Summary of Judgement

The Judgement

(Per FIRDOSH P. POONIWALLA,J.):-

The present Appeal has been filed against the Order dated 28th April, 2023 passed by a learned Single Judge of this Court in Notice of Motion No.2393 of 2019 in Comm. Suit No.1067 of 2019, whereby, a decree on admission is granted in favour of Respondent Nos. 1 & 2 (Original Plaintiffs) against the Appellants and Original Defendant No.3 for a sum of Rs.4.25 Crores.

2 For the sake of convenience, in this Order, the parties are being referred to as they are described in the suit.

3 The suit in question was filed praying for the following final reliefs:-

“ To decree the suit and pass judgment in the sum of Rs.22,66,86,579.52 as against the Defendant along with interest @ 18% p.a. on Rs.16,37,24,008/- (being sum total of principal amount of (1) Rs.4,37,24,008.00, (2) Rs.5,00,00,000.00 and (3) Rs.7,00,00,000.00) or any other rate of interest as this Hon’ble Court deem fit and proper, from the date of filing of the suit till payment or realization.”

4 The sum of Rs.22,66,86,579.52 claimed by the Plaintiffs comprises of the following:-

PARTICULARS OF CLAIM

5 In the suit, the Plaintiffs filed a Notice of Motion No.2393 of 2019, claiming the following final reliefs:-

“a. That this Hon'ble Court be pleased to pass judgment on admission as against the Defendants to the extent of Rs.4.25 crores;

b. That this Hon'ble Court be pleased to permit the Applicant to withdraw the amount of Rs.4.25 crores deposited by the Defendants pursuant to the order dated 8th July, 2019 passed in Notice of Motion (L) No.1031 of 2019 in the present matter, upon such terms and condition as this Hon'ble Court deem fit and proper;

c. That this Hon'ble Court be pleased to take appropriate action as against the Defendants as per Law and/or in terms of Order 39 Rule 2A of the CPC for willfully violating the reliefs at (b), (d) & (e) granted by this Hon'ble Court vide order dated 8th July, 2019 in Notice of Motion (L) No.1031 of 2019: d. Interim and ad-interim relief in aforesaid terms be granted.”

6 The case of the Plaintiffs in support of the prayers sought by them in the Notice of Motion, is as under:-

(i) The Plaintiff No.1 was to originally buy Duplex Flat No.501 in the Defendant’s project known as Orchid situated in Juhu, Mumbai (for short “the said flat”). The Defendants had cheated Plaintiff No.1 and also various other Societies as more particularly stated in the plaint. Various Orders have been passed by this Court deprecating the conduct of the Defendants. In fact, the flat, the Defendants wanted to sell to Plaintiff No.1, was also attached by the Income Tax Department on account of non-filing of returns and non-payment of taxes by the Defendants, and, moreover, had also been sold to a third party.

(ii) Realizing that the Defendants had cheated Plaintiff No.1, Plaintiff No.2, as a Power of Attorney holder of Plaintiff No.1, lodged a complaint with the Juhu Police Station which was registered as C.R. No. 352 of 2016 against the Defendants. The said CR is being investigated by the Economic Offence Wing of the Mumbai Police.

(iii) Upon coming to know about the FIR filed against them, Defendant Nos. 2 & 3 approached the Sessions Court at Mumbai seeking Anticipatory Bail by filing ABA No.1291 of 2016. By an Order dated 20th July, 2016, interim protection against arrest was granted to Defendant Nos. 2 & 3 by the Sessions Court. In the said ABA, Plaintiff No.2 had filed an Intervention Application, and by an Order dated 24th October, 2016, the Sessions Court allowed the Intervention Application of Plaintiff No.2 and permitted the Plaintiff No.2 to participate and file written arguments in the matter.

(iv) During the course of hearing, the Investigating Officer informed the Court on 15th November, 2016 that Defendant Nos. 2 & 3 were not attending the Police Station and were not cooperating in the investigation. On 21st November, 2016, the Advocate representing Defendant Nos. 2 & 3 made a statement that Defendant Nos. 2 & 3 were ready and willing to refund the entire amount to the Plaintiff but due to current market situation, they would not be able to pay in one go. The same was recorded in a Roznama dated 15th November, 2016.

(v) The ABA was finally heard by the Sessions Court and by an Order dated 3rd December, 2016, the ABA was rejected. The request to continue the ad-interim relief was also turned down. Though the Defendants showed inclination to return the amount to the Plaintiffs, however, they did not return the said amount.

(vi) Since the application for Anticipatory Bail stood rejected by the Sessions Court, Defendants filed Criminal Anticipatory Bail Application Nos. 2103 of 2016 and 2099 of 2016 before this Court seeking anticipatory bail. In an Order dated 22nd June, 2017 passed on the said Criminal Anticipatory Bail Application, this Court recorded the statement of Defendant Nos. 2 & 3 that they were ready to refund the amount of Rs.4.25 Crores to the Plaintiffs.

(vii) Plaintiff No.2 have come to know about the said Criminal Application filed by the Defendants,Plaintiff No.2 filed Criminal Application No.379 of 2017 for intervention in the matter. By an Order dated 3rd May, 2017, such Criminal Application was allowed and Plaintiff No.2 was permitted to intervene in the matter. (viii) In the Criminal Application filed in this Court, the Defendants had annexed a purported Draft Agreement for Sale in respect of Flat No.501 for a lump-sum consideration of Rs.6.5 Crores. It was falsely contended in the said Criminal Application that Plaintiff No.1 did not come forward to execute the Agreement. The Plaintiffs deny that Plaintiff No.1 did not come forward to execute any Agreement and state that Plaintiff No.1 was never called for execution of any Agreement.

(ix) Further, on making enquiries with the Sub-Registrar of Assurances, the Plaintiffs found out that the Defendants had infact sold the said flat (Flat No.501) to one Mr. Brij Vallabh Chandak, by way of a registered Agreement for Sale dated 13th March, 2015 for a total consideration of Rs.3.17 Crores and had accepted Rs.50 lakhs as an advance. The Defendants suppressed these facts from the Court when they applied for Anticipatory Bail.

(x) Thereafter, ultimately, Criminal Anticipatory Bail Nos. 2099 of 2016 and 2103 of 2016 were rejected by this Court by an Order dated 4th July, 2018.

(xi) Thereafter, Defendant Nos. 2 & 3 filed Criminal Application No.834 of 2016 in Criminal Anticipatory Bail No. 2099 of 2016 and Criminal Application No.870 of 2018 in Criminal Anticipatory Bail No.2103 of 2016 for restoration of the respective Anticipatory Bail Applications. By a common Order dated 27th March, 2019, both the Anticipatory Bail Applications were restored. Thereafter, the aforesaid Applications for Anticipatory Bail were taken up for hearing by this Court and, by a detailed Order dated 30th April, 2019, the same were rejected.

(xii) After the dismissal of the said Applications for Anticipatory Bail, Defendant Nos. 2 & 3 were arrested on 18th May, 2019. Defendant Nos.2 & 3 applied for Regular Bail vide Bail Application Nos. 120 of 2019 and 121 of 2019 before the learned Additional Chief Metropolitan Magistrate’s 47th Court at Esplanade, Mumbai, and by an Order dated 23rd July, 2019, Defendant Nos. 2 & 3 were released on bail.

(xiii) The present suit was filed on 11th March, 2019. In the present suit, Notice of Motion (L) No.1031 of 2019 was also moved, and by an Order dated 8th July, 2019, Defendant Nos. 2 & 3, were inter alia, directed to deposit an amount of Rs.4.25 Crores within four weeks with the Prothonotary & Senior Master of this Court in order to secure the interest/ claim of the Plaintiffs.

(xiv) Thereafter, all the Defendants filed an Appeal, being Appeal No. 428 of 2019, impugning the Order dated 8th July, 2019 and moved a Notice of Motion No.755 of 2019 in the said Appeal for urgent ad-interim reliefs before the Appellate bench of this Court on 5th September, 2019.

(xv) The said Appeal was taken up for hearing and, after making submissions for some time, the Advocate for the Defendants withdrew the Appeal with liberty to approach the learned Single Judge of this Court.

(xvi) The amount of Rs.4.25 crores is deposited by the Defendants but the Defendants have not complied with the other directions as contained in the Order dated 8th July, 2019 passed by this Court. It was therefore in the fitness of the case that this Court be pleased to pass a decree on admission against the Defendants to the extent of Rs.4.25 crores, as admitted in judicial proceedings before this Court as well as the Sessions Court and permit the Plaintiffs to withdraw the same.

7 By the impugned Order dated 28th April, 2023, the learned Single Judge, considering the admissions made on behalf of the Defendants as recorded in the Letter of Allotment dated 12th September, 2014, the Roznama dated 21st November, 2016 of the Sessions Court and in Order dated 22nd June, 2017 passed by this Court, granted a decree on admission against the Defendants and in favour of the Plaintiffs. Paragraphs 11 to 16 of the impugned Order dated 28th April,2023 read as under:-

“11 All this has also been taken note of by this Court in its order dated 30th April 2019 passed in the above Anticipatory Bail Application Nos.2099 of 2016 and 2103 of 2016 which were ultimately disposed of by this Court. When one looks at all this material, there is no doubt that at least to the extent of Rs.4.25 Crores, the Defendants have unequivocally admitted their liability to Plaintiff No.1;

12 I agree with Mr. Vashi that merely because a liability is admitted, does not mean that the Plaintiffs/Applicants would be entitled to a decree as a matter of right. It is at the discretion of the Court to grant such a relief or otherwise I also agree with Mr. Vashi that any admission has to be read as a whole and not in isolation. I do not think that there can be any dispute with the aforesaid propositions. However, in the facts of this case, I do not think that these propositions in any way assist Mr. Vashi. In the facts of the present case, as mentioned earlier, there are unequivocal admissions by the Defendants. The first admission is in the Letter of Allotment dated 12th September 2014. The second admission is in the order passed by the Sessions Court on 21" November 2016, and the third admission is in the order passed by this Court on 22nd June 2017. Once there are clear and unequivocal admissions on the part of the Defendants, without anything more, it would be unjust on the part of the Court not to exercise its discretion to pass a decree in favour of Plaintiff No.1. I am not in agreement with Mr. Vashi that the Defendants were coerced into making these admissions. If the Defendants made these statements/admissions before the Court to avoid arrest/get bail, does not mean they were coerced into making these statements. These statements were made through advocates appearing on their behalf and who understood the legal implications of making such statements. If I was to accept the submission of Mr. Vashi on this aspect, it would mean that I would be allowing the party to renege from the solemn statements made before the Court. This submission, therefore, has no merit and is rejected.

13 As far as the argument regarding the claim in the suit being time barred is concerned, I find absolutely no merit in the aforesaid argument. As mentioned earlier, on 12th September 2014, the Defendants confirmed and unequivocally admitted that they have received a sum of Rs.4.25 Crores from Plaintiff No.1. The second admission was in the order dated 21" November 2016 passed by the Sessions Court and third admission was in the order dated 22 June 2017 passed by this Court. Even if, for the purposes of the Limitation Act, 1963, these admissions are treated as acknowledgments, then, the period of limitation automatically stood extended by virtue of Section 18 of the Limitation Act, 1963. The admissions made were unqualified admissions, and now, to get out of these admissions, it is sought to be submitted that the statement made on 21 November 2016 was a without prejudice offer and the advocates for Defendant Nos.2 and 3 made the offer only for settlement purposes. Since the Roznama did not record it correctly, an application for modifying the Roznama was filed before the Sessions Court. What is important to note is that the aforesaid application, and which was filed by Defendant No.2, was rejected by the Sessions Court vide its order dated 3rd December 2016. Hence, even this argument is of no assistance to Mr. Vashi.

14 Considering all these circumstances, I am of the view that Plaintiff No.1 is entitled to a decree on admission against the Defendants to the extent of Rs.4.25 Crores. At what rate Plaintiff No.1 would be entitled to interest would be decided at the time of hearing and final disposal of the Suit.

15 Since the amount of Rs.4.25 Crores has already been deposited in this Court on 24th July 2019, Plaintiff No.1 (through his Constituted Attorney) is permitted to withdraw the amount of Rs.4.25 Crores in terms of the decree passed hereinabove.

16 The above Notice of Motion is disposed of in the aforesaid terms. However, there shall be no order as to costs.”

8 Mr. Chetan Kapadia, learned Senior Advocate appearing on behalf of the Appellant (Defendant Nos. 1 & 3 in the suit), assails the impugned Order dated 28th April, 2023 on various grounds.

9 Mr. Kapadia submitted that a decree on admission can be granted when the admissions are unequivocal. He submitted that, in the present case, the admissions are not unequivocal. In this context, Mr. Kapadia referred to the letter of allotment dated 12th September, 2014 issued by the Defendants to Plaintiff No.1 and submitted that the said letter of allotment only confirmed that the Defendants had received an amount of Rs.4.25 cores towards sale price of flat No.501 in building known as Orchid situated in Juhu, Mumbai and the said letter did not in any manner contain any admission that the said sum of Rs.4.25 crores was payable back by the Defendants to the Plaintiffs. Mr. Kapadia submitted that, therefore, the reliance by the learned Single Judge on the said letter for passing a decree of admission is erroneous.

10 Next, Mr. Kapadia referred to the Roznama dated 21st November, 2016, which refers to the statement of the Advocate representing Defendant No.2 that he was ready to pay the entire amount but in view of the present market situation he was unable to pay the entire amount in one stroke. Mr. Kapadia pointed out that, by an Application dated 29th November, 2016 filed in the Sessions Court, Defendant No.2 had applied for modification of the said Roznama dated 21st November, 2016 and for deletion of the said statement wherein it was stated that Defendant No.2 was ready to pay the entire amount, on the ground that same was made inadvertently. Mr. Kapadia submitted that, although, by an Order dated 3rd December, 2016 passed by the Sessions Court, the same was rejected, the filing of the said Application for modification by Defendant No.1 showed that the admission was erroneously made. Mr. Kapadia submitted that this clearly demonstrated that the so-called admission was not unequivocal and, therefore, a decree on admission would not have been passed on the basis of the said admission.

11 Next Mr. Kapadia referred to the Order dated 22nd June, 2017 passed by this Court, wherein a statement as made by the learned Counsel for Defendant Nos, 2 & 3 was recorded stating that the Defendant Nos. 1 and 2 were ready to return the entire amount of Rs.4.25 crores to the Plaintiffs or were ready to hand over flat No.601 in the very same building, provided the Plaintiffs pay the balance amount of Rs.2.24 crores. Mr. Kapadia next refers to an Order dated 18th July, 2017 passed by this Court in Anticipatory Bail Application Nos.2103 of 2016 and 2099 of 2016 filed on behalf of Defendant Nos. 2 & 3 respectively, wherein, it was recorded by this Court that settlement was not possible. Mr. Kapadia submitted that the said Order dated 18th July, 2017 clearly shows that the statement recorded in the Order dated 22nd June, 2017 was made in aid of settlement. Mr. Kapadia submitted that the said explanation that the statement recorded in the Order dated 22nd June, 2017 was made in aid of a settlement was required to be considered at the trial of the suit. He points out that such contention was made by Defendant Nos. 1 & 2 in paragraph 8 of the Counter Claim filed by them. Mr. Kapadia submitted that the explanation given by the Defendants was not so unbelievable that the Defendants were not entitled to explain the same at the trial of the suit. Mr. Kapadia submitted that such an admission could have been explained by the Defendants. Mr. Kapadia submitted that, in these circumstances, the Defendants ought to have been granted an opportunity to explain this admission at the trial of the suit and no decree of admission could have been passed by this Court.

12 Next Mr. Kapadia submitted that in paragraph 11 of the impugned Order, the learned Single Judge has referred to the Order dated 30th April, 2019 passed in Anticipatory Bail Application Nos. 2099 of 2016 and 2103 of 2016. Mr. Kapadia referred to an Order dated 18th October, 2019 passed by the Supreme Court in the SLP filed against the said Order dated 30th April, 2019, whereby the Supreme Court has observed that the observations contained in the Order dated 30th April, 2019 were confined to the disposal of the Application for Anticipatory Bail and shall not affect the rights and contentions of the parties in other proceedings. Mr. Kapadia submitted that thus Order dated 30th April, 2019 passed by this Court has been restricted in its scope by the orders passed by the Supreme Court. Mr. Kapadia submitted that, whilst passing a decree on admission, the learned Judge failed to realize this.

13 Mr. Kapadia next submitted that prayer for decree on admission was beyond the final prayers in the suit. In this context, Mr. Kapadia submitted that by prayer (a) in the plaint the Plaintiff had sought for a decree only against “the Defendant”. It is hence submitted that when the Plaintiff had sought relief against only one Defendant, the learned Judge ought not to have passed a decree on admission against all the Defendants, which was clearly beyond the relief sought in the suit. Mr. Kapadia submitted that, for this reason also, the impugned Order is required to be set aside.

14 Mr. Kapadia next submitted that all the admissions relied upon by the learned Judge have been made by Defendant Nos. 2 & 3 and not by Defendant No.1, which is a Company. In this context, he submitted that the so-called admission made in Roznama dated 21st November, 2016 was made by the Advocate representing Defendant No.2 only. He submitted that, therefore, even if it is stated as an admission, the same can be an admission by Defendant No.2 and not by Defendant Nos. 1 & 3. Mr. Kapadia further submitted that the so-called admission in Order dated 22nd June, 2017 was also made only on behalf of Defendant Nos. 2 & 3 and not on behalf of Defendant No.1. Mr. Kapadia submitted that, in these circumstances, no decree on admission could have been passed against Defendant No.1. He submitted that the impugned Order, to the extent it grants a decree on admission against Defendant No.1, is, therefore, erroneous and is required to be set aside.

15 Next, Mr. Kapadia referred to the provisions of Section 79 of the Real Estate (Regulation and Development) Act, 2016 (RERA) and submitted that Section 79 thereof barred the jurisdiction of the Civil Courts in entertaining any suit or proceedings in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under RERA to determine. Mr. Kapadia submitted that the present suit has been filed seeking relief in respect of the amount paid to Defendant No.1, which was a developer and said relief clearly fell within the jurisdiction of RERA. In these circumstances, this Court, by virtue of the provisions of Section 79 of RERA Act, had no jurisdiction to entertain the present suit or grant any ad-interim relief.

16 Next Mr. Kapadia submitted that, even if the statements recorded in the Roznama dated 21st November, 2016 and the Order dated 22nd January, 2017 are considered as an acknowledgment of liability for the purpose of saving limitation, the said acknowledgment of liability has been made only by Defendant Nos.2 & 3 and, therefore, the suit against Defendant No.1 is clearly barred by law of limitation. The learned Judge hence ought not to have held that the Suit was not barred by limitation.

17 In support of his submissions that a decree on admission can be granted only when the admissions are unequivocal, Mr. Kapadia relied upon the judgements of the Supreme Court in Karan Kapoor v/s. Madhuri Kumar 1 , Himani Alloys Limited v/s. Tata Steel Limited 2 , Satish Chandra Ahuja v/s. Sneha Ahuja 3 and S. M. Asif v/s. Virendra Kumar Bajaj 4 .

18 On the other hand, Mr. Gauraj Shah, the learned Counsel for the Respondents, supported the Order dated 28th April, 2023 and submitted that, by the said Order, the learned Single Judge had granted a decree on admission on the basis of categorical admissions made by the Defendants and, therefore, no interference with the said Order is warranted.

19 In support of his submissions, Mr. Shah referred to paragraph 7 of the Order dated 30th April, 2019 passed in Anticipatory Bail Application Nos. 2099 of 2016 and 2103 of 2016 and submitted that, in the said paragraph, it is recorded that the Defendants were even ready to file an undertaking to the effect that they were ready to return the entire sum of Rs.4.25 Crores to the 1(2022) SCC 496 2(2011) 15 SCC 273 3 (2021) 1 SCC 414 4(2015) 9 SCC 287 Plaintiffs. Mr. Shah submitted that this clearly shows that what was recorded in the Order dated 22nd June, 2017 was a categorical admission on the part of the Defendants.

20 Next, Mr. Shah referred to the Order dated 8th July, 2019 passed by a learned Single Judge of this Court in Comm. Notice of Motion (L)No.1031 of 2019 in Comm. Suit (L) No. 339 of 2019 and, in particular, paragraph 14 thereof, whereby, the Defendants were, inter alia, directed to deposit an amount of Rs.4.25 Crores within four weeks with the Prothonotary & Senior Master in order to secure the interest/ claim of the Plaintiff. Mr. Shah submitted that the said Order had directed all the Defendants to deposit the said amount of Rs.4.25 Crores and not only a single Defendant. He submitted that the same clearly showed that the argument made on behalf of the Defendants that the prayer for decree on admission is beyond the final prayers in the suit, as prayer (a) of the suit seeks a decree only against one Defendant, cannot be accepted.

21 Mr. Shah next referred to an Order dated 23rd July, 2019 passed by the Court of the Additional Chief Metropolitan Magistrate’s 47th Court, Esplanade, Mumbai in Bail Application Nos.120/BA/2019 and 121/BA/2019 filed by Defendant Nos. 2 & 3. Mr. Shah drew our attention to paragraph 11 of the said Order which records that it was prayed by Defendant Nos. 2 & 3 that they were willing to deposit the said amount of Rs.4.25 Crores as a security as condition for bail. Mr. Shah submitted that the same also shows that the judgements relied upon by the learned Single Judge were categorical and a decree could be passed thereon.

22 Further, relying on the judgement of the Supreme Court in Delhi Development Authority v/s. Skipper Construction Co.(P) Ltd., & Others 5, 5(2000) 10 SCC 130 Mr. Shah submitted that the period of limitation for enforcing the claims of the Plaintiff was 12 years by virtue of Article 62 of the Limitation Act, 1963, and, therefore, the claim of the Plaintiff was not barred by the law of limitation, as contended on behalf of the Defendants.

23 In the context of the submissions of Mr. Kapadia that, in the light of the provisions of Section 79 of RERA, this Court had no jurisdiction to entertain the present suit or grant any relief. Mr. Shah submitted that the present suit is not seeking mere refund of the amount paid by the Defendants to the Plaintiff but also seeks special damages and, therefore, proceedings in this regard could not have been filed before the RERA Authority. Further, Mr. Shah also submitted that since no Agreement for Sale was executed under MOFA or RERA, RERA would have no jurisdiction. Mr. Shah submitted that, in these circumstances, this Court definitely had jurisdiction to entertain the present suit.

24 Mr. Shah finally submitted that there was no merit in the Appeal and the same ought to be dismissed. ANALYSIS

25 We have heard the learned Counsel for the parties and perused the documents on record.

26 Before considering the rival contentions of the parties, in our view, it would be appropriate to set out the law on decree on admission as laid down by the four judgements of the Supreme Court relied upon by Mr. Kapadia.

27 Paragraphs 23, 24, 33, 34 & 35 of the judgements in Karan Kapoor (supra) are relevant and read as under:-

“23. 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 judgment as it may think fit having regard to such admission.

24. Thus, legislative intent is clear by using the word “may” and “as it may think fit” to the nature of admission. The said power is discretionary which should be only exercised when specific, clear and categorical admission of facts and documents are on record, otherwise the court can refuse to invoke the power of Order 12 Rule 6. The said provision has been brought with intent that if admission of facts raised by one side is admitted by the other, and the court is satisfied to the nature of admission, then the parties are not compelled for full-fledged trial and the judgment and order can be directed without taking any evidence. Therefore, to save the time and money of the court and respective parties, the said provision has been brought in the statute. As per above discussion, it is clear that to pass a judgment on admission, the court if thinks fit may pass an order at any stage of the suit. In case the judgment is pronounced by the court a decree be drawn accordingly and parties to the case is not required to go for trial.

33. Be that as it may, the arguments advanced by both the sides, in our view can be appreciated by the trial court by affording opportunity to them to lead evidence. As per the pleadings, there may be admission to the extent of execution of the lease agreement, rate of rent and monthly payment but simultaneously the defence taken by the defendant is also based on ATS-I, II and III. In view of the contents of those agreements and terms specified therein, the defence as taken by the appellant-defendant is plausible or not is a matter of trial which may be appreciated by the court after granting opportunity to lead evidence by the respective parties. There may be admission with respect to tenancy as per lease agreements but the defence as taken is also required to be looked into by the court and there is need to decide justiciability of defence by the full-fledged trial.

34. In our view, for the purpose of Order 12 Rule 6, the said admission is not clear and categorical, so as to exercise a discretion by the court without dealing with the defence as taken by defendant. As we are conscious that any observation made by this Court may affect the merit of either side, therefore, we are not recording any finding either on the issue of tenancy or with respect to the defence as taken by the defendant. We are only inclined to say whether the judgment and decree passed in exercise of the power under Order 12 Rule 6CPC is based on clear and categorical admission. In our view, the facts of the case in hand and the judgment in S.M. Asif are altogether similar, therefore, the ratio of the said judgment rightly applies to the present case.

35. Consequently, the judgment and decree passed by the trial court, as confirmed by the High Court, only on admission of fact without considering the defence in exercise of power under Order 12 Rule 6CPC is hereby set aside. The matter is remitted back to the trial court to decide the suit as expeditiously as possible affording due opportunity to the parties to record evidence that shall be appreciated by the court on merit.

28 Paragraph 11 of the judgement of the Supreme Court in Himani Alloys Limited (supra) is relevant and reads as under:- 11. 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. There is no such admission in this case.

29 Paragraph 8 of the judgement in S. M. Asif (supra) is relevant and reads as under:-

8. The words in Order 12 Rule 6 CPC “may” and “make such order …” show that the power under Order 12 Rule 6 CPC is discretionary and cannot be claimed as a matter of right. Judgment on admission is not a matter of right and rather is a matter of discretion of the court. Where the defendants have raised objections which go to the root of the case, it would not be appropriate to exercise the discretion under Order 12 Rule 6 CPC. The said rule is an enabling provision which confers discretion on the court in delivering a quick judgment on admission and to the extent of the claim admitted by one of the parties of his opponent's claim.

30 Paragraphs 93 to 95 and 106 of the judgement in Satish Chandera Ahuja (supra) are relevant and read as under:-

93. The question which is posed for the consideration is, whether the learned trial court was justified in passing the decree on alleged admission under Order 12 Rule 6 CPC or not. What is required to be considered is what constitutes the admission warranting the judgment on admission in exercise of powers under Order 12 Rule 6 CPC. Court had occasion to consider above in decisions Himani Alloys Ltd. v. Tata Steel Ltd. and S.M. Asif v. Virender Kumar Bajaj .

94. In Himani Alloys Ltd., this Court had an occasion to consider the scope and ambit of judgment on admission in exercise of powers under Order 12 Rule 6 CPC. It is observed and held in para 11 that being an enabling provision, it is neither mandatory nor preemptory but discretionary for the Court to pass judgment on admission in exercise of powers under Order 12 Rule 6 CPC. It is observed that 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. It is further observed that, 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. It is further observed and held that “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.

95. A similar view was expressed by this Court in S.M. Asif. It is observed and held in para 8 that the expression “may” in Order 12 Rule 6 CPC suggests that it is discretionary and cannot be claimed as of right. It is further observed that where the defendants raised objections which go to the root of the case, it would not be appropriate to exercise discretion under Order 12 Rule 6 CPC.

106. The power under Order 12 Rule 6 is discretionary and cannot be claimed as a matter of right. In the facts of the present case, the trial court ought not to have given judgment under Order 12 Rule 6 on the admission of the defendant as contained in her application filed under Section 12 of the DV Act. Thus, there is more than one reason for not approving the course of action adopted by the trial court in passing the judgment under Order 12 Rule 6. We, thus, concur with the view of the High Court that the judgment and decree of the trial court given under Order 12 Rule 6 is unsustainable.

31 The propositions of law as laid down in the aforesaid judgements are as follows:-

(a) Order 12 Rule 6 of the Code of Civil Procedure, 1908 (CPC) confers a discretionary power on the Court to pass a decree on admission. A decree on admission is not a matter of right;

(b) The said power should only be exercised when categorical admissions of facts and documents are on record;

(c) The admission should be a conscious and deliberate act of the parties, making it, showing an intention to be bound by it;

(d) Where the Defendants have raised objections which go to the root of the case, it would not be appropriate to exercise discretion under Order 12 Rule 6. 32 Keeping these principles in mind, we would have to consider as to whether the admissions relied upon by the learned Single Judge are categorical admissions and were a conscious and deliberate act of the Defendants, showing an intention to be bound by the said admissions.

33 In paragraph 12 of the impugned Order, the learned Single Judge relied upon three admissions, i.e., (i) the admission in the Letter of Allotment dated 12th September 2014, (ii) the admission in the order passed by the Sessions Court on 27th November 2016 and (iii) the admission in the order passed by this Court on 22nd June 2017.

34 The first admission relied upon by the learned Single Judge is the admission in the Letter of Allotment dated 12th September 2014 addressed by Defendant No.1 to Plaintiff No.2. The said Letter of Allotment reads as under:- “12 September, 2014 Mr. Sunil Anand, MumbaiRe: Flat No:501 In “Orchid” Dear Sir, We hereby confirm that we have received Rs.4,25,00,000/- (Four Crore Twenty Five Lakhs only) towards the sale price of Flat No:501, in building known as “Orchid” situated in Vile Parle (W), Juhu, Mumbai 400 049. Best Regards, For Siroya PM Constructions Private Limited Fatesh Mirchandani – Director”

35 In our view, the said Letter of Allotment does not contain any admission to the effect that a sum of Rs.4.25 crores is payable by the Defendants to the Plaintiffs. The said letter only confirms that the Defendants have received Rs.4.25 crores towards the sale price of Flat No.501 in building known as Orchid, situated in Vile Parle (W),Juhu, Mumbai 400 049 and does not contain any admission of liability on the part of any of the Defendants to make payment of the said amount. Hence, in our view, the contents of the said letter cannot be considered as an admission and no decree on admission can be passed on the basis of any of the contents of the said letter.

36 The second admission relied upon by the learned Single Judge is recorded in the Roznama dated 21st November 2016 of the Sessions Court. The admission relied upon by the learned Single Judge therein reads as under:- “…… Ad Mr. Mishra further stated that he is ready to pay entire amount but in view of present market situation he is unable to pay entire amount in one stroke….”

37 In our view, the aforesaid statement is a clear and categorical admission that the Defendants were ready to pay the entire amount of Rs.4.25 crores to the Plaintiffs. It is obviously a conscious and deliberate act on the part of the Defendants showing an intention to be bound by the said statement. For these reasons, in our view, the learned Judge has correctly relied upon the said statement as an admission and passed a decree on admission against the Defendants.

38 The third admission relied upon by the learned Single Judge is in the Order dated 22nd June 2017 passed by this Court in Criminal Anticipatory Bail Application Nos. 2103 of 2016 and 2099 of 2016 and reads as under:- “

1.Learned Counsel for both the Applicants state that the applicants are ready to return the entire sum of Rs.4,25,00,000/- to the complainant…..” This is also a clear and categorical admission.

39 In our view, these admissions are not only binding on Defendant Nos. 2 and 3, who were parties to the proceedings in which the said admissions were made, but are also binding on Defendant No.1. It is clear from the Letter of Allotment dated 12th September 2014 that the said sum of Rs.4.25 crores was received by Defendant No.1, and, hence, when Defendant No.2, through its Advocate made the said statement which is recorded in the Roznama dated 21st November 2016 of the Sessions Court and Defendant Nos. 2 and 3 made the said statement through their Counsel which is recorded in the said Order dated 22nd January 2017 of this Court that the said sum of Rs.4.25 crore would be repaid to the Plaintiffs, it is very clear that Defendant Nos. 2 and 3, as Directors of Defendant No.1, have agreed to pay the said amounts and therefore the admissions are binding on Defendant No.1 also. In these circumstances, in our view, the learned Single Judge rightly passed a decree on admission against the Defendants on the basis of admissions contained in the Order dated 21st November 2016 of the Sessions Court and the Order dated 22nd June 2017 of this Court.

40 We are unable to accept the submission of Mr. Kapadia that, since by an Application dated 29th November 2016 filed in the Sessions Court, Defendant No.2 had applied for modification of the said Order dated 21st November 2016 and for deletion of the statement wherein it was stated that Defendant No.2 was ready to pay the entire amount, on the ground that the same was made inadvertently, the same demonstrates that the admission made was not unequivocal and therefore a decree on admission could not have been passed on the basis of the said admission. First, the said Application itself was rejected by an Order dated 3rd December 2016 passed by the Sessions Court, which showed that there was no merit in the said Application. Further, in our view, the fact that Defendant No.2 had a rethink and wanted deletion of the said statement does not, in any manner whatsoever, show that the admission made was not unequivocal, as contended by Mr. Kapadia. In our view, on the contrary, the filing of the said Application for deletion of the said statement shows that Defendant No.2 was conscious that the statement sought to be deleted was an admission on his part. It is obvious that, being so aware and conscious, Defendant No.2 sought to have the said admission deleted so as not to be bound by it.

41 Further, we are also not able to accept the arguments of Mr. Kapadia that the Order dated 18th July 2017 passed by this Court showed that the statement recorded in the order dated 22nd June 2017 was made in aid of a settlement. First, the order dated 22nd June 2017 does not record that the said statement was made in aid of a settlement, as contended by Mr. Kapadia. In fact, the said order dated 22nd June 2017 further records that Defendant Nos. 2 and 3 were ready to file an undertaking in respect of the said statement on the next date. Therefore, Mr. Kapadia’s submission, that the said statement was made in aid of a settlement, cannot be accepted. Second, the fact, that it is recorded in the order dated 18th July, 2017 that settlement is not possible also does not mean that the statements made in the order dated 22nd June 2017 were in aid of a settlement. If, what is contended by the Defendant is correct, then the Defendants ought to have requested the Court to record in the order dated 18th July 2017 that the statements made by them in the order dated 22nd June 2017 were in aid of settlement, and since a settlement was not possible, they were no longer bound by it. No such attempt has been made on the part of the Defendants. For this reason also we cannot accept the said submission of Mr. Kapadia.

42 The next submission of Mr. Kapadia was that in paragraph 11 of the impugned order, the learned Single Judge had referred to the order dated 30th April 2019 passed in Anticipatory Bail Application Nos. 2099 of 2016 and 2103 of 2016. Mr. Kapadia submitted that in an order dated 18th October 2019 passed by the Supreme Court in the SLP filed against the said order dated 30th April 2019, the Supreme Court had observed that the observations contained in the order dated 30th April 2019 were confined to the disposal of the Anticipatory Bail Applications and would not affect the rights and contentions of the parties in other proceedings. We fail to understand as to how this would make any difference to the admissions which are contained in the Roznama dated 21st November 2016 passed by the Sessions Court and in the order dated 22nd June 2017 passed by this Court. In our view, the same has no effect on the said two admissions and, therefore, this submission of Mr. Kapadia also needs to be rejected.

43 We may also observe that a statement, solemnly made before a Court of law and recorded in the orders of the Court, certainly has the highest sanctity when it is in the nature of an explicit admission that the law would recognise. In such event, certainly such admission of a party as recorded in the Court’s order would have acceptability for the Court to pass a decree on admission, when the order of the Court recording such admission has remained valid and subsisting. In such eventuality, it would not be permissible for a litigant to take a stand contrary to such statement as recorded in the Court orders amounting to admission. A litigant cannot wriggle out from such admissions which are in the form of solemn statements recorded in the court orders, the orders being valid and subsisting. Thus to accept Mr. Kapadia’s contention, that the statements of the Defendants as recorded in the orders passed by the Sessions Court and this Court are required to be confined and/or regarded relevant only in respect of the criminal proceedings, cannot be accepted as it would not be the correct position in law. If such contention of Mr. Kapadia is accepted, it would bring about a situation that the statements made by the parties and recorded in the orders passed by the Court would have no sanctity and the litigant would be free to take different stands before different Courts. Such position can never be countenanced and, in fact, would lead to a brazen absurdity. For such reason, in our opinion, the plaintiff was correct in contending that the solemnity of the statements as made by the Defendants and recorded in the orders of the Court was relevant in the proceedings of the suit for the Court to pass a decree on admission. Also in this view of the matter, we are in agreement with the view taken by the learned Single judge in passing the impugned order.

44 This apart, the Court cannot be oblivious of the facts and circumstances of the case which constrained the Plaintiffs to approach the Court in the suit in question and seek reliefs in the suit, including the reliefs as prayed for in the notice of motion for a decree on admission. The Plaintiffs undoubtedly had parted with large amounts to purchase an abode from the Defendants. They were needy flat purchasers, and having parted with such substantial amounts, they had a legitimate expectation to be treated lawfully to be assuredly made available an allotment of the flat in question. However, as discussed hereinabove, things went terribly wrong as the Defendants resorted to several illegalities and never intended to hand over such flat to the Plaintiffs. The Plaintiffs had become the victims of unscruplous practice and illegalities as resorted by the Defendants, which was to the effect that having received substantial money, the flat as agreed to be sold to the Plaintiffs could never have been given by the Defendants to the Plaintiffs as the said flat was sold to a third party. Such was the height of the illegality by the Defendants. Thus bonafide flat purchasers like the Plaintiffs, having parted with money, have suffered such an ordeal that neither their money was being returned, nor the flat was being made available, all this due to the illegal actions of the Defendants. This was certainly an alarming situation. It is clearly not in dispute that all such illegalities which the Defendants had committed were the subject matter of criminal proceedings, and to get relief in these proceedings, solemn statements were made by the Defendants before the criminal Courts, which, as observed by us, would have the highest sanctity and acceptability for a Court considering an order to be passed of a decree in terms of the admission as made by the Defendants. For such reason, we are clearly of the opinion that the appeal on every count as urged on behalf of the Defendants needs to fail.

45 The next submission of Mr. Kapadia is that the prayer for a decree of admission was beyond the final prayers in the suit as prayer (a) in the suit sought a decree only against one Defendant whilst the learned Single Judge had granted a decree on admission against all Defendants. In our view, this submission of Mr. Kapadia needs to be stated to be rejected. The suit has been filed against all the Defendants. In the other prayers in the Suit, reliefs have been sought against all the Defendants. In these circumstances, just because prayer (a) in the Suit uses the words “the Defendant”, the same does not mean that it is sought only against one Defendant, whilst rest of the prayers, which are prayers for interim reliefs, have been sought against all the Defendants. In our view, such a reading of the prayers is absurd. Further, as rightly pointed out by Mr. Shah by an Order dated 8th July, 2019 passed by this Court in Notice of Motion (L) No.1031 of 2019 in the Suit, the Court granted ad-interim relief directing all the Defendants to deposit with the Prothonotary and Senior Master of this Court a sum of Rs. 4.25 crores. If, as submitted by the Defendants, the prayers in the Suit were directed against only a single Defendant, then the Defendants necessarily would have raised an objection to the said order directing all the Defendants to deposit the said amount of Rs.4.25 crores. No such objection on that ground has been raised by the Defendants. On the contrary, a sum of Rs.4.25 crores has been deposited with the Prothonotary and Senior Master of this Court as directed by the said Order. In our view, this clearly shows that the Defendants were aware that the prayers in the Suit were directed against all the Defendants.

46 We are also not able to accept the submission of Mr. Kapadia that no admission was made on behalf of Defendant No.1 as the statement as made on behalf of the Defendants as recorded by the Sessions Court in the Roznama dated 21st November 2016 was made by the Advocate representing Defendant No.2 and the statement recorded in the order dated 22nd June 2017 passed by this Court was made on behalf of Defendant Nos. 2 and 3. As held by us above, it is clear from the Letter of Allotment dated 12th September 2014 that the said amount of Rs.4.25 crores has been received by Defendant No.1. Since Defendant Nos. 2 and 3 have admitted that the said amount received by Defendant No.1 is payable to the Plaintiffs, this clearly shows that the said statements, which are clear admissions were made by Defendant Nos. 2 and 3, as Directors of Defendant No.1, to bind Defendant No.1 also. Thus Defendant No.1 is also bound by the admissions, and the submission of Mr. Kapadia, to the contrary, cannot be accepted.

47 Mr. Kapadia next submitted that, by virtue of the provisions of Section 79 of RERA, this Court did not have jurisdiction to entertain the present Suit. In this context, Mr. Kapadia submitted that the present Suit had been filed seeking refund of the amount paid to Defendant No.1, which was a developer and therefore, the said relief clearly fell within the jurisdiction of RERA and, in these circumstances, this Court, by virtue of the provisions of Section 79 of RERA, had no jurisdiction to entertain the present Suit. Section 79 of RERA reads as under:- 79. Bar of jurisdiction No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered by or under this Act, to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

48 Section 79, thus provides that no Civil Court shall have jurisdiction to entertain any Suit or proceeding in respect of any manner which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the RERA to determine. A perusal of the reliefs sought in the present Suit shows that, apart from claiming refund of the amounts paid by the Plaintiffs to the Defendants, the Plaintiffs have also claimed special damages of Rs.5 crore for causing mental trauma to Plaintiff No.1 and Rs.7 crores as hardship compensation to Plaintiff No.1. Hence, the present Suit is not only seeking refund of the amount paid to the Defendants but is also seeking special damages. In our view, Mr. Shah is right in contending that such a Suit, which also claims special damages, could not have been filed before the RERA and this Court has jurisdiction to entertain this Suit. For this reason, we are unable to entertain the present Suit.

49 The last submission of Mr. Kapadia is that the Suit against Defendant No.1 is barred by the law of limitation, as even if the statements recorded in the said Orders dated 21st November 2016 and 22nd January 2017 are considered as an acknowledgment of liability for the purposes of saving limitation, the said acknowledgment of liability has been made only by Defendant Nos. 2 and 3 and not by Defendant No.1. We do not agree with such submission of Mr. Kapadia.

50 In this context, we may note the findings of the learned Single Judge on the issue of limitation as found in paragraph 13 of the impugned order and read as under:- “13 As far as the argument regarding the claim in the suit being time barred is concerned, I find absolutely no merit in the aforesaid argument. As mentioned earlier, on 12 th September 2014, the Defendants confirmed and unequivocally admitted that they have received a sum of Rs.4.25 crores from Plaintiff No.1. The second admission was in the order dated 21 st November 2016 passed by the Sessions Court and third admission was in the order dated 22 nd June 2017 passed by this Court. Even if , for the purposes of the Limitation Act, 1963, these admissions are treated as acknowledgments, then, the period of limitation automatically stood extended by virtue of Section 18 of the Limitation Act,1963…………” We see no reason to disagree with the said findings of the learned Single Judge.

51 Further, as held by us hereinabove, the acknowledgment of liabilities have been made by Defendant Nos.2 and 3 also on behalf of Defendant No.1, as Directors of Defendant No.1. For this reason also, this acknowledgment of liability is binding on Defendant No.1 also. In these circumstances, we are unable to accept the contention of Mr. Kapadia that there is no acknowledgment of liability on the part of Defendant No.1 and, therefore, the Suit against Defendant No.1 is barred by the law of limitation.

52 In the light of the aforesaid discussion, we are not inclined to interfere with the Order dated 28th April 2023 passed by the learned Single Judge.

53 Accordingly, Appeal is dismissed.

54 In the facts and circumstances of the case, there will be no order as to costs.

(FIRDOSH P. POONIWALLA, J.) (G. S. KULKARNI , J.)

55 At this stage, learned Counsel for the Appellant has prayed for continuation of the ad-interim orders. In the facts and circumstances of the case, this request cannot be accepted. Hence, it is rejected.