CREF FINANCE LIMITED Vs. SHANTHI HOMES PRIVATE LTD

JUDGEMENT

(1.) THE petitioner is the plaintiff and respondents 1 to 3 are defendants 1 to 3 in O. S. No. 15045/2001. The said suit is filed to recover a sum of Rs. 19,33,74,411/- jointly and severally from respondents and others along with interest at the rate of 30% p. a. and all other consequential reliefs. Suffice it to say that the proceedings had a checkered career.

(2.) THE facts giving rise to the present proceedings could be summarised as follows: in terms of certain Memorandum of Understanding dated 29. 9. 1995, the petitioner had paid a sum of Rs. 3. 52 crores to the 1st respondent and an additional sum of Rs. 2. 88 crores to the 3rd respondent in all aggregating to Rs. 6. 40 crores. In terms of the said agreement between the parties, the respondents were not in a position to develop the immovable properties agreed to be sold under the said Memorandum of Understanding the respondents who are the defendants would refund the said amount paid by the petitioners together with interest. Since the said amount was not paid by the respondents, the present suit is filed for recovery of the said amount which in inclusive of interest. It appears certain correspondence has taken place between the parties in respect of the dispute and there appears to be a certain confirmation letter stated to have been written by one of the defendants confirming a sum of Rs. 920 lakhs, which according to the petitioner is the principle amount claimed in the suit which in inclusive of the interest of rs. 65 lakhs. An application I. A. No. 4 was filed by the respondents herein under -Section 8 of the Arbitration and Conciliation Act 1996 to refer the dispute raised by the plaintiff-petitioner to arbitration and to dismiss the suit as not maintainable. The reasons assigned by the learned Trial judge are not germane for disposal of the present proceedings. Be that as it may the learned 'trial Judge rejected the application I. A. No. 4 on the ground that it is not a case where the proceedings will have to be suspended under Section 8 of the Act and the matter will have to be referred to the Arbitrary Tribunal. The said order passed by the learned Trial Judge is produced at Annexure 'k' The said order was challenged by the respondents before this Court in CRP 3857/2002. An application was also filed in the said revision petition for staying of all further proceedings of the suit in O. S. No. 15045/2001. This Court, while granting an interim order of stay directed the respondents to pay a sum of Rs. 2 crores out of the undisputed principal amount at Rs. 9. 25 crores within 15 days failing which the revision petition shall stand dismissed without further reference to the Bench. The said order passed by this Court in the Civil Revision petition is produced at Annexure 'l1. The said order was challenged by the respondents before the Apex court in SLP (C)No. 24069/2002. The Apex Court did not grant special leave and thereby dismissed the special leave petition. At this point of time, the petitioner plaintiff filed an application I. A. No. 2 under Order 12 Rule 6 read with Section 151 of the Code of Civil procedure, 1908 seeking a judgment on the admissions, directing the respondents, 1 to 3 to jointly and severally pay the admitted principle sum of Rs. 9,20,69,032/ -. The sum and substance of the said application is that from time to time since 1996-1999, the 1st respondent Company acknowledged its liability in writing to the plaintiff and promised to pay the said outstanding dues. The said acknowdgement is by way confirmation of certain letters stated to have been written by the respondents. Some of them are produced in the present petition, which are at annexures-G, H and J. In view of these admitted documents confirming the liability, the present application under Order 12 Rule 6 of the Code of Civil Procedure was filed seeking a Judgment on the basis of admissions, which has given raise to the present proceedings. The said application was seriously opposed and disputed by the respondents on all factual aspects inter alia contending that such a decree under Order 12 Rule 6 of the Code of Civil Procedure cannot be granted in favour of the petitioner as all those documents, which are sought to be relied on by the plaintiff-petitioner are disputed documents. A perusal of the statement of objections would also reveal that the entire liability to satisfy the suit claim is also denied in toto by the respondents. The learned Trial Judge having considered the rival submissions of both the petitioner as well as respondents has rejected the application by its impugned order dated 18. 11. 2003, a copy of which is produced at Annexure 'r'.

(3.) MR. G. L. Vishwanath, learned Counsel appearing for the petitioner-plaintiff would strenuously contend that Annexures-G, H and J are the confirmation letters issued by the respondents admitting their liability to pay a sum of Rs. 9. 25 crores. The said confirmation according to him would amount to admission, which would entail a decree under Order 12 Rule 6 of the Code of Civil Procedure. He would also further submit that Form-8 which is filed before the Registrar of Companies would disclose that the amount secured by way of charge would amount to Rs. 952 lakhs and the beneficiary thereof is none other than the plaintiff-petitioner, a copy of which is produced at Annexure 'e'. He would also stress on Form No. 13, which is a register of Charges, which would once again disclose that it is the plaintiff-petitioner who are entitled for the charge in respect of the property to the tune of Rs. 952 lakhs together with interest. Based on these two documents, he would submit that the petitioners- plaintiffs are entitled for a partial decree at least to an extent of Rs. 2 crores, which has been admitted by the respondents.