2014 Supreme(Bom) 246

High Court of Judicature at Bombay
S.C. GUPTE, J.
SRL Limited
Versus
Techtrek India Limited
Notice of Motion No. 801 of 2013 In Suit No. 337 of 2013
Decided On: 03-02-2014

Headnote:Civil Procedure Code, 1908 - Section 34, Order XII, Rule 6 - Claim of interest. - In absence of contractual rate in documents and notice under Interest Act, plaintiff not entitled to pre suit interest.

       Civil Procedure Code, 1908 - Order XII, Rule 6 - Judgment on admission. - Since defendant admitted his liability only in respect of principal amount hence payment of principal amount and pendente lite interest only can be directed by Court. - The suit claim, is clearly severable into distinct portions, one representing the principal amount claimed and the other relating to the interest calculated on such principal amount. The defendant having clearly and unambiguously admitted its liability in respect of one portion of such claim, namely, the principal amount, there seems to be no difficulty in passing a partial decree on admission for a sum of Rs. 1,58,54,200/- being the principal amount of the security deposit refundable by the defendant to the plaintiff as claimed in the Notice of Motion.

       Notice of Motion is, accordingly, made absolute in terms of prayer clause (a). There shall be a decree on admission for the principal sum of Rs. 1,58,54,200/- together with pendente lite interest at the rate of 9 percent per annum from the date of the suit till payment or realization.

       Civil Procedure Code, 1908 - Order XII, Rule 6 - Judgment on admission. - Since statements of defendant in books of accounts is clear and unequivocal hence such statements amounts to admission of his liability. - Having regard to the law laid down as above, what needs to be seen is whether on the basis of the admissions, which are plain and not disputed per se, the plaintiff is entitled to succeed and whether in the face of these admissions it is possible at all for the defendant to non-suit the plaintiff. It is, firstly, to be noted that most of these admissions are post termination of the licence, and what is more important, after expiry of the notice period. These admissions clearly support the plaintiff’s case that the balance of security deposit claimed is arrived at after the adjustment of licence fees due including the licence fee for the notice period. The communication of 6 April, 2010 clearly admits the defendant’s liability to refund the sum of Rs. 1,78,54,200/- and in fact sets out the payment schedule and particulars of cheques given towards such payment. The cheques submitted along with the communication of 6 April, 2010 were substituted with fresh cheques aggregating to Rs. 1,58,54,200/- (the liability owed by the defendant having since been reduced by part payment of Rs. 20 lakhs) with the communications of 27 August, 2010 and 6 June, 2011. These are further clear admissions of the defendant’s liability towards the principal amount claimed in the suit. The clear and unequivocal statements in the Balance Sheets and Profit & Loss Accounts of the defendant also amount to an admission of the plaintiff’s claim towards the principal amount. No other material is produced or relied upon by the defendant to show that these amounts have since been paid or the entires in the accounts have since been rectified.

       Civil Procedure Code, 1908 - Order XII, Rule 6 - Limitation Act, Section 5 - Judgment on admission. - Since defendant acknowledged his liability for refund of money upto 31.3.2012 hence suit filed on 4.4.2013 not barred by limitation. - The admissions relied upon by the plaintiff ought to be viewed in the context of the written statement filed by the defendant. The Agreements, under which the security deposits have been received by the defendant, are admitted by the defendant. These Agreements form Annexures to the Written Statement. The receipt of the total amount of Rs. 1,78,54,200/- towards the security deposit is not disputed by the defendant. Even termination of licence and surrender of the licenced premises by the plaintiff is admitted. What the defendant has claimed in its Written Statement is that the termination of licence was arbitrary and shocking, and caused loss to the defendant due to non-availability of suitable licensees for the premises. The defendant has not formulated any claim for damages against the plaintiff in respect of such loss, but sought leave to file a counter-claim in the suit. What the defendant mainly contends in the Written Statement is that the defendant is entitled to adjust the rent of 3 months’ notice period from 4 December, 2009 to 3 March, 2010, which aggregates to Rs. 45,48,700/-, against the security Deposit. The defendant claims to have called upon the plaintiff to settle the accounts, which the plaintiff has refused to do. Besides these averments, the only other defence is the bar of limitation. It is claimed that the limitation expires on 3 December, 2012 and the suit filed thereafter (filed on 4 April, 2013) is barred.

       There is absolutely no substance in the defence on limitation. The refund was due on 4 December, 2009. The liability has since been acknowledged on a numerous occasions as noted above, the last of such acknowledgments being made in the Balance Sheet and account for the year ending 31 March, 2012. There is a part payment of the sum of Rs. 20 Lacs admittedly on 26 May, 2011.