Calcutta High Court
Somnath Merchandise Private Limited vs Roselabs Bioscience Limited on 20 August, 2015
Author: Arijit Banerjee
Bench: Arijit Banerjee
In the High Court At Calcutta
Ordinary Original Civil Jurisdiction
Original Side
GA 1111 of 2014
CS 121 of 2014
Somnath Merchandise Private Limited
-vs.-
Roselabs Bioscience Limited
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. 2,83,50,000/-. There are other prayers in the application including prayers for furnishing of 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. It appears that on 16th May, 2014 this court had passed an order in terms of prayer
(c) of the petition restraining the defendant and its men, servant, agents, assigns and representatives from transferring, encumbering, alienating, conveying, disposing of and/or dealing with any manner whatsoever, its assets and properties including those mentioned in Annexure 'E' to the petition. By an order dated 9th June, 2014 such interim order was continued till the disposal of the application. At the final hearing of this application only the prayers for judgment on admission and injunction have been pressed by the plaintiff.
The case of the plaintiff/petitioner:-
(2) In the first week of August, 2013 the defendant approached the plaintiff with a request for a short term loan of Rs. 3,78,00,000/-
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 together with interest calculated at the rate of 18 per cent per annum by 15th February, 2014. Accordingly, the plaintiff paid the said sum of Rs. 3,78,00,000/- to the defendant between 22nd August, 2013 and 30th August, 2013 by way of transfer from the plaintiff's bank account maintained with the Indusind Bank Ltd to the defendant's bank account maintained with the Bank of Baroda.
(3) After receiving the said sum, the defendant issued 12 cheques all dated 15th February, 2014 aggregating a sum of Rs. 2, 83,50,000/- in favour of the plaintiff drawn on the Bank of Baroda as per particulars mentioned in paragraph 6 of the petition. (4) By an undated letter the defendant acknowledged the receipt of the sum of Rs. 2,83,50,000/- from the plaintiff and further acknowledged that the said sum was repayable by it to the plaintiff along with interest at the rate of 18 per cent per annum. (5) On 15th February, 2014, the plaintiff presented the said cheques issued by the defendant for payment but the same were 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 pay the said sum of Rs. 3,78,50,000/- or any portion 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 the pledge of 24 lakh shares of and in the defendant company worth Rs. 7,65,00,000/- and the share certificates were duly handed over to the plaintiff. At the request of the plaintiff, the defendant handed over some blank cheques as security to the plaintiff with the understanding that without prior sanction and/or permission being taken, the plaintiff shall not use the said blank cheques under any circumstances. The said cheques were issued as security and not in discharge of any liability. The defendant by its letter dated 27th August, 2013 confirmed that it had received Rs.
3,78,00,000/- through its Bank at Ahmedabad. The said amount was also repayable with interest at 18 per cent per annum by the defendant 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 plaintiffs suddenly presented the said cheques for payment by inserting the dates and signatures therein. Against such illegal act of the plaintiff a criminal complaint has been lodged by the defendant with the Sarkhej Police Station against the plaintiff and its office bearers.
(9) At the time of hearing the defendant further contended 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:-
(10) 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 cheques issued by the defendant. The plaintiff stated that proceedings under Section 138 of the Negotiable Instruments Act, 1881 have been initiated against the defendant and are pending before the Ld. Metropolitan Magistrate at Calcutta. In course of argument, it was submitted 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 undated letter (Annexure 'C' to the petition) whereby the defendant admitted receipt of a sum of Rs. 2,83,50,000/- does not mention 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:-
(11) 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 a 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 principles 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. 3,78,00,000/- from the plaintiff. Further, the undated letter written by the defendant (Annexure 'C' to the petition) acknowledging receipt of the sum of Rs. 2,83,50,000/- and the liability to repay the said sum with interest at the rate of 18 per cent per annum, 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.
(12) 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. (13) The receipt of Rs. 2,83,50,000/- from the plaintiff has been admitted by the defendant in its undated letter which is Annexure 'C' to the petition. In the affidavit-in-opposition, the defendant has, in fact, admitted receipt of sum of Rs. 3,78,00,000/-. 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 the 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. The case of the defendant's share having been pledged with the plaintiff also lacks credibility as in paragraph 3(b) of the affidavit-in-opposition, the defendant states that shares certificates were delivered to the plaintiff whereas in paragraph 6 at page 12 of the affidavit-in- opposition, the defendant craves leave to produce the copy of the Demat Slip along with relevant document of transfer of shares at the time of hearing. Shares of a company cannot be both in physical form as well as Demat Form. Thus, the defendant's case of pledge is inconsistent and cannot be accepted. (14) 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. (15) By its undated letter (Annexure 'C' to the petition) the defendant has clearly and unequivocally admitted the receipt of the sum of Rs. 2,83,50,000/- from the plaintiff with an 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 12 post-dated cheques all dated 15th February, 2014 for repayment of the total sum of Rs. 2,83,50,000/- lends credence to the plaintiff's case and reasonably establishes that the said 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 in the present application. (16) 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.
(17) For the reasons aforesaid this application succeeds. There shall be a final judgment and decree for a sum of Rs. 2,83,50,000/- along with interest thereon at the rate of 18 per cent per annum from 1st September, 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. 2,83,50,000/- from the date of filing of the suit till the date of payment of the decretal amount by the defendant. (18) I would have disposed of the suit but for the fact that there is another prayer in the suit for a decree of Rs. 5 lakhs on account of compensation. Let such claim stand to trial.
(19) The interim order passed by I.P. Mukherjee, J. on 16th May, 2014 in terms of prayer (c) of the petition shall continue till the disposal of the suit. This, I feel, is necessary to protect the interest of the plaintiff in view of the conduct and the frivolous defence sought to be raised by the defendant which is far from bona fide. (20) Although, the plaintiff in the present application has claimed a judgment upon admission for a sum of Rs. 2,83,50,000/-, and accordingly a decree has been passed in terms of such prayer, in fact, in the affidavit-in-opposition the defendant has acknowledged receipt of a sum of Rs. 3,78,00,000/-. The plaintiff will be at liberty to apply for judgment upon admission for the balance amount if it is entitled to do so in law.
(21) 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.)