Calcutta High Court
Kdg Projects Pvt. Ltd vs Cooch Behar Construction Co. & Anr on 21 July, 2017
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
GA No.2695 of 2013
With
CS No.119 of 2013
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
KDG PROJECTS PVT. LTD.
Versus
COOCH BEHAR CONSTRUCTION CO. & ANR.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 21st July, 2017.
Appearance:
Mr. A. Mitra, Adv.
Mr. D. Mitra, Adv.
Mr. Subhasish Sengupta, Adv.
Mr. A. Banerjee, Adv.
The Court : The settlement has failed.
This is an application under Chapter-XIII A of the Original Side rules. The claim in the suit is arising out on account of price of goods sold and delivered. The plaintiff claims between March, 2009 to January, 2010 goods worth Rs.56,88,277/- was sold to the defendants and after giving credit for all the amounts received a sum of Rs.5,93,647/- is due and payable on account of principal. The plaintiff has claimed interest @ 24 per cent per annum on the respective due dates of the said bills till the filing of the said suit. The plaintiff has relied upon a balance confirmation statement claimed to have been signed by the parties. It is submitted that the balance confirmation statement shows that the defendants had acknowledged a sum 2 of Rs.12,54,734/- as due and payable. The defendants have filed an affidavit-in- opposition in paragraph - 3, sub-paragraph - J. The defendants have disclosed payments alleged to have been paid to the plaintiff.
Mr. Sengupta, learned counsel appearing on behalf of the defendants has submitted that invoices would show that the payments were made in advance and the adjustment has been given by the plaintiff from time to time and this fact has not been disclosed in the petition. It is submitted that the signature of the defendant in the so called balance confirmation of accounts for the period of 1st April, 2009 to 31st March, 2011 is forged. Mr. Sengupta has produced the PAN Card of Md. Idris Ahamed and submits that the PAN Card number mentioned in the said alleged balance confirmation is different as the second alphabet in the alleged balance confirmation starts with 'S' whereas in the original Card it is 'F'. However, the learned counsel has admitted that in the affidavit-in-opposition the defendant has not challenged the balance confirmation on this score. It appears that all particulars with regard to the IT PAN Card are correct save and except instated of 'S' it should have been 'F' as the second alphabet, which appears to be a typographical error.
It appears that a sum of Rs.3 lakhs by way of RTGS was made on 16th September, 2011. This payment is subsequent to the balance confirmation. The defendants have also disclosed details of other payments. The defendants had earlier suffered a decree and in the said proceeding the ex parte decree was recalled upon the plaintiff securing a sum of Rs. 5.95 lakhs. It appears that in terms of the order passed in the said proceeding a fixed deposit in favour of the defendants was created for a sum of Rs.5.95 lakhs. The said fixed deposit is going to mature on 6th March, 2018 and the maturity value would be Rs.6.37130 lakhs.3
On the basis of the documents disclosed in this proceeding and the stand taken by the defendants in the affidavit-in-opposition it cannot be said that the defendants is able to make out a triable issue at least in respect of a sum of Rs.5.95 lakhs. The defence disclosed has no legs to stand and is found to be completely unmeritorious. It is too late in the day to contend that the balance confirmation disclosed in this proceeding is forged. At no point of time any such defence was ever raised. Even in the affidavit-in- opposition the defendants have not disputed the signature of the person signed on behalf of the defendant or other details mentioned therein and it clearly shows that the argument made today to deny the liability is a clear afterthought. The plaintiff says that in view of the commercial nature of the transaction the Court may pass any appropriate order towards interest on the aforesaid sum.
In view thereof, there shall be a decree for a sum of Rs.5.95 lakhs together with interest at the rate of 8% per annum on the said sum on and from April, 2013 till payment. However, in the event a sum of Rs.5.95 lakhs is paid within a period of four weeks from date, the plaintiff shall not be entitled to any interest on the principal sum and the plaintiff shall accept the said amount as full satisfaction of the decree.
Since this order virtually disposes of the suit and nothing remains in the suit to be adjudicated, GA No.2695 of 2013 and CS No.119 of 2013 are disposed of accordingly. CS No.119 of 2013 is decreed. The suit shall not be shown as pending.
The department shall draw up the decree as expeditiously as possible.
(SOUMEN SEN, J.) B.Pal