The distinction between judicial admissions and evidentiary admissions and the requirement for complete evidence before decreeing a suit under Order 12 Rule 6 CPC.

I.A. No.22699/2014 (under Order 12 Rule 6 CPC)

1. This is an application filed by the plaintiff under Order 12 Rule 6 of the Code of Civil Procedure, 1908 (CPC) for decreeing the suit for recovery of Rs.42,59,309/-. The cause of action as averred in the plaint is that plaintiff was appointed as a distributor by the defendant for marketing of the products “Japan Life Total Sleeping System” and plaintiff was entitled to commission on sale of such products. The amount claimed in the suit is said to be commission due to the plaintiff for sale of products as a distributor of the defendant.

2. By this application, it is argued that the amount which is claimed in the suit is that the amount with respect to which the defendant had issued a total of 11 TDS certificates and once the 11 TDS certificates are found to be issued by the defendant, the defendant is liable to pay the suit amount to the plaintiff. It is also argued that the TDS certificates are deemed to be admitted inasmuch as defendant was given repeated opportunities for admission/denial of the documents of the plaintiff (including the TDS certificates) but the defendant has failed to conduct admission/denial and right to conduct admission/denial by the defendant was closed in terms of the order dated 5.10.2010 passed by the Joint Registrar of this Court. It is argued that though there is no formal order of the deemed admission, however, in view of the order dated 5.10.2010 provisions of Order 12 Rule 2-A, 3-A and 4 CPC will come into play as a result of which the TDS certificates are deemed to be admitted by the defendant. Applicant/plaintiff also places strong reliance upon the letter dated 30.4.2012 addressed by the defendant to the police wherein the plaintiff is shown as a distributor of the defendant and also that defendant had issued the TDS certificates.

3. The defendant by filing the written statement has disputed the claim of the plaintiff. Besides disputing the claim of the plaintiff, in para 5 of the reply on merits, the defendant has pleaded the defence that assuming for the sake of arguments though not admitting that plaintiff is entitled to moneys claimed as incentives even then the defendant would not be liable to pay the suit amount to the plaintiff which would have to and will stand adjusted against the amount cheated/embezzled by the plaintiff. Details of the embezzlement is stated in the earlier part of para 5. Para 5 of the written statement reads as under:-

“5. That the contents of para 5 are wrong and hence denied. It is denied that the defendant towards commission payable to the plaintiff under the agreement under writing between the parties fully acknowledged. A sum of Rs.35,67,151.58 as due and payable to the plaintiff. It is submitted that the issuance of TDS certificates does not amount to any acknowledgment of due as the plaintiff has alleged in the para under reply. No amount whatsoever is due and payable to the plaintiff by the defendant and all these allegations are totally wrong and baseless. In fact, the plaintiff with two other distributor/Independent representatives who were responsible for day to day affairs of the defendant concern embezzled and defrauded the defendant to the tune of Rs.3,43,03,807/-. When the fraud committed by the said Independent representatives was detected by the auditors, the plaintiff was thereafter immediately terminated by the defendant from the status of Japan Life Independent Representative. Further, the defendant thereafter filed a criminal complaint being FIR No.282 of 2003 at Sarojini Nagar Police station on 16.6.03 under section 406, 420, 120B IPC. Subsequently the plaintiff as a counter blast to the said FIR, filed an FIR being No.250 of 2004 on 20.5.2004. The belated present suit has also been filed by the plaintiff to escape from his aforesaid criminal liability. It is submitted that as per the applicable rules of M/s Frontier Trading an Independent representative who is in breach, default or in v