C.J. Sheth Construction Company and Another vs Sunderdas Arjunlal and Others

S.S. Subramani, J.—Both these Applications are filed by the plaintiff for passing an interim decree against the defendants.

The plaintiffs have filed the suit against the defendants for recovery of more than Rs. 1 3/4 crores. It is stated that pursuant to a discussion

between the applicants and the respondents, the respondents agreed to pay a sum of Rs. 59 lakhs within a period of three years form 1-1-1988

against the applicants relinquishing their rights and interest over the applicants'' share in the first floor of the building complex. It is stated that the

defendants even though agreed to pay Rs. 59 lakhs, they have been evading payment pending suit. They issued a notice on 8-6-1993 through their

counsel to the respondents calling upon them to discharge their liabilities as set out in the notice. It is stated that a reply notice was sent, which was

only to evade the payment. The petitioner/plaintiff would state in the affidavit that the defendants have raised untenable please in the reply notice.

They have further stated that in view of the admission in the agreement, they are bound to pay a sum of Rs. 20,45,697/- within such time as may

be fixed by this Court, and in default of payment, a decree must be granted in favour of the plaintiff to recover the same by sale of the properties.

Application No. 7430 of 1994 is also for an enhanced amount, i.e., Rs. 35,83,280/-

For both these Applications, a counter-affidavit has been filed by the respondents. According to them, they have never admitted any liability in

any document. According to them, the document relied on by the plaintiff is not enforceable, and they have explained under which the said

document came into existence. According to them, the document is not supported by consideration, and they are not liable to pay any amount.

They have stated that they will filed a detailed written statement, disputing the claim. They also say that under Order 26 Rule 6, C.P.C., only if

there is unconditional admission, a decree can be passed. They also make reference to the reply notice and also various documents relied on by

the plaintiff to substantiate their case that there is no unequivocal admission for getting the decree.

The only question that has to be considered is, whether the plaintiff is entitled to get an interim decree on the ground that there is admission by

the defendants.

On going through the documents filed in support of the plaint transaction and also the reply notice of the defendants, I am of the view that the

applicant/plaintiff cannot get a relief at this stage on the basis of any alleged admission. Nowhere in the documents, I find any unequivocal

admission so as to invoke the jurisdiction under Order 12 Rule 6, C.P.C.

It is held in State Bank of India Vs. Midland Industries and Others, , that in order to invoke the provision under Order 12, Rule 6, C.P.C., there

must be unequivocal, unconditional and unambiguous admission by the defendant, and again, their Lordships have held that the Provision of Order

12, Rule 6, C.P.C. is only discretion and it is not a matter of right on the part of the plaintiff to get a decree. In the decision aforesaid, the learned

Judge has held thus:-

Undoubtedly Rule 6 of Order 12 has been couched in a very wide language. However, before a court can act under Rule 6, admission must be

clear, unambiguous, unconditional and unequivocal. Furthermore, a judgment on admission by the defendant under Order 12, Rule 6 is not a

matter of right and rather is a matter of discretion of the Court, no doubt such discretion has to be judicially exercised. If a case involves questions

which cannot be conveniently disposed of on a motion under this rule the Court is free to refuse exercising discretion in favour of the party invoking

it. Where the defendants have raised objections which go to the very root of the case, it would not be proper to exercise this discretion and pass a

decree in favour of the plaintiff. The rule is not intended to apply where there are serious questions of law to be asked and determined. Likewise

where specific issues have been raised in spite of admission on the part of the defendants the plaintiff would be bound to lead evidence on those

issues and prove the same before he becomes entitled to decree and the plaintiff in that event cannot have a decree by virtue of provision of Order

12, Rule 6, C.P.C. without proving those issues.

In AIR 1962 J&K 66 (Union of India v. Feroze & Co.), also, the scope of Order 12, Rule 6, C.P.C. was considered, and their Lordships held

thus:-

A judgment on admission under Order 12, Rule 6 is a matter of discretion and not a matter or right and the Court would not entertain an

application for such judgment when the case involves questions which cannot be conveniently dealt with in a motion under the rule. In order that a

judgment may be obtained under Order 12, Rule 6, the admission must be unconditional, clear, and unequivocal.

Since the defendant has disputed the liability, the application of the plaintiff is not maintainable. The provision of Order 12, Rule 6, C.P.C. has no

application at present, and hence the Applications are dismissed. No costs.