JUDGMENT : KRISHNA RAO, J. 1. The plaintiff has filed the present application praying for Judgment and Decree on admission of a sum of Rs. 2,55,17,542.34/- along with further interest @ 24% per annum. 2. The plaintiff has filed the suit being CS 84 of 2012 praying for a decree for a sum of Rs. 1,09,31,769.60/- along with interest @ 24% per annum. 3. As per the case of the plaintiff, the defendant has clearly unequivocally admitted and acknowledged its liability towards the plaintiff to make payment as claimed by the plaintiff. 4. Mr. Reetobrato Mitra, Learned Advocate representing the plaintiff submits that in the usual course of business, the plaintiff had placed purchase orders for supply of the iron ore lumps and fines with the defendant, and in terms of the said purchase order, the defendants supplied such material to the plaintiff. After giving all credit for all payments made by the plaintiff against goods supplied by the defendant prior to 16th July, 2008, a sum of Rs. 48,869/- was lying credit to the credit of the defendant which was agreed to be taken into consideration at the time of next transaction between the parties. 5. Mr. Mitra submits that on 16th July, 2008, the plaintiff had placed purchase order on the defendant for purchase of the following: (i) 3,000 M.T. of iron ore fines would be supplied by the defendant to the plaintiff. (ii) 3,000 M.T. would have a minimum iron contains of 62.5%. (iii) The rate of such goods was fixed @ of Rs. 4,000/- per M.T. along with C.S.T @ 2%. (iv) The entire payment was to be made in advance by the plaintiff. 6. Mr. Mitra submits that in terms of the purchase order, plaintiff has made payment of Rs. 1,22,40,000/- taking into consideration, the prior outstanding of Rs. 48,869/- . The defendant had made supply of part quantity of iron ore fines in between April, 2008 to April, 2009. As the goods supplied by the defendant was not as per the specification and accordingly with the mutual consent of the parties, the defendant had reduced the price of the goods supplied by the defendant. 7. Mr. Mitra submits that out of the total supply of 3000 MT of iron ore, the defendant had supplied only 1577.14 MT leaving a balance of 1422.76 MT. 7. Mr. Mitra submits that out of the total supply of 3000 MT of iron ore, the defendant had supplied only 1577.14 MT leaving a balance of 1422.76 MT. As the defendant had not supplied the balance quantity amounting to Rs. 80,21,950/- as on 31st March, 2009. 8. Mr. Mitra submits that after several requests, the defendant was able to pay a further sum of Rs. 12,00,000/- leaving credit balance of Rs. 64,56,883.60 in favour of the plaintiff. He further submits that from time to time, the defendant had issued post dated cheques to the plaintiff in discharge of its liability to refund the outstanding of the plaintiff but on the date of maturity of the post dated cheques, the defendant requested the plaintiff not to present such cheques. 9. Mr. Mitra submits that the defendant had issued a fresh post dated cheques for Rs. 10,00,000/- dated 24th May, 2011 but the same was also dishonored with the endorsement “insufficient fund.” 10. Mr. Mitra submits that an amount of Rs. 64,56,883.60/- is admitted by the defendant and the defendant has no defence to the claim of the plaintiff, it was presumed that the defendant was unable to pay its due on account of its commercial insolvency, accordingly, the plaintiff had initiated a Company Petition No. 409 of 2011 before this Court to windup the defendant under the provisions of the Companies Act, 1956. 11. Mr. Mitra submits that defendant has entered into the said case and raised frivolous defence and infact the defendant had admitted that the sums are due and payable to the plaintiff. The said case was disposed of on 9th January, 2012 by directing the defendant company to secure the claim of the plaintiff to the tune of Rs. 20,00,000/- and granted leave to the plaintiff to file an appropriate proceeding in the nature of a suit for realization of such amount. 12. Mr. Mitra submits that the defendant has illegally and unlawfully withheld the balance money paid by the plaintiff for affecting the supply of iron ore under the contract between the parties but the defendant failed to do so and accordingly an amount of Rs. 2,55,17,542.34/- along with interest @ 24 % per annum is liable to be paid by the defendant to the plaintiff. 13. Per contra, Mr. 2,55,17,542.34/- along with interest @ 24 % per annum is liable to be paid by the defendant to the plaintiff. 13. Per contra, Mr. Dhruba Ghosh, Learned Senior Advocate representing the defendant submits that the suit was filed in the year, 2012 and after the period of 9 years, the plaintiff has filed the instant application and as such the application is not maintainable. 14. Mr. Ghosh submits that there are various tribable issues that arises in the suit and the claim made by the plaintiff cannot be disposed of in a summary manner. He submits that no case for judgment on admission has been made out in the present application and there is no unambiguous unequivocal admission of liability made by the defendant on contrary the defendant has denied the claim of the plaintiff. 15. Mr. Ghosh submits that the plaintiff has placed three orders for supply 4th of iron ore between 23rd August, 2008 and April, 2009, the defendant had sold and supplied a total quantity of 1508.720 MT to the plaintiff and the total price of the supplied iron ore was Rs. 61,55,579.20/- which includes Central Sales Tax at 2 % with the condition that the plaintiff will furnish the requisite “Form C.” He submits that several requests and reminders were made to the plaintiff, the plaintiff choose to supply “Form F” but deliberately choose not to supply “Form C” for CST and because of the same a sum of Rs. 14,52,929/- was liable to be adjusted from the credited balance of the petitioner. 16. Mr. Ghosh submits that the previous Company Petition filed by the plaintiff was disposed of by the Company Court wherein the Hon’ble Court held that there were serious triable issues and the matter could not be disposed of in a summary proceeding and the plaintiff has not brought any new subsequent facts seeking summary decree and as such the application filed by the plaintiff is liable to be dismissed. 17. Mr. Ghosh further submits that the defendant has made payment to the plaintiff in the following manner. 18. Mr. Ghosh further submits that the purported demand notice dated 8th June, 2011 was sent to the defendant which was received by S.K.D on 11th June, 2011 but it is the specific case of the defendant that no notice was served upon the defendant. 18. Mr. Ghosh further submits that the purported demand notice dated 8th June, 2011 was sent to the defendant which was received by S.K.D on 11th June, 2011 but it is the specific case of the defendant that no notice was served upon the defendant. He also submits that there is no authorized signatory as S.K.D in the company to receive and sign such letter. He further submits that the purporting alleged account confirmation from 1st April, 2008 to 12th June, 2009 by SKD on behalf of the defendant but fact remains no employee name SKD was with the defendant. 19. Mr. Ghosh further submits that there is no such admission on behalf of the defendant and as such no judgment and decree can be passed on admission. 20. Mr. Ghosh relied upon the following judgments: (i) Cash of Rs. 6,00,000/- from July 22, 2009 to February 10, 2010 -Cash receipts annexed with AO. (ii) Cheque of Rs. 7,00,000/- dated November 3, 2009. (iii) Cheuqe of Rs. 5,00,000/- dated April 7, 2010. (iv) Cash of Rs. 26,00,000/- from February 2010 to May 26, 2011. (i) Karan Kapoor vs. Madhuri Kumar, (2022) 10 SCC 496 (ii) Unreported judgment passed by this Court in the case of Awam Marketing LLP vs. M/s. Orient Beverages Limited passed in GA No. 4 of 2021, CS No. 85 of 2016 dated 5th December, 2022. 21. Heard the Learned Counsel for the respective parties, perused materials on record and the judgments relied by the defendant. 22. Admittedly, the plaintiff has placed an order for supply of 3000 MT iron ore to the defendant and the plaintiff has paid the total amount of Rs. 1,22,40,000/- inclusive of CST @ 2%. Out of which the defendant has supplied total quantity of 1577.14 MT leaving the balance of 1422.86 MT. 23. The dispute with regard to the refund of the cost of the balance goods which the defendant has not supplied to the plaintiff, claim of refund of advance payment was filed by the plaintiff before the Company Court in CP No. 409 of 2011 against the defendant and the Company Court had disposed of the said application on 9th January, 2012 by passing the following order: “Even if the company’s defence as to the ledger account is disregarded, it would not detract from the company’s defence made out in respect of cash payments or adjustments. It is the petitioner’s case that upon the accounts being reconciled between the parties on or about June 12, 2009 that the company had agreed to refund the balance sum due. It is the petitioner’s further case that cheques were thereafter issued by the Company to the petitioner on account of the amount owed to the petitioner. Some of these cheques were admittedly dishonoured upon presentation. The other cheques that had been issued by the company to the petitioner, according to the petitioner, were taken back by the company with a promise that the same would be replaced or the payment in lieu thereof would be made. It is difficult to accept that a creditor would handover cheques issued in its favour to the debtor without ensuring some other form of security or the payment being simultaneously being made. However, farfetched the company’s defence may appear to be in first flush, it is possible that the company obtained the return of cheques from the petitioner against cash payments that the company made. There is a doubt that lingers and when there is a doubt in a creditor’s winding-up petition, the company has to be given the benefit thereof. Since, the company has offered to secure a sum of Rs. 20 Lakh in respect of the petitioner’s claim and since the company’s defence does not appear to be altogether without basis, though slightly far-fetched, the claim of the petitioning creditor is relegated to a suit subject to the company furnishing cash security to the tune of Rs. 20 Lakh in favour of the Registrar, Original Side, within a period of fortnight from date.” 24. In the present proceeding also the defendants have taken a specific defence that the defendants have made payments to the plaintiff against the dues of the plaintiff as mentioned in paragraph 17 above and the defendants have also denied with regard the confirmation of account made by one SKD and the notice received by SKD but by name SKD is not the employee of the defendant company. 25. The defendants have further taken a defence with regard to non-supply of Form C for CST due to which an amount of Rs. 14,52,929/- was liable to be adjusted from the credit balance of the petitioner. 26. 25. The defendants have further taken a defence with regard to non-supply of Form C for CST due to which an amount of Rs. 14,52,929/- was liable to be adjusted from the credit balance of the petitioner. 26. The Hon’ble Company Court while disposing of the Company Petition filed by the plaintiff taking note of all the defence raised by the defendant and accordingly relegated to suit subject to furnishing cash security of Rs. 20 Lakhs in favour of the Registrar, Original Side and accordingly the defendant has secured the said amount. 27. The judgments relied by the defendant in the case of Karan Kapoor (supra), the Hon’ble Supreme Court held that Order 12 Rule 6 confers discretionary power to a Court who “may” at any stage of the suit or suits on the application of any party or in its own motion and without waiting for determination of any other question between the parties makes such order or gives such judgments as it may think fit having regard to such admission. 28. In the present case, this Court has not found any such admission from the defendant. Since the beginning i.e. from the date of filing of the company petition by the plaintiff, the defendant is raising triable issues and accordingly the Company Court has also relegated to suit and the suit is to be decided on the basis of the evidence and thus no judgment and decree can be passed on admission. 29. In view of the above, GA 4 of 2021 is thus dismissed.