:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO. 343 OF 2008 OF MOTION NO. 343 OF 2008 OF MOTION NO. 343 OF 2008 IN IN IN SUIT SUIT SUIT NO. 2129 OF NO. 2129 OF NO. 2129 OF 1997 1997 1997 Mr. Hedley Steven Brangaanza. ... Plaintiff. V/s. Mr. Babu Lalai & Ors. ... Defendants. Ms. Mamta Sadh i/b. Joseph Fernandes for the Plaintiff. Mr. S. K. Sthalekar for Defendants 1 to 3. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 10TH 10TH 10TH DECEMBER 2008. DECEMBER 2008. DECEMBER 2008. P.C. P.C. P.C. : : : . This is a Notice of Motion by the Plaintiff. The Plaintiff prays that Defendant Nos. 1 and 2 be ordered and decreed to pay to the Plaintiff a sum of Rs.4,44,639/- being the admitted sum payable to him on dissolution of the Suit Partnership Firm. It is prayed that the amount be paid with interest. 2. It is stated in the affidavit in support of this Notice of Motion that the Suit is filed by the Plaintiff for a declaration that partnership business between the Plaintiff and Defendant Nos.1 and 2 stands dissolved with effect from 4th April 1996 and that this Court, therefore, should pass necessary orders with regard to rendering of Accounts. :2: 3. In the affidavit in support in paragraph 4 this is what is stated :- " On 04.04.1996, on the pretext of being an invitee I was taken to the residence of one Ms. Aarti Barve, an Advocate by profession. The Defendant forced me to consume alcohol and thereafter as I was not in my senses, the Defendant abused and intimidated by assault and threats and was made to sign a purported memorandum, a copy of which has been annexed to the Plaint as Exhibit ‘A’. It is stated in the said memorandum that Defendant No.1 shall pay to me a sum of Rs.7,70,000/- as full and final settlement, in closing down the firm ‘Shruthi Trading Company’. On the same day I was given 4 cheques for Rs.50,000/- each and cash of Rs.1,25,361/-. I crave leave to refer to any reply upon the said memorandum, when produce." 4. In these circumstances, it is stated in the subsequent paragraphs that the Defendants have admitted their liability to pay the sum of Rs.7,70,000/- being a share of the Plaintiff in the partnership business. The Plaintiff states that he has received a sum of Rs.3,25,361/- and the balance sum be paid over as it is an admitted liability. :3: 5. Defendant No.1 has filed an affidavit on behalf of the Defendants and in the said affidavit he has stated that earlier similar attempt was made by moving Notice of Motion No.166 of 2004 and the said Notice of Motion was dismissed in default. No attempt was made to restore that Motion and now, a fresh Motion is moved. 6. As regards the alleged admission, it is stated that there is no such admission much less a liability to pay the sum of Rs.7,70,000/-. On the other hand, it is stated that the Plaintiff is a partner of the Defendant. In order to settle the dispute and buy peace a compromise was arrived at between the Plaintiff and the First Defendant whereby the deponent of the affidavit in reply showed his readiness and willingness to pay a sum of Rs.7,70,000/- in full and final settlement. However, writing dated 3rd April 1996 evidencing this settlement though duly signed by the Plaintiff, he has dis-owned the same and now filed a Suit for dissolution. In such circumstances, it cannot be said that there is any admission of liability. On the other hand, there was a settlement/compromise at one time which is now disputed and denied by the Plaintiff. This is a act prior to the filing of the Suit and now, in the Suit the prayer is that the firm be dissolved and the Accounts be rendered. Therefore, such a Motion is not maintainable. :4: 7. In the rejoinder affidavit altogether, new version is placed on record and it is stated that in the application for anticipatory bail, the Defendant had admitted their liability. However, with regard to the specific stand in paragraphs 4 and 5 of the affidavit in reply what is stated in the rejoinder is that there is an unambiguous and clear admission to pay the amounts as aforesaid. 8. I have heard Ms. Sadh appearing for the Plaintiff and Mr. Sthalekar appearing for the Defendants. With their assistance, I have perused the Motion and the Affidavits on record. I have perused the relevant statutory provision and the decision reported in AIR 2000 AIR 2000 AIR 2000 Supreme Supreme Supreme Court page 2740 Uttam Singh Dugal and Co. Ltd. Court page 2740 Uttam Singh Dugal and Co. Ltd. Court page 2740 Uttam Singh Dugal and Co. Ltd. V/s. V/s. V/s. Union Bank of India & Ors. Union Bank of India & Ors. Union Bank of India & Ors. 9. To my mind, this Motion is totally misconceived. What the Plaintiff has averred in the plaint is enough to dismiss the Motion. It is not as if all these facts are not recorded in the plaint itself. From a reading of the plaint and more particularly paragraphs 5 and 6 it is very clear that a attempt was made to put an end to the matter amicably. In fact, the Plaintiff’s version is that he was forced to sign some writing. In paragraph 9 of the plaint, the Plaintiff states thus :- :5: " The Plaintiff contends that the principal document in Exhibit ‘A’ gives the wrong impression of his being entitled to a small sum of Rs.7,70,000/- in full satisfaction of his share of the profits. As a matter of fact, the Plaintiff estimates that his share of the profits is far more and in any case not less than Rs.15 lakhs. This is because the Plaintiff for long has toiled day and night. His clients paid well and punctually. the operational expenses were very small and the Plaintiffs withdrawals were a bare minimum to maintain himself. The principal document at Exhibit ‘A’ is vitiated by coercion and lack of full understanding vis-a-vis consent. It cannot therefore operate as an estoppel or full discharge of the Defendants." 10. The Plaintiff is not satisfied with the receipt of Rs.7,70,000/- or Rs.3,25,361/- as the plaint averments themselves would demonstrate. If the plaint averments are read as a whole together with the affidavit in reply, it is clear to me that the Plaintiff does not own the settlement any longer. He does not accept the correctness of the figures himself. He disputes that there was any attempt to put an end to the matter by accepting the sum offered in full and final settlement. This is not a case where the ingredients of order XII Rule 6 of the Code of :6: Civil Procedure are said to be satisfied. The argument of Ms. Sadh over-looks that order XII Rule 6 is intended to enable the Court to pass a decree in cases where there is an unambiguous and clear admission of liability in pleadings or otherwise. The object is to shorten the litigation and to award to the Plaintiff the admitted sum before a long drawn trial. In the present case, how such a provision can be of any assistance to a party who does not himself accept the admission on the part of his opponent. The Plaintiff does not wish to close the matter himself by accepting any sum finally or in complete settlement. He refers to the said settlement initially and thereafter, disowns and denies the same. In these circumstances, all acts of the Plaintiff prior to filing of the Suit in this Court are of no assistance to him. These are all matters which have taken place prior to the filing of this Suit. Therefore, the Motion is completely frivolous and misc-conceived. 11. The decision of the Supreme Court is not applicable to such a case. In that decision the facts themselves would indicate that the Suit claim was admitted by the Defendants in the balance-sheet, Minutes of Board Meeting and letter dated 4th June 1990. These documents were relied upon by the Plaintiff in the Supreme Court. He :7: does not dispute or deny them. He accepted their correctness and thereafter, proceeded to seek the relief. It is, in such circumstances, that the Supreme Court found that the clear and unambiguous admission would enable the Court to pass a decree under Order XII Rule 6 on admission. Such is not the case before me and therefore, the decision is clearly distinguishable. 12. As a result of the above discussion, the Notice of Motion fails and is accordingly dismissed. 13. After the matter was heard for some time on the last occasion, I reserved the orders and directed that the same would be passed today only to enable the Plaintiff to make his mind and whether he is ready and willing to accept the amount offered by the Defendant in full and final settlement and withdraw this Suit. Mr. Sthalekar had on the last occasion stated before me that there is no admission of the fact that there was any partnership and pleadings must be seen as a whole. It is, in such circumstances, that Ms. Sadh stated that there is no possibility of the Suit being amicably settled at this stage. Hence, the order had to be passed. The Motion is accordingly dismissed. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)