Petition filed under Article 226 to quash Trial Court's order rejecting an application for decree on admission. High Court held there were conflicting pleadings regarding payment, negating specific admission. Writ petition dismissed.
Writ petition dismissed; no interference with the Trial Court's order on the interlocutory application.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MARCH, 2022
BEFORE
THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
WRIT PETITION No.31328 OF 2017 (GM-CPC)
BETWEEN:
Smt. Meena D. Thakur Aged about 64 years, W/o. Sri. Dilip K. Thakur, R/o. No.16629, Hampton Court Cerritos, California, USA.
Rept. By her GPA Holder, Sri. Pradeep D. Khanolkar R/o. No.784, 34th Cross, 10th Main, 4th Block, Jayanagar, Bengaluru – 560 011.
.. Petitioner
(By Sri. G.K. Kulkarni, Advocate)
AND:
Sri.L. Balakrishnama Naidu S/o. L. Guruppa Naidu Aged about 55 years Sharavanti Shelters, Sharavanthi Chambers, No.290/41, 10th Main, 38th Cross, 5th Block, Jayanagar, Bengaluru-560 041.
.. Respondent
(By Sri.B.S. Radhanandan, Advocate)
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****
This Writ Petition is filed under Article 227 of the Constitution of India, praying to issue a writ of certiorari, grant an order, direction or writ in the nature of certiorari quashing the orders passed as per Annexure A dated 21-09-2016 on IA.II by the LIX Additional City Civil Judge (CCH-60) in O.S.No.10525/2015 as illegal and contrary to law, etc.
This Writ Petition coming on for Preliminary Hearing in ‘B’ Group, through Physical Hearing/Video Conferencing Hearing, this day, the Court made the following:
O R D E R
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 34,50,092/which is said to be inclusive of the alleged balance due of agreed amount of a sum of 25,89,000/-.
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
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have been made by the defendant in the Written Statement filed by him.
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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 `25,89,000/-, as such, the Trial Court ought to have allowed the application of the petitioner and drawn decree on the admitted facts.
25,89,000/-, 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 60,00,000/- is passed on to her, the defendant was constrained to pay the entire sum of 60,00,000/- including the said balance sum of 25,89,000/-, as such, the Trial Court has rightly observed that the alleged claim amount ofW.P.No.31328/2017
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`25,89,000/- 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.
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 `25,89,000/-, 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:
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“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 _25,89,000/- (Rupees Twenty Five Lakhs Eight Nine Thousand Only) out of the agreed sale consideration price and will pay this amount i.e._ 25,89,000/- 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 dated 3-1-2013 undertaking and agreeing to release this amount of ` 25,89,000/(Rupees Twenty Five Lakhs Eighty Nine Thousand Only) once the occupied tenants are got vacated….”
plaintiff, the relevant portion of the Written Statement filed by the defendant at paragraphs 6(g) and 6(h) are reproduced herein below:
6(g) The plaintiff left the office and strangely in the early morning, the plaintiff called the
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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/out of the cash portion of Rs.60,00,000/- and hence wrote a letter on 3.1.2013 that a sum of Rs.25,89,000/- 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 SubRegistrar, JP Nagar, Bangalore, at 12.30 pm on 3.1.2013 the Plaintiff started changing her version and refused to Rs.34,11,000/- brought by the Defendant and insisted for entire payment of Rs.60,00,000/- 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/- 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/was withheld and the vacant
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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/also totally amounting to Rs.60,00,000/-. The Plaintiff has also signed the receipt which was prepared by her confirming the receipt a sum of Rs.60,00,000/- by way of cash. The same would be produced by the defendant at the time of evidence. But the letter dated 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 dated 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).
the defendant has withheld a sum of `25,89,000/- 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
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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 25,89,000/out of the cash portion of 60,00,000/- and hence, wrote a letter on 03-01-2013 that a sum of `25,89,000/- would be paid after the tenants vacate the Schedule Property.
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
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`25,89,000/- agreeing to pay the same after the defendant
gets the vacant possession, however, since the plaintiff refused to execute the Sale Deed on 03-01-2013 and demanded for the entire payment of 60,00,000/- including the withheld amount of a sum of 25,89,000/-, he (defendant) was constrained to pay the said amount of 25,89,000/- also, thus totally amounting to a sum of 60,00,000/-. The defendant has also stated that in that regard, the plaintiff has also signed a receipt, confirming the receipt of a sum of 60,00,000/- 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 03-01-2013 which was on the very same morning, acknowledging the alleged due amount of 25,89,000/- 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.
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25,89,000/- 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 25,89,000/-. 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.
Sd/-
BMV*
2 issues framed by the court
Whether the High Court should interfere in the Trial Court's rejection of an interlocutory application requesting a decree on admission in a suit for recovery of money.
Whether the Defendant's written statement constitutes a specific admission of liability for the withheld amount despite mentioning a subsequent failure to pay.
Smt. Meena D. Thakur
Sri. L. Balakrishnama Naidu
Dr. Justice H.B. Prabhakara Sastry
As recorded by the court registry
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