TMI Blog2011 (1) TMI 1560X X X X Extracts X X X X X X X X Extracts X X X X ..... dishonoured upon presentation in view of the stop-payment instructions issued by the defendant to its bank. There are several anomalies in the petition which have been pointed out by the defendant. But most of these anomalies are irrelevant in the present context. For example, the petition speaks of two purchase orders and refers to the first of them requiring an amount of one lakh MT TMT bars to be supplied to the defendant. The copy of the first purchase order clearly specifies the quantum to be 300 MT. Again, the plaintiff has said that it supplied the entire complement of TMT bars requisitioned under the two purchase orders by July 3, 2009, but has later on in the petition claimed that since the defendant failed to furnish post-dated cheques the plaintiff refused to effect supply of about 458 MT of the 500 MT of goods under the second purchase order. At paragraph 14 of the petition the plaintiff has detailed the payments made by the defendant. Against the total billed amount of ₹ 2,11,97,441/-, the defendant is said to have made payment of ₹ 56,83,250/- leaving the balance unpaid. The claim in the suit is for such balance price of goods sold and delivered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accounts relate to the two cheques of value of ₹ 5,02,084/- and ₹ 5,30,673/-, respectively, that had made over by the defendant to the plaintiff and credited as payment in the ledger accounts even though they had not been presented for encashment at the time the accounts were apparently prepared. Copies of the two cheques have been appended to the petition. Both the cheques were apparently presented in July, 2009 and dishonoured on the ground of insufficient funds and again presented in October, 2009 and dishonoured on the ground that payment in respect thereof had been stopped by the drawer. But the factum of the presentation of the two cheques in July, 2009 is not referred to in the petition and altogether disowned at paragraph 18 thereof. The memoranda of dishonour of July, 2009 have been included as part of annexure G to the petition but there is no reference to the same in the body of the petition. The cheques were dishonoured subsequent to the period covered by the ledger accounts. Apart from paragraph 18 of the petition there is a solitary sentence at paragraph 26 thereof which is in support of the present prayer made by the plaintiff: Your petitioner s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 12, 2009. The said statement of account was maintained in the usual course of business and by no stretch of imagination can be construed as an admission of liability under the provisions of Order XII Rule 6 of CPC. [paragraph 3 (xiii)] With reference to the allegations contained in paragraph 18 of the said petition, it is denied that at any time the Plaintiff requested the Defendant to confirm the balance outstanding towards the Plaintiff or that the Defendant has acknowledged the purported dues of the Plaintiff, as alleged or at all. It is denied that on August 12, 2009 the Defendant acknowledged or certified the dues of ₹ 1,44,81,432.66 or any part or portion thereof, as alleged or at all. It is denied that any date was certified by the Defendant or that two cheques for ₹ 5,02,084.00 and ₹ 5,30,673.00 were not deposited as per the request of the Defendant, as alleged or at all. It is denied that any debt remained at ₹ 1,55,14,191.66 or any part or portion thereof, as alleged or at all. [paragraph 17] With reference to the allegations contained in paragraph 19 of the said petition, it is denied that the Defendant failed to keep its promise, as alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s impossible for the party making it to succeed in dislodging. In all three cases brought by the defendant, the rationale behind the principle has been explained. In Uttam Singh Duggal the first respondent bank before the Supreme Court relied on a balance-sheet of the appellant, the minutes of a meeting of its board of directors and a letter communicating the resolution and minutes of such meeting. The Supreme Court noticed that no explanation had been proffered by the appellant as to the circumstances in which the admission had been made so as to take it out of the category of admissions which created a liability. The Court found that without entering into any discussion on the meaning of the expression or otherwise appearing in the relevant Rule, the quality of the denial in the affidavit used by the appellant in the trial court warranted a judgment being made on the basis of appellant's deemed admission. In Karam Kapahi the Supreme Court referred to several English and Indian decisions on such aspect and observed that the 54th Law Commission Report suggested the amendment that is now reflected in the Rule to further the ends of justice and give the provision a wider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of goods on the plaintiff and the plaintiff effected certain supplies, raised bills in respect thereof and received some payments. The petition is unhappily prepared; and so is the affidavit filed by the defendant. The petition has used the word 'certified' in preference to a host of more appropriate words. But the expression has been used in the sense of acknowledgment or admission and not in the sense of formal certification, though it is a matter of little importance on the state of the documentary evidence available. In simple words, the plaintiff has said that it prepared the ledger accounts and the defendant accepted the accounts by affixing its rubber-stamp thereto (see paragraph 26 of petition). The defendant has asserted that such statement of accounts was maintained in the usual course of business but has questioned its use as admission on its behalf. The defendant has not denied that the impression of the rubber-stamp that both pages of the document carry as that of the defendant's. What appears plain from the defendant's affidavit is that the defendant was aware of the ledger accounts since they are said to have been made in the usual course of busines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anied by a written assertion complaining of the quality of the goods, if the defendant genuinely harboured a grievance on such score. Even in the absence of any contemporaneous complaint, subsequent correspondence may have been addressed by the defendant evidencing any reservation on account of the claim. It is difficult to accept the defendant's contention since despite the receipt of the ledger accounts and the defendant's admitted affixation of its rubber-stamp thereto there was no subsequent complaint as to the quality of the goods prior to its affidavit being filed. In between, there was a notice under Section 434 of the Companies Act and a further notice under Section 138 of the Negotiable Instruments Act that the defendant received from the plaintiff. The unsubstantiated allegations as to the defective quality of the goods would tell upon the credibility of the defence both as to the factum of the admission and the liability as a consequence thereof. Order XII Rule 6 of the Code bestows wide powers on the civil court to sift through unworthy defences and spend precious court time only on such aspects of the claim that call for adjudication. The spirit embodied in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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