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2022 DIGILAW 417 (KAR)

Meena D. Thakur v. L. Balakrishnama Naidu

2022-03-28

H.B.PRABHAKARA SASTRY

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JUDGMENT 1. The present petitioner as a plaintiff instituted a suit in O.S.No.10525/2015, in the Court of the LIX Additional City Civil and Sessions Judge, Bangalore City (hereinafter for brevity referred to as "the Trial Court") against the present respondent, for recovery of the alleged sum of Rs.34,50,092.00 which is said to be inclusive of the alleged balance due of agreed amount of a sum of Rs.25,89,000.00. 2. The defendant entered his appearance and filed his Written Statement. Thereafter, the plaintiff filed I.A.No.II under Order XII, Rule 6 of the Code of Civil Procedure, 1908 (hereinafter for brevity referred to as "the CPC") seeking passing of a judgment on the alleged admission, said to have been made by the defendant in the Written Statement filed by him. 3. It was contended by the plaintiff in the said application that, the defendant since has admitted in his Written Statement, that he is due in a sum of Rs.25,89,000.00 payable by him to the plaintiff after getting the two tenants vacated from the suit schedule premises and since the two tenants have vacated, the defendant is liable to pay the said amount. An admission to that effect is also made in the Written statement. 4. However, the Trial Court by its order dtd. 21/9/2016 rejected the said interlocutory application - I.A.No.II. Aggrieved by the same, the plaintiff in the Trial Court is before this Court as a petitioner. 5. Learned counsel for the petitioner (plaintiff) in his argument submitted that, when the defendant in his Written Statement has clearly admitted that, he was withholding a sum of Rs.25,89,000.00 on the condition of repaying the same after the two tenants vacate the premises and also since the defendant has admitted that those two tenants have vacated the premises, he is liable to pay the admitted withheld amount of a sum of Rs.25,89,000.00, as such, the Trial Court ought to have allowed the application of the petitioner and drawn decree on the admitted facts. 6. Per contra, learned counsel for the respondent (defendant) submits that, there is no such alleged admission in the Written Statement, on the other hand, in the very Written Statement, it is the defendant who has made it clear that, though he has issued a letter dtd. 6. Per contra, learned counsel for the respondent (defendant) submits that, there is no such alleged admission in the Written Statement, on the other hand, in the very Written Statement, it is the defendant who has made it clear that, though he has issued a letter dtd. 3/1/2013, acknowledging the due amount of a sum of Rs.25,89,000.00, however, on the very same day, since the plaintiff refused to execute the registered Sale Deed, unless the said amount is also paid and the alleged total sum of Rs.60,00,000.00 is passed on to her, the defendant was constrained to pay the entire sum of Rs.60,00,000.00 including the said balance sum of Rs.25,89,000.00, as such, the Trial Court has rightly observed that the alleged claim amount of Rs.25,89,000.00 is not an admitted fact by the defendant and thus the Trial Court has rightly rejected the I.A.No.II filed by the plaintiff. 7. So far as the writ petition is concerned, the learned counsels from both side do submit that the defendant had entered into an agreement for purchase of immovable property from the plaintiff for total consideration of a particular sum. However, regarding the payment of the alleged balance sum of Rs.25,89,000.00, the defendant had withheld said amount initially. According to the plaintiff, the said amount has not been paid to her till date, but according to the defendant, the said amount has already been paid to her before she executed the registered Sale Deed in favour of the defendant. In that regard, the relevant portion of the pleadings of the parties are reproduced herein below. The plaintiff in her plaint in para-6 has stated as below: "It is submitted that, true to the tenor of understanding and talks, the plaintiff came over to Bengaluru during January 2013 for the purpose of registration of suit schedule property. It is submitted that the defendant who had voluntarily undertaken to get the tenants vacated at his cost, but at the last moment of registration pleaded that he will withhold Rs.25,89,000.00 (Rupees Twenty Five Lakhs Eight Nine Thousand Only) out of the agreed sale consideration price and will pay this amount i.e. Rs.25,89,000.00 only after he gets the tenants vacated. Although, the plaintiff did not agreed for this deflecting act of the defendant, at the intervention of well wishers, the defendant immediately executed an autographic letter dtd. Although, the plaintiff did not agreed for this deflecting act of the defendant, at the intervention of well wishers, the defendant immediately executed an autographic letter dtd. 3/1/2013 undertaking and agreeing to release this amount of Rs.25,89,000.00 (Rupees Twenty Five Lakhs Eighty Nine Thousand Only) once the occupied tenants are got vacated...." 6. In response to the said plaint averment of the plaintiff, the relevant portion of the Written Statement filed by the defendant at paragraphs 6(g) and 6(h) are re- produced herein below: 6(g) The plaintiff left the office and strangely in the early morning, the plaintiff called the Defendant and confronted that she is leaving United States of America on 5th of January 2013 and if the sale deed is not executed before that she will not be able to come back to India till next December 2013 and hence the Defendant was cornered by the plaintiff. However the plaintiff came to the office of the Defendant and on mutual negotiation the Defendant agreed to withhold a sum of Rs.25,89,000.00 out of the cash portion of Rs.60,00,000.00 and hence wrote a letter on 3/1/2013 that a sum of Rs.25,89,000.00 would be paid after the tenants vacate the Schedule Property. 6(h) After receiving the letter, the registration was fixed in the afternoon at 1 PM. When the Plaintiff and Defendant reached the office of the Sub- Registrar, JP Nagar, Bangalore, at 12.30 pm on 3/1/2013 the Plaintiff started changing her version and refused to Rs.34,11,000.00 brought by the Defendant and insisted for entire payment of Rs.60,00,000.00 or otherwise she would not execute the sale deed. She had also prepared a receipt and asked the Defendant to pay Rs.60,00,000.00 and she would sign the receipt which is already prepared by her otherwise she would go back without executing the sale deed. In fact on the mutual discussion only the said amount was withheld the said amount of Rs.25,89,000.00 was withheld and the vacant possession was shown as delivered to the Defendant under the Sale deed itself. Hence without any option the Defendant was constrained to pay the said sum of Rs.25,89,000.00 also totally amounting to Rs.60,00,000.00. The Plaintiff has also signed the receipt which was prepared by her confirming the receipt a sum of Rs.60,00,000.00 by way of cash. The same would be produced by the defendant at the time of evidence. But the letter dtd. Hence without any option the Defendant was constrained to pay the said sum of Rs.25,89,000.00 also totally amounting to Rs.60,00,000.00. The Plaintiff has also signed the receipt which was prepared by her confirming the receipt a sum of Rs.60,00,000.00 by way of cash. The same would be produced by the defendant at the time of evidence. But the letter dtd. 3/1/2013 handed over by the Defendant to the Plaintiff in the morning of 3/1/2013 in the office of the Defendant was retained by the GPA Holder of the plaintiff and since the same was of no relevance the said letter dtd. 3/1/2013 was ignored by the Defendant." Admittedly, the above extracts are the pleadings of the plaintiff in the plaint and the alleged admission of the defendant in the Written Statement, as submitted in this writ petition by the petitioner (plaintiff). 7. No doubt in her plaint, the plaintiff has stated that the defendant has withheld a sum of Rs.25,89,000.00 out of the agreed sale consideration price and had agreed to pay the said amount after he (defendant) gets the tenants vacated, but according to the plaintiff, the tenants have now been vacated from the premises, therefore, the defendant is liable to pay the said amount now, in which regard, there is an admission from the defendant in the Written Statement filed by him. The alleged admission which is also extracted as paragraphs 6(g) and 6(h) of the Written Statement as above, would clearly go to show that, at the first instance, the defendant in his Written Statement at paragraph 6(g) has stated that, on mutual negotiation the Defendant agreed to withhold a sum of Rs.25,89,000.00 out of the cash portion of Rs.60,00,000.00 and hence, wrote a letter on 3/1/2013 that a sum of Rs.25,89,000.00 would be paid after the tenants vacate the Schedule Property. 8. The respondent herein (the defendant) does not deny that subsequent to the agreement, the tenants were also got vacated. 8. The respondent herein (the defendant) does not deny that subsequent to the agreement, the tenants were also got vacated. However, para-6(h) of the Written Statement, the extract of which is also reproduced hereinabove, would go to show that, in his very pleading in the form of Written Statement, the defendant has clearly mentioned that though he had initially retained a sum of Rs.25,89,000.00 agreeing to pay the same after the defendant gets the vacant possession, however, since the plaintiff refused to execute the Sale Deed on 3/1/2013 and demanded for the entire payment of Rs.60,00,000.00 including the withheld amount of a sum of Rs.25,89,000.00, he (defendant) was constrained to pay the said amount of Rs.25,89,000.00 also, thus totally amounting to a sum of Rs.60,00,000.00. The defendant has also stated that in that regard, the plaintiff has also signed a receipt, confirming the receipt of a sum of Rs.60,00,000.00 by way of cash and the same would be produced by him (defendant) at the time of evidence. He has further stated that, however, the letter executed by the defendant on 3/1/2013 which was on the very same morning, acknowledging the alleged due amount of Rs.25,89,000.00 was retained by the General Power of Attorney holder of the plaintiff and that since the same was of no relevance, the defendant ignored the same. 9. By this above pleading, the defendant, though initially has admitted that, he had retained a sum of Rs.25,89,000.00 payable to the plaintiff, but in the very next paragraph has stated that, even the said amount was also paid by him to the plaintiff on the very same day, under certain circumstances. Thus there is nothing which can be called as an admission of liability made by the defendant towards the plaintiff of a sum of Rs.25,89,000.00. That being the case, when there is no specific admission, the question of drawing a decree on the alleged admitted fact does not arise. In such a circumstance, since the Trial Court has rightly rejected the interlocutory application - I.A.No.II filed by the plaintiff, holding that there is no such admission by the defendant, as alleged by her, I do not find any reasons to interfere in it. Accordingly, the writ petition stands dismissed.