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2009 DIGILAW 4093 (MAD)

Indbank Merchant Banking Services Limited v. Chevro Leather Manufacturers & Others

2009-10-07

S.RAJESWARAN

body2009
Judgment : S. Rajeswaran, J This application has been filed by the applicant/plaintiff to pass a judgment on admission of the outstanding amount set out in the Memorandum of Understanding dated 26. 2003 between the parties that the respondent/defendant has accepted the liability. 2. The plaintiff in C.S. No.193 of 2005 is the Applicant herein. The plaintiff filed C.S. No.193 of 2005 for the following reliefs: (a) pass a judgment and decree directing the defendants to pay jointly and severally a sum of Rs.1,92,56,050.90 together with interest at 18% per annum on Rs.1,92,56,050.90 together with future interest from the date of filing of the plaint till the date of realisation. (b) In default, by the defendants to pay the aforesaid amount within the time stipulated by this Court, direct the plaintiff to sell the properties mentioned in the Schedule to the plaint and after defraying the expenses and cost of the sale apply the sale proceeds towards the payment of the amount directed to be paid by this Court and if any deficiency arises, to permit the plaintiff to recover the same from the defendants personally. 3. The respondents/defendants entered appearance in C.S.No.193 of 2005 and filed Application No.3498 of 2006 under Section 8 of the Arbitration and Conciliation Act, 1996 for reference of the dispute to arbitration pursuant to Clause (A) of the Hire Purchase Agreement dated 12. 1995 and 33. 1997. The applicant/plaintiff filed a counter and this Court on 29. 2007 dismissed the application. 4. According to the applicant/plaintiff, the suit was filed on the basis of a Memorandum of Understanding, dated 26. 2003. According to the Memorandum of Understanding, the respondents/defendants confirmed and accepted the liability of Rs.1,92,56,050.90 as the amount that would be due and payable by them to the applicant/plaintiff as on 26. 2003. In the event of the respondents/defendants paying the company a sum of Rs. 59,50,000/- in 12 monthly installments as detailed in the schedule attached to the Memorandum the applicant/plaintiff would accept such payments in full and final settlement of their claims against the respondents/defendants. In default of payment of the same, in the manner aforesaid, the applicant/ plaintiff would be entitled to recover the admitted liability set out in part-I from the respondents/ defendants together with subsequent interest and cost. The admitted liability set out in part-I is sum of Rs. 1,92,56,050.90. In default of payment of the same, in the manner aforesaid, the applicant/ plaintiff would be entitled to recover the admitted liability set out in part-I from the respondents/ defendants together with subsequent interest and cost. The admitted liability set out in part-I is sum of Rs. 1,92,56,050.90. There was no arbitration clause in the Memorandum of Understanding. As the respondents/defendants failed to pay any amount as per the memorandum, the applicant/plaintiff caused a legal notice dated 111. 2004. The respondents/ defendants did not choose to send any reply raising any dispute in relation to the amounts outstanding under the memorandum. Therefore, the applicant/plaintiff filed C.S.No.193 of 2005 for the above said reliefs. In A.No.7140 of 2007 the plaintiff prayed for a judgment on admission of the outstanding amount set out in the memorandum of understanding dated 26. 2003 as the respondents/defendants have clearly acknowledged their liability and there is no dispute in relation to the amount payable under the memorandum. 5. A counter affidavit has been filed on behalf of the respondents 1 and 2 wherein it was stated that they are not liable to pay any amount much less Rs.1,92,56,050.90 to the applicant/plaintiff. They also questioned the rate of interest charged by the applicant/plaintiff and alleged that the applicant/plaintiff had taken coercive action to recover the money and also brought immense pressure upon the respondents to repay the principal outstanding together with factoring charges to the tune of Rs. 1,76,15,0590. It is further contended by the respondents that they have not admitted their liability and the applicant/plaintiff has to prove the alleged Memorandum of Understanding. It is their further case that as there was no acceptance of liability, the suit is barred by limitation. Further, the applicant/plaintiff should substantiate before this Court as to how they are entitled to claim the factoring charges to the tune Rs. 172 lakhs upon the principal outstanding of Rs. 16 lakhs. Unless the trial is conducted, the respondents would be put to irreparable loss and hardship. They also questioned the maintainability of the application under Order 12 Rule 6 C.P.C. According to them, the provisions of Order 12 Rule 6 C.P.C. would become applicable only in matters where admissions of fact have been made in the pleadings. As nowhere they admitted any liability, the application filed under Order 12 Rule 6 C.P.C. would be presumptuous. They also questioned the maintainability of the application under Order 12 Rule 6 C.P.C. According to them, the provisions of Order 12 Rule 6 C.P.C. would become applicable only in matters where admissions of fact have been made in the pleadings. As nowhere they admitted any liability, the application filed under Order 12 Rule 6 C.P.C. would be presumptuous. Hence, they prayed for the dismissal of the application. 6. Heard the learned counsel for the applicant/ plaintiff and the learned counsel for the respondents/ defendants. I have also gone through the entire documents available on record. 7. The learned counsel for the applicant/plaintiff submits that the suit itself was based on the memorandum of understanding dated 26. 2003. He pointed out that in this memorandum the respondents/defendants unequivocally admitted and accepted their liability of Rs. 1,92,56,050.90. He further pointed out that there was no dispute at all with regard to the liability of the respondents/defendants and to substantiate the same, he relied on a letter Written by the respondents/defendants on 16. 1998 wherein also they admitted their liability, but, only regretted the inconvenience caused, as the industry has gone through a recession. The learned counsel further submitted that on 11. 2003, the applicant/plaintiff sent a letter referring to the memorandum and their failure to honour the memorandum. According to the learned counsel for the applicant/plaintiff, even for the notice dated 111. 2004, sent by the counsel of the applicant, there was no reply by the respondents/defendants. In the notice dated 111. 2004, the respondents were called upon jointly and severally to pay the amount of Rs. 1,92,56,050/- together with interest at the rate of 18% from 26. 2003. Therefore, according to the learned counsel, as the liability was admitted and as there was no dispute with regard to the liability, Order 12 Rule 6 C.P.C. will get attracted and the applicant/plaintiff is entitled to get a decree on the admission made in the Memorandum of Understanding dated 26. 2003 without driving the applicant/plaintiff to go through ordeals of trial. In support of his submissions, the learned counsel for the applicant/plaintiff relied on the following decisions: 1. NEPC Micon Limited v. Siemens Ltd. rep. by its Power of Attorney Holder, S.S. Godbole (2004) 1 MLJ 395 : 2003 (4) CTC 781 2. Dr. K. Padmanabhan and P. Vijayalakshmi v. W.S. Nisha MANU/TN/0495/2002 3. In support of his submissions, the learned counsel for the applicant/plaintiff relied on the following decisions: 1. NEPC Micon Limited v. Siemens Ltd. rep. by its Power of Attorney Holder, S.S. Godbole (2004) 1 MLJ 395 : 2003 (4) CTC 781 2. Dr. K. Padmanabhan and P. Vijayalakshmi v. W.S. Nisha MANU/TN/0495/2002 3. HSBC Bank v. Silverline Technologies Ltd. and Another AIR 2006 Bom 134 4. Shikharchand and Others v. Mst. Bari Bai and Others AIR 1974 M.P. 75 5. Order dated 29. 2007 made in A. No. 3498 of 2006 in C.S. No. 193 of 2005 6. Uttam Singh Dugal & Co. Ltd v. Union Bank of India and Others AIR 2000 SC 2740 : (2000) 7 SCC 120 : (2000) Supp MLJ 71. 8. Per contra, the learned counsel for the respondents/ defendants vehemently contended that there was no admission of the liability by the respondents/defendants and therefore, Order 12 Rule 6 C.P.C. will not get attracted in this case. 9. The learned counsel also submitted that Order 12 Rule 6 C.P.C. will get attracted in a case where was admission made in the pleadings and in this case, the respondents/defendants have not filed any written statement till today admitting their liability. Therefore, it is not open to the applicant/plaintiff to maintain this application under order 12 Rule 6 C.P.C, The learned counsel further contended that the suit itself is barred by limitation and the memorandum itself is to be proved in a manner known to law by the applicant/plaintiff. Unless a full trial is conducted giving opportunity to the respondents/defendants to establish their case they be put to grave and irreparable loss. Hence, he prayed for the dismissal of the application. 10. In support of his submissions, the learned counsel for the respondents/defendants relied on the following decisions: 1. B.S. Viswanath v. Chandika Ben J.Mehta and Others AIR 1990 Kar 142 2. State Bank of India v. Midland Industries and Others AIR 1988 Del 153 3. Western Coalfield Ltd v. Swati Industries AIR 2003 Bom 369 4. CREF Finance Ltd v. Shanthi Homes Pvt. Ltd. Co., Bangalore and Others AIR 2006 Kant 54 11. I have considered the rival submissions carefully with regard to facts and citations. 12. State Bank of India v. Midland Industries and Others AIR 1988 Del 153 3. Western Coalfield Ltd v. Swati Industries AIR 2003 Bom 369 4. CREF Finance Ltd v. Shanthi Homes Pvt. Ltd. Co., Bangalore and Others AIR 2006 Kant 54 11. I have considered the rival submissions carefully with regard to facts and citations. 12. It is not dispute that the plaintiff has filed this Application under Order 12 Rule 6 C.P.C to pass a judgment on admission of the outstanding amount as set out in the memorandum of understanding dated 26. 2003. Therefore, it is essential to refer to the memorandum to find out whether there was any admission of the liability as pleaded by the applicant/plaintiff. A copy of the Memorandum of Understanding was made available by the applicant/plaintiff in the typed set of papers and a reading of the same would show that it was entered into between the applicant/plaintiff, referred to as “company and the first defendant partnership firm, referred to as “Borrower”. The partnership firm (borrower) was represented by the second respondent/ defendant as partner and the Memorandum was signed by the second respondent/defendant in his individual capacity as well as a partner of the first respondent/first defendant. The memorandum contains four clauses and they are extracted as follows: “1. The Borrower and the Partners confirm and accept the liability of Rs. 1,92,56,050.90 (Rupees one crore ninety two lakhs fifty six thousand fifty and paise ninety only) (the amount outstanding under the facilities including the overdue charges, which is detailed in the Schedule I) as the amount that would be due and payable by them to the Company as on 26. 2003. 2. In the event of the borrower and the partners paying the Company a sum of Rs. 59,50,000/- (Rupees fifty nine lakhs and fifty thousand only) in 12 monthly instalments as detailed in the schedule hereto, time being considered the essence of the arrangement, the company will accept such payment in full and final settlement of its claims against the borrower and the partners. 3. In default of payment of the sum in the manner aforesaid, the company will be entitled to recover the admitted liability set out in para 1 from the borrower and the partners, together with subsequent interest and costs. 4. 3. In default of payment of the sum in the manner aforesaid, the company will be entitled to recover the admitted liability set out in para 1 from the borrower and the partners, together with subsequent interest and costs. 4. The borrower has already created an equitable mortgage over his property No. 1/4, Kothari Road, Nungambakkam, Chennai to secure repayment of its dues to the company. This mortgage is subsisting and will continue to remain in full force and effect until the dues of the borrower and the partners to the company are fully discharged.” 13. A reading of the above clauses will make it very clear that there was unequivocal admission on the part of the respondent/defendants confirming and accepting their liability of Rs. 1,92,56,050.90. That apart, when the amount was claimed by the applicant/plaintiff from the respondents/ defendants, the respondents/defendants sent a letter dated 16. 1998, wherein they regretted the delay in responding to the applicant’s communications and personal calls. They informed in that letter dated 16. 1998, that the leather industry has gone through a recession and this has caused temporary cash flow mismatches. They requested in that letter to bear with them with an assurance that they were taking all necessary steps to remedy the current impasse. On 11. 2003, the applicant/plaintiff sent a letter to the first respondent/first defendant informing about the memorandum dated 26. 2003 and the failure of the respondent/defendants to pay the instalments as agreed by them. Under the above circumstances, the applicant/ plaintiff requested the respondents/defendants to pay the entire amount of lease rentals, hire charges and overdue charges in full. Thereafter, on 111. 2004, a notice was sent through their counsel calling upon the respondents/defendants to pay a sum of Rs. 1,92,56,050.90 with interest at the rate of 18% from 26. 2003. Admittedly, no reply was sent by the respondents/defendants denying their liability. When the suit was filed, they took out an application in A. No. 3498 of 2006, to refer the dispute to the Arbitrator as per Clause 17(a) of the two Hire Purchase Agreements dated 112. 1995 and 33. 1997. The learned Judge who heard the Application No.3498 of 2006, on 29. When the suit was filed, they took out an application in A. No. 3498 of 2006, to refer the dispute to the Arbitrator as per Clause 17(a) of the two Hire Purchase Agreements dated 112. 1995 and 33. 1997. The learned Judge who heard the Application No.3498 of 2006, on 29. 2007, dismissed the application by holding that the respondents/defendants did not raise any dispute in relation to the amounts outstanding and the amount outstanding and due by the respondents/defendants is a clear and ascertained amount and the same is acknowledged in the Memorandum of Understanding. The learned Judge further pointed out in that order that there is not even a single correspondence filed by the respondents/defendants raising a dispute in respect of the amount claimed. Even the affidavit filed in support of Application No.3498 of 2006 does not refer to any dispute. In the facts and circumstances of the case, the learned Judge is of the view that even assuming that the arbitration clause could be invoked on the premise that the subsequent memorandum has not superseded the earlier contract of Hire Purchase Agreement, there is nothing to be referred to Arbitrator for adjudication. 14. For better appreciation, the relevant portions of the order dated 29. 2007 are extracted as follows: “10. A perusal of the above said Clause 17(a) of the HPAs would make it clear that the said clause deals with resolution of disputes between the parties by arbitration. As rightly put forth by the learned counsel for the respondents/plaintiff, the applicant has not raised any dispute in relation to the amounts outstanding. The amount outstanding and due by the applicant is a clear and ascertained amount and is acknowledged in the memorandum of understanding. There is not even a single correspondence filed by the applicant raising a dispute in respect of the amount claimed. In all the letters written by the applicant, either further time was sought for, or replacement of loan schedule and nothing else. The affidavit accompanying the application also does not refer to any dispute. As rightly submitted by the learned counsel, despite receipt of legal notice dated 111. 2004, claiming the amounts outstanding, there has been no denial of the amount till this date by the applicant/defendant. 13. The affidavit accompanying the application also does not refer to any dispute. As rightly submitted by the learned counsel, despite receipt of legal notice dated 111. 2004, claiming the amounts outstanding, there has been no denial of the amount till this date by the applicant/defendant. 13. In the facts and circumstances of the case and following the various judgments relied on by the learned counsel for the respondents/plaintiff, I am of the considered view that even assuming that the arbitration clause can be invoked on the premise that the subsequent Memorandum of Understanding has not superseded the earlier contract of Hire Purchase Agreements, there is nothing to be referred to the Arbitrator for adjudication, as in the case on hand, no allegation amounting to a dispute has been raised by the applicant either in the application or in his previous correspondence with the respondent/plaintiff.” 15. Admittedly, this order dated 29. 2007 has reached its finality as no Appeal has been filed against that order. If that being so, I find merits in the submissions of the learned counsel of the applicant/plaintiff that the amount outstanding is acknowledged in the Memorandum of Understanding and there is no dispute at all with regard to the outstanding amount. 16. Now, let me consider the contention of the learned counsel of the respondents/defendants that Order 12 Rule 6 C.P.C. will get attracted only when admissions are made in the pleadings. 17. In Uttam Singh Dugal & Co. Ltd. v. Union Bank of India and Others (supra), the Supreme Court observed as follows: “11. 16. Now, let me consider the contention of the learned counsel of the respondents/defendants that Order 12 Rule 6 C.P.C. will get attracted only when admissions are made in the pleadings. 17. In Uttam Singh Dugal & Co. Ltd. v. Union Bank of India and Others (supra), the Supreme Court observed as follows: “11. Learned counsel for the appellant contended that Order 12 Rule 6 comes under the heading Admissions and a judgment on admission could be given only after due opportunity to the other side to explain the admission, if any, is given; that such admission Should have been made only in the course of the pleadings or else the other side will not have an opportunity to explain such admission that even though the provision reads that the Court may at any stage of the suit make such order as it thinks fit, the effect of admission, if any, can be considered only at the time of trial; that the admission even in pleadings will have to be read along with Order 8 Rule 5(1) C.P.C and the Court need not necessarily proceed to pass an order or a judgment on the basis of such admission but call upon the party relying upon such admission to prove its case Independently; that during pendency of other suits and the nature of contentions raised in the case, it would not be permissible at all to grant the relief before trial as has been done in the present case; that the expression “admissions” made in the course of the pleadings or “otherwise” will have to be read together’ and the expression otherwise will have to be interpreted ejusdem generis. 12. As to the object of Order 12 Rule 6, we need not say anything more than what the legislature itself has said when the said provision came to be amended. In the Objects and Reasons set out while amending the said Rule, it is stated that “where a claim is admitted, the Court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. In the Objects and Reasons set out while amending the said Rule, it is stated that “where a claim is admitted, the Court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled.” We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment. Where the other party has wade a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which it is impossible for the party making such admission to succeed. 13. The next contention canvassed is that the resolutions or minutes of the meeting of the Board of Directors, resolution passed thereon and the letter sending the said resolution to the respondent Bank cannot amount to a pleading or come within the scope of the Rule as such statements are not made in the course of the pleadings or otherwise. When a statement is made to a party and such statement is brought before the Court showing admission of liability by an application filed under Order 12 Rule 6 and the other side has sufficient opportunity to explain the said admission and if such explanation is not accepted by the Court, we do not think the trial Court is helpless in refusing to pass a decree. We have adverted to the basis of the claim and the manner in which the trial Court has dealt With the same. When the trial Judge states that the statement made in the proceedings of the Board of Directors’ meeting and the letter sent as well as the pleadings when read together, leads to unambiguous and clear admission with only the extent to which the admission is made in dispute, and the Court had a duty to decide the same and grant a decree, we think this approach is unexceptionable. 14. Before the trial Judge, there was no pleading much less an explanation as to the circumstances in which the said admission was made, so as to take it out of the category of admissions which created a liability. 14. Before the trial Judge, there was no pleading much less an explanation as to the circumstances in which the said admission was made, so as to take it out of the category of admissions which created a liability. On the other hand, what is stated in the course of the pleadings, in answer to the application filed under Order 12 Rule 6 C.P.C, the stand is clearly to the contrary. Statements had been made in the course of the minutes of the Board of Directors’ meeting held on 30.5.1990 which we have already adverted to in detail. In the pleadings raised before the Court, there is a clear statement made by the respondent as to the undisputed part of the claim made by them. In regard to this aspect of communicating the resolution dated 30.5.1990 in the letter dated 6. 1990 what is stated in the affidavit-in-opposition in application under Order 12 Rule 6 C.P.C is save what are matters on record and save what would appear from the letter (sic resolution) dated 30.5.1990 all allegations to the contrary are disputed and denied. This averment would clearly mean that the petitioner does not deny a word of what was recorded wherein and what is denied is the allegation to the contrary. The denial evasive and the learned Judge is perfectly justified in holding that there is an unequivocal admission of the contents of the documents and what is denied is extent of the admission but the increase in the liability is admitted. 15. Even without referring to the expression “otherwise” in Rule 6 of Order 12 C.P.C, we can draw an inference in the present case on the basis of the pleadings raised in the case in the shape of the applications under that Rule and the answering affidavit which clearly reiterates the admission. If that is so, interpretation of the expression “otherwise” becomes unnecessary.” 18. From the above, it is very clear that the admissions should not have been made in the course of the pleadings and the admissions made elsewhere would also bring the matter within the ambit and scope of Order 12 Rule 6. 19. In Shikharchand and Others v. Mst. Bari Bai and Others (supra), a Division Bench of the Madhya Pradesh High Court held as follows: “5. 19. In Shikharchand and Others v. Mst. Bari Bai and Others (supra), a Division Bench of the Madhya Pradesh High Court held as follows: “5. Order 12, Rule 6 of the C.P.C. reads as under: “Any part may, at any stage of the suit, where admissions of fact have been made, either on the pleadings, or otherwise, apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and, the Court may upon such application make such order, or given such judgment, as the Court may think just.” The aforesaid Rule enables either party at any stage of the suit to move for judgment on the admissions which have been made by either side. The admissions on which the judgment under this Rule may be based may be either on the pleadings or otherwise. 9. The next contention o the learned counsel for the appellants is that the plaintiff cannot succeed on a case not pleaded by him and that the admissions for basins a judgment under Order 12, Rule 6 must relate to facts stated in the plaint itself. As defined in Section 17 of the Evidence Act an admission is a statement oral or documentary which suggests any inference as to any fact in issue or relevant fact. From the language of Order 12, Rule 6 of the C.P.C. it is clear that it is open to the Court to base a judgment on admission on the pleadings or otherwise. The word “otherwise”, in the said provision clearly indicates that it is open to the Court to base the judgment on statements made by a part not only in the pleadings but also de hors the, pleadings. Such admissions may be made either expressly or constructively.” 20. In Dr. K. Padmanabhan and P. Vijayalakshmi v. W.S. Nisha (supra), a Division Bench of this Court, after going through the provisions of Order 12 Rule 6 C.P.C. observed as follows: “6. Such admissions may be made either expressly or constructively.” 20. In Dr. K. Padmanabhan and P. Vijayalakshmi v. W.S. Nisha (supra), a Division Bench of this Court, after going through the provisions of Order 12 Rule 6 C.P.C. observed as follows: “6. Judgment on admissions-(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 questions between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced. High Court Amendment (Madras): Re-number the existing Rule 6 as sub-rule 6(1) and insert the following as sub-rules (2) and (3). (2) The Court may also of its own motion make such order or given such judgment as it may consider just, having due regard to the admissions made by the parties. (3) Whenever an order or judgment is pronounced under the provisions of this rule, a decree may be drawn in accordance with such order or judgment and bearing, the same date as the day on which the order of judgment was pronounced.” 7. It may be out of place to refer the judgment of the Apex Court in Uttam Singh Dugal & Co. Ltd. v. Union Bank of India and Others (supra) wherein the learned Judges have held as follows: “As to the object of Order 12 Rule 6, we need not say anything more than what the legislature itself has said when the said provision came to be amended. In the Objects and Reasons set out while amending the said Rule, it is stated that “where a claim is admitted, the Court has jurisdiction to enter a judgment for the plaintiff and to pass a, decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment atleast to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled”. The object of the Rule is to enable the party to obtain a speedy judgment atleast to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled”. We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment. Where the other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which it is impossible for the party making such admission to succeed.” From the above judgment, it is clear that the object of this provision is to enable the plaintiff to get a speedy judgment on the basis of the admission made by the defendant. 8. Coming to the question of admission, sub-rule (2) of Rule 6 of Order 12 C.P.C. is very clear as pointed out by the Apex Court that the admission may be either in the pleading or otherwise either oral or in writing. In this case, the first appellant had given the following letter of undertaking: “This letter of understanding executed by Dr. K. Pathmanaban, S/o, Late Kaliappa Pillai, Managing Director, Chennai Kaliappa Hospital having office at No.52, II Main Road, Raja Annamalaipuram, Chennai 600028. On a suit filed by Ms. W.S. Nisha, the Hon’ble Court of Chennai, passed an order of attachment in application No.390 of 2000 dated 13. 2001 and the bailiffs representing the High Court to execute the warrant of attachment served a copy of the warrant on me. I hereby undertake to pay a sum of Rs.1,00,000/- ((Rupees one lakh only) in cash today and I shall pay the balance of Rs.14,00,000/- as detailed below: If the cheques are not honored as per the above schedule, the warrant of attachment may be executed, I request the Bailiffs to keep the warrant of attachment in abeyance for a period of three weeks in view of the payments referred to above. I shall pay the balance paying amount within a period of two months.” It is admitted by the first appellant: that he gave such undertaking letter and also paid a sum of Rs. 1,00,000/-. He also entrusted the post dated cheques to the respondent herein. 10. I shall pay the balance paying amount within a period of two months.” It is admitted by the first appellant: that he gave such undertaking letter and also paid a sum of Rs. 1,00,000/-. He also entrusted the post dated cheques to the respondent herein. 10. Now, the learned counsel for the appellants contended that the admission should be by way of pleadings and not otherwise. This contention of the learned counsel for the appellants in no way can be countenanced in view of the express words used in the statute and the interpretation given by the Apex Court in the case referred above. The admission need not be in the suit itself. It is enough if the defendant admits his liability in any form. Such admission can be used for the purpose of passing the decree.” 21. In the above Division Bench decision, it was categorically held that the admissions need not be in the suit itself and it is enough that if the defendants admit liability in any form and such admission can be used for the purpose of passing the decree. 22. In NEPC Micon Limited v. Siemens Ltd. rep. by its Power of Attorney Holder, S.S. Godbole (supra), another Division Bench of this Court observed as follows at p. 400 of MLJ: “10. The law, therefore, envisages that the plaintiff is at liberty to file an application before the learned single Judge to treat the counter-claim as a separate suit in terms of Order 8, Rule 6C, C.P.C. and that stage is yet to reach. The learned senior counsel appearing for the plaintiff/respondent, in fact, informs this Court that he intends moving an application before the learned single Judge to treat the counter-claim as a separate suit. In the event of the respondent/plaintiff applying before the learned single Judge that the claim thereby raised ought not to be disposed of by way of counterclaim but in an independent suit and seek an order to the effect that the counter-claim has to be excluded, the Court has jurisdiction to make an order as it thinks fit, after hearing the parties and the possibility of the learned single Judge treating the counter-claim as a separate suit is, therefore, not ruled out. In such an eventuality, there is no question of giving a set off while passing a decree for the admitted amount and the learned single Judge has not committed any error in passing the impugned order for the admitted amount of Rs.76 lakhs and odd as prayed for. In fact, in Uttam Singh Duggal & Co. Ltd. V. United Bank of India, (supra), the Supreme Court has held that where a claim is admitted, the Court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim and the object of the Rule is to enable the party to obtain a speedy judgment atleast to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled. The Supreme Court further went on to add that they need not unduly narrow down the meaning of this rule as the object is to enable a party to obtain speedy judgment and where the other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which it is impossible for the party making such admission to succeed. It was further held that when a statement is made to a party and such statement is brought before the Court showing admission of liability by an application filed under Order 12, Rule 6 and the other side has sufficient opportunity to explain the said admission and if such explanations is not accepted by the Court, the trial Court is helpless in refusing to pass a decree. In the above judgment, it was further held that admissions generally arise when a statement is made by a party in any of the modes provided under Sections 18 to 23 of the Evidence Act, 1872 and that admissions are of many kinds; they may be considered as being on the record as actual if they are either in the pleadings or in answer to interrogatories or implied from the pleadings by non traversal and secondly, as between parties by agreement or notice.” 23. In the above judgment also, the law laid down in the previous judgment of the Davison Bench has been reiterated. 24. In the above judgment also, the law laid down in the previous judgment of the Davison Bench has been reiterated. 24. In HSBC Bank v. Silverline Technologies Ltd. and Another (supra), the Bombay High Court held that the Court is empowered under Order 12 Rule 6 C.P.C. to pass a decree on the basis of any admission including the documents which are not forming part of the proceedings. 25. In the light of the above judgments, I am rejecting the contention of the learned counsel for the respondents/defendants that Order 12 Rule 6 C.P.C. will not get attracted in a case where no admissions are made in the pleadings and the Court is empowered to pass a decree on the basis of any admissions made by the defendants in any documents. 26. Now, let me consider the decisions relied on by the learned counsel for the respondents/defendants in support of their submissions. 27. In Western Coalfield; Ltd. v. Swati Industries (supra), the Bombay High Court held that in a matter of judgment on admission, the general rule is that the pleadings are to be read as a whole and admissions in pleadings cannot be dissected. The Court is vested with jurisdiction to pass a decree on admission on the strength of the principle aid down under Section 48 of the Evidence Act that admitted facts need not be proved and as such, admissions can be considered as substantial evidence on which decree can be passed. 28. In CREF Finance Ltd. V. Shanthi Homes C Pvt. Ltd. Co., Bangalore and Others (supra), the Karnataka High Court observed as under: “7. When an application is filed under Older 12, Rule 6, objections are filed by the respondents denying in to, the said documents would partake the character of a disputed documents. Under Section 18 of the Evidence Act, an opportunity is to be given to the respondents to explain the said admissions and in what situation those admissions were made. When an application is filed under Older 12, Rule 6, objections are filed by the respondents denying in to, the said documents would partake the character of a disputed documents. Under Section 18 of the Evidence Act, an opportunity is to be given to the respondents to explain the said admissions and in what situation those admissions were made. But however, this is a matter to be decided during the course of trial and not at a stage, when the application is being considered under Order 12, Rule 6 of the C.P.C. A Division Bench of this Court in the case of B.S. Viswanath v. Chandikeben J. Mehta (supra) has held that as can be seen from the provision, the Court in its discretion has the jurisdiction to pass partial decree on the basis of the facts admitted. Whether such admission is in the pleadings or otherwise. The scope of the above provision is, the admission must be such which is complete and sufficient to pass a partial decree, which the Court proposes to pass on the basis of admission. The same view is taken in the case of Janardhan Jog v. Srikrishna ILR (1989) Kant 1895 that the admission must be absolute and capable of being worked out by itself. It is also to be noticed that so far as the admission as contemplated under Order 12, Rule 6 of C.P.C. is concerned should independently stand without there being any interlink support and unless that is established, a decree under Order 12, Rule 6 of C.P.C. cannot be granted.” 29. In B.S. Viswanath v. Smt. Chandika Ben J. Mehta and Others (supra), a Division Bench of the Karnataka High Court held as follows: “10. Learned counsel for the respondents/plaintiffs however, contended that the mortgagee could not impeach the title of the mortgagor and therefore answering that issue was unnecessary and therefore, the Court was within its jurisdiction to pass partial decree under Order 12 Rule 6 of the C.P.C. In support of this contention he relied on the judgment of this Court in C. Krishnamurthy Setty v. Abdul Khadar, AIR 1956 Mysore 14. In the said case this Court held that it was not permissible to a mortgagee or a transferee of his rights, to impeach the title of the mortgagor to the mortgaged property and in the case of usufructuary mortgage when possession of the properties had been obtained from the mortgagor, the mortgagee is estopped from contesting the title of the mortgagor. The ratio of the said decision is, a mortgagee could not impeach the title of his mortgagor to the property mortgaged, even if the latter had no right or title to the property for, having secured the mortgage deed in his favour from the mortgagor and having taken possession of the mortgaged property from him, he cannot turn round and say that the mortgagor had no title to the mortgaged property. This position holds good even to the purchaser of the property from the mortgagor, but the purchase has to be proved, if disputed. In the present case, if the purchase of the mortgaged property by the respondents had been admitted either in the written statement or in the reply to the suit notice or in any other way, the Court would have been within its jurisdiction to pass partial decree under Order 12, Rule 6 of C.P.C. But there was no such admission and far from that there was specific plea to the effect that respondents had not become the owners of property by purchasing it from Nanjamma. Therefore, in our opinion the Court could not have passed the partial decree under Order 12, Rule 6 of the C.P.C., only on the basis of the admission by the appellant of the mortgage transaction in the absence of any admission as to the acquisition of title by the respondents to the suit property.” 30. In State Bank of India v. Midland Industries and Others (supra), the Delhi High Court observed as follows: “6. In State Bank of India v. Midland Industries and Others (supra), the Delhi High Court observed as follows: “6. Having noted these facts of this case it would be appropriate to refer to Order 12 Rule 6 C.P.C. which lays down as under: “6(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 admissions. (2) Whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was prnounced.” There is no doubt that 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, C.P.C. 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 he conveniently disposed of on a motion under this rule the Court is free to refuse exercising discretion in favour of the party invoking it. It is not in each case where Order 12, rule 6 C.P.C. is invoked that the Court would be obliged to pass a decree which case would depend upon its own peculiar facts. 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 purpose of Order 12, Rule 6, C.P.C. is to avoid waiting by the plaintiff for part of the decree when there is a clear, unequivocal, unambiguous and unconditional admission of the defendant in respect of the claim of the defendant. The purpose of Order 12, Rule 6, C.P.C. is to avoid waiting by the plaintiff for part of the decree when there is a clear, unequivocal, unambiguous and unconditional admission of the defendant in respect of the claim of the defendant. The rule only secures that if there is no dispute between the parties, and, if there is on the pleadings or otherwise such an admission as to make it plain that the plaintiff is entitled to a particular order or judgment he should be able to obtain it at once to the extent of admission. But 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 inspite 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. 6A. It was held by a Division Bench of the Calcutta High Court in Premsuk Das Assaram v. Udairam Gunga Bux, AIR 1918 Cal 467 that: “A judgment on admission by the defendant under Order 12, Rule 6, is not a matter of right, it is in the discretion of the Court; so that if a case involves questions which cannot be conveniently disposed of on a motion under the rule, the Court may, in the exercise of its discretion, refuse the motion. The discretion is judicial and an erroneous exercise thereof may be open to correction by a Court of appeal which, however, on well established principles of the parties has been manifestly and unfairly prejudiced. 7. It was similarly held by a Division Bench of Jammu & Kashmir High Court in Union of India v. Feroze and Co., AIR 1962 J & K 66 that: “A judgment on admission under Order 12, Rule 6 is matter of discretion and not a matter of 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.” 8. In order that a judgment may be obtained under Order 12, Rule 6 the admission must be unconditional, clear and unequivocal.” 8. In the case in hand not only admissions is not unequivocal but further also the defendants have raised certain preliminary pleas which must be decided before the plaintiff can be held to be entitled to a decree. The preliminary objections raised by the defendants in this case go to the very root of the suit and are likely to non suit the plaintiff if these were found against the plaintiff. Keeping in view of all these facts, I do not think that a case has been made out under Order 12, Rule 6, C.P.C. for passing a decree in favour of the plaintiff for the sum of Rs.5,98,000/- and s such I find no merit in this application and this application is liable to be dismissed and is dismissed.” 31. The above judgments instead of supporting the case of the respondents/defendants, are supporting the case of the applicant/plaintiff. There is no controversy with regard to the law laid down in those decisions wherein also the Courts have taken a view that if the admission is unequivocal, then, judgment could be passed under Order 12 Rule 6 and only when the admission is not unequivocal, then a case has not been made out under Order 12 Rule 6 C.P.C. Therefore, these judgments are not helpful to the case of the respondents/defendants. 32. Further, I am also in total agreement with the submissions of the learned counsel for the applicant/plaintiff that even in the counter affidavit filed by the respondents/defendants 1 and 2, in this application, there is no categorical denial of their liability and the averments are vague, evasive and contradictory. 33. Therefore, I have no hesitation in holding that the Memorandum of Understanding dated 26. 2003 is a clear and unequivocal admission on the part of the respondents/defendants and the same could be relied on by the applicant/plaintiff under Order 12 Rule 6 C.P.C. to pass a judgment as set out in the Memorandum of Understanding. 34. In the result, the application is allowed and the judgment on admission of the outstanding amount as set out in the Memorandum of Understanding dated 26. 2003 passed in favour of the applicant/plaintiff under Order 12 Rule 6 C.P.C. No cost. Application allowed.