1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4038 OF 2005 IN SUIT NO.2890 OF 2005 ASIAN PAINTS (INDIA) LTD. ..PLAINTIFF VS. TRINITY ENTERPRISES & ORS ..DEFENDANTS Ms.Cynthia Pereira i/b Rajani Associates for the Plaintiff Mr. Dipesh U. Siroya for the Defendants CORAM: Smt. ROSHAN DALVI, J. DATED : 8th APRIL, 2009 P.C.: 1.This notice of Motion is taken out for judgment on the admission under the provisions of order 12 Rule 6 of the CPC. The amount admitted by the Defendants jointly and severally to be paid to the Plaintiff which is sought to be recovered by the Plaintiff is a sum of Rs.12,12,707/- with interest thereon. 2 2.There appears to be several transactions that took place between the Plaintiff and the Defendants as well as between the Plaintiff and Defendants' sister concern. The partner of the Defendants was the same as a partner of Defendants' sister concern. One partner Bharat patel is a relevant partner who has signed on behalf of the Defendants certain minutes of the meeting that were held with regard to the amount payable by the Defendants. 3.Exhibit A to the Notice of Motion is a summary of discussion in the handwriting of Bharat Patel, the partner of Defendant No.1. 4.Exhibit C to the Notice of Motion is the record of what transpired at the meeting with regard to the payment of the outstanding dues of both the concerns, the Defendants and their sister concern, signed by Bharat Patel as a partner of the Defendants. This is contained in the letter dated 03.07.2003 shown as Exhibit C to the Notice of Motion and Exhibit F to the Plaint. Under this letter a liquidated amount of Rs.11,92,382/- is shown to be payable by Bharat Patel as a partner of the Defendants. The precise admission of the liability runs thus: ' 'With this deduction the amount payable by us to you will 3 stand Rs.11,92,382/-' ' . In the said letter the Defendants have called upon the Plaintiff to confirm this amount and upon confirmation, the account was to stand closed and settled, on payment of the amounts and cheques as detailed above would be handed over to the Plaintiff immediately on receipt of the confirmation. That clause in the letter dated 03.07.2003 runs thus : ''Should the proposal be acceptable to Asian Paints, please send us a confirmation stating that our account will stand as closed and settled on our payment of the amounts as stated above. Cheques as detailed above will be handed over to the you immediately on receipt of your confirmation.'' 5.The admission of liability is clear unequivocal and unambiguous. It is of the liquidated amount. 6.The Plaintiff by their letter dated 18.07.2003 in reply to the Defendants letter dated 03.07.2003 stated that the offer of Rs.11,92,382/- was not acceptable to them but confirmed that outstanding payment after considering all issues was Rs.12,12,707/- as on date of that letter. The confirmation which was required by the Defendants was not unequivocally accepted by the Plaintiff. Hence the cheque which was to be 4 handed over immediately on receipt of confirmation was not handed over. 7.The Plaintiff's claim that the Defendants have admitted the liability of Rs.12,12,707/-. That admission is not shown. However, admission of liability to the extent of Rs.11,92,382/- is shown, in the Defendants' letter dated 03.07.2007, even though in the Plaintiff' s letter dated 11.07.2003 the confirmation which was required for handing over the cheque immediately, was not made, the admission of liability falls squarely within the ambit order 12 Rule 6 of the CPC. The court, is, therefore, enjoined to pass judgment upon such admitted liability. 8.It is claimed that the Defendants propose to file a counter claim. The Accounts have been taken in 2003. The suit has been filed in 2005. The Counter Claim would be barred by law of limitation. 9.It is claimed that the Defendants have raised issues which would require evidence. 10.The issue requiring evidence upon the admitted amount of liability is to be shown. The Defendant's Advocate states that 5 the issue is that this admission of liability is made not only by the Defendant firm but also by the sister concern. It is reflected in the Defendant's letter dated 03.07.2003 itself. The letter is signed by the same partner on behalf of both the firms. Nevertheless the liability is admitted and once that amount is paid it would tantamount to discharge not only the Defendants but also for the sister concern, because the liability is admitted jointly by both the firms. That is not the reason for the admitted liability not to be discharged. 11.The Defendant has relied upon three judgments; State Bank of India Vs. Midland Industries & ors, AIR 1988 DELHI 153; Naresh Jain Vs. Krishna Rani, 2002 A I H 2573; Western Coalfields Ltd. Vs. Swati Industries CDJ 2003 BHC 1467; which considered issued under order 12 Rule 6 of CPC. What the judgments have decided is that when there are objections that go to the very root of the case or when the Defendants have denied the allegations about the admission of liability or the specific case of the Plaintiff or when they have denied title, value of the work executed, the liquidated figure, the judgment need not be passed. That is clear, however the judgment on a liquidated liability admitted by the Defendant is required to be passed. In this case that was not be for the amount mentioned in prayer (a) 6 of the Notice of Motion but for the amount mentioned in the letter dated 03.07.2003 of the Defendant. 12.Hence the following order: There shall be a judgment on admission under the provisions of Order 12 Rule 6 of the CPC for a sum of Rs.11,92,382/-. The Defendant shall pay the said amount with interest at 6% p.a. from the date of the judgment until realisation. (Smt. Roshan Dalvi, J)