Prasenjit Mandal, J. - (1.) At all material times Sri Asis Chattopadhyay, appellant in APD 21 of 2009 was working as an officer in the Accounts Department of Berger Paints India Limited having its office at 129, Park Street, Calcutta. In May, 2003 the respondent company upon reconciliation of accounts came to know that a sum of Rs. 33.00 lac was withdrawn by Asis from the teal of the company by way of manufacturing vague vouchers in the name of a firm "Dimensions" or "Dimensons" said to be a firm belong to the respondent No.2, Surbrata Chakraborty, in collusion and conspiracy with the other defendants being the respondent Nos. 3 to 9 who are relations and friends of Asis. According to the company, on being confronted Asis admitted his guilt and assured to repay the sum by a writing appearing at page Nos.175-180 of the Paper Book in APD No.21 of 2009. On perusal of the said Bengali writing it appears that Asis admitted to have withdrawn Rs. 33.00 lac by several cheques drawn in between August 28, 2000 to December 17, 2002. He diverted the sums amongst his relations and friends being the other respondents and acquired several movable and immovable properties details of which were given in a schedule as contained in the said Bengali writing. A criminal case was initiated against Asis. He was in custody for about 82 days, when he was released on bail. The said criminal case is still pending and awaiting its disposal. The said writing was witnessed by one K. Sarkar and one Santanu Ghosh, two employees of the respondent company. The company filed a suit as against Asis and the other respondents. The appellant in APD No. 18 of 2009 being the father of Asis who by a separate undated Bengali writing appearing at page No. 181 agreed to repay the sum by instalments. The respondent company made an application under Order 12 Rule 6 of the Code of Civil Procedure as against Asis and Sankar based on the said two undated writings acknowledging the debt. The application was opposed by Asis and Sankar. They contended in their respective affidavits that they were not involved any such defalcation. According to them Asis was arrested and while he was in custody at Park Street Police Station, under duress, they were compelled to write such undertakings at the instance of one Asis Dutta, Manager of the respondent company. The statement of Asis was corroborated by his father Sankar in his affidavit. It was further contended before His Lordship that out of those cheques, two cheques amounting to Rs. 3.4 lac each were barred by the law of limitation and no pleading was made in the plaint as required under Order 1 Rule 6 of the Code of Civil Procedure. The plaintiff also did not claim exemption in term of section 18(2) of the Limitation Act. His Lordship negated the contentions of the defendants. His Lordship relied upon a part payment made by Asis in May, 2003 and held that the claim was not barred by limitation. His Lordship passed a decree for Rs.32.00 lac jointly and severally against Asis and Sankar. His Lordship also awarded cost of 800 GMs. as against the appellant/ defendants'. Being aggrieved, these two appeals by Asis and Sankar have been preferred against the order dated September 5, 2008.
(2.) Mr. Ajoy Krishna Chatterjee, learned Senior Counsel appearing for Sankar, contended as follows: (i) The writing at page No. 181 was undated. Hence, until and unless such document was proved by the witnesses the same could not be used as a basis passing an order of judgment upon admission under Order 12 Rule 6 of the Code of Civil Procedure. (ii) The first two cheques admittedly were issued beyond three years period. In absence of a pleading required under Order 7 Rule 6 of the Code of Civil Procedure coupled with section 18(2) of the Limitation Act no decree could be passed on the said sum. (iii) It was the case of the plaintiff that vouchers supporting such payment were destroyed by Asis and money was withdrawn in collusion and conspiracy with the other defendants. Unless such facts were proved through oral and/or documentary evidence no decree could be passed. (iv) The plaintiff in their plaint contended that he was posted in the Accounts Department being authorised for dealing with the subject of transaction whereas such fact was categorically denied by Asis in his affidavit. According to him, he was posted at the relevant time entrusting separate duty which had no nexus with passing of bills of the suppliers and / or making payment therefor. Such fact was admitted by the plaintiff in their affidavit-in-reply. Hence, the onus shifted on the plaintiff to prove that although he was not entrusted to deal with the subject transactions, he did so in excess of his authority. Unless such fact was proved in a regular trial by giving adequate opportunity to the defendants to cross-examine the plaintiff's witness, no decree could be passed based on the alleged admission. (v) The plaintiff in paragraph 15 pleaded the particulars of fraud which required a thorough proof by oral and documentary evidence on the basis of which a decree under Order 12 Rule 6 could be passed. (vi) The plaintiff was not definite about their claim as would appear from their own pleading as the claim of different amounts against several defendants became more than 1 crore although they categorically contended to have lost Rs. 33.00 lac only.
(3.) While elaborating his submission Mr. Chatterjee contended that from the tenor of the so-called writing no prudent man would come to a finding that such writing was made voluntarily. This required a detailed investigation at the regular trial. The learned Judge perhaps overlooked this aspect.;