Decided on August 20,2004



D.C.Thakur, - (1.) A counter guarantee to the extent of a sum of Rs. 5,13,195/- has been the bone of contention in TA/16 of 2002 between the applicant Bank and the defendants. T.A. No. 16 of 2002 has a long history of its own, because the applicant Bank has instituted its claim case against the two corporate defendants. Out of such two defendants, the defendant No. 2 has been ordered to go into liquidation by the Hon'ble High Court at Kolkata under Section 439 of the Companies Act, 1956 (Act No. 1 of 1956); and the Official Liquidator attached with the said Hon'ble High Court under Section 448 of the said Act has also been appointed the "Liquidator" for the said company.
(2.) The learned Counsel for the defendant No. 1 has been emphatic and bold, while submitting and saying that despite the subsisting controversy over the Bank guarantee for a sum of Rs. 5,13,195/- the said defendant is eager to pay immediately to the suing applicant Bank a sum of Rs. 12 lacs but not the entire decretal or claim amount as prayed distinctly for by the Bank in its plaint presented before the Hon'ble Court. From the above submission made by the learned advocate, it has appeared distinct that the role of the guarantor, which the defendant No. 1 has par taken and discharged at the relevant time, has not been disputed. The only point of controversy has been with regard to the Bank guarantee for the sum, mentioned earlier. The above submission appears to be a partial judicial admission being made in clear words by the defendant.
(3.) THE above submission made by the defendant is yielding to an admission, different and distinct from the other modes of admission. THE same has been clearly postulated in Sub-rule (1) of Rule 6 of Order XII of the, First Schedule to the Code of Civil Procedure, 1908, Act No. V of 1908, as well in Sub-rule (5) of Rule 12 of the Debts Recovery Tribunal (Procedure) Rules, 1993, hereinafter being called the Rules of business.;

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