( 1 ) THIS is an application under Order XII Rule 6 of the Code of Civil Procedure, 1908 (hereinafter referred to as `the CPC ) by the plaintiff praying for passing of a judgment/decree in the sum of Rs. 17,91,000/- in respect of dishnoured cheques of the defendant. The plaintiff has filed a suit for recovery of Rs. 15,86,909. 69 with interest at 18% per annum. The defendant in the written statement filed a counter claim of Rs. 4,48,024. 00 with interest.

( 2 ) THE plaintiff s claim in the present application is based on the 5 dishonoured cheques which totalled Rs. 9 lacs. The plaintiff/applicant is claiming with interest a sum of Rs. 17,91,000/- in this application as it is the case of the plaintiff/applicant that the said amount is an admitted amount on account of the fact that in the written statement liability of the defendant has been admitted and no plea of issuance of cheque by mistake has been made.

( 3 ) MR. Luthra, the learned counsel for the official Liquidator (OL) who now represents the defendant company subsequent to the OL s appointment as provisional liquidator, has contended in reply that the application is not maintainable as these cheques never formed part of the plaint and far from admission of the claim of the plaintiff in the written statement, in fact a counter claim has been made against the plaintiff. He has further submitted that the amount now sought to be claimed by these cheques was not referred to in the plaint and these were filed subsequently as documents and no Court fees has also been paid on the aforesaid cheques not figuring in the plaint. It has also been submitted that para 21 of the plaint which relates to causes of action accruing to the plaintiff nowhere avers about the dishnour of the cheques while several other causes of action to support the averments in the plaint have been made.

( 4 ) THE relevant paragraph in the plaint is para 13 which reads as follows:

"that the plaintiff brought to the notice of the defendant vide letter dt. 12. 5. 93 duly acknowledged by the defendant. It was specifically mentioned by the plaintiff that the road which were constructed by the plaintiff has been cultivated by the farmers. Even the plaintiff brought to the notice of the defendant all these facts well before 12. 5. 1993 and on various other dates. The plaintiff has filed the said documents before this Hon ble Court alongwith the plaint. Even sewerage drawing was not provided, it was again repeated that even payment as per Schedule are not being made and even the cheque issued by the defendants were being dishonoured by their banker on presentation for payment. "

( 5 ) IN my view it is evident that there is just a general averment of cheque (s) issued by the defendant company being dishonoured but there is no clear averment that the cheques issued in respect of the claim raised in the plaint and detailed in the plaint were dishonoured. These cheques forming part of the application do not figure in the plaint. The learned counsel for the OL/defendant was, therefore, justified in submitting that this may at best be construed as a general averment regarding the precarious financial status of the defendant company but cannot be construed such an averment the non-denial of which may warrant orders under Order XII Rule 6 CPC. In fact the defendant is not required to rebut the averments about the cheques as the cheques which formed part of this application were not even mentioned in the plaint and in respect of a suit of 1993, were filed only on 25th April, 1998 in the form of original documents.

5. THEREFORE, in so far as this application under Order XII Rule 6 CPC is concerned, even a perusal of paragraph 21 of the plaint makes it clear that nowhere in the averments regarding cause of action, dishonouring of these cheques has been mentioned though the other ingredients of causes of action leading to the suit have been specifically mentioned therein. 6. Order XII Rule 6 of the CPC reads as