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2023 DIGILAW 1109 (AP)

Parimi Gopal v. Rachamalla Koti Reddy

2023-07-19

B.S.BHANUMATHI

body2023
ORDER : 1. The Civil Revision Petition is filed under Article 227 of Constitution of India, challenging the order dated 19.09.2022 dismissing the petition in I.A.No. 303 of 2021 in O.S.No. 47 of 2021 on the file of the Court of IV Additional Senior Civil Judge, Guntur, filed by the petitioner under Order XII Rule 6 r/w Section 151 CPC by the petitioner/plaintiff with a prayer to pass judgment for Rs.16,32,000/-, based on admissions made by defendant in his written statement. 2. The plaintiff filed suit for recovery of money and interest on the principal amount of the loan based on a mortgage deed dated 13.05.2015. The defendant filed written statement stating that at Para No. 9 and 13 as follows: “9. It is further submitted that as per the understanding the defendant has to pay the interest on the debt every month to the plaintiff and as such the defendant since the respective dates of debts i.e., (Rs.12,00,000/- due under registered mortgage and Rs.19,65,000/- due under mortgage with conditional sale), till March, 2020 paid interest over the principal amount. The plaintiff was not in the habit of issuing any receipt for the amount received towards interest. Subsequently, in view of the Covid-19 pandemic the defendant could not pay the monthly interest from the month of April, 2020 till now. 13. As stated above the defendant has to pay the principal amount of Rs.12,00,000/- with interest from April, 2020 and thus the suit claim is false and baseless.” 3. Basing on the above averments in the written statement, the plaintiff filed I.A.No. 303 of 2021 under Order XII Rule 6 r/w Section 151 CPC to pass a judgment for Rs.16,32,000/- based on such admissions. 4. The defendant did not file any counter and as such, the Court closed the opportunity of filing counter on 22.06.2022. After hearing both parties, the trial Court dismissed the petition holding that the defendant specifically alleged in the written statement that the plaintiff failed to deduct the payments made by him towards the interest amount and claimed excessive amount in the suit and since the plaintiff did not choose to file any rejoinder to the written statement nor did come forward to forego the disputed amount of interest. It further held that Order XII Rule 6 CPC shall be read along with Order XII Rule 5 proviso CPC and therefore, notwithstanding the admission made by the defendant in the pleading, the Court may require proof of the facts pleaded in the plaint. It is further held that such observation in consonance with proviso of Section 58 of Indian Evidence Act as well. As the petition was dismissed, the plaintiff filed this revision. 5. Learned counsel for the revision petitioner submitted that when there is a clear and categorical admission by the defendant about the liability to pay the principal amount of Rs.12,00,000/- with interest at the agreed rate specified by the plaintiff from April, 2020, the trial Court ought to have decreed the principal amount with the interest at the rate of 24% Per Annum from April, 2020 till November, 2021 which comes to Rs.4,32,000/- and making the total sum of Rs.16,32,000/- inclusive of both the principal amount and the interest so calculated. 6. On the other hand, the learned counsel for the respondent vehemently contended that there cannot be a partial decree based on the so called admission and also that the admission cannot be read in isolation, but it must be read in the light of the other part of the averments in the written statement that the plaintiff mischievously claimed interest before April, 2020 which was already paid and the same requires adjudication during the trial. He further submitted that the jurisdiction under Order XII Rule 6 CPC is discretionary and not mandatory and therefore, since the trial Court has exercised his discretion judiciously and there is no error in its exercise, it cannot be challenged in the revision. He further submitted that the property of defendant mortgaged is one of two portions of house and the other is the subject matter in another suit since the plaintiff in this present case fraudulently created a document styled as sale deed instead of conditional mortgage. Therefore, he further contended that unless the liability to pay the amount of interest for the disputed period is decided, the other suit cannot be effectively adjudicated and because the said amount can be adjusted against any liability in respect of the other mortgage. Therefore, he further contended that unless the liability to pay the amount of interest for the disputed period is decided, the other suit cannot be effectively adjudicated and because the said amount can be adjusted against any liability in respect of the other mortgage. He placed reliance on the decisions of the High Court of Karnataka reported in B.S. Vishwanath vs. Chandikaben J. Mehta, AIR 1990 (Karnataka) 142 wherein at Para 9 as follows: “9. The learned Counsel for the appellant submitted that the admission of the mortgage transaction was not sufficient to pass the partial decree under Order 12, Rule 6 C.P.C. as the title of the respondent to the property was disputed and therefore, it was necessary for the Court below to record a finding on the said issue after recording evidence adduced by both the parties. In support of the contention, the learned Counsel for the appellant relies on the judgment of this Court in Janardhan Jog vs. Srikrishna, ILR (1989) Kant 1895. In the said judgment, Shivashankar Bhat, J. interpreting the provisions of Order 12, Rule 6, held that admission for giving jurisdiction to pass a partial decree under the provision should be an absolute admission and it must be such as would be sufficient by itself to pass the decree and that if the admitted facts cannot stand independently so as to constitute a basis for passing a decree, no partial decree under Order 12 Rule 6 Civil Procedure Code would be passed. We respectfully agree with the said view.” The decision of High Court of Delhi in Ashok Lay Land Finance Limited vs. Maruthi Udyog Limited, 2000 (85) DLT 683 wherein at Para 7 held as follows: “7. In view of these pleadings, I am not satisfied that as to whether the provisions of Order XII, Rule 6 CPC have been satisfied. I am of the view that the judgment on admission under Order XII, Rule 6 CPC must be explicit. The Hon'ble Supreme Court in Chikkam Koteswara Rao vs. Chikkam Subbarao and Others has held that before the right of a party can be considered to have been defeated on the basis of an admission, the admission must be clear and conclusive and there should be no doubt or ambiguity about the alleged admission. The pleadings of defendant No. 1 in my opinion, do not warrant such a conclusion. The pleadings of defendant No. 1 in my opinion, do not warrant such a conclusion. In this view of the matter, the application is dismissed.” In the case of Karan Kapoor vs. Madhuri Kumar the decision of Supreme Court Civil Appeal No. 4545 of 2022, dated 06.07.2022 held as follows :- regarding the scope of Order 12 Rule 6 CPC, at Paras No. 16, 18 and 21: “16. Thus, legislative intent is clear by using the word “may” and “as it may think fit” to the nature of admission. The said power is discretionary which should be only exercised when specific, clear and categorical admission of facts and documents are on record, otherwise the Court can refuse to invoke the power of Order XII Rule 6. The said provision has been brought with intent that if admission of facts raised by one side is admitted by other, and the Court is satisfied to the nature of admission, then the parties are not compelled for full-fledged trial and the judgment and order can be directed without taking any evidence. Therefore, to save the time and money of the Court and respective parties, the said provision has been brought in the statute. As per above discussion, it is clear that to pass a judgment on admission, the Court if thinks fit may pass an order at any stage of the suit. In case the judgment is pronounced by the Court a decree be drawn accordingly and parties to the case is not required to go for trial. 18. On the issue of discretion of Court to pass judgment on admission, a three-Judge Bench of this Court in the case of S.M. Asif vs. Virendar Kumar Bajaj, (2015) 9 SCC 287 made the legislative intent clear to use the word “may” which clearly stipulates that the power under Order XII Rule 6 of CPC is discretionary and cannot be claimed as a matter of right. In the said case, the suit for eviction was filed by the Respondent-Landlord against the Appellant-Tenant. The relationship of tenancy was admitted including the period of Lease Agreement. The Plaintiffs’ claim was resisted by the Defendant setting up a plea that the property in question was agreed to be sold by an agreement and the advance of Rs. 82,50,000/- was paid. The relationship of tenancy was admitted including the period of Lease Agreement. The Plaintiffs’ claim was resisted by the Defendant setting up a plea that the property in question was agreed to be sold by an agreement and the advance of Rs. 82,50,000/- was paid. The Defendant in course of taking the defense stoutly denied that Respondent/Plaintiff has continued to be the landlord after entering into Agreement to Sell. The suit for specific performance was also filed which of course was contested by the Plaintiff. In the said case, this Court was of the view that deciding such issues requires appreciation of evidence. Mere relationship of landlord and tenant cannot be said to be an unequivocal admission to decree the suit under Order XII Rule 6 of CPC. Resultantly, this Court by setting aside the judgment passed by the High Court remitted the matter back to the Trial Court subject to deposit of the arrears of the rent and the compensation for use of occupation of the suit premises. Such deposit was subject to final outcome of the eviction as well as suit for specific performance. 21. On the other hand, Ms. Meenakshi Arora, learned senior counsel, placed reliance on the judgment of Nagindas Ramdas (supra), inter-alia, contending that the admissions if true and clear are the best proof of the fact admitted, it is also stated the admissions in the pleadings or judicial admissions admissible under Section 58 of the Evidence Act, 1872, made by the parties or their agents at or before hearing of the case stands on higher footings than evidentiary admissions. It is binding and constitute the waiver of proof. Learned senior counsel further submits that the judgment of R. Kanthimathi (supra) is distinguishable with the present case. In the said case, after referring the terms of the agreement it reflected that the major amount of sale consideration was paid and only Rs.5,000/- was remaining to be paid. Also, by conveyance the possession of property was surrendered, therefore, Court said that the jural relationship between the persons were changed Karan Kapoor vs Madhuri Kumar on 6 July, 2022 Indian Kanoon by way of subsequent agreement subject to the limitations under the law. While in the present case ATS-I was executed on 22.04.2017. Also, by conveyance the possession of property was surrendered, therefore, Court said that the jural relationship between the persons were changed Karan Kapoor vs Madhuri Kumar on 6 July, 2022 Indian Kanoon by way of subsequent agreement subject to the limitations under the law. While in the present case ATS-I was executed on 22.04.2017. In clause 2 of the said agreement, it was specifically mentioned “however, no advance - earnest money has been paid to the first party.” With respect to possession, it was mentioned that it shall be handed over on spot. Thus, out of the total sale consideration of Rs.3,60,00,000/- nothing was paid and the Appellant was in possession under the Lease Agreement as tenant. The document Annexure P-1 (Advance Receipt-cum Agreement to Sale and Purchase) produced along with the paper book of appeal is a document which has not been produced before the lower Court. Thus, vide order dated 07.10.2021, it was made clear by this Court that the said document be deleted from the paper book of this case. In view of the said distinction drawn it was urged that judgment of R. Kanthimathi (supra) is of no help to the Appellant.” 7. It is no doubt correct to state that any admission for the purpose of passing of judgment Rule 6 of Order XII must be clear and categorical in terms and must not be ambiguous. In each case the averments must be examined to find whether the admission falls under these parameters. 8. In the present case the transaction covered by this suit and the transaction covered by another suit are totally different and both portions are separate, though the house is the same and the property belongs to the same owner. In the present case, admittedly there is a transaction of mortgage of the suit schedule property and whereas in the other suit, the owner of the property says that it is only a conditional mortgage whereas the other parties say that it is an absolute sale. That suit can be independently decided. Insofar as the admission of the suit liability is concerned there is a clear cut admission of the liability in respect of the principal amount and also the interest payable from April, 2020 at the rate claimed by the plaintiff. That suit can be independently decided. Insofar as the admission of the suit liability is concerned there is a clear cut admission of the liability in respect of the principal amount and also the interest payable from April, 2020 at the rate claimed by the plaintiff. The only dispute is the amount to be paid as interest at the undisputed rate from the date of document till March, 2020. Therefore, as the defendant claimed that the amount was paid, but the plaintiff has claimed the same also as liability, it can be separately decided by conducting a trial. If such liability is proved, there can be a decree to that amount and it such liability failed, the defendant is not liable to pay at all. Therefore, even if the defence is proved there is no question of adjusting any amount in this suit against the alleged conditional mortgage in the other suit. In fact no such plea is taken before the trial Court by filing a counter. It is only an afterthought of articulated arguments. 9. Even the decisions cited by learned counsel for the defendant clearly show that there can be a partial decree. Even on perusal of the provision Order XII Rule 6 CPC it is reads as follows: 6. Judgment on admissions: (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn upon in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced. 10. It is clear that there can be a partial decree and it never indicates that the whole suit relief shall be decided basing on the admission nor is there any bar, express or implied, created in the provision. 10. It is clear that there can be a partial decree and it never indicates that the whole suit relief shall be decided basing on the admission nor is there any bar, express or implied, created in the provision. Since the liability arising out of the admission is clearly distinct from the liability disputed, both can be separately dealt with and judgment and decree can be passed only in respect of the admitted liability and the disputed liability can be put to trial. As such, the contention raised on this aspect only is not accepted. 11. Though the trial Court has discretion either to pass judgment based on the admission or go for trial, such discretion must always be exercised judiciously. In the present case, though there is categorical admission, but the trial Court failed to exercise the same under the influence of its observations recorded that the plaintiff did not choose to file any rejoinder in respect of the disputed claim in the written statement in respect of the interest amount allegedly paid and also that the petitioner failed to mention that he is ready to forgo interest from the date of the mortgage deed till March, 2020. Since both the observations have no merit to stand for the legal scrutiny within the scope of Order XII Rule 6 CPC, dismissing the petition on this ground indicates that the trial Court has not properly exercised its discretion and therefore, the order impugned in the revision petition requires interference. 12. In the result, the Civil Revision Petition is allowed and the order dated 19.09.2022 in I.A.No. 303 of 2021 in O.S.No. 47 of 2021 on the file of the Court of IV Additional Senior Civil Judge, Guntur is set aside. I.A.No. 303 of 2021 is allowed. 13. There shall be no order as to costs. 14. Pending miscellaneous petitions, if any, shall stand closed.