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2011 DIGILAW 1035 (DEL)

Sudesh Garg v. Dipendar Kumar Singhal

2011-12-02

VALMIKI J MEHTA

body2011
JUDGMENT : Valmiki J Mehta, J. The challenge by means of this Regular First Appeal (RFA) filed u/s 96 Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the Trial Court dated 18.3.2010 decreeing the suit for recovery of money under Order 12 Rule 6 CPC. The suit for recovery has been decreed under Order 12 Rule 6 CPC as the verification of the written statement was found to be defective as therein the paragraphs of the written statement were found to be verified both on knowledge and belief instead of only on knowledge. The relevant portion of the impugned judgment reads as under: Contention of Ld. Counsel for plaintiff are two fold. Firstly, amendment late back to the date of relief to date when the suit was initially instituted. Furthermore, verification of the WS filed by defendant reads as follows: I, Sudesh Garg, the defendant herein, do hereby verify that the contents of paras 1 to 8 of the reply on merits are true to my knowledge and belief and those of paras 9 and 10 and that of paras 1 to 4 of the preliminary objections are based on the legal information received and believed to be true, and that we have not suppressed any material facts. Last para is the prayer to this Hon'ble Court. Counsel for plaintiff has drawn the attention of this court to provisions of Order 6 Rule 15(2) of CPC which reads as under: The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verified of his own knowledge and what he verified upon information received and believed to be true. It is stated by counsel for plaintiff that matter of para 1 to 8 of verification is based on knowledge and is not proper verification. There is no proper verification on record and cited on record the judgment report in "139 (2007) DLT 55 (DB)" to the effect that:- We need not enter into detailed controversy as the respondent has filed an affidavit enclosing therewith letter dated 19th August, 2005. In this letter, it has been specifically stated that the respondent has already received the entire money from the Government of India towards supply/sale of the two helicopters. The aforesaid letter was filed along with affidavit dated 7th November, 2005 Ld. In this letter, it has been specifically stated that the respondent has already received the entire money from the Government of India towards supply/sale of the two helicopters. The aforesaid letter was filed along with affidavit dated 7th November, 2005 Ld. Counsel for the appellant, in these circumstances, took repeated adjournments and at the time of hearing, filed in the Court, a copy of the affidavit dated 2nd March, 2007. In this affidavit it is stated that to the best of the knowledge and belief of the appellant, the respondent has not received money from the Government of India under the Agreement dated 14th April, 2000 and Letter of Credit of June, 2003 bearing No.0096103DC028270. This affidavit as filed shows that the appellant does not have full information and knowledge and has merely presumed that the sale consideration of the two helicopters has not been paid. The said affidavit is no statement and affirmation under oath that can be relied upon. In Sukhwinder Pal Bipan Kumar and Others Vs. State of Punjab and Others, (1982) 1 SCC 31 , it was observed that an affidavit asserting or denying allegations as correct to the best of the deponent's knowledge is no affidavit and is contrary to requirement to Order 19 Rule 3 of the Code which requires the deponent to disclose nature and source of his knowledge with sufficient particularity. Moreover, the application U/s 9 of the Act was filed in 2004 and till today, during the last three years, the appellant has not invoked the arbitration clause. In view of that, there is no denial of the liability of plaintiff. Plaintiff is entitled to decree U/o 8 Rule 3 CPC and is accordingly decreed U/o 8 Rule 3 CPC based on bills dated 10.10.2005 and 12.10.05 for a sum of Rs. 4,29,249/- and Rs. 3,84,637/- along with cost, pendent lite and future interest @ 12% per annum. 2. The facts of the case are that respondent/plaintiff filed a suit for recovery of Rs. 9,44,104/- along with interest @12% per annum on the ground that various jewelleries were purchased by the appellant/defendant. It was pleaded that since the amounts for the purchases were not made, the subject suit for recovery had to be filed. The appellant/defendant contested the suit and denied that, the same were paid on the spot either by cash or cheque. 9,44,104/- along with interest @12% per annum on the ground that various jewelleries were purchased by the appellant/defendant. It was pleaded that since the amounts for the purchases were not made, the subject suit for recovery had to be filed. The appellant/defendant contested the suit and denied that, the same were paid on the spot either by cash or cheque. The liability with respect to the suit amount was denied. The parties are related to each other. 3. A reference to the impugned judgment shows that vital issues of entitlement of monies for goods supplied have been decided in a very cursory way, by applying the provision of Order 12 Rule 6 CPC, which could not have been applied. The provision of Order 12 Rule 6 CPC applies only if there are admissions. A reference to the impugned order shows that no admissions of the appellant have been discussed or referred to so as to pronounce judgment under Order 12 Rule 6 CPC. In fact, there were no admissions, inasmuch as the appellant/defendant had denied the liability in the written statement. Such a suit can therefore only be decided at the stage of final arguments after evidence is led by both the parties. 4. So far as the issue of verification to the written statement being defective, it is settled law that the Code of Civil Procedure, 1908, is a handmaid of justice and if there are any defects in verification, courts must allow an opportunity to correct such defective verification. Suits involving vital rights of parties cannot be disposed of without giving an opportunity to correct the defective verification. 5. I, therefore, while allowing the appeal and setting aside the impugned judgment, allow the appellant/defendant to file a written statement giving the correct verification. This written statement be filed within a period of 4 weeks from when the case is now first listed before the competent court. 6. Parties are left to bear their own costs. 7. Parties to appear before the District & Sessions Judge, Delhi on 16th January, 2012, when the District & Sessions Judge will mark the suit for decision to a competent court in accordance with law. 8. The appeal is allowed and disposed of accordingly.