Final Order 1

Order Details: Notice of Motion
Pdf Text: Order on Notice of Motion 1
No.203 of 2020.
MHCC010005082020
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
NOTICE OF MOTION NO.203 OF 2020.
IN
SHORT CAUSE SUIT NO.2871 OF 2018.
Sayyed Abbas Ali. .....Plaintiff.
V/s.
1. Tata Power Company Ltd. Staff
Superannuation Fund and Anr. ...Defendants.
Appearances :
Adv. S.K.Ali, for plaintiff.
Adv. Dhruv Joshi for defendant No.1.
Adv. Ramesh Cheulkar for defendant No.2.
Coram : Shri. S. B. Pawar.
Judge.
C. R. No. : 59.
Date : 16/03/2023.
ORDER
Defendant No.1 has taken out the present Notice of Motion
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No.203 of 2020.
under Order XII Rule 6 of the Code of Civil Procedure, 1908 (in short
'CPC') for dismissal of the suit.
2. In the supporting affidavit, it is averred that suit is filed for
declaration that option No.2 out of six pension options under defendant
No.1’s rule is bad, illegal and fraudulent act and does not have binding
effect upon the plaintiff and that the plaintiff is entitled under option
No.5 out of the sixpension options under defendant No.1's rule.
Plaintiff, in his advocate’s letter dated 16.10.2015 addressed to
defendant No.1, annexed at Exh. B to the plaint, has admitted of
selecting option of annual pension payable for 10 years certain and
thereafter during his life time i.e. option No.2 out of six pension
options. After voluntarily retirement on 31.08.2004, plaintiff being a
member of defendant No.1 was entitled to select the pension option out
of six pension options under Fund’s Rules. Plaintiff filled prescribed
form dated 23.09.2004 to the Trustees of defendant No.1 electing
option No. 2. Plaintiff also submitted Form 'A' signed by him listing
option No.2. In letter dated 16.10.2015 plaintiff admits the fact that he
selected option No.2. Thereafter plaintiff, with malafide intention,
filed the present suit by falsely contending that he never opted for
option No.2 and instead opted for option No.5. In view of the plaintiff's
admission in the letter dated 16.10.2015, the reliefs sought by the
plaintiff in suit are not tenable and cannot be granted. In the above
circumstances, it is prayed that the suit be dismissed.
3. Defendant No.2 filed its reply and therein it is averred that
the transaction is between the plaintiff and defendant No.1, defendant
No.2 is nowhere responsible. Plaintiff admitted in his advocate's letter
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No.203 of 2020.
dated 16.10.2015 addressed to defendant No.1 of selecting option No.2.
There is no privity of contract between the plaintiff and defendant No.2.
Therefore, defendant No.2 is not concerned with the dispute relating to
the option selection by plaintiff. The plaintiff has opted pension scheme
of 10 years or life. The plaintiff is informed that this annuity type is life
annuity and hence, plaintiff needs to submit existence certificate on
every year. The last payment is made to the plaintiff on 01.01.2019 and
there is no amount to be paid to the plaintiff. The suit filed is
misconceived and is liable to be dismissed against the defendant No.2.
4. Plaintiff in his affidavit in reply resisted the Notice of
Motion by contending that it is filed to prolong the matter. When the
plaintiff’s advocate sent letter dated 16.10.2015, documents at Exh. B &
C with plaint were not in possession of the plaintiff and the plaintiff got
those documents subsequently in the year of 2017. It is specifically
mentioned in the said letter that plaintiff was made to understood and
informed that for 10 years he will get pension and thereafter unsettle
amount shall be paid to the beneficiary. In view of the documents of
defendant No.1, especially the document dated 23.09.2004, defendant
No.1 admitted that plaintiff's beneficiaries are entitled for benefits of
pension. The employee of defendant No.1 has cheated the plaintiff in
mentioning incorrect option. Thus, it is prayed that the Notice of
Motion be dismissed.
5. In view of the rival contentions raised by the parties,
following points arise for my determination to which I record my
findings for the reasons to follow
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No.203 of 2020.
Sr.No. Points Findings
1. Whether defendant No.1 is entitled
to judgment on admission under
Order XII Rule 6 of the CPC?
..Yes..
2. Whether the suit is liable to be
dismissed?
..Yes..
3. What order? Notice of Motion is
allowed.
REASONS
6. Heard Ld. Adv Druv Joshi for defendant No.1, Ld. Adv
Ramesh Cheulkar for defendant No.2 and Ld. Adv S. K. Ali for plaintiff.
Ld. advocate for defendant No.1 argued that plaintiff himself has
selected option No.2 at the time of superannuation and he is receiving
pension since 2004. He has filed the suit after 14 years, disputing the
option selected by him. By inviting attention of this Court, to Clause
(3) of the Notice dated 16.10.2015, he submitted that there is clear
admission of the plaintiff that he agreed for pension payable for 10
years certain and thereafter during his life time as per option No.2. He
submits that tenure period of the pension is crucial and once having
opted for the tenure period of 10 years as per option No.2, the suit is
not maintainable. By relying upon the judgments of the Hon'ble Delhi
High Court in Sushil Bhardwaj V/s. Ved Prakash Shastri & Ors.,
2008 SCCC OnLine Del 993 and Ravi Shankar Sharma V/s. Kali Ram
Sharma And Ors ILR (2012) 6 DELHI 338 CS (OS), he submits that
under Order XII Rule 6 of CPC, even suit can be dismissed on the basis
of admission given by the plaintiff. Ld. Advocate for defendant No.2
argued in terms of his reply. He submits that plaintiff has no privity of
contract with defendant No.2 and option cannot be changed after 10
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years. Therefore, he also submits that the suit is not maintainable.
7. As against this, Ld. advocate for plaintiff argued that
plaintiff should be given opportunity to lead the evidence and bring on
record the true facts. The case of the plaintiff is that his signature was
obtained on the blank papers. The plaintiff is cheated and therefore,
plaintiff be given an opportunity to prove his case.
As to point No.1 to 3:
8. Before adverting to deal with the rival contentions of the
parties, it is necessary to consider the legal position in respect of
judgment on admission under Order XII Rule 6 of CPC. The Hon'ble
Delhi High Court in Sushant Bhardwaj V/s. Ved Prakash Shastri &
Ors (Supra) in para No.22 has held as under :
22. In a previous decision, i.e. Shikharchand V. Mst. Bari Bai,
AIR 1974 MP 75, the High Court had arrived at much the
same conclusion in relation to the term 'otherwise', saying
that it clearly indicates that it is open to the Court to base the
judgment on statement made by a party not only in the
pleadings but also de hors the pleadings. The Court crucially
also held that such admission may be made either expressly
or constructively. It may also be noticed that a provision
under Order 12 Rule 6, CPC is flexible enough to enable the
Court to dismiss the suit, if the situation so warrants. The
provision is not confined to an order decreeing the claims of
the plaintiff, against the defendant, the terminology used is
wide enough to comprehend situations where admission
either in the pleadings or 'otherwise' can result in dismissal of
the suit, which would result in the drawing up of a decree.
The question on the merits here, therefore, is whether the
two documents relied upon by the defendants i.e. ex. D1 and
D2 are unambiguous and clear admissions which should
persuade the Court to dismiss the suit.
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9. In Ravi Shankar Sharma V/s. Kali Ram Sharma and
Ors. (supra) it is held as under :
6. As per the provisions of Order 12 Rule 6 CPC, a
Court is entitled to decide the suit on the basis of
admitted facts at any stage. The intendment of Order 12
Rule 6 CPC is that litigants should not undergo rigours of
long pendency of a case and tribulations of a trial if on
the admitted facts the entitlement of the plaintiff to the
reliefs is not made out. The salutary object under Order
12 Rule 6 CPC is utilized in order to cut short such
litigation which should no longer remain pending. I may
note that a decree as per Section 2(2)CPC includes
dismissal of a suit and therefore the provision of Order 12
Rule 6 CPC applies even for dismissal of a suit which is
also called a decree.
10. Thus as held in the above authority, the provision in Order
XII Rule 6 in CPC is not confined to an order decreeing the suit of the
plaintiff against the defendant, but it comprehends situations where
admission either in the pleadings or 'otherwise' made by the plaintiff
can result in dismissal of the suit.
11. It is the case of the plaintiff that he was in the service of
defendant No.1 and has retired from the service w.e.f. 31.08.2004
under voluntarily scheme issued to the plaintiff. The plaintiff was
entitled for postretirement benefit to the extent to Rs.6,50,000/ under
the head of 'Staff Superannuation Fund' and was made to understand
that 1/3 of the amount will be paid to the plaintiff and plaintiff will be
entitled to annual pension payable to himself and his spouse till both of
them are alive and thereafter to the survivor till his/her death. Along
with Form 'A' plaintiff furnished details of beneficiaries for the purpose
of filling nomination of beneficiaries pursuant to Rule 30 of the Fund.
At the time of the signing various documents including the Master
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No.203 of 2020.
Policy No. GA/12506 plaintiff was made to understand about the policy
and its benefit. Accordingly, plaintiff agreed for Clause (5) of the Master
Policy. The plaintiff signed the papers in good faith. However, in the
year 2017, when plaintiff procured the documents, it was revealed that
Clause (2) was tick marked instead of clause (5) and accordingly the
plaintiff was cheated by the erstwhile employee of defendant No.1 at
the time of signing of blank papers. In the background of the above
facts, plaintiff has sought declaration that Master Policy No. GA/12506
to the extent showing Clause (2) is bad, illegal and not binding upon
the plaintiff and that the plaintiff is entitled for Master Policy with
clause No.(5) of the same.
12. The plaintiff has referred his advocate's letter dated
16.10.2015 addressed to defendant No.1 in his pleading and has
annexed its copy as Exh. D to the plaint. In the said letter in para No.3,
it is mentioned that plaintiff agreed that he shall be entitled for annual
pension payable for 10 years certain and thereafter during his lifetime
and as per policy unsettle amount after the demised shall be paid to
beneficiaries It is further mentioned in the said letter that plaintiff is
paid sum of Rs.27,000/p.a. till December 2014, but he was told that he
would not be entitled for any further payment. Therefore, it was the
grievance of the plaintiff that after the year of 2014, he was told that he
is not entitled for any amount or benefit under the pension.
13. Subsequent communications between the parties are also
brought on the record. It is pertinent to note the there is no reference or
allegations in the letter dated 16.10.2015 regarding the alleged
cheating of the plaintiff at the time of signing of papers in the year
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No.203 of 2020.
2004. In reference to the above admission in the notice dated
16.10.2015, in affidavit in reply, the explanation is given that when the
advocate for plaintiff was approached to issue the notice, the documents
at Exh.B & C with the plaint viz. Copy of Master Policy and the copy of
Form 'A' signed by the plaintiff were not in possession of the plaintiff
and he got those documents subsequently in the year 2017. In this
regard, it may be noted that letter dated 16.10.2015 finds reference to
Master Policy No. GA/12506 in detail. Therefore, it does not appear
that plaintiff was not having knowledge of those documents at the time
of issuing notice dated 16.10.2015. He has clearly mentioned that he
had opted for annual pension of 10 years certain and thereafter till his
lifetime which is option (2) in the Master Policy. Moreover, with
reference to the said letter, the plaintiff is completely relying upon it in
his pleading without any demur. This suggests that there is clear
admission on the part of the plaintiff that he had agreed and voluntarily
selected option No.2 in the Master Police at Exh.B with the plaint at the
time of submitting the documents in the year 2004.
14. Out of the six options in the Master Policy Exh.B, the
nomination of beneficiaries is required only in option Nos.(1), (2) and
(3). For sure, the nomination of beneficiaries is not contemplated in
option No.(5) which plaintiff is claiming to have opted. The plaintiff is
not disputing the nomination of beneficiaries as per Exh.C. In fact
plaintiff is relying upon the said document in his pleadings. This further
fortifies that the option selection by the plaintiff was voluntary and
makes his admission in letter dated 16.10.2015 even more clear.
15. The admission in the letter dated 16.10.2015 has bearing
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also on the cause of action to the suit. The defendants are relying upon
the document which plaintiff has relied upon and annexed with the
plaint. The cause of action is a bundle of facts and pleading as a whole
has to be considered for ascertaining the cause of action to the suit. The
ground of cheating is raised by the plaintiff in the plaint but if the
admission in letter dated 16.10.2015 is considered, it indicates that
there is no cause of action to the suit. Thus, the provision in Order 7
Rule 11(a) of CPC is also applicable in the facts of the present case.
Under the said provision, if the plaint does not disclose cause of action,
the same is liable to be rejected.
16. It is settled proposition of law that judgment on admission
under Order XII Rule 6 of CPC is a matter of discretion of the Court and
for passing any judgment under the said provision, the admission has to
be clear and unambiguous. In my view, the admission given by the
plaintiff in the letter dated 16.10.2015 is clear and unambiguous and it
qualifies the requirement under Order XII Rule 6 of CPC. The letter
dated 16.10.2015 further goes to show that there is no cause of action
to file the present suit as plaintiff has agreed the option No.2 in the
Master Policy.
17. To conclude, the admission of the plaintiff in letter dated
16.10.2015 is clear and unambiguous. It is also unequivocal in the light
of form of beneficiaries Exh.C with the plaint. Thus, on the basis of the
said admission, the suit is liable to be dismissed by passing judgment
under Order XII Rule 6 of the CPC. Therefore, point Nos. 1 & 2 are
answered in the affirmative and following order is passed :
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No.203 of 2020.
ORDER
1. Notice of Motion No. 203 of 2020 is made absolute in
terms of Clause (a).
2. Notice of Motion No. 203 of 2020 is disposed off
accordingly.
(S.B. Pawar)
Judge,
City Civil and Sessions Court
Date.:15.03.2023 Greater Bombay (CR 59)
Declared on : 15.03.2023
Dictated on : 15.03.2023
Transcribed on : 17.03.2023
Checked on : 20.03.2023
Signed on :
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
23.03.2023 at 1.10 p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 15.03.2023
Order signed by P.O. on 23.03.2023
order uploaded on 23.03.2023
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