ASHIM KUMAR BANERJEE.J. - (1.) THE appeal would relate to an order declining to pass judgment upon admission. Parties entered into an agreement for supply of high tension steel wire. The appellant supplied the goods to the respondent for the value mentioned in the invoice. The respondent was obliged to make payment within 30 days from the date of supply coupled with obligation to furnish Sales Tax Declaration Forms commonly known as "c" forms. The appellant contended, a sum of Rs.1998644.80 became due and payable after adjusting part payment received from the respondent. There were altogether three bills. The principal amount became due in respect of bill No. 195,199 and 234 for the sums of Rs.6,73,067; Rs.6,64,503 and Rs.6,61,064 amounting to Rs.19,98,644. The respondent would, however, admit, a sum of Rs.4, 48, 836 became due on account of supply, vide letter dated April 10, 2008. The said letter would appear at page-46 of the paper book. The relevant extract is quoted below: "In Reference to your letter quoted, we are sending our ledger copy for the year 2006-07 and 2007-078. As per our ledger a credit balance is Rs.448836.00. we will deduct the credit balance because you have not supplied the material as per our schedule programme given to you. Due to non-supply of material in time, our factory was closed several days in every month, and we have suffered heavy losses on account of payment to idle labourer and other expenses."
(2.) THE plaintiff however, claimed judgment upon admission for a sum of Rs.32,40,257.76 being the principal amount and the interest that the learned Judge declined, hence this appeal. Mr. Ratnanko Banerjee, learned counsel appearing for the appellant would rely upon the Sales Tax Declaration Forms appearing at pages 35-44 of the petition. He would particularly rely on page 44 wherein we find, the bill No. 195,199 and 234 would squarely represent the principal sum of Rs.19 lacs. Hence on the strength of such declaration form, he would claim judgment upon admission. To claim judgment upon admission, one would have to rely upon an unqualified statement of the respondent. From the petition we find, the plaintiff would rely upon the letter dated April 10, 2008 that would relate to Rs.4,48,836 and not the amount so claimed. The Sales Tax Declaration Forms were mentioned as a piece of fact. The prayer for judgment upon admission was based upon an affidavit-in- opposition affirmed on November 14, 2008. The relevant part of the affidavit is quoted below: "In view of such delayed supply, the respondent is entitled to proportionate and suitable adjustment of the amounts that are presently lying to the credit of the petitioner and all allegations to the contrary are incorrect and are denied and disputed."
(3.) THE extract quoted (supra) would record the respondent's assertion to the effect, they would be entitled to adjust the amounts lying to the credit of the petitioner. However, the exact amount that was lying in credit, was not mentioned. If we read the affidavit as a whole, we would not find any admission. The letter or the declaration form, even if taken into account, could not be the subject matter of an application under Order XII Rule 6 of the Code of Civil Procedure as those documents were rendered much before filing of the suit. If we read the provision of Order XII Rule 6 we would find an enabling right of the plaintiff to seek judgment upon admission made by the defendant at any stage of the suit. Mr. Banerjee relied on two decisions one of a Division Bench of the Andhra Pradesh High Court and other being a Single Bench decision of this Court. In the decision reported in All India Reporter 1998 Andhra Pradesh Page-203 (M/s. Electro Flame Ltd., Hyderabad Vs. M/s. Mittal Iron Foundry Pvt. Ltd., Calcutta), the Division Bench relied on an Apex Court decision and observed, a plea of acknowledgement ought to relate to a present subsisting liability that would establish the jural relationship between the parties. Such relationship can be inferred by implication from the nature of admission and need not be expressed in words. This judgment was rendered for establishment of jural relationship while discussing the plea of limitation. In this context, the Division Bench considered the Sales Tax Declaration forms. We are unable to appreciate how this would help us to decide an application under Order XII Rule 6 even if we take those declaration forms in consideration being pre-suit document.;