K PADMANABHAN Vs. W S NISHA

JUDGEMENT

(1.) By consent of both the counsel the appeal is taken up for final disposal. The appellants are the defendants in C.S. No. 43 of 2000.

(2.) The respondent herein filed the said suit for recovery of a sum of Rs. 15,00,000 being the principal and a sum of Rs. 13,50,000 towards interest. Pending the suit, the respondent filed Application No. 390 of 2000 for attachment of the immovable property of the appellants herein. When the Bailiff of the High Court went to the appellants' place to effect the attachment of the immovable property, the first appellant gave an undertaking letter that he will pay a sum of Rs. 1,00,000 by cash and for the balance of Rs. 14,00,000 he had given the post dated cheques on different dates. The Nazir produced the said letter of undertaking before the court and the first appellant also paid a sum of Rs. 1,00,000. As the post dated cheques were given, the respondent requested the Bailiff to deter the execution of the attachment warrant for a period of three weeks. The appellants filed Application Nos. 1316 and 1319 of 2001 to raise the attachment which were dismissed as infructuous on the ground that the Application No. 390 of 2000 filed by the respondent for the attachment of the property was closed in view of the undertaking given by the appellants. Since the post dated cheques handed over by the appellants were bounced, the respondent filed another application 2046 of 2001 for attachment before judgment and the same was dismissed on 13-6-2001 on the ground that the earlier application for attachment was dismissed on the basis of the undertaking given by the appellants to pay the amount. Hence the respondent filed an application 3953 of 2001 to pass a decree against the appellants herein on the basis of the undertaking given by the first appellant. By order dated 7.12.2001 the said application was allowed and a decree was passed against the appellants herein. Aggrieved by the same the present appeal has been filed.

(3.) It is the contention of.the learned coun- sel for the appllants that the undertaking given by the first appellant is neither absolute nor voluntary one. To avoid any unpleasantness in the hospital, the first appellant was obliged to give the letter of undertaking and ultimately such undertaking cannot be taken as an admission. An admission as contemplated under Order 12, Rule 6, C.P.C. must be an unequivocal one on the part of the appellants. Further the first appellant alone gave an undertaking. The second appellant was not a party to such undertaking and as such there cannot be a decree against both the appellants. When the second appellant did not join in the undertaking given by the first appellant, the admission is a truncated one and on the basis of such truncated admission, the decree cannot be passed even against the first appellant. The handing over of post dated cheques will not amount to an admission. At the best, the rspondent may have cause of action to prosecute the first appellant under Section 138 of the Negotiable Instruments Act and as such the order of the learned Judge cannot be sustained.