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Judgment
Rajiv Sahai Endlaw, J
Review Petition No.18/2020
The defendants No.1&2/review petitioners, seek review of the order dated 19th December, 2019 decreeing the money claim of the plaintiff in part, on admission of the defendants.
The counsel for the defendants No.1&2/review petitioners, at the outset states that the application, though titled for review, is in fact for clarification. It is contended that clarification of the order qua four aspects is sought.
Firstly, it is stated that though the defendants, in the written statement pleaded the Lease Deed between the parties to have been signed by the defendant No.2 but have now realised that the Lease Deed in fact is signed by one Sanjeev Kumar, authorised signatory of the defendant No.1 and who is not a Director of the defendant No.1. It is contended that, the decree besides against the defendant No.1, has been passed also against defendant No.2, merely because of the admission of the defendants in the written statement, of the defendant No.2 having signed the Lease Deed and which is contrary to the Lease Deed itself which expressly records the same to have been signed by Sanjeev Kumar. It is thus contended that the decree, insofar as against the defendant No.2, is not entitled to be passed.
The counsel for the plaintiff appears on advance notice.
The counsel for the plaintiff, in response to the aforesaid has contended that the defendants No.1&2/review petitioners have filed an affidavit of admission/denial of defendant No.2 and in which the Lease Deed is admitted and once the Lease Deed is admitted by the defendant No.2, the same would constitute admission by the defendant No.2 of Clause 33 thereof providing for the liability, besides of the defendant No.1, also of the Directors of the defendant No.1.
I have considered the aforesaid aspect and am of the view that the principle of withdrawal of admissions made, particularly in pleadings, being not permitted, would apply to the present situation. It makes no difference that the admission is contrary to the document. The Division Bench of this Court in Kali Charan Vs. Ishwar Dass 2002 (61) DRJ 401 was concerned with an application for amendment of written statement in a partition suit. In the written statement filed, petitioner was admitted to be having a share in the property. Subsequently by amendment, the said admission was sought to be withdrawn relying on a Will and / or orders of Court in earlier proceedings which were decided against predecessor of plaintiff and by stating that the earlier counsel has, in ignorance of true facts, documents, orders and judgments of the Court, made the admission. Holding that the defendant wanted to change admission already made of share of plaintiff in the property, to a denial of any share of plaintiff in the property and that the same would change the nature of the defence and totally non suit the plaintiff, the amendment was denied. It was held that the defendant cannot deprive the plaintiff of the valuable right which had accrued from admission in written statement. It would thus be seen that even where the admission made in the pleading was inconsistent with documents, orders and judgments of at in earlier proceedings, it was still not permitted to be withdrawn. Reference in this context may also be made to Heeralal Vs. Kalyan Mal (1998) 1 SCC 278, Mukti Dutta Vs. Vijay Bhushan 2018 SCC OnLine Del 6924, Gurucharan Kaur Vs. Ranjeet Sandhu 2017 SCC OnLine Del 11489 (SLP(C) No.19586/2018 preferred whereagainst was dismissed on 17th July, 2018); DP Mahajan Vs. Alok Mahajan 2017 SCC OnLine Del 12684, Gautam Sarup Vs. Leela Jetly (2008) 7 SCC 85, Ram Niranjan Kajaria Vs. Sheo Prakash Kajaria (2015) 10 SCC 203, Nagindas Ramdas Vs. Dalpatram Ichharam (1974) 1 SCC 242.
Thus, no clarification on the first aspect is required.
Second contention of the counsel for the defendants No.1&2/review petitioners is that vide paragraph 18 of the order, interest @ 12% per annum on the amount of Rs.46,47,394/- from 1st January, 2016 till the date of payment has been decreed. Attention is drawn to page 188 of Part-III-A file, being the letter dated 4th March, 2019 of the defendant No.1 to the Advocate for the plaintiff and in which, at page 190, accounts are set out and therefrom, it is shown that interest accrued on the amount of Rs.1,12,32,000/- @ 10% per annum has already been included.
The counsel for the plaintiff does not controvert and on enquiry states that interest on Rs.1,12,32,000/-, out of which decree for part has been passed, from 1st January, 2016 till 17th May, 2018 was included in the computation. He however contends that the Lease Deed provides for refund with interest from the date of payment, which was on 31st January, 2015 and the plaintiff in fact is entitled to interest from 31st January, 2015 and not from 1st January, 2016.
The counsel for the defendants No.1&2/review petitioners states that the computation of interest at page 190 is not from 1st January, 2016 but from 31st January, 2015.
The counsel for the plaintiff states that he is unable to comment at present.
The order having granted interest from 1st January, 2016 and not from 31st January, 2015, the aforesaid is irrelevant.
The counsel for the defendants No.1&2/review petitioners fairly states that interest has been computed not till 17th May, 2018, but till 17th January, 2018.
However, since interest till 17th January, 2018 @ 12% per annum is included in the computation, it is clarified that paragraph 18 of the order dated 19th December, 2019 be read as "awarding interest @ 12% per annum on the amount of Rs.46,47,394/- with effect from 18th January, 2018 and till the date of payment" and the decree sheet, if prepared, be also amended axiomatically.
The third clarification sought by the counsel for the defendants No.1&2/review petitioners is with respect to rate of interest.
No clarification/modification or review is required on this aspect.
The last clarification sought is with respect to the remuneration of the Commissioner. It is contended that the evidence of the plaintiff be recorded on commission and the evidence of the defendants be recorded before the Joint Registrar, as the defendants are not in a position to bear the remuneration.
The same is again, in withdrawal of the consent given on 19th December, 2019 and recorded in the order of that date and modification/clarification sought is dilatory and cannot be permitted.
The review petition is disposed of in terms of above.