2019 Supreme(Bom) 284

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.S. PATEL, J.
K. RAHEJA CORP PVT LTD. - Appellant
Versus
MAHARASHTRA TOURISM DEVELOPMENT CORPORATION LTD. - Respondent
Notice of Motion No. 270 of 2016; Suit No. 3762 of 2002
Decided on : 12-02-2019

Headnote:

Civil Procedure Code 1908 - Order XII - Rule 6 – Claim of compensation - Court has jurisdiction - Wrongfully and unlawfully terminated by sole Defendant - Order to finalize and execute lease deed - Plaintiff claims that a Memorandum of Understanding between parties came to be wrongfully and unlawfully terminated by sole Defendant by its letter a copy of which is at Exhibit Q to the Plaint - First prayer in the suit is for a declaration in these terms - Second prayer is for a refund of an amount with interest and further interest - Next prayer is a money claim in amount with interest as per particulars of claim at Exhibit Y to Plaint - This Exhibit makes it clear that the relief in prayer clause is for cumulative interest - Previous Exhibit X sets out expenses allegedly incurred by Plaintiff while preparing the plot in question at MIDC - Next Plaintiff seeks a declaration that property that is the subject matter of is charged with the repayment of these amounts - Then there are the usual prayers for enforcement of that charge in default of payment - There is no prayer whatsoever for specific performance of MOU - A copy of that MOU is at Exhibit B to Plaint from page - Agreement is between Defendant Maharashtra Tourism Development Corporation Ltd a Government of Maharashtra undertaking and Plaintiff - It is in respect of a lease of land at village – Held, Court say that since the Plaintiff who failed to discharge their obligation under MOU resulting into termination of said MOU by the Defendant alleged that the termination was wrong arbitrary and illegal Defendant averred in the Written Statement about their readiness and willingness of their part under MOU in order to justify and substantiate the ground for termination and Defendant would have performed their part of obligation as per MOU if Plaintiff would have performed their part of the obligation avoiding termination - Is this explanation good Is it bad - This is not the time to determine those questions - At some point in the trial Defendants witness will be confronted with this - But it does emerge from this extract apart from the portions of Written Statement that have been set out above that the so-called admission in paragraph of Written Statement on which the Plaintiff places such emphasis is certainly not of kind that would justify a decree under Order XII Rule 6 of the CPC - It is no admission at all - In objects and reasons set out while amending Rule 6 of Order 12 CPC it is stated that where a claim is admitted court has jurisdiction to enter a judgment for the Plaintiff and to pass a decree on admitted claim - Object of the rule is to enable the party to obtain a speedy judgment at least to extent of the relief to which according to the admission of the defendant - Plaintiff is entitled - Words emphasized above are important – Defendant MTDC does not agree that the Plaintiff is entitled to specific performance - It says in terms that the Plaintiff is not entitled to specific performance - It has always said so - What the Plaintiff is doing is to substitute pleading and proof of its own readiness and willingness by relying on Defendants assertion that Defendant was always ready and willing - This is what is lost in translation - What MTDC is really saying is no admission at all - It is saying that although MTDC was always ready and willing to perform its obligations Plaintiff was not, and hence termination - This is the averment in full - Law is settled too that an pleading must be read in full - There can be no admission of a case not pleaded - On any reading of Written Statement as a whole it cannot be said that Defendants case is that Plaintiff is now entitled to the relief of specific performance - Defendant has at quite extensive length disputed this altogether and set out circumstances in which that perhaps infelicitously worded averment came to be made in paragraph and that is all that it is – Order accordingly