JUDGMENT The Court : This application has been taken out by the Defendant No. 2 for a direction on the plaintiffs to make payment of the sum of Rs. 62,95,000.00 to the defendant No. 2 or in the alternative for the plaintiffs to deposit the said sum with the Registrar, High Court. According to the defendant No. 2 the plaintiffs have unconditionally and categorically admitted in the plaint that the sum was payable by the plaintiffs to the defendant No. 2. 2. The suit has been filed by two plaintiffs. The plaintiff No. 1 is a Public Limited Company and the plaintiff No. 2 is the Director of the plaintiff No. 1. The case in the plaint briefly stated is that an agreement was entered into between the defendant Nos. 2, 6, 7 and the plaintiffs whereby the plaintiff would be entrusted with the sale of two lakhs equity shares (approx.) of the defendant No. 1 of the face value of Rs. 10 each. The plaintiffs were to sell the shares at no less than Rs. 100 per share and would be paid a commission to 2% on the net sale proceeds. The sale proceeds were to be paid to the defendant No. 2 Altogether 3,75,000 share of the defendant No. 1 were delivered to the plaintiffs but the defendant No. 2 took back 1,67,050 shares. The plaintiffs then sold 2,07,950 shares through the defendant No. 3 @ Rs. 100 per share. According to the plaint the defendant Nos. 4 and 5 are the partners of the defendant No. 3. The plaintiffs' further case is that the shares were sold by the defendant No. 3 and a total sum of Rs. 2,07,09,500 was realised and was payable to the defendant No. 2 less the plaintiffs' commission. The plaintiffs have claimed that the defendant No. 2 has been paid the entire sale proceeds except a sum of Rs. 62,95,000/-. 3. The following extracts from the plaint have been relied upon by the defendant No. 2 in support of its application : "The plaintiffs state that in all 2,07,950 shares had been delivered to and entrusted with the plaintiffs to be sold at a price not less than Rs. 100/- per share in accordance with the aforesaid oral agreement. The said shares were in fact sold @ Rs. 100/- per share and a sum of Rs. 100/- per share in accordance with the aforesaid oral agreement. The said shares were in fact sold @ Rs. 100/- per share and a sum of Rs. 2,07,09,500/- was due and payable to the defendant No. 2 against sale of the said shares before deducting the plaintiffs’ commission of 2% of the net sale proceeds and the necessary expenses incurred in respect of the transaction. The plaintiffs have paid and/or caused to be paid to the defendant No. 2 a total sum of Rs. 1,45,00,000/- and a balance sum of Rs. 62,95,000/- only is further payable to the defendant No. 2. Out of this only Rs. 33,00,000/- had been remitted to the plaintiffs by the defendant Nos. 4 and 5 and the said defendants have withheld with them the balance Rs. 29,95,000/-." "The plaintiffs have always been and still are ready and willing to pay to the defendant No. 2 the sale proceeds in their hands after deducting the commission of approximately Rs. 4,16,000/- and other out of pocket expenses amounting to approximately Rs. 10,000/. The balance of the sale proceeds lying in the hands of the plaintiff after deducting the Commission and other expenses is Rs. 28,74,000/-." "In fact a sum of Rs. 28,74,000/- approximately is due and payable by the plaintiffs to the defendant No. 2 which the plaintiffs have never denied or disputed and which the plaintiffs are always ready and willing to pay. A further sum of Rs. 29,95,000/- is payable to the defendant No. 2 by the defendant Nos. 3 to 5." 4. According to the statements in the plaint, on 8th November, 1995 the representative of the defendant No. 2 and the defendants No. 4 and 5 coerced the plaintiff No. 2 to sign an agreement acknowledging liability to pay the defendant No. 2 a sum of Rs. 70 lakhs and to execute two post dated cheques for Rs. 35 lakhs each. The suit has been filed challenging the agreement dated 8th November 1995 and asking for cancellation and delivery up of the two post dated cheques. 5. The interim application filed by the plaintiffs reiterated the case made in the plaint. In addition to making the statements quoted earlier, in paragraph 31 of the petition it has been stated: "As aforestated, only about Rs. 5. The interim application filed by the plaintiffs reiterated the case made in the plaint. In addition to making the statements quoted earlier, in paragraph 31 of the petition it has been stated: "As aforestated, only about Rs. 28,74,000/- is due and payable by your petitioners to the respondent No. 2 and no money ever was nor is now payable to any of the other respondents." 6. In the present application, the defendant No. 2 has denied the case made out by the plaintiffs to the effect that they had been entrusted with the sale of the shares under two separate transactions. According to the defendant No. 2, the shares had been kept with the plaintiffs by way of security in consideration for advances to be made by the plaintiff to the defendant No. 2. According to the defendant No. 2, the arrangement was that the defendant No. 2 would buy back the shares at a higher price from the plaintiffs within a period of one year. In default, the plaintiffs would, be at liberty to sell the shares after giving seven days notice. It is the defendant No. 2's case that in contravention of this agreement the plaintiffs failed to make the advances and sold the shares and misappropriated a substantial portion of the sales proceeds. According to the defendant No. 2,2,30,400 shares of the defendant No. 1 were sold by the plaintiffs in the open market and the balance of Rs. 1,10,00,000/- was due and payable to the defendant No. 2 by the plaintiffs. All the 2,30,400 shares were lodged for transfer with the defendant No. 1 by the various transferees of the shares but the shares had not been registered by the defendant No. 1. According to the defendant No. 2, a meeting was held in Calcutta between inter alia the defendant No. 2 and the plaintiffs on 7th November 1995 at which it was agreed that the plaintiffs would hand over Rs. 25 lakhs to the defendant No. 2, and the balance of Rs. 85 lakhs would be repaid by three post dated cheques all dated 11.11.95, of which one would be for Rs. 15 lakhs and two of Rs. 35 lakhs each. Upon the encashment of the cheques the transfer of the 2,30,400 shares would be regularised. 25 lakhs to the defendant No. 2, and the balance of Rs. 85 lakhs would be repaid by three post dated cheques all dated 11.11.95, of which one would be for Rs. 15 lakhs and two of Rs. 35 lakhs each. Upon the encashment of the cheques the transfer of the 2,30,400 shares would be regularised. It is the defendant No. 2's further case that pursuant to this agreement, the next day, i.e. 8th November, 1995 the plaintiff made over a sum of Rs. 25 lakhs to the defendant No. 2 by three demand drafts all dated 8.11.95 and also issued three post dated cheques all dated 11.11.95, two for Rs. 35 lakhs each and one for Rs. 15 lakhs. The agreement was reduced into writing and executed by the parties. However, the said three post dated cheques were dishonoured upon presentation. The defendant No. 2 claims the sum of Rs. 85 lakhs from the plaintiffs as the balance of the sale proceeds of the shares and contends, on the basis of the admissions of the plaintiffs, that at least the amount admittedly due to it should be make over by the plaintiffs. 7. The application was opposed by the plaintiffs. According to the plaintiffs the Court does not have the jurisdiction to pass the orders prayed for by the defendant No. 2. The plaintiffs say that the provisions of Or. 39 r. 10 do not apply to the facts of the case as the sale proceeds of the shares did not form the subject matter of the suit. They have relied on the decision of the Supreme Court in Vallabh Das vs. Dr. Madan Lal & Ors. reported in AIR 1970 SC 987 in this context. It is also submitted that the application had not been framed under the provisions of Or. 12 r. 6 of the Code and Chapter XIIIA r. 8 could not be relied upon by the defendant No. 2. On the merits it is contended that as the defendant No. 2 was challenging the validity of the sales by the plaintiffs, there was no question of the defendant No. 2 being entitled to the balance amount of the sale proceeds. 8. None of the submissions made by the plaintiffs are tenable. I am unable to hold that the application is not maintainable under Or. 39 r. 10 of the Code of Civil Procedure. 8. None of the submissions made by the plaintiffs are tenable. I am unable to hold that the application is not maintainable under Or. 39 r. 10 of the Code of Civil Procedure. Order XXXIX r. 10 reads as follows: "10. Deposit of money, etc. in Court.-Where the subject-matter of a suit is money or some other thing capable of delivery, and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last named party, with or without security, subject to the further direction of the Court." 9. The Supreme Court in Vallabh Das vs. Dr. Madan Lal construed the words "subject-matter" with reference to the provisions of Or. 23 r. 1 of the Code which entitles a plaintiff to withdraw a suit and file a fresh suit in respect of the same subject-matter. In that context the Supreme Court said that : "The expression "subject-matter" is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed...... the cause of action, namely, the series of transactions which formed the basis of this title to the suit properties....... As observed in Rukma Bai v. Mahadeo Narayan, ILR 42 Bom 155 : AIR 1917 Bom 10(1) the expression "subject-matter" in Or. 23, r. 1, Code of Civil Procedure means the series of acts or transactions alleged to exist giving rise to the relief claimed. In other words "subject matter" means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him." 10. The observations of the Supreme Court were, because the consideration was the right of the plaintiff to file a second suit, necessarily limited to the context. In Or. XXXIX r. 10 there is no reason to limit the words "subject matter" of the suit only to the claim of the plaintiff. In the context of Or. XXXIX r. 10, the subject-matter of a suit would also include the issues which require determination between the parties inter se. In Or. XXXIX r. 10 there is no reason to limit the words "subject matter" of the suit only to the claim of the plaintiff. In the context of Or. XXXIX r. 10, the subject-matter of a suit would also include the issues which require determination between the parties inter se. In this case one of the issues will be the extent of the liability of the plaintiff to pay to the defendant No. 2 on the sale of the shares. The money payable to the defendant No. 2 therefore forms part of the subject-matter of the present suit. 11. In any event assuming the provisions of Or. XXIX r. 11 are inapplicable, Or. XII r. 6 of the Code clothes the Court with sufficient power to pass orders as prayed for by the defendant No. 2. It cannot be said that the application of the defendant No. 2 is not framed under Or. 12 r. 6. There is no prescribed procedure for such an application. The only requirement to invoke the jurisdiction of the Court under the provisions is to satisfy the Court that admissions have been made by one of the parties to the suit in favour of another. Order XII Rule 6 reads as follows : "Judgment on admission.-(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admission. (2) Whenever a judgment is pronounced under sub-r. (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the said judgment was pronounced." 12. The defendant No. 2 has not asked for a judgment upon this admission of the plaintiffs. What has been asked for is an order for payment of the amount on sale of the shares. The plaintiff has repeatedly admitted the fact of its liability to pay the defendant No. 2 Rs. 62,95,000. But the plaintiff has not admitted that it had received the entire sale proceeds. It has admitted that it was in possession of Rs. What has been asked for is an order for payment of the amount on sale of the shares. The plaintiff has repeatedly admitted the fact of its liability to pay the defendant No. 2 Rs. 62,95,000. But the plaintiff has not admitted that it had received the entire sale proceeds. It has admitted that it was in possession of Rs. 33,00,000/- of the sale proceeds out of which after deducting the commission and expenses, a sum of Rs. 28,74,000/- was being held by it towards the defendant No. 2's dues. The plaintiffs' argument that there is no liability to make payment despite such admissions because the defendant No. 2 was challenging the sale is erroneous. Irrespective of the defence of the defendant No. 2 the plaintiff has made an unconditional admission that the sum of Rs. 28,74,000/- is payable by the plaintiffs to the defendant No. 2. Secondly it does not lie in the mouth of the plaintiffs to resist the application on the basis of any defence raised by the defendants unless it admits such defence. Finally, the defendant No. 2 has before this Court as also in its application, affirmed the sales of the shares. 13. For the reasons aforesaid there will be an order in terms of prayer (b) of the Master Summons Limited to Rs. 28,74,000/-. Such payment must be made by the plaintiffs within six weeks from date. The amount may be accepted by the defendant No. 2 without prejudice to its rights in the suit as to the extent of the plaintiffs liability an account of the sale proceeds of the shares. The defendant No. 2 will be entitled to the costs of this application assessed at 100 gms. 14. Stay prayed for but the same is refused. 15. Let a xerox copy of the Judgment duly signed by the Assistant Registrar of this court be given to the parties upon their undertaking to apply for certified copy of the judgment and on payment of usual charges. Application allowed.