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2014 Supreme(Bom) 275
High Court of Judicature at Bombay
S.C. GUPTE, J.
Pankaj Unit No.1 Housing Development Company Private Limited & Another
Versus
Oshiwara Land Development Company Private Limited & Another
Notice of Motion No. 3806 of 2011 In Suit No. 1975 of 2011
Decided On: 05-02-2014
For the Plaintiffs:Iqbal Chagla, Senior Advocate with Janak Dwarkadas, Senior Advocate with Mustafa Doctor with Rohan Rajadhyaksha i/b. M/s. Warerkar & Warerkar, Advocates.
For the Defendants:D1, Dr. Virendra Tulzapuarkar, Senior Advocate with Amit Jamsandekar, Neha Bhatt i/b. M/s. Bilawala & Co., D2, D. Madon, Senior Advocate with Aditya Shiralkar i/b. N.R. Gandhi, Advocates.
Headnote:Civil Procedure Code, 1908 - Order XII, Rule 6 - Application for grant of judgment on admission. - Admission in pleadings as well as admissions in correspondence outside pleadings can be relied on for purpose of application for judgment on admission.
Civil Procedure Code, 1908 - Order XII, Rule 6 - Grant of decree on admission. - Grant of decree on admission, is a matter of discretion of Court and not a matter of right. - A decree on admission is not a matter of right, but rather a matter of discretion of a Court. This discretion must be exercised in accordance with known judicial canons. It is also a settled principle of civil jurisprudence that judgment on admission is not a matter of right and rather is a matter of discretion of a Court. Where the defendant has raised objection which will go to the very root of the case, it would not be appropriate to exercise this discretion. The use of the words ’May’ and ’make such orders’ or ’give such judgment’ spells out that power under these rules are discretionary and use of discretion would have to be controlled in accordance with the known judicial canons. The cases which involves questions to be decided upon regular trial and the alleged admissions are not clear and specific, it may not be appropriate to take recourse to these provisions.
The admission would obviously have the consequences of arriving at that conclusion without determination of any question and evidence.
Order XII, Rule 6 has to be read along with the proviso to Rule 5 of Order VIII. That is to say, notwithstanding the admission made by the defendant in his pleading, the Court may still require the plaintiff to prove the facts pleaded by him in the plaint.
Thus, in spite of admission of a fact having been made by a party to the suit, the Court may still require the plaintiff to prove the fact which has been admitted by the defendant.
Civil Procedure Code, 1908 - Order XII, Rule 6 - Grant of judgment on admission. - Admissions of defendant being not admissions of "facts jurisdictional to grant of decree" cannot be basis for grant of judgment on admission. - Plaintiff filed suit for specific performance of suit agreement. It is the case of plaintiff that it had paid entire consideration to defendant and defendant was bound to convey suit property to him. Plaintiff relied on admissions of defendant contained in various statements of defendant both in and outside the pleadings. Defence was that suit agreement as it originally stood was later modified and that plaintiffs were not ready to perform modified agreement. The claim as laid down in the plaint was of the plaintiffs entitlement to specific performance of original agreement.
The claim as laid down in the plaint was of the plaintiffs entitlement to specific performance of original agreement. This claim was by no means admitted by defendant. What was admitted was the existence of the original agreement (till it was said to be modified) and receipt of full payment there under and not the defendants liability to perform the agreement as it originally stood.
Admissions relied on by plaintiff by themselves did not cover all material propositions of facts which plaintiffs were required to prove. Admissions referred in instant case are not of "Facts jurisdictional to the grant of decree." No decree therefore can be passed on such admissions.
Civil Procedure Code, 1908 - Order XII, Rule 6 - Grant of relief of judgment on admission. - Judgment on admission can be granted only when admissions relied upon are unambiguous and clear. - Having regard to the law so laid down, it cannot be doubted that for the purpose of an application for a decree on admission, admissions in pleadings as well as admissions in correspondence or communications outside the pleadings can be relied on. But the salutary principle is that such admissions must be unambiguous, and clear. If there is any ambiguity in the admission or any reasonable explanation for such admission, a decree may not be passed by the Court on the basis of such admission.
Specific Relief Act, 1963 - Sections 16 and 20 - Decree for specific performance. - In a suit for specific performance of agreement of lease, decree on admission for part claim cannot be granted. - Supreme Court in the case of Firm Sriniwas Ram Kumar v. Mahabir Prasad, AIR (38) 1951 SC 177 and the judgment of Calcutta High Court in the case of Premsuk Das Assaram v. Udairam Gungabux, Indian Law Reports (Vol. XLV.) Calcutta Series Page 138. In the case of Firm Sriniwas Ram Kumar, the subordinate Court had dismissed the plaintiff’s claim for specific performance, but granted a money decree on the basis of the defendant’s admission of receipt of an advance payment. The Supreme Court upheld this decree on the ground inter-alia that there was no question of adducing evidence on a fact expressly admitted by the defendant. The case of Firm Sriniwas Ram Kumar was a case where a decree was passed at the conclusion of the trial and not under Order XII Rule 6. That case has no application to the facts of our case. In Premsuk Das Assaram, the judgment was delivered under Order XII Rule 6. That was a suit for a money claim based on accounts. There was an admission of a part of the amount. A judgment was entered for that part of the suit claim and the plaintiff was permitted to proceed to prove the rest of the claim at the trial. The Calcutta High Court refused to restrict the operation of Order XII Rule 6 only to cases where the defendant’s admission pertains to the whole claim. The decree for the part which was admitted was upheld. But then, in the Calcutta case the claim was severable into distinct portions and the defendant admitted his liability in respect of one portion of such claim. In our case, the two parts, namely, reversionary rights with respect to 44 acres and 180 acres, cannot be so separated.
1 The Notice of Motion applies for a decree on admission. The facts of the case may be briefly set out as follows.
2 Plaintiff Nos. 1 and 2 are companies under Part IX of the Companies Act, 1956 incorporated as such upon conversion of two co-operative societies, which themselves came into existence on account of de-merger of Pankaj Co-operative Housing Development Society Ltd. (“Principal Society”).
3 Defendant No. 1 was the owner inter alia of land forming part of Survey No. 41 at Oshiwara in Mumbai, which was reserved as No Development Zone (“suit property”). By a registered Deed of Lease of 17 September 1981, Defendant No. 1 demised the suit property unto the Principal Society for 98 years. Clause 6 of the Lease Deed provided that the Lessee shall have a right to purchase the reversionary rights in respect of the suit property from the Lessor at the rate of Rs. 9.95 per sq. ft. In 1981 and 1983 development agreements were entered into in respect of the suit property between the Principal Society and Defendant No. 2 (who was originally Plaintiff No. 3 in the present suit and later transposed as a defendant as mentioned below). The suit property was surveyed and measured in the year 1999 and its boundaries were fixed. The property admeasured about 9,01,983.9 sq. mtrs. or 224 acres. In 2001, the Principal Society was demerged and two societies (the predecessors of the present Plaintiffs) came into being. The leasehold rights of the Principal Society thus came to be jointly vested in the predecessors of the Plaintiffs. In 2011, the two societies were converted to Joint Stock Companies under Part IX of the Companies Act and thus became successors in interest of the leasehold rights in the suit property.
4 In December 2005, by an arrangement between the two societies and Defendant No. 2, the development agreements of 1981 and 1983 were confirmed and it was inter alia provided that a part of the consideration payable by Defendant No. 2 would be paid to Defendant No. 1 for purchase of reversionary rights of the latter in the suit property as well as its other dues. It is the case of the Plaintiffs that between December 2005 and August 2007, a sum of Rs. 11,86,83,843/- was paid by Defendant No. 2 on behalf of the Plaintiffs to Defendant No. 1, which included the total consideration of Rs. 9,70,86,528/- towards the purchase of reversionary rights in the suit property in accordance with Clause 6 of the Lease Deed as well as ground rent and interest payable to Defendant No. 1. It is the case of the Plaintiffs that with the payment of Rs. 11,86,83,843/-, the total consideration for reversionary rights was paid to Defendant No. 1 and the latter was bound to convey the suit property to the Plaintiffs. It appears that draft conveyance was exchanged between the parties, but no conveyance was eventually executed. The Plaintiffs, therefore, filed the present suit.
5 The Plaintiffs have taken out the present Notice of Motion for a decree on admission under Order XII Rule 6 of the Code of Civil Procedure. The Plaintiffs rely on admissions of Defendant No. 1 contained in various statements of the Defendants both in and outside the pleadings. These admissions are said to be contained in the following statements:
(i) In a statement made under Section 133 A of the Income Tax Act, the Director of Defendant No. 1 confirmed that an amount of about Rs. 9 crores was received towards sale of reversionary rights in the suit property and was retained as deposit in the account of Defendant No. 1 according to a consistent practice of accounting;
(ii) In a letter dated 23 December 2009 addressed to the Additional Commissioner of Income Tax, Defendant No. 1 stated that the sum of Rs. 9,70,86,528/- received by Defendant No. 1 on behalf of the Plaintiffs was the total consideration for purchase of reversionary rights and the deal was through and treated as concluded during F. Y. 2006-07 and that accordingly the payment was treated as income of Defendant No. 1
