IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15/11/2011 CORAM THE HON'BLE MR. JUSTICE VINOD K. SHARMA A.No.4269 of 2011 in C.S.No.578 of 2011 ORDER The applicant has invoked Order XIV Rule 8 of Original Side Rules read with Order XII Rule 6(1) & (2) of C.P.C., for interim decree for a sum of US $.58,281.75 equivalent to Rs.26,51,819.62 (Rupees twenty six lakhs fifty one thousand eight hundred and nineteen and paise sixty two only) at the rate of exchange on the date of filing of the suit, along with interest at the rate of 18% per annum from the date of plaint till the date of realisation pending disposal of the suit. 2 It is pleaded case of the applicant/plaintiff that the plaintiff before filing this suit, had issued a legal notice which was replied to, by the defendants through their counsel Mr.P.Radhakrishnan, Advocate. 3 In the reply dated 21.05.2011, it was admitted that a sum of U.S. $. 45,743/- (Forty five thousand seven hundred and forty three only) was lying in excess as advance with the defendant/non- applicant. 4 It was also admitted by the defendant/respondent No.1 that as per the books of accounts maintained by the non-applicant No.1/defendant No.1, a sum of U.S.$.12,538.75 (Twelve Thousand Five Hundred and Thirty Eight United State Dollars and Seventy Five cents) deposited towards advance payment for supply of material lying with the non-applicant/defendant No.1. Reply to the notice proves clear admission by the non applicant No.1/defendant No.1, i.e. a sum of U.S.$..58,281.75 (Fifty Eight Thousand Two Hundred and Eighty One United States Dollars and Seventy Five cents) is due and payable to the applicant/plaintiff. 5 On the basis of the admission made in the document attached with the plaint and in reply to this application, the learned counsel for the applicant prays for grant of interim decree under Order 12 Rule 6 of Code of Civil Procedure. 6 The learned counsel for the plaintiff/applicant in support of his claim for interim decree, relied upon the averments made in paragraphs 12, 14, 20 and 21 of the affidavit which reads as under: "12) The above e-mail was received by the 1st defendant and replied to on 27.09.2010 when the 1st defendant agreed to remit excess advance of US $ 30765 (Thirty Thousand Seven Hundred and Sixty Five United States Dollars) on or before 31st October 2010 in batches starting from 12th October 2010 and further agreed that if they were not able to supply spares by 20.10.2010, they would remit the value of such items to the plaintiff and requested the plaintiff to wait for a few more days to finally settle the account. 14) The above e-mail was received by the 1st defendant and replied to on 30.09.2010, when the 1st defendant made a shocking statement for the first time that they have supplied spares for the excess advance of US $ 50,000/- (Fifty Thousand United States Dollars). The 1st defendant further went on to state that they are due and owing the plaintiff only a sum of US $ 30,765(Thirty Thousand Seven Hundred and Sixty Five United States Dollars), which the 1st defendant undertook to pay in 2 instalment by 25th October 2010. 20) The 1st defendant through its lawyer had replied to the said notice vide reply dated 21.05.2011 admitting that the 1st defendant had initially received an additional payment of US $ 50,000/- (Fifty Thousand United States Dollars only). However, the 1st defendant claimed that a sum of USD 4257/- (Four Thousand Two Hundred and Fifty Seven United States Dollars only) had been deducted from the said sum towards spare parts supplied by the 1st defendant to the plaintiff and that therefore a sum of USD 45,753 (Forty Five Thousand Seven Hundred and Fifty Three United States Dollars only) remains with the 1st defendant. It is submitted that as per the arrangement between the plaintiff and the 1st defendant for the excess payment of US$ 50,000/-, the same was not to be appropriated by the 1st defendant in any way unless and otherwise there were specific instructions of the plaintiff to that effect. Without prejudice to any of the plaintiff's foregoing contentions in the present suit, it is stated that the 1st defendant has an admitted liability to the tune of US $ 45,743 (Forty Five Thousand Seven Hundred and Forty Three United States Dollars only) is an admitted liability. Apart from this, the 1st defendant has also admitted that as per its books of accounts, a sum of US $ 12,538.75 (Twelve Thousand Five Hundred and Thirty Eight United States Dollars and and Seventy Five cents) paid in advance towards payment for supply of spare parts remain with the 1st defendant. Thus, 1st defendant has totally admitted to a liability of US $ 58,281.75 (Fifty Eight Thousand Two Hundred and Eighty One United States Dollars and Seventy Five cents) Despite the fact that the sum of US $ 50,000/- (Fifty Thousand United States Dollars) was not to be appropriated by the 1st defendant, the 1st defendant went on to appropriate from the same. 21) I state that since the liability to pay a part of the suit claim to the tune of US$ 58,281.75 (Fifty Eight Thousand Two Hundred and Eighty One United States Dollars and Seventy Five cents) has been admitted by the 1st defendant due to the fact that, the 1st defendant lawyers through his reply dated 21.05.2011 admitted that the 1st defendant had initially received an additional payment of US $ 50,000/- and further went to state that a sum of US$ 4257/- (Four Thousand Two Hundred and Fifty Seven United States Dollars only) had been deducted from the said sum towards spare parts supplied by the 1st defendant to the plaintiff and that therefore a sum of US $ 45,743/- (Forty Five Thousand Seven Hundred and Forty Three United States Dollars only) remains with the 1st defendant, this was despite that fact that the arrangement between the plaintiff and the 1st defendant that from the excess payment of US$ 50,000/- (Fifty Thousand United States Dollars only), no appropriations were to be made by the 1st defendant unless and otherwise there were specific instructions of the plaintiff to that effect. Further, the 1st defendant has also admitted that as per its books of accounts, a sum of US$ 12538.75 (Twelve Thousand Five Hundred and Thirty Eight United States Dollars and Seventy Five cents) paid in advance towards payment for supply of spare parts remain with the 1st defendant. Thus, the 1st defendant has totally admitted to a liability of US$ 58,281.75 (Fifty Eight Thousand Two Hundred and Eighty One United States Dollars and Seventy Five cents )" 7 In the counter affidavit filed by the non applicant No.1/defendant No.1, the averments made in paragraphs referred to above have not been specifically denied. The non applicant/defendant merely stated that averments made in paragraphs 10 to 26 of the affidavit are denied. 8 It is well settled law that evasive denial is not sufficient and each and every averment is required to be specifically denied, otherwise averments are deemed to be admitted. 9 At the time of argument, the learned counsel for the non applicant No.1/defendant No.1 did not dispute the fact that in the correspondence exchanged between the parties, the defendant No.1/non applicant No.1 had admitted that an amount of U.S.$.58,281.75 (Fifty Eight Thousand Two Hundred and Eighty One United States Dollars and Seventy Five cents only) as pleaded in the application was outstanding and payable to the plaintiff/applicant. 10 The only contention raised by the learned counsel for the non applicant/defendant No.1 was that interest at the rate of 18% per annum as claimed was not payable as there was no agreement to pay interest on outstanding amount. 11 This contention of the learned counsel for the non applicant No.1/ defendant No.1 deserves to be noticed to be rejected, as the plaintiff/ applicant has not claimed any interest, but has claimed pendentelite and future interest which are to be awarded by this Court. 12 In support of the plea that interim decree can be passed under Order XII Rule 6 of the Code of Civil Procedure in absence of written statement, the plaintiff/applicant relied upon the Judgment of the Hon'ble Supreme Court in the case of UTTAM SINGH DUGGAL & CO. LTD. VS. UNITED BANK OF INDIA AND OTHERS [(2000)7 SCC 120], wherein it was held as under: "12. As to the object of Order 12 Rule 6, we need not say anything more than what the legislature itself has said when the said provision came to be amended. In the Objects and Reasons set out while amending the said Rule, it is stated that "where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled". We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment. Where the other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which it is impossible for the party making such admission to succeed. 13. The next contention canvassed is that the resolutions or minutes of the meeting of the Board of Directors, resolution passed thereon and the letter sending the said resolution to the respondent Bank cannot amount to a pleading or come within the scope of the Rule as such statements are not made in the course of the pleadings or otherwise. When a statement is made to a party and such statement is brought before the court showing admission of liability by an application filed under Order 12 Rule 6 and the other side has sufficient opportunity to explain the said admission and if such explanation is not accepted by the court, we do not think the trial court is helpless in refusing to pass a decree. We have adverted to the basis of the claim and the manner in which the trial court has dealt with the same. When the trial Judge states that the statement made in the proceedings of the board of Directors' meeting and the letter sent as well as the pleadings when read together, leads to unambiguous and clear admission with only the extent to which the admission is made in dispute, and the court had a duty to decide the same and grant a decree, we think this approach is unexceptionable. 14. Before the trial Judge, there was no pleading much less an explanation as to the circumstances in which the said admission was made, so as to take it out of the category of admissions which created a liability. On the other hand, what is stated in the course of the pleadings, in answer to the application filed under Order 12 Rule 6 CPC, the stand is clearly to the contrary. Statements had been made in the course of the minutes of the Board of Directors' meeting held on 30.05.1990 which we have already adverted to in detail. In the pleadings raised before the court, there is a clear statement made by the respondent as to the undisputed part of the claim made by them. In regard to this aspect of communicating the resolution dated 30.05.1990 in the letter dated 04.06.1990 what is stated in the affidavit-in-opposition in application under Order 12 Rule 6 CPC is save what are matters on record and save what would appear from the letter (sic resolution) dated 30.05.1990 all allegations to the contrary are disputed and denied. This averment would clearly mean that the petitioner does not deny a word of what was recorded therein and what is denied is the allegation to the contrary. The denial is evasive and the learned Judge is perfectly justified in holding that there is an unequivocal admission of the contents of the documents and what is denied is extent of the admission but the increase in the liability is admitted." 15. Even without referring to the expression "otherwise" in Rule 6 of Order 12 CPC, we can draw an inference in the present case on the basis of the pleadings raised in the case in the shape of the applications under that Rule and the answering affidavit which clearly reiterates the admission. If that is so, interpretation of the expression "otherwise" becomes unnecessary". 13 On consideration, I find that this application deserves to be allowed. The specific averments made in the affidavit filed in support of grant of interim decree, along with documentary evidence, i.e. reply to the notice by the defendant/non applicant proves that the amount of U.S.$.58,281.75 (Fifty Eight Thousand Two Hundred and Eighty One United States Dollars and Seventy Five cents only) is not disputed and stands admitted. The Court can exercise jurisdiction under Order XII Rule 6 of C.P.C. and pass interim decree on admission. 14 Consequently, this application is ordered and interim decree for a sum equivalent to U.S.$.58,281.75(Fifty Eight Thousand Two Hundred and Eighty One United States Dollars and Seventy Five cents only) i.e. Rs.26,51,819.62 (Rupees twenty six lakhs fifty one thousand eight hundred and nineteen and paise sixty two only) together with pendentelite future interest at the rate of 6% per annum from the date of filing of this application till the date of realisation is passed in favour of the applicant/plaintiff against the non-applicant No.1/defendant No.1, but with no order as to costs. kal vaan