Calcutta High Court
Wrinkle Marketing Pvt. Ltd vs Roselabs Polymers Ltd on 20 August, 2015
Author: Arijit Banerjee
Bench: Arijit Banerjee
In The High Court At Calcutta
Ordinary Original Civil Jurisdiction
Original Side
GA 1107 of 2014
CS 119 of 2014
Wrinkle Marketing Pvt. Ltd.
-Vs.-
Roselabs Polymers Ltd.
Before : The Hon'ble Justice Arijit Banerjee
For the Petitioner : Mr. Ranjan Bachawat, Sr. Adv.
Mr. R. K. Jain, Adv.
For the Respondent : None
Heard On : 06/08/2014 & 14/08/2015
CAV On : 14/08/2015
Judgment On : 20/08/2015
Arijit Banerjee, J.:
(1) This is an application for judgment on admission of a sum of Rs. 31,00,000/-. There are other prayers in the application including the prayers for furnishing security by the defendant, injunction restraining the defendant from dealing with its assets and properties and appointment of receiver for taking possession of the assets and properties of the defendant. On 14th May, 2014 this court had passed an order of injunction in terms of prayer (c) of the notice of motion which by an order dated 9th June, 2014 was continued until the disposal of the application. The petitioner at the time of hearing has only pressed the prayer for judgment on admission and the injunction.
The case of the plaintiff/petitioner:-
(2) In the first week of July, 2013 the defendant approached the plaintiff with a request for a short-term loan of Rs. 31,00,000/- in the form of Inter-Corporate Deposit (ICD) carrying interest at the rate of 18 per cent per annum. The plaintiff acceded to such request and the defendant agreed to repay the said sum with interest calculated at the rate of 18 per cent per annum by 15th February, 2014.
(3) Accordingly, the plaintiff paid the said sum of Rs. 31,00,000/-
to the defendant on 23rd July, 2013 by way of transfer from the plaintiff's bank account maintained with the Kotak Mahindra Bank Ltd. to the defendant's bank account maintained with Bank of Baroda.
(4) By a letter dated 23rd July, 2013 the defendant acknowledged receipt of the sum of Rs. 31,00,000/- from the plaintiff and further acknowledged that the same was repayable by the defendant to the plaintiff along with interest calculated at the rate of 18 per cent per annum. The defendant also issued a post dated cheque dated 15th February, 2014 for the sum of Rs. 31,00,000/- in favour of the plaintiff drawn on the Bank of Baroda. (5) On 15th February, 2014 the plaintiff presented the said cheque issued by the defendant for payment but the same was dishonoured for lack of sufficient funds in the defendant's bank account. In spite of demands, and issuance of notices under Section 138 of the Negotiable Instruments Act, 1881, the defendant has failed and neglected to repay the principal sum of Rs. 31,00,000/- or any part thereof or any interest thereon. (6) In the aforesaid factual background the plaintiff has filed the present suit and has taken out the instant application for judgment on admission and other reliefs.
The Case of the defendant/respondent:-
(7) In its affidavit-in-opposition the defendant contends that as it was in need of funds, it approached the plaintiff for funds against pledge of shares of and in the defendant company worth Rs.
31,00,000/-. The shares certificates were duly handed over to the plaintiff. The receipt of Rs. 31,00,000/- is admitted but the same was secured by pledge of shares. At the request of the plaintiff, the defendant handed over a blank cheque as security to the plaintiff with the understanding that without prior information and/or permission being taken the plaintiff shall not use the said blank cheque under any circumstances. The said cheque was issued as security and not in discharge of any liability. The said amount of Rs. 31,00,000/- was paid to the defendant at Ahmedabad and the same is repayable at Ahmedabad. As such, this court does not have jurisdiction to entertain or try the present suit.
(8) Without any intimation or information to the defendant, the plaintiff suddenly presented the said cheque for payment by inserting the date and signature therein. Against such illegal act of the plaintiff, a criminal complaint has been lodged by the defendant with the Sarkhej Police Station, Ahmedabad against the plaintiff and its office bearers. The defendant further contended at the time of hearing of the application that since the loan advanced by the plaintiff carried interest at the rate of 18 per cent per annum, no suit for recovery could be filed within one year from the date of advancing such loan and the plaintiff's suit is pre-mature.
Plaintiff's case in-reply:-
(9) In its affidavit-in-reply, the plaintiff denied that any shares of the defendant company were pledged with the plaintiff. It denied being aware of any criminal complaint lodged by the defendant with the Sarkhej Police Station for alleged wrongful presentation of the cheque issued by the defendant. It states that proceeding under Section 138 of the Negotiable Instruments Act, 1981 has been initiated against the defendant and is pending before the Ld. Metropolitan Magistrate of Calcutta. In course of argument, it was stated on behalf of the plaintiff that it is not credible that the plaintiff would advance such a large sum of money to the defendant against the security of blank unsigned cheques. The letter dated 23rd July, 2013 whereby the defendant admitted receipt of the sum of Rs. 31,00,000/- does not mention of any pledge. In any event, even if shares were pledged as security by the defendant, the same would not preclude the plaintiff from filing the instant suit. The entire defence of the defendant is false and concocted.
Court's View:-
(10) At the beginning of the hearing of the application a query had been raised by this court as to whether or not a pre-suit admission would be ground enough for passing a judgment on admission under Order 12 Rule 6 of the Code of Civil Procedure.
However, I have come across the judgment of a Ld. Single Judge of this Court in the case of Peerless Abasan Finance Ltd.-vs.- Gagan Polymers (P) Ltd. reported in 2002 (4) ICC 194 wherein the Ld. Judge has held that a pre suit admission can be relied on by the Court for passing a judgment and decree under Order 12 Rule 6 of the Code of Civil Procedure. I am bound by the judgment of the Ld. Single Judge by the principle of precedent, stare decisis and judicial comity. In any event, there is a clear admission in the pleadings filed by the defendant being the affidavit-in-opposition that it received Rs. 31,00,000/- from the plaintiff. The letter dated 23rd July, 2013 written by the defendant acknowledging receipt of the said sum and the liability to repay the same with interest at the rate of 18 per cent per annum, which is at page 22 of the petition, is not disputed by the defendant. The admission has been, thus, made by the defendant in the action and not only prior to institution of the suit and, as such, the query raised by me pales into insignificance.
(11) The plea of lack of territorial jurisdiction of this Court sought to be raised by the defendant also cannot be accepted. The suit was instituted with leave under clause 12 of the Letters Patent, 1865. The defendant has made no application for revocation of such leave. From the averments in the petition I find that a substantial part of the cause of action of the plaintiff arose within the jurisdiction of this Court. On that basis, leave under Clause 12 of the Letters Patent was granted. So long as such leave subsists, the defendant cannot be allowed to contend that this court lacks territorial jurisdiction to entertain and try the present suit. (12) The receipt of Rs. 31,00,000/- from the plaintiff has been admitted by the defendant. The defence against the plaintiff's claim sought to be raised by the defendant is that such money was advanced by the plaintiff to the defendant against pledge of shares of and in the defendant company. No evidence of such pledge has been annexed to the pleading filed by the defendant. The plaintiff has categorically denied any such pledge. In any event, I am of the view that even if the case of the defendant of its shares having been pledged with the plaintiff is accepted, the same would not preclude the plaintiff from maintaining the present suit and the instant application. (13) By its letter dated 23rd July, 2013 the defendant clearly and unequivocally admitted the receipt of the sum of Rs. 31,00,000/- from the plaintiff and the obligation to repay the same with interest at the rate of 18 per cent per annum. Although no date of repayment is mentioned anywhere, the fact that the defendant issued a post dated cheque dated 15th February, 2014 for repayment of the principal sum of Rs. 31,00,000/- lends credence to the plaintiff's case and reasonably establishes that the principal amount along with interest were to be repaid on 15th February, 2014. Issuance of such cheques is also clear admission by the defendant of the plaintiff's claim.
(14) The defence sought to be raised by the defendant is inconsistent, convoluted and in my opinion, not bona fide. If such moonshine and frivolous defences are allowed to stand in the way of recovery by the plaintiff of amounts admitted to be due and payable by the defendant to the plaintiff, the same shall be a travesty of justice and shall frustrate the object of Order 12 Rule 6 of the Code of Civil Procedure.
(15) For the reasons aforesaid, this application succeeds. There shall be a final judgment and decree for a sum of Rs. 31,00,000/- along with interest at the rate of 18 per cent per annum from 24th July, 2013 till the date of filing of the suit. There will be a decree for interim interest and interest on judgment at the rate of 12 per cent per annum on the principal sum of Rs. 31,00,000/- from the date of filing of the suit till payment of the decretal amount by the defendant.
(16) I would have disposed of the suit but for the fact that there is another prayer in the suit for a decree for Rs. 5,00,000/- on account of compensation. Let such claim stand to trial. (17) The interim order passed by I. P Mukerji, J. on 14th May, 2014 in terms of prayer (c) of the petition shall continue till the disposal of the suit or the payment of the decretal sum by the defendant to the plaintiff. This, I feel, is necessary to protect the interest of the plaintiff in view of the conduct of and the frivolous defence sought to be raised by the defendant which is far from bona fide. (18) This application is thus, disposed of with costs assessed at Rs. 10,000/- to be paid by the defendant to the plaintiff.
(Arijit Banerjee, J.)