Koyakutty v. Nortech Infonet Pvt. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 29[TH] DAY OF APRIL 2022 / 9TH VAISAKHA, 1944 OP(C) NO. 1451 OF 2017** **AGAINST THE ORDER/JUDGMENT IN OS 39/2015 OF ADDITIONAL SUB COURT,NORTH PARAVUR** ## **PETITIONER/S:** KOYAKUTTY AGED 57 YEARS AGED 57 YEARS, S/O.MEZHUKKATTIL BEERAN,MEZHUKKATTIL, EDATHALA KARA, ALWAYE EAST VILLAGE,ALWAYE TALUK, ERNAKULAM DISTRICT. BY ADVS. SRI.ROSHEN.D.ALEXANDER SMT.TINA ALEX THOMAS ## **RESPONDENT/S:** 1 NORTECH INFONET PVT. LTD. 34/115, NORTECH HOUSE (GURU BUILDING),ARAKKA KADAVU ROAD, EDAPPALLI, ERNAKULAM, PIN-682 024,REPRESENTED BY ITS MANAGING DIRECTOR,MR.BENLEY NORONHA. 2 BENLEY NORNHA MANAGING DIRECTOR, NORTECH INFONET PVT. LTD.,RESIDING AT GRACE LAND HOUSE, 46/2182F,SAMAJAM ROAD, VADUTHALA, ERNAKULAM.682 023. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 26.11.2021, THE COURT ON 29.04.2022 DELIVERED THE FOLLOWING: O.P.(C) No.1451 of 2017 -2- ## **JUDGMENT** Dated this the 29[th] day of April, 2022 O.P.(C) No.1451 of 2017 -3- Petitioner is the plaintiff in OS.No.39 of 2015 on the files of the Additional Sub Court, North Paravur. the petitioner had entered into an agreement for sale with the 1st defendant on 30.12.2013. As per the agreement, the petitioner was to purchase plaint A scheduled property from the first defendant, by exchanging plaint B schedule property owned by the petitioner and additionally paying an amount of Rs.1,25,00,000/towards sale consideration. The petitioner paid the amount of Rs.1,25,00,000/- within time and called upon the defendant to execute the sale deed. The defendants failed to accede to the request. Hence, the suit was filed seeking the following reliefs; _“A) Directing the defendant to effect the sale of the plaint 'A' schedule property by a sufficient instrument and to hand over the possession together with all related document to the plaintiff._ O.P.(C) No.1451 of 2017 -4- _B) In case specific performance is decreed Rs.15,00,000/- (fifteen lakhs) as compensation for withholding the performance._ _C) In the alternative Rs.15,00,000/- (Rs. Fifteen lakhs) as damages for non performance of contract and re-payment of Rs.125,00,000/(Rs One Crore twenty five lakhs) paid by the plaintiff to the defendant._ _D) Interest from the date of agreement to that of payment._ _E) To allow the plaintiff to recover from the defendant and their assets.”_ 2. The defendant entered appearance and filed Exhibit P2 written statement, admitting the agreement and admitting to have received Rs.1,25,00,000/- from the plaintiff towards the agreed balance sale consideration for A schedule property and stated that they had availed a loan by mortgaging A schedule property. In the light of the categorical admission in the written statement regarding receipt of Rs.1,25,00,000/and the averment that the defendants had mortgaged A schedule property as security for the ## O.P.(C) No.1451 of 2017 -5- loan availed by them. Thereupon, the petitioner filed Exhibit P3 interlocutory application under Order 23 Rule 1 of CPC, for permission of the trial court to abandon the relief of specific performance. The court below granted the permission sought for. While so, the suit was listed for trial and decreed ex parte vide Exhibit P4 judgment. Thereafter, the ex parte decree was set aside at the instance of the defendants and the suit listed for trial to 03.01.2017. On that day, the petitioner filed Exhibits P5 and P6 interlocutory applications, the former under Order 12 Rule 6 for passing a decree permitting the plaintiff to recover the admitted amount of Rs.1,25,00,000/-, and the latter, to remove the case from the list. The respondents filed objections to the applications and by Exhibit P8 order, trial court dismissed the Exhibits P5 and P6 applications, holding that the question as to who had committed the breach ## O.P.(C) No.1451 of 2017 -6- is relevant for determining the issues involved in the suit and as the objections raised by the defendants go to the root of the case, it is not proper to exercise the discretion under Order 12 Rule 6. Hence this writ petition, challenging Ext. P8. 3. Advocate Roshen D Alexander, learned Counsel for the petitioner argued that in view of the categorical admission in the written statement of having received Rs. 1,25,00,000/towards sale consideration, the court below ought to have passed a decree permitting the petitioner to recover the admitted amount. It is pointed out that, as the petitioner's application for withdrawing prayers A and B was allowed, all that was left for the trial court to consider, after granting a decree for the admitted amount, was the prayer for damages of Rs.15,00,000/- for the loss sustained due to non-performance of the contract. It is contended that the question as to ## O.P.(C) No.1451 of 2017 -7- who among the parties had committed the breach assumes relevance only in relation to the claim for damages. According to the learned counsel, no contention, which goes to the root of the case, was raised by the defendants. The admission in the pleading made it an appropriate case for exercising the discretion under Order XII Rule 6. To buttress the argument, reliance is placed on the decisions in _**Uttam Singh Duggal and Co. Ltd v. United Bank of India and others [(2000) 7 SCC 120] and Karam Kapahi and others v. Lal Chand Public Charitable Trust and another [(2010) 4 SCC 753].**_ 4. Despite service of notice, the respondents have not appeared. 5. The admission in the written statement, based on which the petitioner had sought a decree permitting recovery of Rs.1,25,00,000/-, reads as under; O.P.(C) No.1451 of 2017 -8- _“It is true that there was an agreement pertaining to the A and B schedule properties owned by the defendants and the plaintiffs respectively. It is also correct that this defendant received Rs.1,25,00,000/- from the plaintiff through cheque towards agreed balance sale consideration of A schedule property.”_ 6. The other contentions in the written statement are that the pleadings are insufficient to attract Section 16(c) of the Specific Relief Act and failure of the plaintiff in getting B schedule property converted as dry land is the reason for non-performance of the contract. The defendants also raised a contention that they sustained incalculable damages due to non- performance of the agreement and hence, the plaintiff is not entitled to get interest or cost from the defendants. **==> picture [380 x 10] intentionally omitted <==** contention in the written statement negating the petitioner’s right to seek specific performance O.P.(C) No.1451 of 2017 -9- is of no avail now, since the court had permitted the petitioner to give up the prayer in that regard. Therefore, the prayers remaining for consideration are for damages and repayment of Rs.1,25,00,000/- paid to the defendant. 8. As far as the prayer for recovery is concerned, there is clear admission in the written statement odf having received Rs.1,25,00,000/- towards sale consideration. In fact, this position is accepted by the trial court also. The reason for rejecting the petitioner’s prayer for grant of judgment based on the admission is twofold. (i) The application under Order 12 Rule 6 was made on the eve of the day of the list and (ii) the question as to who has committed the breach assumes relevance as far as determination of the issues involved in the suit is concerned. On the first aspect, the petitioner’s answer is that the suit had earlier been decreed ex-parte vide Ext.P8 judgment dated O.P.(C) No.1451 of 2017 -10- 09.01.2016 and the ex parte decree was set aside only on 23.11.2016. Prior to that the petitioner had filed Ext.P3 application under Order 23 Rule 1 seeking permission to abandon the relief of specific performance and the same was allowed by the trial court. It was in such circumstances that Ext.P6 application was filed under Order 12 Rule 6 on 3.1.2017. In this context it may also be pertinent to note that even in their objection to Exhibit P6, all that the defendants have stated is that they never admitted receipt of advance amount to the tune of Rs.1,25,00,000/- on the basis of the impugned sale agreement, but had admitted only receipt of the said payment by means of cheque. The said vague statement does not have the effect of altering or diluting the admission in any manner. 9. The second aspect pointed out is that the question as to who has committed the breach, goes to the root of the case and unless that O.P.(C) No.1451 of 2017 -11- question is decided, the prayer for judgement based on the admission cannot be granted. In my considered opinion, that question is relevant only for deciding the prayer for damages and has nothing to do with return of the advance amount. 10. Order 12 Rule 6 of CPC empowers the court to make such order or give such judgment as it may think fit, having regard to the admissions of fact made either in the pleading or otherwise, whether orally or in writing. Dilating on the scope and ambit of Order 12 Rule 6, the Apex Court has held in _**Karam Kapahi and others** (supra)_ as under; “ _**37.** The principles behind Order 12 Rule 6 are to give the plaintiff a right to speedy judgment. Under this Rule either party may get rid of so much of the rival claims about “which there is no controversy” (see the dictum of Lord Jessel, the Master of Rolls, in Thorp v. Holdsworth [(1876) 3 Ch D 637] in Chancery Division at p. 640)._ _**38.** In this connection, it may be noted_ ## O.P.(C) No.1451 of 2017 -12- _that Order 12 Rule 6 was amended by the Amendment Act of 1976. Prior to amendment the Rule read thus:_ “ _6. Judgment on admissions.—Any party may at any stage of a suit, where admissions of fact have been made, either on the pleadings, or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the court may upon such application make such order, or give such judgment, as the court may think just.”_ _**39.** In the 54th Law Commission Report, an amendment was suggested to enable the court to give a judgment not only on the application of a party but on its own motion. It is thus clear that the amendment was brought about to further the ends of justice and give these provisions a wider sweep by empowering the Judges to use it “ex debito justitiae”, a Latin term, meaning a debt of justice. In our opinion the thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right. However, the court always retains its discretion in the matter of pronouncing judgment.”_ 11. The very object of Order 12 Rule 6 being ## O.P.(C) No.1451 of 2017 -13- to enable the party to obtain a speedy judgment, at least to the extent of the relief to which, according to the admission of the defendant, the plaintiff is entitled, the trial court went wrong in denying such relief in spite of the categorical admission in the written statement. For the aforementioned reasons, the impugned order is liable to be set aside. 12. Even though learned Counsel for the petitioner contended that the decree on admission should be passed by this Court itself and the respondents directed to repay Rs.1,25,00,000/- with interest, I deem it appropriate to leave that exercise to the trial court. In the result, the original petition is allowed as under; Exhibit P8 order is set aside. It is declared that the petitioner is entitled for a decree on admission under Order 12 Rule 6 of CPC. The trial court shall take up O.S.No.39 of 2015 and pass a O.P.(C) No.1451 of 2017 -14- judgment directing repayment of the advance amount of Rs.1,25,00,000/- with appropriate rate of interest. The judgment, as directed above, shall be rendered as expeditiously as possible and at any rate, within three months of receipt of a copy of this judgment. Sd/- **V.G.ARUN JUDGE** Scl/ O.P.(C) No.1451 of 2017 -15- ## **APPENDIX OF OP(C) 1451/2017** |PETITIONER|EXHIBITS| |---|---| |EXHIBIT P1|TRUE COPY OF THE PLAINT IN| ||O.S.NO.39/2015 ON THE FILES OF THE| ||ADDITIONAL SUB JUDGE, NORTH PARAVOOR.| |EXHIBIT P2|TRUE COPY OF THE WRITTEN STATEMENT IN| ||O.S.NO.39/2015 ON THE FILES OF THE| ||ADDITIONAL SUB JUDGE, NORTH PARAVOOR.| |EXHIBIT P3|TRUE COPY OF THE PETITION FILED UNDER| ||ORDER XXIII RULE 1.| |EXHIBIT P4|TRUE COPY OF THE EX-PARTE JUDGMENT| ||DAED 13.06.2016 IN O.S.NO.39/2015.| |EXHIBIT P5|TRUE COPY OF THE I.A.NO.22/2017 IN| ||O.S.NO.39/2015 FILED UNDER ORDER XII| ||RULE 6.| |EXHIBIT P6|TRUE COPY OF THE I.A.NO.23/2017 TO| ||REMOVE THE CASE FROM THE LIST.| |EXHIBIT P7|TRUE COPY OF THE COUNTER AFFIDAVIT| ||FILED IN I.A.NO.22/2017.| |EXHIBIT P8|TRUE COPY OF THE ORDER DTD. 09.01.2017| ||IN I.A.NO.22/2017 IN O.S.NO.39/2015.| |EXHIBIT P9|TRUE COPY OF THE INTERIM ORDER DTD.| ||10.01.2017 IN O.P.NO.94/2017.|