JUDGMENT : Krishna Rao, J. 1. Plaintiff has filed the instant application under Order XIIIA of the Code of Civil Procedure, 1908 as amended by the Commercial Courts Act, 2015 praying for summary Judgment for a sum of Rs. 1,93,12,425/- as admitted by the defendant no. 1 in its letter dated 16th August, 2017. 2. In the month of November 2017, in view of ensuing Ganga Sagar Mela, 2017 and improve the navigability of certain channels in River Muriganga for a smooth movement of cargo and passenger vessels for transportation of cargo, bikers and pilgrims, Inland Waterways Authority of India, on behalf of the government of West Bengal, the proforma defendant no. 5 invited online tender having experience of using cutter suction dredgers in two cover systems. The plaintiff and one M/s. RDL IDS PL JV were the only contractors who have submitted tender in respect of the tender Notice. None of the said two tenders were accepted and the tender notice was not materialized. 3. By a letter dated 7th December, 2016, the Inland Water Authority of India issued a letter to the defendant No. 2 requested to make an offer for carrying out dredging at the jetties at Lot No. 8 and Chemaguri Khal on emergent basis by deploying cutter suction dredgers capable of dredging at least 250 cubic meters of solid per hour within the aforesaid tender at the rate of Rs. 230/- per cubic metre. On receipt of the said letter, the defendant no. 2 had called the plaintiff to participate in a meeting held at the office of Chief Secretary, Irrigation and Waterways Directorate at Jal Sampad Bhawan, Salt Lake City, Kolkata. In the meeting, the plaintiff was requested by the defendant no. 2 to consider taking up the aforesaid dredging work and to submit its offer. 4. On 9th December, 2016, the plaintiff had submitted its offer to do the job as per the terms and conditions mentioned in the said letter to the defendant no. 2 by giving its willingness to undertake the said dredging work. Following the offer of the plaintiff, the defendant no.1 by a letter dated 9th December, 2016, confirmed its willingness to the Inland Waterways Authority of India to carry out the above-mentioned dredging work. By a letter dated 14th December, 2016, the Government of West Bengal awarded the work in favour of the defendant no. Following the offer of the plaintiff, the defendant no.1 by a letter dated 9th December, 2016, confirmed its willingness to the Inland Waterways Authority of India to carry out the above-mentioned dredging work. By a letter dated 14th December, 2016, the Government of West Bengal awarded the work in favour of the defendant no. 2 as well as in favour of another Company namely M/s. Reach Dredging Ltd. 5. By letter dated 15th December, 2016, issued by the defendant no. 1 in favour of the plaintiff requesting the plaintiff to take up the dredging work with respect of Lot No. 8 : Area ABCDEFGH for an estimated quantity of 2,00,676 cubic metres on the terms and conditions as mentioned in the said letter. 6. Mr. Sakya Sen, Learned Counsel representing the plaintiff submits that the defendant no. 5 by a letter dated 14th December, 2016 accepted the offer of the defendant no.1 at the rate of Rs. 225/- per cubic metre for completing the dredging and desilation work. The defendant no. 1 had accepted the offer at the rate of Rs. 225/-per cubic metre and offered plaintiff for the said work at the rate of Rs. 202.50/-per cubic metre. Mr. Sen submits that as per clause 8 of the offer letter by and between the plaintiff and the defendant no.1, the defendant no.1 would give payment to the plaintiff as soon as they receive the same from the defendant no. 5. 7. Mr. Sen submits that defendant no. 1 along with its constituents, being the defendant nos. 2 and 3 were only acting as commissioning agent by delegating the allotted work issued by the defendant no. 5 to the plaintiff herein. Mr. Sen submits that after completing of entire work, the plaintiff had raised invoice for a total amount of Rs. 9,07,00,155/-dated 20th March, 2017 but in spite of several requests made by the plaintiff, the defendants did not pay any amount to the plaintiff. 8. Mr. Sen relied upon the letter dated 27th February, 2017 addressed to the Additional District Magistrate, being the authority of defendant no. 5 and submits that the defendants have admitted the quantity dredged by the plaintiff i.e. 3,88,656 cubic metre. He further submits that the defendant No. 1 had admitted the value of the invoice that is amounting to Rs. 10,05,64,740/-calculating the quantity dredged multiplied by Rs. 225/-per cubic metre. 5 and submits that the defendants have admitted the quantity dredged by the plaintiff i.e. 3,88,656 cubic metre. He further submits that the defendant No. 1 had admitted the value of the invoice that is amounting to Rs. 10,05,64,740/-calculating the quantity dredged multiplied by Rs. 225/-per cubic metre. He further submits that the defendant no.1 further admitted the number of daily hours dredging was continued by the plaintiff for the period from 17th December, 2016 to 16th January, 2017 at Lot No. 8 Jetty to passenger jetty no. 1 at Chemaguri Khal. 9. Mr. Sen submits that the defendant no. 1 by a letter dated 16th August, 2017 addressed to the District Magistrate being the Authority of the defendant no. 5 admitted to work of dredging and disilation was successfully completed by the defendant no. 1 in January, 2017 and the defendant no.1 had already forwarded the invoice raised by the plaintiff and is awaiting the full payment of the bill amounting to Rs. 10,05,64,740/-inclusive of service tax. He submits that in the said letter, the defendant no.1 further admitted that the plaintiff had completed 3,88,656 cubic metre of dredging work. Mr. Sen submits that it was further admitted that the defendant no.1 that the defendant no. 5 had already released payment of Rs. 2,14,58,250/-for the quantity of 95,370 cubic metre dredged by the petitioner. 10. Mr. Sen submits that defendant no. 5 had given a contract to the defendant no.1 for dredging work at the rate of Rs. 225/-per cubic metre and the defendant no.1 had sub contracted the said work to the plaintiff at the rate of Rs. 202.50 per cubic metre and thus it is back-to-back contract and the payment was supposed to be received by the plaintiff on a back-to-back contract basis in terms of clause 8 of the contract by and between the plaintiff and the defendant no.1 dated 15th December, 2016. 11. Mr. Sen submits that defendant no.1 had admitted the quantity of silt dredged by the petitioner being 388656 cubic metre and the defendant no.1 had forwarded the invoice raised by the plaintiff to the defendant no. 5 for release of payment and the defendant no.1 had admitted that in lieu of bill raised by the plaintiff on the defendant no.1, the defendant no.1 had received a sum of Rs. 2,14,58,250/-for a quantity of 95370 cubic metre of silt dredged. 12. Mr. 5 for release of payment and the defendant no.1 had admitted that in lieu of bill raised by the plaintiff on the defendant no.1, the defendant no.1 had received a sum of Rs. 2,14,58,250/-for a quantity of 95370 cubic metre of silt dredged. 12. Mr. Sen submits that as per the admission, defendant nos. 1, 2 and 3 are liable to pay a sum of Rs. 1,93,12,425/-to the plaintiff in terms of the agreement by and between the defendant no.1 and the plaintiff dated 15th December, 2016 is specifically in terms of clause 8 being 90% of the sum already received by the defendant no.1 ie. Rs.1,93,12,425/-. 13. Mr. Sen relied upon the following judgments: i. (2017) 1 SCC 568 (IDBI Trusteeship Services Ltd. -vs- Hubtown). ii. (2017) 8 SCC 237 (Kanchan Udyog Limited –vs- United Sprits Limited). iii. (1974) 2 SCC 729 (P. Dasa Muni Reddy -vs-P. Appa Rao). 14. Mr. Debnath Ghosh, Learned Advocate representing the defendant nos. 1 and 2 and submits that the plaintiff raised invoice dated 20th March, 2017 for Rs. 9.07 Crore under the cover of the letter dated 23rd March, 2017 but the bill has not been raised as per the terms of the Letter of Intent but the bill has been raised on the basis of dredging hours and has not been certified KoPT or the appropriate Authority. 15. Mr. Ghosh submits that the plaintiff has to submit bills after being satisfied by the proforma defendant no. 5 as per Letter of Intent. He submits that the plaintiff has not submitted completion certificate for finalisation of the bill. He submits that the invoice raised by the plaintiff is not acceptable to the defendant no.1 since plaintiff had failed to submit bill as per certified dredged quantity. 16. Mr. Ghosh submits that there is no admission on the part of the defendant that the payment would be released in favour of the plaintiff even if the bills were raised on the basis of dredging hours and if such bills were not certified by the KoPT or the appropriate authority contrary to the contract between plaintiff, the defendant no. 1 and the defendant no. 2. Mr. Ghosh submits that the defendant nos. 1 and the defendant no. 2. Mr. Ghosh submits that the defendant nos. 1 and 2 have several time requested the plaintiff to raise bills as per the terms of the contract between the parties but that plaintiff failed to submit bill in terms of the contract. 17. Mr. Ghosh submits that defendant no. 1 and 2 have rebutted the bills submitted by the plaintiff vide email dated 13th February, 2018 informing that the invoice dated 20th March, 2017 has not been accepted. 18. Mr. Ghosh submits that admittedly no summon has been served upon the defendant nos.1 and 2 after the transfer of suit before this Court and thus the procedure contemplated under Order XIIIA, Rule 2 of the Code of Civil Procedure, which directs that an application may apply for summary judgment at any time after summons has been served on the defendant but the plaintiff has not followed the procedure. 19. Mr. Ghosh submits that the bills submitted by the plaintiff are neither admitted documents nor any undisputed facts from which it can be inferred that summary judgment can be passed. Mr. Ghosh submits that a definite difference has been adopted by the defendant denying the authenticity and veracity of the bills and highlighted the discrepancies between the bill raised and the bill to have been raised in terms of the contract. 20. Mr. Ghosh submits that the plaintiff has to prove the bills by adducing evidence to satisfy this Court that the plaintiff has submitted the bill in terms of the contract. 21. Mr. Ghosh relied upon the following judgements: i. 2022 SCC Online Del 2862 (Interiors Products Private Limited -vs- Rahul Bhandari) ii. 2021 SCC Online Cal 526 (MadhusriKonar -vs- New Central Book Agency) iii. (2011) 15 SCC 273 (Himani Alloys Ltd -vs- Tata Steel Limited) iv. (2010) 6 SCC 601 (Jeevan Diesels -vs- Jasbir Singh) v. (2020) 13 SCC 564 (Shree Ambica Medical Stores -vs-Surat Peoples Cooperative Bank Limited). 22. Learned Counsel representing the defendant no. 3 submits that he has adopted the submission made by the Counsel for the defendant nos. 1 & 2 and further submits that as per condition no. 3 of the contract, the work completion or progress is to be certified by the competent authority; KoPT or other nominated by the Administration. 23. Counsel for the defendant no. 3 submits that he has adopted the submission made by the Counsel for the defendant nos. 1 & 2 and further submits that as per condition no. 3 of the contract, the work completion or progress is to be certified by the competent authority; KoPT or other nominated by the Administration. 23. Counsel for the defendant no. 3 submits that the invoice was raised on estimated calculation by the plaintiff taking into consideration of operation of four numbers of machineries and minimal optimal output quantity of the machines and not on actual quantity of Silt dredged which requires certification by the KoPT. 24. Learned Counsel for the defendant no. 3 submits that since the certification had become available, the defendant no.1 called upon the plaintiff to rectify its invoice and raise it in terms of the contract but the plaintiff has not taken any steps and had filed the instant suit. 25. Learned Counsel for the defendant no. 3 submits that there is no admission as claimed by the plaintiff. He submits that on 28th February, 2017, the defendant no.1 forwarded the invoice of the plaintiff because till that time, there was no certified quantity of work was done certificate was available with the defendant no.1. He submits that on the same day i.e. on 28th February, 2017, the defendant no.1 received the certified quantity when KoPT submitted the documents by letter dated 27th February, 2017. 26. Learned Counsel for the defendant no. 3 submits that there is a difference between obligation to make payment and the mode and manner of making payment. 27. Counsel for the defendant no. 3 had relied upon the following judgements: i. (1911) 2 Ch 279 (Tewkesbury Gas Company, Tysoe -vs-The Company). ii. ILR (1964)1 P&H 143 (Mrs. I.K. Sohan Singh -vs-State Bank of India). iii. AIR 1956 Bom 151 (M/s. Navnital & Co. -vs-Kishanchand & Co.). 28. The work order issued by the proforma defendant no. 5 to the defendant no. 1 on 14th December, 2016 reads as follows : “GOVERNEMNT OF WEST BENGAL Office Of The District Magistrate South 24-Parganas, Alipore, Kolkata – 700 027 (An ISO 9001 : 2008 Certified Organization) Memo No : 311(2)/CON/G Date : 14.12.2016 To, 1. M/s Mackintosh Burn Ltd, 8, N.S. Road, Kolkata- 700 001 2. 5 to the defendant no. 1 on 14th December, 2016 reads as follows : “GOVERNEMNT OF WEST BENGAL Office Of The District Magistrate South 24-Parganas, Alipore, Kolkata – 700 027 (An ISO 9001 : 2008 Certified Organization) Memo No : 311(2)/CON/G Date : 14.12.2016 To, 1. M/s Mackintosh Burn Ltd, 8, N.S. Road, Kolkata- 700 001 2. M/s Reach Dredging Ltd., 1, Garstin Place, Kolkata–700001 Sub : Dredging for Ganga Sagar Mela-2017 Sir, With reference to letter No. IWAI/MD/247/2016-17 dated 09-12-16 and F. No. IWAI/MD/247/2016-17 dated 14-12-16, you are requested to kindly take up dredging work as follows :- AREA [REF KOPT HYDROGRAPH IC SURVEY AND PWD MECH ESTIMATES] QUANTITY TO BE DREDGED (APPROX) AGENCY WORKING ON NATIONAL WATERWAYS UNDER IWAI AND REFERENCE Lot 8 – Area ABCDEFGH 3,13,676 Cubic Metres – 1,13,000 Cubic Metres earlier assigned to [WAI = 2,00,676 Cubic Metres The Mackintosh Burn Limited Lot 8 - Area PQRS – Jetty 2 55,826 Cubic Metres Reach Dredging Limited Benuban to Mohana in Chemaguri Creek 54,968 Cubic Metres CONDITIONS : 1. Payment will be made @ Rs. 225/-per cubic meter of actual quantity silt dredged, as approved by the State Government. 2. Excavated silt should be deposited on the shore/ in the trenches provided by local administration to prevent back flow into river channel and enable measurement of quantity extracted. 3. Work completion/progress is to be certified by the competent KoPT/Others nominated by the administration. 4. Local officials will maintain liaison and guide on the channels to be dredged. 5. Large scale movement of pilgrims, visitors and vehicles will commence shortly. All effort should be made to complete dredging by 05-01-2017. 6. Each agency must mobilize at least two dredgers of at least 400 m per hour of solids capacity and adequate pipelines to carry away silt. 7. The Mela Committee will periodically review progress of dredging and may re-assign the work among selected agencies in the interest of timely completion and safe transit. Yours faithfully Additional District Magistrate (General), South 24 Parganas.” 29. On receipt of work order dated 14th December, 2016, the defendant no. 1 had back-to-back issued the work order to the plaintiff dated 15th December, 2016. Yours faithfully Additional District Magistrate (General), South 24 Parganas.” 29. On receipt of work order dated 14th December, 2016, the defendant no. 1 had back-to-back issued the work order to the plaintiff dated 15th December, 2016. “Ref: MBANC/GSM2017/2016-17 Dated: 15th December 2016 To: Dredging & Desiltation Co Pvt Ltd 167, Old China Bazar Street, 2nd Floor Kolkata 700001 Sub: LOI for Dredging for Ganga Sagar Mela-2017 Ref: Your Letter DDC/171/16-17 dated 9.12.2016 With reference to the above you are requested to kindly take up dredging work as follows : AREA (REF KOPT HYDROGRAPHIC SURVEY AND PWD MECH ESTIMATES] QUANTITY TO BE DREDGED (APPROX) Lot 8 – Area ABCDEFGH 2,00,676 Cubic Meters CONDITIONS : 1. Payment will be made at Rs. 202.50 per Cubic Meter of actual quantity silt dredged, as approved by the State Government. 2. Excavated silt should be deposited on the shore/ in the trenches provided by local administration to prevent back flow into river channel and enable measurement of quantity extracted, 3. Work completion/ progress is to be certified by the competent authority : KoPT/Others nominated by the administration. 4. Local officials will maintain liaison and guide on the channels to be dredged. 5. Large scale movement of pilgrims, visitors and vehicles will commence shortly. All effort should be made to complete dredging by 05-01-2017. 6. You must mobilize at least two dredges at least 400 m per hour of solids capacity each and adequate pipelines to carry away silt. 7. The Mela Committee will periodically review progress of dredging and may re-assign the work among selected agencies in the interest of timely completion and safe transit. 8. Payment will be disbursed immediately as receive from client. 9. Taxes will be deducted as per govt rules from bills. Yours faithfully, For Mackintosh Burn and Northern express Consortium Bireswar Saha Dy General Manager.” 30. On 23rd March, 2017, the plaintiff has raised bill for an amount of Rs. 90700155/-to the defendant no. 1. Along with the bill, the plaintiff has informed the defendant no. 1 by a letter dated 23.03.2017 that the plaintiff has already submitted copy of daily dredging log of all the dredgers along with summary statement showing daily dredging hours for the entire period of operation. 90700155/-to the defendant no. 1. Along with the bill, the plaintiff has informed the defendant no. 1 by a letter dated 23.03.2017 that the plaintiff has already submitted copy of daily dredging log of all the dredgers along with summary statement showing daily dredging hours for the entire period of operation. The plaintiff also informed that the statement of dredging hours will find that the plaintiff dredged work for 1065.30 hours at Lot No. 8 and 151.35 hours at Chemaguri Khal taking into consideration of minimum optimum output of 320 cubic metre solids per hour and the total dredging quantity comes to 340960 cubic metre for Lot No. 8 and 48520 cubic metre for Chemaguri Khal. 31. On 28th February, 2017, the defendant no. 1 had requested the proforma defendant no. 5 regarding the details of the daily dredging hours for the period from 17th December, 2016 to 16th January, 2017 at Lot No. 8 jetty to passenger Jetty-1 and Chemaguri Khal and in the said communication, the defendant no.1 had informed the defendant no. 5, the quantity and value of the work as intimated by the plaintiff to the defendant no.1. 32. By a letter dated 16th August, 2017, the defendant no.1 has admitted that the work has been completed in the month of January, 2017 but the authorities have released the payment of Rs. 2,14,58,2504/-a quantity of 95,370 cubic metre approximately and requested the authorities to release the balance payment of Rs. 7,91,06,709/-. 33. Now, the question in the present application is whether the amount of Rs. 2,41,50,250/-received by the defendant no.1, the plaintiff is entitled to get 90% amount out of the same. 34. Admittedly the pro forma defendant No.5 issued work order to the defendant no.1 to execute the work at the rate of Rs. 225/-per cubic metre actual quantity silt as approved by the State government. The defendant no.1 has authorised the plaintiff to execute the said work at the rate of Rs. 202.50 per cubic metre. The plaintiff had submitted bill for a total quantity of 3,89,480 cubic metre for a total amount of Rs. 90700155/-. The defendant no.1 has not disputed the quantity and the amount raised by the plaintiff and accordingly the defendant no. 1 had requested the respondent no. 5 for release of the amount as per the quantity claimed by the plaintiff and the authorities have released only Rs. 90700155/-. The defendant no.1 has not disputed the quantity and the amount raised by the plaintiff and accordingly the defendant no. 1 had requested the respondent no. 5 for release of the amount as per the quantity claimed by the plaintiff and the authorities have released only Rs. 2,14,58,250/-for a quantity of 95,370 cubic metre. Now the defendants have raised the issue though the plaintiff had submitted the Bill but the plaintiff has not submitted any certificate from the competent authority with regard to the completion of work as per clause 3 of the terms and condition of the letter dated 14th December, 2016. 35. Initially the respondent no. 5 had issued work order to the defendant no.1 on 14th December, 2016 wherein the condition no. 3 reads as follows; “work completion/progress to be certified by the competent authority KoPT/others nominated by the administration.” 36. The similar condition was imposed upon the plaintiff when the defendant no.1 has authorized the plaintiff to execute the said work at the rate of Rs. 202.50 per cubic metre. 37. It is not the case of the defendants that the defendant no.1 had submitted completion certificate in terms of clause 3 of the condition of the letter dated 14th December, 2016. From record, it reveals that the details submitted by the plaintiff was accepted by the defendant no.1 and on the basis of the invoices raised by the plaintiff, the defendant no.1 had requested the defendant no. 5 to release the amount. The defendant no. 5 had released only an amount of Rs. 2,14,58,250/-for a quantity of 95,370 cubic metre. 38. Clause 8 of the conditions of the letter dated 15th December, 2016, wherein the defendant no.1 had given the sub-contract to the plaintiff, it is mentioned that “payment will be disbursed immediately as received from client”. 39. In the present case, the defendant no. 5 has released an amount of Rs. 2,14,58,250.00/-quantities of 95370 cubic metre in favour of the defendant no.1. It is admitted that the defendant no.1 had not procured any completion certificate from the competent authority as required in clause 3 of the work order dated 14th December, 2016 issued by the defendant no. 5 to the defendant no.1. The defendant no. 5 has released the amount in favour of defendant no.1 without any completion certificate submitted by defendant. 40. 5 to the defendant no.1. The defendant no. 5 has released the amount in favour of defendant no.1 without any completion certificate submitted by defendant. 40. In the short notes of submission filed by the defendant no. 3, the defendant no. 3 admitted that: “m. Since the certificate had become available, the defendant no.1 called upon the plaintiff to rectify its invoice and raise it in terms of the contract. The plaintiff has not taken any steps and/or refuse to do so and has filed the suit. 3(ii). There is no admission as incorrectly claimed by the plaintiff on the part of the defendant no.1. On 28th February ,2017, the defendant no.1 forwarded the invoice of the plaintiff because at that time, there was no certified quantity of work done available to the defendant no.1. On the same day, that is 28th February, 2017, the defendant no.1 had received the certified quantities that become available when KoPT submitted the document under the cover of letter dated 27th February, 2017. There is, therefore, no admission of the defendant no.1 to 3. Further the state of West Bengal has also rejected plaintiff’s claim made in a different and inflated rate.” 41. In the above paragraphs, the defendant no. 3 has admitted that defendant no. 1 had the certificate and the said certificate was issued by KoPT on 27th February, 2017. 42. Certificate issued by the Director Marine Department, KoPT dated 27th February, 2017 reads as follows : “No. Mrn/80/51 Date : February 27, 2017 Ms. Joyoshi Das Gupta, IAS Additional District Magistrate (General), South 24 Parganas, Alipore Mela Officer, Ganga Sagar Sub : Estimate of quantity of silt extracted during dredging Madam, Further to this office letter no. Mrn/80/18, dated 25th January, 2017 the detailed block wise difference of volume alongwith names of dredgers deployed therein enclosed. Yours faithfully (Capt. J. J. Biswas) Director, Marine Department AREA NBAME OF DREDGERS NAME OF PARTY PERIOD OF DREDGING DIFF. IN QUANTITY BET. SURVEY DECIDED ON : 15.12.2016 & 10.01.2017 REMARKS ABCD TAPI IWAI 04.12.16 TO 15.12.16 1255 CU.M This is Considering the resiltation trend between the survey on 31st August 2016 and 15th December, 2016. Yours faithfully (Capt. J. J. Biswas) Director, Marine Department AREA NBAME OF DREDGERS NAME OF PARTY PERIOD OF DREDGING DIFF. IN QUANTITY BET. SURVEY DECIDED ON : 15.12.2016 & 10.01.2017 REMARKS ABCD TAPI IWAI 04.12.16 TO 15.12.16 1255 CU.M This is Considering the resiltation trend between the survey on 31st August 2016 and 15th December, 2016. ABCD TAPI IWAI 15.12.16 TO 09.01.17 9012 CU.M CDEFG TAPI IWAI 15.12.16 TO 09.01.17 7785 CU.M CDEFG NETAI & SAI RAM MACKINTOSH 17.12.16 TO 09.01.17 7785 CU.M FIJG SAI RAM KRISHNA, BADANI & NETAI MACKINTOSH 17.12.16 TO 09.01.17 63513 CU.M OPQR K2 REACH DREDGING 22.12.16 TO 06.01.17 9678 CU.M CHEMAGURI CREEK SAI RAM MACKINTOSH 04.01.17 TO 10.01.17 24072 CU.M Total 1,23,100 CU.M 43. The certificate issued by KoPT dated 27th February, 2017, certified the quantity of 95370 cubic metre on the basis of which the defendant no. 5 had released the amount of Rs. 2,14,58,250/-in favour of the defendant no. 1. It is crystal clear that the defendant no. 1 had the certificate and the defendant no. 5 had released the amount in favour of defendant no.1 and thus as per Clause 8 of the condition of the letter dated 15th December, 2016, the defendant no.1 is under the obligation to disburse the amount to the plaintiff as claimed by the plaintiff. 44. In the case of IDBI Trusteeship Services Limited (Supra), Hon’ble Supreme Court held that if any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court. 45. In the case of Kanchan Udyog Limited (Supra), the Hon’ble Supreme Court held that if a party entitled to a benefit under a contract is denied the same, resulting in violation of legal right, and does not protest, foregoing its legal right, and accepts compliance in another form and manner, issues will arise with regard to waiver or acquiescence by conduct. 46. In the case of P. Dasa Muni Reddy (Supra), the Hon’ble Supreme Court held that abandonment of right is much more than mere waiver acquiescence or latches. 46. In the case of P. Dasa Muni Reddy (Supra), the Hon’ble Supreme Court held that abandonment of right is much more than mere waiver acquiescence or latches. The doctrine which the Courts of law will recognise is a rule of judicial policy that a person will not be allowed to take inconsistent position to gain advantage through the aid of courts. Waiver is consensual in nature. It implies a meeting of the minds. It is a matter of mutual intention. The doctrine which the courts of law will recognise is a rule of judicial policy that a person will not be allowed to take inconsistent position to gain advantage through the aid of courts. Waiver sometimes partakes of the nature of an election. 47. The judgments relied by the defendants are distinguishable in the facts and circumstances of the present case. 48. In the present case, the work order issued by the defendant no. 5 to the defendant no. 1 and the work order issued by the defendant no.1 to the plaintiff contains the clause that work completion/progress to be certified by the competent authority i.e. KoPT/others nominated by the administration. The defendants claim that the plaintiff has not submitted the above-mentioned certificate and as such payment cannot be released without the certificate. The said clause does not reveal that the bill submitted by the plaintiff is to be accompanied with the completion certificate. Admittedly on 27th February, 2017, the competent authority had issued certificate and on the basis of the certificate, the defendant No.5 had released an amount of Rs. 2,14,58,250/-for the quantity of work of 95,370 cubic metre. It is not the case of the defendant no. 1 that the defendant no. 1 had submitted certificate. The certificate dated 27th February, 2017 issued by the Director, Marie Department to the defendant no. 1 and accordingly payment was released for the said quantity. 49. As per Clause 8 of the work order issued by the defendant no.1 to the plaintiff payment is to be disbursed immediately after receipt of payment by the defendant no.1. Admittedly, defendant no.1 had received the amount of Rs. 2,14,58,250/-and thus the defendant no.1 cannot deny for the payment to the plaintiff in terms of work order dated 15th December, 2016. 50. In view of the above prayer (a) of the Notice of Motion is allowed. G.A. 8 of 2021 is thus disposed of. Admittedly, defendant no.1 had received the amount of Rs. 2,14,58,250/-and thus the defendant no.1 cannot deny for the payment to the plaintiff in terms of work order dated 15th December, 2016. 50. In view of the above prayer (a) of the Notice of Motion is allowed. G.A. 8 of 2021 is thus disposed of. Later : Counsel for the defendant nos. 1 and 2 prayed for stay of the operation of the order. Counsel for the plaintiff raised objection. Considered the submission made by the respective parties. Prayer is refused.