C J SHETH CONSTRUCTION COMPANY Vs. SUNDERDAS ARJUNLAL

JUDGEMENT

(1.) BOTH these Applications are filed by the plaintiff for passing an interim decree against the defendants.

(2.) THE plaintiffs have filed the suit against the defendants for recovery of more than Rs.1 crores. It is stated that pursuant to a discussion between the applicants and the respondents, the respondents agreed to pay a sum of Rs.59 lakhs within a period of three years form 1-1-1988 against the applicants relinquishing their rights and interest over the applicants" share in the first floor of the building complex. It is stated that the defendants even though agreed to pay Rs.59 lakhs, they have been evadin g payment pending suit. THEy issued a notice on 8-6-1993 through their counsel to the respondents calling upon them to discharge their liabilities as set out in the notice. It is stated that a reply notice was sent, which was only to evade the payment. THE petitioner/plaintiff would state in the affidavit that the defendants have raised untenable please in the reply notice. THEy have further stated that in view of the admission in the agreement, they are bound to pay a sum of Rs.20,45,697/- within such time as may be fixed by this Court, and in default of payment, a decree must be granted in favour of the plaintiff to recover the same by sale of the properties.

(3.) IT is held in A.I.R.1988 Delhi 153 ( State Bank of India vs. Messers. Midland Industries and others ), that in order to invoke the provision under Order 12, Rule 6, C.P.C.., there must be unequivocal, unconditional and unambiguous admission by the defendant, and again, their Lordships have held that the Provision of Order 12, Rule 6, C.P.C. is only discretion and it is not a matter of right on the part of the plaintiff to get a decree. In the decision aforesaid, the learned Judge has held thus:- "Undoubtedly 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 O.12, R.6 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 be conveniently disposed of on a motion under this rule the Court is free to refuse exercising discretion in favour of the party invoking it. 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 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 in spite of admission on the part of the defendants the plaintiff would be bound to lead evidence on those is sues 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 O.12, R.6, C.P.C. without proving those issues."