Judgment : Since the L.C.R. has been received, therefore, with the consent of parties counsel, this appeal is being heard finally today. 2. This appeal is directed against the judgment and decree dated 7-11-2012, passed by Civil Judge (S.D.), Nainital, in Suit No. 113 of 2001, Daya Kishore Joshi and another versus Ganesh Singh Karki, whereby the suit of the plaintiff-respondents has been decreed U/O 12 Rule, 6 C.P.C. in favour of plaintiff against the defendant for the recovery of a sum of Rs. ten lakhs along with interest @ 6% per annum. 3. Briefly stated the facts giving rise to the appeal are that the appellant-defendant had entered into an agreement of sale of his land with the plaintiffs and had executed an unregistered agreement of sale in their favour on 27-12-2006. The plaintiffs-respondents had paid a sum of Rs. ten lakhs to the appellant-defendant as earnest money and as per terms and condition of the agreement the sale-deed was to be executed by the defendant-appellant after receiving the rest of the consideration within a period of six months. Rest of the consideration amount was not paid by the plaintiffs-respondents to get the sale deed executed, within time, therefore, the earnest money stood forfeited and the agreement of sale was to be treated as cancelled. 4. The plaintiff-respondents filed suit No. 11/2011, Daya Kishore Joshi and another versus Ganesh Singh Karki, before Civil Judge (S.D.) against the defendant-appellant for the recovery of a sum of Rs. ten lakhs which was paid by them to the defendant as earnest money in respect of the aforesaid agreement for sale. 5. The suit was contested by the defendant-appellant by filing W.S. Thereafter plaintiffs-respondents moved an application before the trial court for decreeing the suit on the basis of admission, against which objections were filed by the defendant-appellant and even then the trial court decreed the suit U/O 12 Rule 6 C.P.C. Since the suit was decreed U/O 12 Rule 6 C.P.C., therefore, no opportunity of evidence was given to either of the parties and no issues were framed in the suit and the suit was decreed summarily on the basis of the fact that the defendant-appellant had received an amount of Rs. ten lakhs as earnest money. 6. ten lakhs as earnest money. 6. Appeal was filed before this Court mainly on two grounds, firstly that the suit U/O 12 Rule 6 C.P.C. can be decreed if the liability to pay the amount in dispute has not been disputed, and secondly the agreement for sale which was executed in favour of respondent-plaintiffs is an unregistered agreement and the same can only be read for collateral purpose after the deficit duty is paid on the instrument i.e. agreement for sale and the court fell into error in decreeing the suit on the basis of this agreement for sale wherein Rs. ten lakhs earnest money was received. In the same agreement there is a clause if the sale deed was not executed within a period of six months the earnest money shall stand forfeited and the agreement would be treated cancelled between the parties. 7. On the issue of Order 12 Rule 6 C.P.C., learned counsel appearing on behalf of appellant has placed reliance upon the judgments of (1) Uttam Singh Duggal and CO. Ltd. versus United Bank of India and others, reported in (2000) 7 Supreme Court Cases 120. It has been held in para-9 of the judgment noted below- “9. The learned trial Judge took the view that the prerequisites of Order 12 Rule 6 C.P.C. had been satisfied in this case and that on a plain reading of the resolution of the Board dated 30-5-1990 there could be no doubt that the petitioner had made a clear, unambiguous and unconditional acknowledgement of its liability to the Bank. The language of the resolution would show that the extent of the admission in the resolution is for Rs. 10,15,80,000/-, if not for Rs. 10,36.80 lakhs. The figure of Rs. 1015.80 lakhs is firm admission being the figure arrived at after deducting Rs. 21 lakhs claimed by the defendants by reason of fluctuation of the exchange rate and that was the amount claimed by the petitioner in the suit. This admission made in the course of the Board of Directors’ resolution had not been explained b the petitioner in the affidavit-in-opposition but on the other hand had reiterated the same. The arguments raised before the trial court were considered to be contrary to the pleadings raised in the case. Therefore the application was allowed.” 8. In para-12 it has been observed- “12. The arguments raised before the trial court were considered to be contrary to the pleadings raised in the case. Therefore the application was allowed.” 8. In para-12 it has been observed- “12. As to the object of Order 12 Rule 6 C.P.C. 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 pas a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to be 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 fact of which it is impossible for the party making such admission to succeed.” 9. Learned counsel for appellant also placed reliance on the case of Karam Kapahi and others versus Lal Chand Public Charitable Trust and another, reported in (2010) 4 Supreme Court Cases 753. In para-37 it has been observed- “37. The principles behind Order 12 Rule 6 are to give the plaintiff a right to speedy judgment. Under this Rule either party may get rid of so much of the rival claims about ‘which there is no controversy’ (see the dictum of Lord Jessel, the Master of Rolls, in Throp v. Holdsoworth, in Chancery Division at p. 640).” 10. In para-48, it has been observed- “48. However, the provision under Order 12 Rule 6 of the Code is enabling, discretionary and permissive and is neither mandatory nor it is peremptory since the word ‘may’ has been used. But in a given situation, as in the instant case, the said provision can be applied in rendering the judgment.’ 11. Learned counsel also relied on the case of Jeevan Diesels and Electrical Limited versus Jasbir Singh Chadha (HUF) and another, reported in (2010) 6 Supreme Court Cases 601. In para-12 it has been observed- “12. But in a given situation, as in the instant case, the said provision can be applied in rendering the judgment.’ 11. Learned counsel also relied on the case of Jeevan Diesels and Electrical Limited versus Jasbir Singh Chadha (HUF) and another, reported in (2010) 6 Supreme Court Cases 601. In para-12 it has been observed- “12. It may be noted here that in this case parties have confined their case of admission to their pleading only. The learned counsel for the respondent-plaintiffs fairly stated before this Court that he is not invoking the case of admission ‘otherwise than on pleading’. That being the position this court finds that in the pleadings of the appellant there is no clear admission of the case of respondent-plaintiffs.” 12. In para-18 it has been observed- “18. In J.C. Galstaun v. E.D. Sasoon & CO. Ltd., a Bench of the Calcutta High Court presided over by the Hon’ble Sir Asutosh Mookerjee, J. sitting with Rankin, J. while construing the provisions of Order 12 Rule 6 of the Code followed the aforesaid decision in Hughes and also the view of Lopes, L.J. in Landergan and held that these provisions are attracted- ‘where the other party has made a plain admission entitled the former to succeed. This rule applies wherever there is a clear admission of the facts on the face of which it is impossible for the party making it to succeed.” 13. The learned counsel also placed reliance on the case of Phul Chand Yadav and others versus Kedar Yadav and others, reported in [2011(114) RD 214]. In para-9 it has been held- “9. It is true that a judgment can be given on an “admission” contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious find deliberated at of the party making it, showing an intention to be bound by it. Order XII, Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The Court, on examination of the facts and circumstances has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on merits. Order XII, Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The Court, on examination of the facts and circumstances has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court not be exercised to deny the valuable right of a defendant to contest the claim. In short the discretion should be used only when there is a clear ‘admission’ which can be acted upon. (see also Uttam Singli Duggal & Co. Ltd. v. United Bank of India, Karam Kapahi v. Lal Chand Public Charitable Trust, and Jeevan Diesel and Electricals Ltd. v. Jasbir Singh Chadha. There is no such admission in this case.” 14. The ratio in all the above cited judgments is that if the claim of plaintiff is admitted by the defendant then the court has jurisdiction to pass a decree on the admitted claim under Order 12 Rule 6 C.P.C. 15. On the issue, whether the document can be admitted in evidence for collateral purpose, the learned counsel has placed reliance on the judgment Avinash Kumar Chauhan v. Vijay Krishna Mishra, reported in AIR 2009 Supreme Court 1489, wherein it has been held that there is no prohibition under Section 49 of the Registration Act, to receive an unregistered document in evidence for collateral purpose. But the document so tendered should be duly stamped or should comply with the requirements of Section 35 of the Stamp Act, if any document is under-stamped, that cannot be received in evidence even for collateral purpose unless it is duly stamped or duty and penalty are paid under Section 35 of the Stamp Act. 16. In reply, Sri Rajesh Joshi, learned counsel for the respondents has contended that the above cited cases are not applicable to the case at hand. He has placed reliance on the case of S.Kala Devi vs. V.R. Somasundaram and others, reported in (2010) 5 Supreme Court Cases 401. In para-12 it has been held- “12. 16. In reply, Sri Rajesh Joshi, learned counsel for the respondents has contended that the above cited cases are not applicable to the case at hand. He has placed reliance on the case of S.Kala Devi vs. V.R. Somasundaram and others, reported in (2010) 5 Supreme Court Cases 401. In para-12 it has been held- “12. The main provision in Section 49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. The proviso, however, would show that an unregistered document affecting immovable property and required by the 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. By virtue of the proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs. 100 and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of the 1908 Act.” 17. By a perusal of cited judgment, it shows that the judgment has been rendered considering Section 49 of the Registration Act. Nowhere Section 35 of the Stamp Act was taken into consideration. Therefore it is of no help to the plaintiffs-respondents. 18. By a perusal of agreement for sale which is paper No.9-C on the file of lower court, it reveals that the agreement was executed on a stamp paper on Rs. Nowhere Section 35 of the Stamp Act was taken into consideration. Therefore it is of no help to the plaintiffs-respondents. 18. By a perusal of agreement for sale which is paper No.9-C on the file of lower court, it reveals that the agreement was executed on a stamp paper on Rs. 100/- while the stamp duty was payable on the agreement as per Article 5- (b-1) of Schedule-I-B of the Stamp Act which is applicable to State of U.P. and now it is also applicable to State of Uttarakhand, provides that agreement or memorandum of an agreement, if relating to the sale of an immovable property where possession is not admitted to have been delivered nor is agreed to be delivered without executing the conveyance, the same duty as on conveyance on one half of the amount of consideration as set forth in the agreement. Therefore prima facie the instrument in question which was relied upon by the trial court, on which basis the suit U/O 12 Rule 6 C.P.C. was decreed, is under stamped. 19. In view of the discussion made in foregoing paragraphs, the learned trial court fell into error in not considering the relevant paragraph of the W.S. wherein in para-13 it was specifically stated that since the sale-deed was not executed within stipulated period, i.e. 6 months, therefore, the advance money which was paid to the defendant by the plaintiffs stood forfeited and the agreement be treated cancelled. The trial court while passing the order wrongly treated the advance money as an admission of claim when in the W.S. the liability was specifically denied. In view of aforesaid judgment of Apex Court the suit cannot be decreed U/O 12 Rule 6 C.P.C. when the defendant specifically denied the liability to pay the amount in dispute. Therefore, the appeal is liable to be allowed. 20. The appeal is allowed. The judgment and decree passed by the court below is set aside. The case is remanded to the trial court for fresh decision after giving opportunity to adduce evidence and opportunity of hearing to both the parties on the issues involved in the case. It is also directed that the proceeding of the suit be concluded expeditiously as far as possible.