W S NISHA Vs. K PADMANABHAN

JUDGEMENT

(1.) THE application has been filed for passing of judgment and decree in terms of the first respondent's letter of undertaking dated 20.3.2001 on the following allegations: THE suit has been filed for recovery of Rs.28,50,000 being the principal and interest payble by the respondents/defendents. In the suit, the applicant filed an application for attachment of the immovable properties of the respondents bearing Door No.22, Nageswara St Nungambakkam, Chennai, and also for attachment of movables in the hospital belonging to the respondents. Viz M/s Kay Pee Kay Medical Services Pvt Ltd. running a hospital in the name of M/s Chennai Kaliappa Hospital at Raja Annamalaipuram. Originally notice was ordered to the respondents and after service of notice, when the respondents failed to furnish security, by order dated 13.3.2001, this Court directed attachment of the properties mentioned in the schedule to the application. THE Bailiffs of Nazir Section, High Court Court, attached the immovable properties at No. 22 Nageswara Street, Nungambakkam, Chennai. When the Bailiffs went to Chennai Kaliappa Hospital to effect attachment of the movables, the first respondent gave a letter of undertaking to the effect that he would pay a sum of Rs. 15,00,000 at the first instance and clear balance plaint amount within a period of two month therefrom. He gave Rs.l,00,000 by cash, gave 14 cheques for Rs.1,00,000 each with specific dates on them. On such payment and execution of letter of undertaking voluntarily, the first respondent requested the applicant and the applicant in his turn requested the bailiffs to keep the warrant in abeyance for a period of three weeks from 20.3.2001 in order to enable him to realise the cheques. Accordingly, the applicant gave a letter to the bailiffs. THE bailiffs left the hospital and also submitted a report to this Court. Two days after this, the first respondent filed two applications before this Court seeking to raise the attachment and stay of the order of attachment in Application Nos.1316 and 1319 of 2001 and on 27.3.2001 this Court dismissed the applications as infructuous. Though the application in A.No.390 of 2000 for attachment before judgment was not listed, in view of the order passed by this Court in the other two applications, it should be construed that the application in A.No.390 of 2000 was also dismissed. Another application in A.No.2046 of 2001 filed by the applicant once again for attachment before judgment under Order 38, Rule 5 was dismissed by this Court on 13.6.2001. THE first respondent on his own free will and volition executed the letter of undertaking and made part payment in cash and thereby made the applicant believe that he was honest in settling the suit claim. He pleaded with the applicant to avoid attachment and promised that the cheques would be cleared as and when presented for realisation. More over, the applicant being a doctor was not interested in disturbing the tranquility of the hospital and therefore, accepted the letter of undertaking together with 14 post-dated cheques and a sum of Rs. 1,00,000 in cash. THE first respondent also convinced the applicant that he would settle the suit claim within two months from the date of undertaking. THE first respondent while executing the After the 14 cheques given by the first respondent, the applicant presented "two cheques dated 22.3.2001 and 24.3.2001 for realisation to their banker. THEy well-realised. THE first respondent, however, instructed the banker not to honour the other cheques. THE remaining 12 cheques presented by the applicant as and when they were due, were returned as per the instructions of the first respondent. THE applicant was therefore constrained to take proceedings under Section 138 of the Negotiable Instruments Act, and they are pending before the XXIII Metropolitan Magistrate's Court, Saidapet. THE letter of undertaking has been acted upon as two cheques were encashed. THEre was no reason for the first respondent to instruct his banker not to honour the other cheques. THE dismissal of his applications Nos.1316 and 1319 of 2001 would not entitle him to issue such instructions. THE letter of undertaking and cheques given by the first respondent are binding on him. He cannot wriggle out of his admission. THE applicant is entitled to a decree under Order 12, Rule 6 of the Code of Civil Procedure.

(2.) A counter has been filed by the first respondent. It is stated in the counter as follows: The first respondent has already filed a written statement denying any liability. It is therefore not correct for the applicant to say that he is due either in a sum of Rs.28,50,000 or any sum. As the first respondent went abroad, he could not attend the Court and the Court ordered an ex parte attachment. The plaintiff accompanied the bailiff to attach the machinery, computers and surgical equipments in the hospital. As a very critical surgery was undertaken by the first respondent at the time when the bailiff appeared, in the interest of the patient on whom he was conducting surgery and in order to avoid the bailiff, he gave the cheques, though he was himself not liable to pay any amount to the applicant. He also gave security of his immovable property and the attachment petition was closed. The applicant filed another application for attachment before judgment and this was dismissed on merits. The first respondent had not executed the letter of undertaking on his own free will and volition. Only on the threat of attachment of the essential movables in the hospital, he executed the letter of undertaking. In the same circumstances, he also gave the cheques. In any event, these are matters for evidence and this respondent is entitled to explain the circumstances as and when the suit is taken up for trial. If the applicant has instituted proceedings under Section 138 of the Negotiable Instruments Act, the first respondent will defend the said proceedings. The letter of undertaking is not an admission made voluntarily. Order 12, Rule 6 of the Code of Civil Procedure cannot be invoked for this purpose. At the most, the applicant will give notice of any admission and she may call upon the first respondent to admit certain documents. But, she cannot compel him to submit to a decree. All averments made in para 7 of the affidavit are denied. There is no provision in the Code of Civil Procedure empowering the Court to pass a decree. The application has to be dismissed.

(3.) ORDER 12, Rule 6 of the Code of Civil Procedure before the amendment ran as follows: "Judgment on admissions: - Any person may, at any stage of a suit, where admission of fact have been made, either on the pleadings or otherwise, apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the. parties, and the Court may upon such application make such order or give such judgment as the Court may think just."