@JUDGMENTTAG-ORDER
1. These applications are filed by the applicant/plaintiff to pass an order of interim injunction restraining respondents 1 to 4 and their men from in
any way alienating or encumbering the schedule mentioned property and also to pass a judgment and decree for Rs.15 lakhs against respondents 1
to 14 in terms of the admission in the letter dated 22.3.1997.
2. The case in brief for disposal of both the applications is as follows:
The applicant/plaintiff filed a suit for recovery of a sum of Rs. 37,00,693 due by the respondents under a bill discounting facility availed of by the
first respondent company. The first respondent company carrying on business in manufacturing and exporting ready-made garments. In the course
of business, the second respondent approached the applicant with a request to extend some financial assistance. After conducting negotiations, it
was decided to extend bill discounting facility for the amount not exceeding in the aggregate the sum of Rs.20 lakhs outstanding at any time.
Accordingly, an agreement for bills purchase discount was entered into between them on 21.5.1996. The first respondent had undertaken to repay
the amounts on the respective due dates and also undertaken in the event of a default on their part, they would be liable to pay additional finance
charges at 36% per annum. Respondents 2 to 4 had guaranteed the repayment of the amounts. The guarantors had agreed to indemnity for any
loss that may occur for nonpayment of the amount by the first respondent. The first respondent had availed the bill discounting facility as mentioned
in para 5 of the affidavit.
3. The first respondent was not paying the amount as agreed. They handed over post dated cheques and they were returned on the ground of
insufficient funds. After several telephonic reminders and fax messages, the first respondent in its reply dated 4.10.1996, informed that they were in
the eye of a financial storm and pleaded for time to pay up their dues. Once again the first respondent by the letter dated 5.12.1996 pleaded for
time and promised to pay the entire dues together with the additional finance charges on 15.1.1997. The third respondent came to the office of the
applicant company for personal discussion and assured that a sum of Rs.10.50 lakhs would be paid by 19.3.1997. However, it was not paid. The
first respondent company addressed a letter dated 22.3.1997 and received by the applicant company on 24.3.1997, by which the first respondent
company promised to pay a sum of Rs.15 lakhs positively by 15.4.1997. The first respondent had also requested them to roll over the balance
amount for a further period of 90 days. The amounts were not paid as promised and this promise was also observed in the breach. Respondents 2
to 4 assured to deposit their original documents with respect to the flat owned by the second respondent bearing No.4/70, Jyothi T.P.S. III, 30th
Road, Bandra, Mumbai. However, they failed to deposit the original documents. Now respondents 1 to 4 are also attempting to dispose of this
property along with other properties owned by them only with an intention of defeating and denying the fruits of the decree. The first respondent is
also heavily indebted and hence, these applications.
4. The second respondent filed a common counter affidavit, which is adopted by respondents 1, 3 and 4. They denied that they have guaranteed
the repayment of the amounts due under the bill discounting facility by executing a deed of indemnity and guarantee dated 21.5.1996. The
petitioner has taken signatures in blank papers and they were filled up at a later date to suit their convenience. None of the respondents visited the
petitioner office at any point of time and promised to pay a sum of Rs.10.50 lakhs. The letter must have been a fabricated one to save limitation.
They also did not make any commitment to make the payment of Rs.15 lakhs positively by 15.4.1997. The petitioner misused the blank
letterheads of the respondents collected by them at the time of entry into the transaction in order to save the limitation. They never admitted the
liability. Immediately on receipt of notice from the petitioner counsel, the respondent sent a reply on 2.11.1999. All the claims of the petitioner are
barred by limitation even prior to the issue of notice dated 18.8.1996. The letters dated 22.3.1997 and 24.3.1997 might have been fabricated
subsequent to the issue of notice. The letter allegedly written by the respondents is under dispute and unless and until the petitioner proves the
genunity of the same, interim decree cannot be passed. There is clear and valid triable issue in this case and without adducing proper evidence, no
order can be passed. They never agreed to deposit the title deeds of the flat as alleged. The allegation that they are attempting to dispose of the flat
is frivolous and imaginary. Hence, these applications are liable to be dismissed.
5. The applicant has given up the relief against respondents 5 to 14.
6. The points that arise for consideration are:
(1) Whether the applicant company has got a prima facie case and the balance or convenience is in their favour?
(2) Whether the applicant is entitled to get any interim decree as prayed for?
(3) To what relief?
7. Points: It is admitted that the applicant/plaintiff filed the suit for recovery of a sum of Rs.37 lakhs and odd from respondents 1 to 4 under a bill
discounting facility availed of by the first respondent. Learned counsel for the applicant stated that the first respondent company is carrying on
business in manufacturing and exporting ready-made garments. Respondents 2 to 4 have guaranteed the repayment of the amounts under the bill
discounting facility under the deeds of indemnity and guarantee all dated 21.5.1996. About 10 transactions relating to the bill discounting facility are
given in para 5 of the affidavit.
8. It is necessary to state that respondent 1 to 4 in the counter affidavit have not chosen to dispute the bill discounting facility availed by them. It is
further stated by the applicant that the respondents wrote number of letters promising to pay the amount and pleaded for time due to financial
trouble. The applicant also relied upon a letter dated 22.3.1997, wherein the first respondent company promised to pay the sum of Rs.15 lakhs
positively by 15.4.1997 and in spite of this, the amount has not been paid. In view of this admission only, the applicant has filed the application
under Order 12, Rule 6 of CPC to pass interim decree on this admission, Learned counsel further stated that respondents 2 to 4 assured to
deposit the original documents relating to the flat more specifically mentioned in the schedule, but they have not complied with the same. They had
an information that they are attempting to dispose of this property along with the other properties with an intention to secrete the income. The first
respondent is also heavily indebted and, as such, sought the relief of temporary injunction restraining them from alienating the property also.
9. Per contra, learned counsel for respondents 1 to 4 mainly contented that they never admitted the liability and the letters, if any, relied on by the
applicant must have been created by the applicant on the basis of the blank signatures on blank letterheads taken from them at the time of the
transactions. Learned Counsel for the respondents further contended that the letters relied on by the applicant are disputed and the signatories have
not been authorised by the Board to admit the liability and under the circumstance, such letters cannot be construed as admission in the eye of law
to grant an interim decree in favour of the applicant. Moreover, they never agreed to deposit any title deeds and they never intended to alienate any
property as alleged by the applicant and under the circumstance, the applicant is not entitled to any relief.
10. The applicant has filed typed set of documents and the first respondent company has written a letter to the Managing Director of the applicant
company dated 4.10.1996. It is seen from this letter that the respondents are negotiating with two or three banks for facilities and their efforts are
likely to bear fruit. In a matter of two or three months, their position will be restored to normality. They also requested the applicant to bear for the
delay and default and grant time till January 15,1997 to clear their dues. They further stated that they are willing to pay penal interest for the delay
period. It is also stated that the Managing Director of the first respondent is calling on the applicant in person with the relative papers to explain the
circumstances leading to the present impasse.
11. The applicant also relied upon another letter dated 5.12.1996 sent by the first respondent company, wherein they requested the applicant to
bear with them and extend the time till January 15, 1997 to pay the full amount along with the additional finance charges. They further stated that
they will be grateful if they will avoid taking any action on the cheques dishonoured in view of the circumstances beyond their control. Even in this
letter, it is seen from the reference that the first respondent has sent a letter dated 4.10.1996 and apart from that, the applicant sent a notice u/s
138 of Negotiable Instruments Act dated 27.11.1996 and 28.11.1996 relating to the dishonour of the cheques.
12. The applicant also relied on another letter written by the first respondent dated 22.3.1997, wherein it is stated as follows:
On my personal visit on 14.3.1997 and discussion taken place 1 had assured to remit sum of Rs.10.50 lakhs on 19th of March, but fail to do so as
the above said amount was not received by me.
Since it is financial year ending the above said amount could not be generated and request you to mildly please grant me of final chance till 15th of
April, 1997 by which in the meanwhile I would be able to arrange sum of Rs.15 lakhs and request you to kindly roll over the balance amount for
the further period of 90 days.
I once again apologize for all the difficulties faced by your good selves and request you to kindly consider, and grant me final opportunity till the
15th of April to enable me to settle the above mentioned amount.
13. It is necessary to state that all the letters referred to above were in the letterheads of the first respondent company and the Executive Director
of the Company had signed the same. Apart from that, it also refers to the letters written by the applicant as well as by the first respondent. Now,
learned counsel for the respondents would contend that with the help of blank letterheads, these documents have been created and, as such, they
cannot be accepted. I am unable to agree with the contention of the teamed counsel for the respondents. If these letters were not written by the
respondents, then it is the duty of the respondents to produce the copies of the letters said to have been sent by them to the applicant company. It
is not the case of the respondents that the applicant has not sent any letter to them calling upon them to make the payments. When the cheques
were dishonoured, notices were also issued and under the circumstances, if a different reply has been sent by them, necessarily they should have
been in possession of those documents. The absence of any such document on the part of the respondents would only lead to the irresistible
conclusion that now the respondents have taken a novel stand only to escape from the possible orders to be passed by this court and to get over
the liability for the time being. Learned Counsel for the respondents further contended that when the truth and validity of these letters are disputed,
it is a triable issue and as such, unless and until evidence is let in, the applicant is not entitled to get any interim decree. If the contention of the
respondents is accepted then it will lead to dangerous consequences. The first respondent is a company and naturally they should be in possession
of all the letter correspondence between the parties. It is not difficult for them to produce the relevant documents if the letters relied on by the
applicant were not written by them.
14. Learned counsel for the respondents relied on Arunachalam v. Kanakambigai Ammal, 1998 (3) L.W. 744 for the proposition that it is settled
law that where the acknowledgment is alleged to have been made by an agent, the authority to make the acknowledgment must be proved and the
onus is only on the plaintiff to prove that the agent had that authority. This decision is not applicable to the case on hand because the concerned
defendant in the suit was in the hospital and acknowledgment was given by the wife. They also relied on Union of India v. M/s. Feroze & Co., AIR
1962 J&K 66 that the admission must be unconditional, clear and unequivocal. There is no dispute about this proposition. Reliance is also placed
upon another decision in State Bank of India Vs. Midland Industries and Others, that where the defendants have raised objections which go to the
very root of the case, it would not be proper to exercise this discretion and pass a decree in favour of the plaintiff under Order 12, Rule 6, C.P.C.
There is also no dispute about this principle.
15. Learned Counsel for the applicant also relied on Uttam Singh Dugal & Co. Ltd. v. Union Bank of India and others, 2000 (5) Scale 440 that
where other party has made a plain admission entitling the former to succeed. It is a clear admission of facts in face of which, it is impossible for the
party making such admission to succeed. The principle is applicable to the case on hand.
16. It is therefore clear from the aforesaid discussion and the decisions cited supra that respondents 1 to 4 are attempting to alienate the property
and to preserve the status quo, the applicant is entitled to the relief of interim injunction. Similarly, there is a clear admission on the part of the first
respondent in the letter dated 22.3.1997, wherein they have agreed to pay Rs.15 lakhs within a particular date and in spite of the lapse of two
years, they have not complied with the same and considering the fact that it is admission without any ambiguity, the applicant is entitled to get an
interim decree for the sum of Rs.15 lakhs. Hence, the points are answered accordingly.
17. For the reasons stated above, both the applications are allowed.
