Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 665 of 2019 in
S.C. Suit 1812/2019.
MHCC010017422019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 665 OF 2018.
IN
S.C.SUIT No.1812 of 2019.
Badal Omprakash Agrawal … Applicant (Plaintiff)
In the matter between
Badal Omprakash Agrawal. …Plaintiff
V/s.
Harmohan Satpal Chopra. ...Defendant
Appearance:
Adv. S.M. Mungale i/b I.R.Joshi & Co for Plaintiff.
Adv. B.K.Bali i/b M/s. Bali Associates for Defendant.
CORAM : H. H. JUDGE AND
ASST SESSIONS JUDGE,
SHRI. S. B. PAWAR (C.R.No.59)
DATE : 27th JUNE, 2022
ORDER
Plaintiff has taken out this Notice of Motion with a prayer
to pass decree on admission under Order 12 Rule 6 of the Code of Civil
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Procedure, 1908 (in short 'CPC').
2. It is contended that plaintiff had business dealings with the
defendant in between the period from 15.06.2012 to 08.01.2013.
Plaintiff supplied goods worth Rs.87,76,060/ to defendant. The
defendant accepted, used, utilized and consumed the goods in his
manufacturing process and never raised any dispute about the quality,
quantity and price of the goods. He paid an amount of Rs.69,92,351/
from time to time till 05.1.2015, leaving balance of Rs.17,83,661/ as
on 05.01.2015. Defendant paid major sum of Rs.54,42,351/ before
19.06.2013. On 17.06.2013 defendant made further payment by
issuing cheque of Rs. 2,00,000/ However, said cheque was dishonored.
Thereafter with dishonest intention, defendant sent letter dated
19.06.2013 raising disputes about quality and quantity of the goods.
3. It is further the case of the plaintiff that after receipt of the
letter dated 19.06.2013, in meeting fixed between the parties, dispute
raised by the defendant was resolved and at the end of the meeting,
defendant agreed to clear balance amount within short time. Pursuant
to the oral agreement, the defendant thereafter made further payment
of Rs.15,50,000/ between 26.07.2014 and 05.01.2015. The defendant
also availed VAT credit of Rs.4,17,908/ on total amount, which
corresponds to the entire value of the goods supplied by the plaintiff to
the defendant. This amounts to admission of the liability on the part of
the defendant. The defendant has made oral as well as written
admission of his liability. Therefore, plaintiff is entitled to decree on
admission. Accordingly, it is prayed that decree on admission be passed
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in favour of the plaintiff.
4. Defendant, by filing his reply, contested the prayer of the
plaintiff on the ground that the Notice of Motion is frivolous, vexatious
and without any substance. There is no admission of any nature by the
defendant. He has not admitted any liability either in his written
statement or anywhere else. The document annexed to the Notice of
Motion do not form part of the plaint. It is specific defence in the
written statement that the suit is barred by limitation. Since beginning,
the defence has been of short delivery and of inferior quality of goods.
Defendant has denied outstanding amount claimed by the plaintiff by
letter dated 19.06.2019 and has raised dispute about the inferior quality
and less weight of the goods. Despite of receipt of the said letter,
plaintiff sent letter dated 24.06.2013 and claimed balance amount of
Rs.33,33,665/. Defendant has not accepted the plaintiffs said claim
and accordingly has sent reply by Email dated 06.06.2013. Defendant
has paid major amount honestly. He has paid dues and payable amount
against proper delivery of goods. This payment cannot be termed as
admission. Availing VAT Credit does not prove that the goods were
worth of quality and quantity referred in the invoices. The meeting or
oral agreement as alleged by the plaintiff is denied by the defendant
and ultimately it is contended that no case is made out to pass the
decree on admission.
5. Heard Ld Adv S.M.Mungale for plaintiff and Ld Adv B.K.
Bali for defendant.
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6. Following points arise for my determination to which I record my
findings for the reasons to follow:
Sr.No. FINDINGS REASONS
1. Whether the defendant has
made admission of liability of
the suit claim as alleged by the
plaintiff?
No.
2. Whether plaintiff is entitled to
decree on admission?
No.
3. What order? Notice of Motion is
dismissed.
REASONS
As to Point Nos.1 to 3
7. Ld. Adv S.M. Mungale for plaintiff argued that admission
under Order 12 Rule 6 of the CPC need not be only in pleading. It can
be oral or in writing. Defendant has admitted delivery of goods worth of
Rs.87,76,606/ from the plaintiff. Defence regarding defective goods is
raised for the first time in June 2013. Thereafter till January 2015
defendant had made further payments. Therefore, defendant admitted
aggregate claims. Defendant has also admitted liability in oral
agreement between the parties. Availing VAT credit also establishes that
defendant admits delivery of goods. Defendant has not returned the
goods. Therefore, he submits that on the basis of the above admissions,
plaintiff is entitled to decree under Order 12 Rule 6 of the CPC.
8. Per contra, Ld. Adv Shri B. K. Bali for the defendant submits that
documents annexed to the Notice of Motion are not filed alongwith the
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plaint. The dispute between the parties is about short supplies and
inferior quality of the goods. Defendant made payment against non
defective goods. Therefore, it cannot be admission of liability. Invoices
relied by the plaintiff are time barred. Serious disputed facts are
involved in the suit. Therefore, decree under Order 12 Rule 6 of CPC
cannot be passed.
9. Order 12 Rule 6 of CPC provides that where admission of
fact has 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
admission.
10. The above provision makes it explicit that admission can be
in pleading or otherwise and it can be orally or in writing. It is settled
preposition of law that decree on admission under the above provision
is not a matter of right, but it is discretion of the Court. It is also equally
well settled that before passing decree on admission, the Court is
required to satisfy that admission is clear, unambiguous, definite,
unconditional and unequivocal. Thus, only if above conditions in
respect of admission are fulfilled, the Court can proceed to pass decree
on admission under Order 12 Rule 6 of the CPC.
11. The defendant in his pleading has denied the plaintiff's
claim, raising the dispute about the quality and quantity of the goods
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delivered by the plaintiff. There is no dispute regarding actual delivery
of goods claimed by the plaintiff. The defendant disputes liability on
the ground that the goods were of substandard quality. Therefore, there
is no admission of the claim of the plaintiff in the written statement of
defendant.
12. The decree on admission is prayed on the following three grounds
which plaintiff contends as admission on the part of defendant:
a) Part payment of the major portion of the value of goods.
b) Alleged oral agreement between the plaintiff and defendant
in which defendant admitted the liability, and
c) Availing VAT credit on the entire goods purchased by the
defendant without returning goods to the plaintiff.
13 So far as the part payment of the major amount is
concerned, it is specific case of the defendant that he paid the due
amount towards nondefective goods. Therefore, part payment by the
defendant cannot be construed as an admission of the liability to pay
the dues claimed by the plaintiff in the suit. As regards the alleged oral
agreement between the plaintiff and defendant and the alleged
admission by the defendant of his liability in the said agreement, these
facts are disputed by the defendant. Except bare words of the plaintiff,
there is no other satisfactory evidence regarding the oral agreement or
the oral admission on the part of defendant. Therefore, the said
contention as well cannot be the basis to pass decree as prayed by the
plaintiff.
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14. The last circumstance relied upon by the plaintiff to infer
admission on the part of the defendant is the act of availing VAT credit
on entire purchases by the defendant. The documents annexed with the
Notice of Motion (Exhibit B) indicates that the defendant has availed
VAT credit in respect of entire goods purchased from the plaintiff.
Admittedly, it is not the case of either party that defendant has
returned any portion of the goods to the plaintiff.
15. The concept of VAT credit is that trader is entitled to get
credit of tax of goods which he has purchased. The credit become
available as soon as inputs are purchased and in order to avail VAT
credit, it is not necessary for the trader to wait till the goods are sold or
utilized. In view of the purpose of VAT credit, availing VAT credit, in
itself, cannot be construed as a clear, definite and unconditional
admission on the part of the defendant of the liability of the plaintiff's
claim.
16. Section 56 of the Sale of Goods Act provides remedy to
buyer of the goods for breach of warranty and as per the said provision,
buyer can set up against the seller, breach of warranty, in diminution or
extinction of the price of the goods. The defendant, by disputing the
plaintiff’s claim, is indirectly taking recourse to Section 56 of the Sale of
Goods Act and the same is prima facie legally permissible.
17. The defendant has set up the defence in his written
statement that the suit is barred by limitation. Last of the invoices, as is
evident from the annexures of the plaint, is dated 08.01.2013 and the
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present suit is instituted on 03.01.2018, after a period of almost five
years. Plaintiff contends that because of the part payment made by the
defendant in the year 2015, the period of limitation is extended under
the provisions of the Limitation Act. Whether part payment made by the
defendant has the effect of extending the period of limitation can be
decided at the time of final hearing. However, at this stage it is clear
that serious and triable issues are involved in the suit. Moreover, the
admissions, which plaintiff relies, are not clear, unambiguous, definite,
unconditional and unequivocal. In these circumstances, plaintiff has not
made out the case to pass decree on admission. Therefore, point No. 1
and 2 are answered in the negative and following order is passed
ORDER
1. Notice of Motion No.665 of 2019 is dismissed.
2. Notice of Motion No.665 of 2019 is disposed of accordingly.
(SHRI S. B. PAWAR )
Judge
Dt.:27/06/2022 City Civil Court, Gr.Mumbai
Declared on : 27.06.2022
Dictated on : 27.06.2022
Typed on : 27.06.2022
Checked & Signed on:
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
04.07.2022 at 5.30 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 27.06.2022
Order signed by P.O. on 27.06.2022
order uploaded on 04.07.2022
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