PADMA KHASTGIR, J. - (1.) In a suit filed by the respondents Biswanath Dhandhania and Ors. against Cycle Corporation of India Ltd. the appellant herein, an application for final judgment under Chapter 13A of the Rules of this Court was moved before Mr. Justice Ajit Kumar Sengupta whereupon the learned Judge passed a decree directing the appellant to pay to the plaintiffs a sum of Rs. 12,13,482/- together with interest at the rate of 9% per annum and cost assessed at Rs. 1,700/- of such application. Mr. Gour Roychowdhury, the learned lawyer was appointed as Receiver to hold the decretal sum. The learned Judge proceeded on the basis that there was an unequivocal admission of liability by the appellant in respect of a sum of Rs. 12,13,482.95 and the respondents/plaintiffs were not in any way concerned with the liabilities of their sister concerns.
(2.) Biswanath Dhandhania and Radheshyam Dhandhania carried on business in partnership in the name and style of M/s. General Oil Co. Biswanath Dhandhania is also the sole Proprietor of Sri Hanuman Trading Co. Biswanath Dhandhania, Bajranglal Dhandhania and Pawan Kumar Dhandhania carried on business in copartnership under the name and style of M/s. Premier Trading Corporation. Biswanath Dhandhania also carried on business in co-partnership under the name and style of Industrial Trade Centre. Biswanath Dhandhania is a common partner in all the three firms of General Oil Co., Premier Trading Corporation and Industrial Trade Centre and the sole proprietor of Sri Hanuman Trading Co. The appellant Cycle Corporation of India had various transactions with each of the said concerns. Various correspondences that passed by and between the parties and relied upon by the parties indicate that there were requests made by one concern and the other to the Cycle Corporation of India to transfer their debit account to one sister concern to the other. Under the circumstances the accounts of the said concerns were combined and adjusted from time to time. Biswanath Dhandhania and Radheshyam Dhandhania on 29th Sept. 1986 filed the suit against Cycle Corporation of India for recovery of Rs. 20 lakhs and in such suit as indicated earlier on an application under Chapter 13A the judgment was passed for a sum of Rs. 12,13,482/- on the basis of an admission stated to have been made by the appellant by its letter dt. 2nd of June, 1986. Cycle Corporation of India on 21st of Mar. 1987 filed a suit against Biswanath Dhandhania and the other firms for recovery of a sum of Rs. 88 lakhs. Being aggrieved the present appeal had been preferred from the said impugned judgment.
(3.) The main contention of the appellant was that the learned Judge while passing a final decree under Chapter 13A in a summary procedure should have taken into consideration the entire facts and circumstances of the case and the letters written by Cycle Corporation of India in entirety instead of splitting the said letter and relying only on a portion thereof as an admission of liability. In the affidavit filed on behalf of the appellant in the said application under Chapter 13A the appellant raised bona fide defence and disputed the claim of the plaintiffs, the accounts maintained by and between the parties require detailed investigation and scrutiny. In that view of the matter, the admission of liability without taking into consideration the context and also the defence triable, issue raised in the affidavit in opposition did not amount to an unconditional and unequivocal admission on the part of the appellant. A portion of the letter where such admission had been made should not have been taken in isolation for the purpose of passing a final decree when the appellant by letters dt. 29th July, 1986 and 4th of Aug. 1986 informed the respondents of the consolidation and adjustment of accounts which had not been disputed by them. In fact the appellant had filed a suit being Suit No. 219 of 1987 claiming a decree for Rs. 88,91,028.67 jointly and severally against the respondents. Moreover on the date of the decree, the respondent No. 3 stood dissolves and ceased to exist. Inasmuch as triable issues had been raised by the appellant it was contended that the learned Trial Judge should have relegated the parties to the suit for determination of mutual claims and obligations instead of passing a final decree in a summary manner. The letter dt. 2nd June, 1986 was in reply to the letter dt. 12th of Apr. 1986 dealing with the said letter paragraph-wise giving particulars of short supply, excess rate, rejection of materials, adjustment of accounts so on and so forth including rebate, price, total number of cycles and accessories supplied not only to M/s. Premier Trading Corpn. but also to its sister concerns and/or associated concerns. There was also a demand for supply of the West Bengal Sales Tax Declaration Forms. In the last paragraph, the Cycle Corporation of India requested to clear the dues of Rs.57,41,554.80 payable to them and also furnish the West Bengal Sales Tax Declaration Forms against such purchases of Cycles and accessories from the appellant. In the letter dt. 12th of Apr. 1986 addressed to the Cycle Corporation of India by Biswanath Dhandhania for Premier Trading Corporation the said respondent had brought it to the notice of the General Manager, Finance, of the appellant the various position of liability in respect of Premier Trading Corporation as also its sister concerns Sri Hanuman Trading Co., General Oil Co. In the said letter under the subject settlement of accounts Premier Trading Corpn. also requested the appellant to explain the big difference of the outstanding to the tune of Rs. 52,10,496/-. The said respondent also requested the appellant to settle the accounts and for that purpose requested to send a representative of the said concerns Cycle Corporation of India for Settlement of accounts. In the ultimate paragraph of the said letter Biswanath Dhandhania stated that the said representative should be sent immediately by the appellant Cycle Corporation of India for settlement of accounts, and if after such settlement any amount was found due and payable by them to the appellant they would pay to Cycle Corpn. of India and would adjust the amount by supplying regularly. From such statement made in their letter dt. 12th of Apr. 1986 it appears that the accounts of all the sister concerns were treated together and the respondent sought for an adjustment of accounts by and between the said concerns and the appellant. In the suit filed by Cycle Corporation of India, Cycle Corporation of India had made claims against Sri Hanuman Trading Co. Premier Trading Corpn. General Oil Co. and Industrial Trade Centre. All the said concerns were the associates and/or sister concerns and as such approached the appellant to transfer the account of one concern to the other. The defendant No. 1 as a partner of defendants Nos. 6, 7 and 8 repeatedly requested the plaintiff to consolidate and/or amalgamate the respective accounts and to prepare an up-to-date consolidated account and in fact such a consolidation was made as a result whereof a sum of Rs. 56,02,244.17 became due and payable by the respondent to the appellant. The appellant claimed in the suit a decree for Rs. 88,91,028.67 from the defendants. The series of letters annexed to the affidavit-in-opposition filed by the present appellant indicate that the respondents by various letters requested the appellant to transfer the debit amount of one sister concern to the other. It indicates that the parties themselves agreed to consolidate the various accounts.;