Calcutta High Court
Eastern Trade Centre vs Macmet India Private Limited on 9 July, 2026
Author: Aniruddha Roy
Bench: Aniruddha Roy
Form J(2)
Sl.No. 01
In The High Court at Calcutta
Ordinary Original Civil Jurisdiction
[Commercial Division]
Original Side
Present: The Hon'ble Justice Aniruddha Roy
IA NO. GA-COM/7/2025
[OLD NO CS/42/2015]
IN C.S. (COM) 61/2024
EASTERN TRADE CENTRE
-VERSUS-
MACMET INDIA PRIVATE LIMITED
For the Plaintiff : Mr. Aritra Basu, Adv.
Mr. Ratul Das, Adv.
Ms. Sonia Sharma, Adv.
For the Defendant : Mr. Aniruddha Mitra, Sr. Adv.
Mr. Uttiyo Mallick, Adv.
Ms. Vedika Sureka, Adv.
Mr. Sayan Banerjee, Adv.
Ms. Sweta Gandhi, Adv.
Reserved on : 06.05.2026
Judgment on : 09.07.2026
ANIRUDDHA ROY, J.:
Facts:
1. This is an application filed by the plaintiff praying for judgment and decree on
admission for a sum of Rs.75,20,239/- along with interest together with
2other consequential prayers. It has also been prayed that the defendant be
directed to furnish security to the extent of Rs.75,20,239/-.
2. By virtue of oral agreement and understanding by and between the parties,
the defendant placed four purchase orders, as mentioned in paragraph 3 of
the petition. Purchase orders were dated February 24, 2011 (2 nos.) and
March 23, 2011(2 nos.).
3. By a letter dated January 16, 2012, the defendant requested the plaintiff not
to effect supply until further intimation. However, by a further letter dated
January 31, 2012, the defendant again requested the plaintiff to supply part
of the goods under the purchase order. Along with said letter dated January
31, 2012, the defendant also sent two sets of road permit and dispatch
clearances in respect of the goods to be supplied by the plaintiff.
4. Plaintiff then dispatched the goods. The relevant dispatch clearance would
show that the goods were dispatched by the plaintiff to the defendant and the
consignment note would show that goods had been received by and/or on
behalf of the defendant.
5. The plaintiff had raised invoices on February 18, 2012 upon the defendant
along with the dispatch documents. The invoices and dispatch documents
were duly received and accepted by the defendant without any objection on
March 01, 2012.
6. Following the terms agreed by and between the parties that the defendant
would make payment of the bills/invoices raised by the plaintiff within 30
days to 60 days of receipt of original dispatch documents and delay in making
payment would carry interest at the rate of 24% per annum, the plaintiff duly
raised invoices on February 18, 2012 upon the defendant along with
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supportive dispatch documents. The invoices and dispatch documents raised
were duly received and accepted by the defendant without any objection on
March 01, 2012. The defendant, therefore, was obliged to make payment on
or before April 01, 2012.
7. Though the goods were received, accepted and consumed by the defendant,
the dispatch documents were purported to be returned by the defendant.
8. The plaintiff, by its letter dated March 5, 2012, informed the defendant that
the return of the dispatch documents and thereby avoiding the payment to
the plaintiff were illegal and the defendant was requested for making
payment.
9. The plaintiff has filed the suit claiming the price of goods sold and delivered
by the plaintiff to the defendant.
10. The balance goods were lying ready for delivery with the plaintiff and the
plaintiff was ready for immediate supply thereof. However, in absence of road
permit, plaintiff was unable to effect the dispatch. By an e-mail dated March
6, 2012, the defendant specifically recorded that no further goods should be
dispatched by the plaintiff until further intimation.
11. The defendant, therefore, refused to accept delivery of further goods. The
defendant has thereafter contended that the defendant would only make
payment after receiving payment from its customers, as would be evident from
the letters of the defendant dated March 9, 2012 and March 13, 2012. On
May 24, 2012 the defendant allegedly terminated the contract by way of a
document being a purchase order which amended the original purchase order
by reducing the balance quantity and also by cancelling the same. The
plaintiff could not sell the said balance quantity of goods to any third party,
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since the goods were tailor made. The plaintiff, in effect, claims to have
suffered loss and damages to the extent of Rs.99,00,000/- for reason of
alleged termination of the contract by the defendant.
12. Upon receiving continuous demands from the plaintiff, inter alia, dated March
9, 2012, March 10, 2012, May 25, 2012, February 25, 2013, the defendant
assured to make payment upon receiving payment from its customer.
13. Plaintiff then made further demands through letters dated April 24, 2013 and
June 10, 2013. On February 21, 2014 the defendant has made part payment
for a sum of Rs.1,80,791/-. For the balance amount, the plaintiff through its
several letters dated May 27, 2014, June 5, 2014, October 8, 2014, October
25, 2014 and November 9, 2014, raised demands upon the defendant.
14. The defendant has availed the benefit of concessional rate of Sales Tax at the
rate of 2% instead of 14.50% for which the defendant is obliged to provide the
plaintiff Sales Tax Declaration Forms (in short STDF) under the relevant
provision of Central Sales Tax, 1956 known as C-Forms. By a letter dated
April 25, 2016, the plaintiff requested the defendant for issuance of C-Forms,
despite receipt of the said letter, the defendant failed and neglected to submit
C-Forms.
15. In the said circumstance, a sum of Rs.2,30,50,077/- was due and payable by
the defendant to the plaintiff as on December 15, 2014, particulars are stated
in paragraph 15 of the petition. Plaintiff also claimed interest at the rate of
24% per annum on the aforesaid sum on and from December 16, 2014 and
February 19, 2015 in respect of respective invoices mentioned in paragraph
15 of the petition. Plaintiff has also claimed interim interest and interest
upon judgment and filed the instant suit.
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16. Defendant has filed its written statement and additional written statement,
annexure-B to the petition. Further case of the plaintiff is that the ultimate
purchaser of the goods was one Adhunik Power and Natural Resources
Limited (hereinafter, Adhunik Power). Plaintiff states that claiming certain
dues on account of goods sold and delivered, the defendant had initiated an
arbitration proceeding against Adhunik Power, where an arbitral award was
made on March 23, 2020.
17. In terms of the said arbitral award, the defendant was entitled to receive a
sum of Rs.7,91,023.785/- along with interest. Adhunik Power being aggrieved
with the said arbitral award initiated a proceeding under Section 34 and 36 of
Arbitration and Conciliation Act, 1996. In the said setting aside proceeding a
settlement was arrived at by and between the defendant and Adhunik Power,
when the defendant agreed to receive a sum of Rs.7,75,000,00/- as full and
final settlement under the said arbitral award from Adhunik Power. Relevant
documents are annexures C and D to the petition.
18. Pursuant to the direction of the Court, parties have filed and exchanged their
affidavits in the instant petition.
Submissions:
19. Mr. Aritra Basu, learned Advocate appearing for the plaintiff, at the threshold,
submits that there is no dispute raised by the defendant with regard to
quality or quantity of the goods supplied by the plaintiff. The defendant has
accepted the supply and consumption of the goods and still failed and
neglected to pay the price thereof.
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20. Referring to an e-mail dated January 16, 2012 issued by the defendant at
page 42 to the petition, Mr. Aritra Basu learned Advocate submits that the
defendant initially requested the plaintiff not to affect supply of the goods. He
then refers to a further e-mail dated January 31, 2012 at page 47 to the
petition and submits that the plaintiff was further requested to supply and
dispatch goods to the defendant but at the address of Adhunik Power who
was the ultimate purchaser. On the basis of the said e-mail dated January
31, 2012 goods were dispatched and supplied accordingly.
21. Mr. Aritra Basu, learned Advocate for the plaintiff then refers to a
communication dated March 9, 2018 written by the defendant at page117 to
the said petition, whereunder the defendant has accepted the dispatch
documents for purchase and assured that payment would be released only
after receipt of payment from Adhunik Power and further requested not to
supply material to Adhunik Power without its confirmation. He then refers to
a communication of the defendant dated March 12, 2012 at page 118 to the
petition and submits that though the defendant raised issues of non-
availability of the Transit Insurance Coverage Certificate but assured the
plaintiff that its payment would be released only after receipt of payment from
its customer.
22. Mr. Aritra Basu then refers to a communication of the defendant dated
February 9, 2013 at page 192 to the petition and submits that the defendants
specifically had admitted to release a payment for a sum of Rs.15,43,529/-
against invoices dated October 11, 2011. From the said letter, it would
appear that the defendant had admitted the receipt of material by it as well by
Adhunik Power for a total sum of Rs.72,20,239/- and the payment would be
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released only after receiving the payment for Adhunik Power. Similar
admission had also been made by the defendant in its letter dated April 29,
2013 at page 193 to the petition. Referring to a letter of the defendant dated
January 12, 2013 at page 194 to the petition, learned Advocate for the
plaintiff submits that though the defendant had raised certain issues with
regard to supply of goods without its consent or prior approval or without
Transit Insurance but the supply of goods were admitted and the defendant
had repeatedly assured that in the event Adhunik Power makes payment
against those materials, it shall pay the plaintiff.
23. Learned Advocate for the plaintiff then refers to a settlement agreement
between defendant and Adhunik Power at page 148 to the petition and
submits that the arbitration between the defendant and Adhunik was settled
at a sum of Rs.7,75,00,000/-. He submits that since the award has been
made in favour of the defendant for a total sum of Rs.7,75,00,000/-, it
includes price of the goods sold and delivered by the plaintiff. The defendant
categorically admitted and promised to pay the plaintiff after payment is
received from Adhunik Power. The said statement shows that the dispute
between the defendant and Adhunik Power was settled at a sum of
Rs.7,75,00,000/- which includes the plaintiff’s claim and therefore the
plaintiff is now entitled to a judgment upon admission, as claimed in the
petition.
24. Referring to the said documents relating to the settlement agreement and the
arbitration award, inter se, the defendant and Adhunik power, Mr. Aritra
Basu, learned Advocate for the plaintiff submits that though the defendant
took a stand that the said documents are privileged and confidential and the
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plaintiff is not a party to the said document and this Court cannot rely
thereupon, it is submitted on behalf of the plaintiff that if the document is
admissible then the Court is not concerned how the document or the evidence
was obtained. Even if, the document is stolen it would be admissible in
evidence. In support, Mr. Basu has relied upon a decision of the Privy Council
In the matter of : Kuruma, son of Kaniu vs. The Queen reported at 1955
(2) WLR 223. He has also relied upon a decision of the Hon’ble Supreme
Court In the matter of : Pooran Mal vs. The Director of Inspection
(Investigation), New Delhi & Ors. reported at (1974) 1 SCC 345.
25. Learned Advocate for the plaintiff then submits that the law on judgment
upon admission has been explained in various judgments. The
admission/statement is to be brought before the Court showing admission of
liability by an application filed under Order XII Rule 6 of CPC. The factum of
admission being established, the defendant is provided with an opportunity to
explain the admission. If the explanation is not accepted, a decree is passed
on the basis of admission of the defendant. The plaintiff in the instant case
has established the factum of admission of the defendant, however,
explanation in respect of the admission made has not been offered at all in
the affidavit-in-opposition filed by the defendant. Hence, decree as prayed for
should be passed, especially, in view of the admission in the letter dated April
29, 2013 at page 193 to the petition. In support, plaintiff has placed reliance
upon the following decisions :
1. In the matter of: Uttam Singh Duggal & Co. Ltd. vs.
United Bank of India and others reported at (2000) 7 SCC
120;
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2. In the matter of: Karam Kapahi and Others vs. Lal
Chand Public Charitable Trust and Another reported at (2010)
4 SCC 753; and
3. In the matter of: Adhunik Ispat Limited vs. Triveni
Infrastructure Development Co. Ltd. reported at (2011) 2 CHN
527.
26. In addition to the above, this Court has raised a query:
Under the provision of Order XII Rule 6 of CPC whether it is the only
obligation of the Court either to give a judgment and decree on
admission against the defendant or to dismiss the application
simplicitor or whether the Court can also pass any other order or
direction upon the defendant in aid of the claim of the plaintiff.
27. In reply to the said query of the Court, learned Advocate Mr. Aritra Basu
appearing for the plaintiff refers to the provisions under Order XII Rule 6 of
CPC and submits that two different expressions are there, namely, “makes
such order” or “give such judgment”, as it may think fit having regard to
such admission. The relief under Order XII Rule 6 of the CPC is discretionary
and an enabling provision. For the Court to be debarred and/or fettered from
passing any order other than what is provided under Rule 6, a bar would have
been provided for and in absence of such prohibition, the Court may pass any
order it deems fit and proper in aid of the claim of the plaintiff, when the
Court refuses to pass a judgment on admission. Power of Court under Order
XII Rule 6 is unbridled. In support, learned Advocate for the plaintiff had
relied upon a decision In the matter of: Unique International Pvt. Ltd. vs.
Dinesh Kumar Singhania reported at 112 CWN 461.
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28. Mr. Aritra Basu, learned Advocate then refers to the case made out in the
affidavit-in-opposition. He submits that the defense allegedly raised in the
affidavit-in-opposition was never there contemporaneously. There is no
dispute raised by defendant with regard to the quality or quantity of the goods
supplied by the plaintiff. On the contrary, defendant had admitted the supply
of goods and the consumption thereof by Adhunik power, the ultimate buyer
and the defendant had specifically admitted that the payment would be made
to the plaintiff after it receives money from Adhunik power. The record
demonstrates that the defendant had received money from Adhunik power. In
such situation, even if, this Court is of the view that final judgment cannot be
passed for whatever reasons, the defendant should be directed to furnish a
security for a sum of Rs.75,20,209/-. In support, he has relied upon a
decision of the Hon’ble Supreme Court In the matter of : IDBI Trusteeship
Services Ltd. vs. Hubtown Ltd. reported at (2017) 1 SCC 568.
29. Learned Advocate for the plaintiff further submits that the expression “such
order” apart from being used in Order XII Rule 6 of CPC, has also been used
under Order VIII Rule 10 of CPC. He submits that the expression gives
discretion to the Court either to pronounce a judgment against the defendant
or make such order in relation to the suit as it thinks fit. In support, he has
relied upon a decision In the matter of: Balraj Taneja & Anr. vs. Sunil
Madam & Anr. reported at (1999) 8 SCC 396.
30. Mr. Aritra Basu, learned Advocate for the plaintiff further submits that in any
event under Section 151 of CPC in an appropriate case, the Court can
demand security to ensure the satisfaction of a decree. In support, he has
relied upon a decision of the Hon’ble Supreme Court In the matter of: Rahul
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S. Shah vs. Jinendra Kumar Gandhi & Ors. reported at (2021) 6 SCC
418.
31. In the light of the above, Mr. Basu learned Advocate appearing for the plaintiff
submits that in view of the unequivocal admission of liability made by the
defendant a judgment/decree should be pronounced on admission for a sum
of Rs.72,20,209/-. He further submits that the submission made by him in
response to the query raised by the Court is without prejudice to the rights
and contentions of the plaintiff that the plaintiff has made out a clear case for
judgment upon admission.
32. Mr. Aniruddha Mitra. Learned Senior Advocate appearing for the defendant
submits, at the threshold that, except in support of the case made out for
judgment upon admission, the plaintiff has not made any submission in
support of the other prayers made in the application. The plaintiff has only
confined its argument in respect of prayer (a) to the notice of motion.
33. On the basis of the existing records, learned Senior Advocate Mr. Aniruddha
Mitra appearing for the defendant submits that it is trite in order to seek a
judgment upon admission, the Court will have to see the admission is made
consciously and is clear, unambiguous, unconditional and unequivocal. These
are the pre-conditions to be fulfilled by the plaintiff to seek a judgment upon
admission. Any conditional admission or any admission with certain
clarification which is further explained cannot be accepted as unequivocal
and unconditional admission on the part of the defendant while adjudicating
an application under Order XII Rule 6 of CPC.
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34. Referring to the affidavit-in-opposition filed by the defendant, learned Senior
Advocate submits that the defendant has denied and disputed the claim of the
plaintiff. The defendant has not admitted any liability towards the plaintiff.
35. Learned Senior Advocate, Mr. Mitra appearing for the defendant submits that
the specific case of the defendant is that in spite of instruction given to the
plaintiff not to cause delivery of goods to Adhunik power, the ultimate
purchaser, plaintiff went on delivering and supplying goods directly to
Adhunik power without any specific prior instruction from the defendant.
When the defendant approached plaintiff to supply goods to the defendant, it
is the privity between the parties to the suit and Adhunik power has no role to
play. Therefore, when the plaintiff supplied goods directly to Adhunik power
despite there being prior instruction given by the defendant to the plaintiff not
to cause such supply, the defendant has no liability towards the plaintiff. The
plaintiff did not inform the defendant about such supply of goods within the
specified time in the contract. In addition to these, in violation of agreement
between the parties, the plaintiff also acted in complete breach of the terms of
the purchase order between the parties. The claim of the plaintiff is barred by
limitation. The defendant raised objection in order to utilization of the goods
allegedly supplied by the plaintiff and, therefore, the defendant has no liability
to pay the plaintiff for the goods allegedly supplied by the plaintiff.
36. Mr. Mitra further submits that Adhunik power being the ultimate purchaser,
as the defendant also did not accept the goods since various terms of supply
were breached by the plaintiff, the supply of goods as alleged by the plaintiff
directly to Adhunik power is a supply made under a separate contract to
which the defendant is not a party. The defendant in any event, had refused
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to accept invoices against the goods allegedly supplied to Adhunik power.
From time to time contemporaneous letters were issued by the defendant
regarding these facts stating breach of contract on the part of the plaintiff. In
some of such letters, it had also been mentioned that if the defendant receives
payment from Adhunik power on account of the said goods, then the
defendant will definitely pay the claim of the plaintiff.
37. Specific stand of the defendant is that it did not receive any payment from
Adhunik power on account of the goods for which the plaintiff had raised its
claim upon the defendant in the instant suit.
38. Learned Senior Advocate Mr. Mitra then refers to various contemporaneous
letters, namely, January 16, 2012 (page 46 of the petition), March 9, 2012
(page 54 of the petition), March 12, 2012 (page 118 of the petition), March 13,
2012 (page 55 of the petition), February 19, 2013 (page 127 of the petition),
April 29, 2013 (page 129 of the petition), June 12, 2013 (page 120 of the
petition) and February 23, 2014 (page 121 of the petition). He submits that a
close scrutiny of the said contemporaneous documents would show that there
has been no admission of liability on the part of the defendant, far less to say
clear or unambiguous or unconditional or unequivocal admission of liability.
39. Learned Senior Advocate Mr. Mitra for the defendant submits that from the
contemporaneous communications, as referred to above, it would be evident
that the defendant had raised disputes that the delivery of goods was in
breach of the instruction of the defendant. The defendant specifically
instructed the plaintiff not to deliver goods, still the plaintiff acted to the
contrary and delivered goods to Adhunik Power. The defendant did not accept
the invoices raised by the plaintiff. The goods so delivered by the plaintiff to
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Adhunik Power was a result of a contract by and between the plaintiff and
Adhunik Power to which the defendant was not a privy. Defendant all along
denied its liability towards the plaintiff. The settlement of outstanding sent by
the plaintiff to the defendant was also denied contemporaneously. With
specific reference to the said letters dated March 9, 2012 and June 12, 2013,
the defendant states that in the event it receives payment for the said goods
supplied to Adhunik Power by the plaintiff, then only the defendant would pay
the plaintiff. All the above correspondence and communications should be
read as a whole and in conjunction with each other and not in isolation.
40. Referring to the settlement agreement dated November 3, 2021, at page 148 of
the petition, learned Senior Advocate Mr. Aniruddha Mitra submits that the
dispute between defendant and Adhunik Power had reached a settlement at a
sum of Rs.7,75,00,000/-. The said settlement amount was paid by Adhunik
Power to defendant but the said payment was not for the price of goods
delivered by plaintiff to Adhunik Power directly in defiance of the instruction
of the plaintiff. Therefore, since the defendant has not been paid by Adhunik
Power for the price of goods delivered to Adhunik Power by the plaintiff, the
question of making payment to the plaintiff did not arise and there had been
no admission of debt by the defendant towards the plaintiff. Mr. Mitra then
refers to the order of the co-ordinate bench dated January 31, 2024 and
submits that the admissibility of the said settlement agreement dated
November 3, 2021 is kept open and to be decided in trial.
41. Mr. Aniruddha Mitra learned senior Advocate submits that the object of Order
XII Rule 6 has been dealt with In the matter of: Uttam Singh Duggal
(supra) which is to enable the party to obtain a speedy judgment on the clear
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admission of the defendant. In the instant case, since there is no clear
admission of indebtedness by the defendant, the provision of the code shall
not apply.
42. Referring to In the matter of: Himani Alloys Limited (supra), Mr. Mitra
submits that the Hon’ble Supreme Court held that to obtain a summary
judgment on admission, the admission must have categorical, conscious and
deliberate act of the party making it, with an intention to be bound by it. The
provision under Order XII Rule 6 being an enabling provision is neither
mandatory nor peremptory but discretionary. Unless admission is clear,
unambiguous and unconditional, discretion of the court should not be
exercised to deny the valuable right of a defendant to contest the claim. In
the instant case, there is no such clear admission made by the defendant.
Hence, the provision of the Code will not apply.
43. While explaining the provision under Order XII Rule 6 of the Code, learned
senior Advocate submits that the primary object of the provision is to enable
the party to obtain a speedy judgment on admission made by the other party.
If it appears to the court that it is not safe to pass a judgment upon admission
or that a case involves the question which cannot be properly dealt with and
decided on the basis of alleged admission, the court may exercise its
discretion and pass such order refusing to pass a judgment on admission. In
support, he has relied upon a decision of the Hon’ble Supreme Court in the
matter of: Rajiv Ghosh vs. Satya Narayan Jaiswal reported at 2025
SCC Online SC 751.
44. Referring to the provision from the Code under Order XII Rule 6, Mr. Mitra
submits that civil court enjoys power to decide a lis under the provisions of
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the Code. The expression to make such order used under Order XII Rule 6 of
the Code should be read in the light of the object and reason of the said rule
and the expression having regard to such admission. The expression such
order cannot read in isolation and cannot be stretched or illustrated to assign
a meaning beyond the object and scope of Order XII Rule 6. Interpretation of
a word in a statute must be done according to its scope, object and reasons.
The intention of the legislature must be looked into.
45. Learned senior Advocate further submits that it is the function of the court
that to fulfil the legislative intend. Purposive construction of a statute has to
be done in the light of the object and purpose of the enactment. The power of
court to interpret a statutory text purposively does not imply that the court
can substitute the legislative intent with its individual notion. In support, Mr.
Mitra has relied upon the following decisions :
(1) In the matter of: Shailesh Dhairyawan vs. Mohan
Balkrishna Lulla reported at 2016 (3) SCC 619;
(2) In the matter of: X vs. The Principal Secretary, Health
and Family Welfare Department, Govt. of NCT of Delhi & Anr.
Reported at 2022 INSC 1035.
46. In the light of the above Mr. Aniruddha Mitra, learned Senior Advocate
submits that in the facts of the instant case there is no clear or unambiguous
admission made by the defendant as to its alleged indebtedness towards the
plaintiff far to spear of for a sum or any part thereof claimed by the plaintiff.
On a true construction of the provisions laid down under Order XII Rule 6 of
the Code, in the facts of the instant case, no judgment on admission can be
passed. It is also submitted that there is no scope for this court to direct the
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defendant to secure the claim of the plaintiff, as Order XII Rule 6 of the Code
does not permit the same. The legislative intention is either to pass a
judgment on admission or to reject the prayer. The court cannot exercise its
discretion for enlarging the scope of the provision.
47. Accordingly, learned senior Advocate prays for dismissal of the instant
application.
48. In reply, Mr. Aritra Basu, learned Advocate for the plaintiff submits that on a
reading of the provisions under Order XII Rule 6 of the Code, there is no scope
for any purposive construction. The provision being a discretionary one, the
court has ample authority and discretion to pass any further direction upon
the defendant in aid of the claim made by the plaintiff to secure it in the
manner and mode as it things feet, even though the prayer for judgment upon
admission is refused.
Decision :
49. After considering the rival contentions of the parties and on perusal of
materials-on-record, it appears to this court that the facts stated herein above
required for adjudication of the instant application are not much in dispute.
50. The provisions under Rule 6 to Order XII of the Code quoted below:
“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.
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.”
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51. Admission of debt by the defendant, as claimed by the plaintiff, is required to
be tested under the said provision of the Code. The Code provides that the
admission of facts has to be made either in the pleading or otherwise, whether
orally or in writing. On the basis of such an admission made by the party,
court is empowered to pronounce its judgment on admission without
determining of any other question between the parties, make such order or
give such judgment, as the court may think fit, having regard to such an
admissions. The admission must be clear, unambiguous and un-conditional.
52. Hon’ble Supreme Court In the matter of: Himani Alloys Limited (supra)
had observed as under:-
“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 and deliberate
act of the party making it, showing an intention to be bound
by it. Order 12 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 should 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 Singh Duggal & Co. Ltd. v. United Bank of India,
Karam Kapahi v. Lal Chand Public Charitable Trust and
Jeevan Diesels and Electricals Ltd. v. Jasbir Singh Chadha.)
There is no such admission in this case.”
53. Hon’ble Supreme Court In the matter of: Uttam Singh Duggal & Co. Ltd.
(Supra), had observed as under :-
“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 rules, it is stated that “where aGA-COM/7/2025
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claim is admitted, the court has jurisdiction to enter a
judgment for the plaintiff and to pass a decree on IA No.GA-
COM/1/2024, In CS-COM/712/2024 A.R.,J. 18 admission 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 made a plain admission entitling
the former to succeed, it should apply and also wherever there
is a clear 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.”
54. The provision under Order XII Rule 6 of the Code is an enabling and
discretionary provision. The rule must be considered strictly and therefore
unless the admission is unequivocal and clear, the court in its discretion shall
negate the prayer for judgment upon admission. From the series of
correspondence and communication exchanged by and between the parties in
the instant case, as already referred to in paragraph 38 above, this court
finds that the defendant has admitted the transaction between the parties
that the plaintiff had sold goods and supplied materials to Adhunik Power.
The defendant has also admitted that price of goods is to be paid to the
plaintiff by the defendant but with a qualification that when the defendant
would receive payment from Adhunik Power, the defendant would pay the
plaintiff. The plaintiff has relied upon an arbitral award in favour of the
defendant, where under the defendant had received payment over a sum of
rupees seven crores from Adhunik Power. But the award does not specifically
reveal that price of goods sold and supplied by the plaintiff to Adhunik Power
on behalf of the defendant or under the contract which was entered into by
and between the plaintiff and the defendant had been received by the
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defendant. Thus, the said award cannot be accepted as an unimpeachable
evidence to show that the price of goods sold and supplied by the plaintiff had
been received by the defendant under the said award from Adhunik Power, at
this summery stage. In addition to the above, the defendant had also allegedly
raised certain objection with regard to specification of goods supplied by the
plaintiff to Adhunik Power.
55. On a cumulative assessment of all these facts, this court finds that there is no
clear admission of quantum of indebtedness or liability by the defendant
towards the plaintiff. This court also finds that sufficient admissions are there
on the part of the defendant that the plaintiff had sold and delivered goods to
Adhunik Power. The defendant had also not denied the fact that initially
under the contract by and between the plaintiff and the defendant, the goods
were sold and supplied by the plaintiff on behalf of the defendant. In the
above facts situation even though this court in exercise of its discretion
refuses to pass any judgment on admission but this court cannot oversight
the expression used under Rule 6 to Order XII of the Code to the effect “—-
make such order or give such judgment as it may think fit having
regard to such admission…”.
56. Sub-Section (9) to Section 2 of the Code defines that judgment means the
statement given by the judge on the grounds of a decree or order. Sub-Section
(2) to Section 2 of the Code defines that decree means the formal expression of
an adjudication which, so far as regards the court expressing it, conclusively
determines the rights of the parties with regard to all or any of the matters in
controversy in the suit. Sub-Section (14) to Section 2 defines that order
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means the formal expression of any decision of the Civil Court which is not a
decree.
57. In the light of the above definitions provided under the Code, if the provision
under Rule 6 to Order XII of the Code is read, in its considered opinion this
court finds that, even if the court refuses to pass a judgment on admission,
the court is empowered to make such order as it may think fit, having
regard to such an admission. The expression order as defined under the
Code, while reading the provision under Order XII Rule 6 of the Code should
be read and construed as a formal expression of any decision but not a decree
having regard to such an admission. The decree is final but the order can be
an interim one pending decree and an interim order is always tentative which
may be varied or modified or even be recalled or set-aside at the time of
pronouncing decree. Interim order merges with the final decree. Thus, this
court also finds that the said expression to make such order shall not be
construed as an order of dismissal of the application filed by the plaintiff
praying for judgment upon admission. But an order which the court may
think fit to pass in exercise of its discretion having regard to the admission. It
is the natural consequence in law that if a court can pass an order allowing
an application, the court is also empowered to reject the application,
therefore, the order of dismissal/rejection of an application should not and
cannot construed as the order having regard to admission within the meaning
of expression to make such order as provided under Rule 6 to Order XII of
the Code.
58. The object of Order XII Rule 6 of the Code is to enable the party to obtain a
speedy judgment at least to the extent of the relief, to which according to the
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22
admission of the defendant, the plaintiff is entitled. Right to defend a suit
during trial is a vested right of the defendant, where the defendant can get an
opportunity to dislodge the claim of the plaintiff. However, if the admission
on the part of the defendant is unequivocal and of an unimpeachable in
nature of its liability towards the plaintiff, then the plaintiff would be entitled
to a judgment upon admission against the defendant where the defendant
would not get an opportunity to participate in the trial. This is an exception to
the general rule of trial. Therefore, the provision under Order XII Rule 6 must
be construed strictly and in its literal meaning, there shall be no scope for any
purposive interpretation of the rule. Therefore, the object and purpose of the
provision laid down under Rule 6 to Order XII of the Code does not permit any
purposive construction.
59. The law before promulgation of the Commercial Courts Act, 2015 (hereinafter,
C. C. Act) was well-settled for granting attachment before judgment and
directing the defendant to secure the claim of the plaintiff. The legal principle
directing the defendant to secure the claim of the plaintiff, in an appropriate
case, had undergone sea change in a commercial dispute as held by the
Hon’ble Supreme Court In the matter of: Rahul S. Shah (supra) in
paragraph 42.7 thereunder.
60. Even otherwise and in any event, as narrated above, this court is
independently empowered and armed with the jurisdiction under Order XII
Rule 6 of the Code to direct the defendant to secure the claim of the plaintiff
in an appropriate case.
61. The judgment In the matter of: Shailesh Dhairyawan (supra) is a decision
rendered under the Arbitration and Conciliation Act. The provision under
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Order XII Rule 6 of the Code is a specific statutory provision where it has been
categorically held in catena of judgments that the rule should be construed
strictly and in its literal sense and not in a purposive manner. Therefore, the
ratio laid down in the said judgment would not apply in the facts and
circumstances of this case.
62. The judgment In the matter of: The Principal Secretary, Health and
Family Welfare Department, Govt. of NCT of Delhi & Anr. (supra) was
delivered while interpreting provisions under Medical Termination of
Pregnancy Act, 1971 and not under Order XII Rule 6 of the Code which is a
specific statutory provision. Hence, the ratio decided in the judgment would
not apply in the facts of the instant case.
63. In the matter of : IDBI Trusteeship Services Ltd.(supra) the judgment was
delivered to lay down the principle for leave to defend in a summary suit filed
under Order XXXVII of the Code. The ratio laid down would not apply in the
facts and circumstances of this case which is under another specific provision
of the Code Order XII Rule 6.
64. The ratio laid down In the matter of: Balraj Taneja & Anr. (supra) arose
out of Order VIII Rule 10 of CPC. The ratio shall not apply in the facts and
circumstances of this instant case under Order XII Rule 6 of the Code.
65. The rest of the judgments relied upon by the defendant are on the object and
purpose of Order XII Rule 6 of the Code and the same have set down the
principles which are already settled.
66. The defendant has specifically admitted the transaction with the plaintiff
followed by the contract for sale of goods executed by and between the
plaintiff and the defendant. The defendant has also admitted its liability to the
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plaintiff but with a qualification that if the defendant receives payment from
Adhunik Power, it will pay to the plaintiff. Thus, this court finds that though
the defendant has admitted its liability but since the same is coupled with the
qualifying statement, the same cannot be construed and accepted by this
court as a clear and unequivocal admission of quantum of liability on the part
of the defendant towards the plaintiff within the meaning and scope of Rule 6
to Order XII of the Code. However, this court holds that this court is
empowered to make such order as it may think fit having regard to such
admission on the part of the defendant in exercise of its discretion.
67. In view of the foregoing reasons and discussions, this court holds that there
should not be any judgment upon admission in the facts and circumstances
of this case against the defendant, as prayed for by the plaintiff.
68. This court further holds that the defendant shall secure the principal claim of
the plaintiff to the extent of Rs.75,20,239/- with the Registrar, Original Side
of this court.
69. Accordingly, following directions are passed:-
(1) The defendant shall secure a sum of Rs.75,20,239/-
positively within a period of six weeks from date with the Registrar
Original Side;
(2) In the event such deposit is made, the Registrar, Original Side
shall invest the same in an interest bearing fixed deposit account
with State Bank of India, High Court SPB Branch, Kolkata and
shall prepare a report and keep the same in the original suit file.
70. In default of furnishing security, there shall be a decree for a principle sum of
Rs.75,20,239/-. Since the interest is not an agreed rate as claimed in the
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plaint neither any statutory interest, the same is left to the discretion of the
court and the defendant shall pay interest @ 8% per annum on the said
principal amount on and from November 3, 2021 (settlement agreement at
page 148 to the petition) till the date of payment of the sum to the plaintiff.
71. With the above observations and directions, the instant application being IA
NO. GA-COM 7/2025 stands disposed of.
(Aniruddha Roy, J.)
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In CS-COM/61/2024
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