Annexure 'E' to the plaint is concerned, the same has not been proved and as such the plaintiff is only entitled to a decree for the sum of Rs.63,000/- being the service charges for the months of October, November and December, 1975. 25. Accordingly, the Issue No. 1 is answered as follows :– That the plaintiff is entitled to a decree for Rs. 63,000/- only. So far as Issue No. 1 (a) is concerned, the defendant has failed to prove that the defendant has made any payment and/or liquidated and/or satisfied the plaintiff's claim by due and proper adjustment and as such Issue No.1 (a) is decided against the defendant. So far as the issue No.2 is concerned, the suit is decreed in part and the plaintiff is entitled to a decree for Rs. 63,000/- only. Accordingly, the suit is decreed for Rs. 63,000/- and the plaintiff would be entitled to interim interest at the rate of 12% per annum from the date of filing of the suit upon Rs. 63,000/- till the date of decree and the decree shall carry interest at the rate of 12% per annum and the plaintiff shall be entitled to a decree for a sum of Rs. 4,000/- on account of cost and courtfees.