Calcutta High Court
Wrinkle Marketing Pvt. Ltd vs Roselabs Bioscience Ltd on 7 November, 2014
Author: Arijit Banerjee
Bench: Arijit Banerjee
In The High Court At Calcutta
Ordinary Original Civil Jurisdiction
Original Side
GA 1106 of 2014
CS 120 of 2014
Wrinkle Marketing Pvt. Ltd.
-vs.-
Roselabs Bioscience Ltd.
Present : The Hon'ble Justice Arijit Banerjee
For the petitioner : Mr. Ranjan Bachawat, Sr. Adv.
Mr. Swarup Banerjee, Adv.
Mr. Soumen Mohanty, Adv.
Mr. Rajeev Kr. Jain, Adv.
For the respondent : Mr. Moloy Singh, Adv.
Mr. Supriya Saha, Adv.
Heard on : 4th, 11th, 24th and 25th September, 2014
Judgment on : 07/11/2014
Arijit Banerjee, J.
(1) This is an application for judgment on admission of a sum of Rs. 3,69,00,000/-. 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, appointment of receiver for taking possession of the assets and properties of the defendant, but such prayers have not been pressed. Only the prayer for judgment on admission has been pressed by the plaintiff.
The case of the plaintiff/petitioner:
(2) In the first week of July, 2013, the defendant approached the plaintiff with a request for short-term loan of Rs. 3,69,00,000/- in the form of Inter-Corporate Deposit (ICD) carrying interest at the rate of 8% per annum. The plaintiff acceded to such request and the defendant agreed repay the said sum together with interest calculated at the rate of 8% per annum by February 15, 2014. (3) Accordingly, the plaintiff paid the said sum of Rs. 3,69,00,000/- to the defendant between 23rd July, 2013 and 27th August, 2013 by way of transfer from the plaintiff's account maintained with the Kotak Mahindra Bank Ltd. to the defendant's bank account maintained with Bank of Baroda. (4) After receiving the said sum, the defendant issued 15 cheques all dated 15th February, 2014 aggregating a sum of Rs. 3,69,00,000/- in favour of the plaintiff drawn on the Bank of Baroda as per particulars mentioned in paragraph 6 of the petition.
(5) Subsequently, by a letter dated 27th August, 2013 the defendant acknowledge receipt of the sum of Rs. 3,69,00,000/- from the plaintiff and further acknowledge that the sum was repayable by it to the plaintiff along with interest at the rate of 18% per annum.
(6) 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 repay the principal sum of Rs. 3,69,00,000/- or any part thereof or any interest thereon.
(7) In the aforesaid factual background the plaintiff has filed the present suit and has taken out the instant application for judgment on admission.
The case of the defendant/respondent:
(8) In its affidavit-in-opposition the defendant contends that as it was in need of funds it approached the plaintiff for fund against pledge of 29,52,000/- shares of and in the defendant company and the share certificates were duly handed over to the plaintiff. The receipt of Rs. 3,69,00,000/- is admitted but the same was secured by pledge of shares. At the request of the plaintiff, the defendant handed over some blank cheques 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 cheques under any circumstances. The said cheques were issued as security and not in discharge of any liability. The said amount of Rs. 3,69,00,000/- was paid to the defendant at Ahmedabad and this court does not have jurisdiction to entertain or try the present suit.
(9) Without any intimation or information to the defendant the plaintiff suddenly presented the said cheques for payment by inserting the date and signature therein. Against such illegal act by the plaintiff a criminal complaint lodged with the Sankhej Police Station, Ahmedabad against the plaintiff and its office bearers.
(10) 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 annum, no suit for recovery could be filed within one year from the date of advancing such loan and the plaintiff's suit is premature.
Plaintiff's case in-reply:
(11) 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. It states 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 stated on behalf of the plaintiff that it is incredible that the plaintiff would advance such large sum of money to the defendant against the security of blank unsigned cheques. The letter dated 27th August, 2013 whereby the defendant admitted receipt of the amount of Rs. 3,69,00,000/- 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 concocted and false.
The Court's View:
(12) At the beginning of the hearing of the application a query had been raised by me as to whether 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 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 CPC. 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. 3,69,00,000/- from the plaintiff. The letter dated 27th August, 2013 written by the defendant acknowledging receipt of the said sum and the liability to repay the sum with interest at the rate of 18% per annum, which is at page 40 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. (13) The issue 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.
(14) The receipt of Rs. 3,69,00,000/- 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 by a sister concern of 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 defendant's shares having been pledged with the plaintiff also lacks credibility as in paragraph 3(b) of the affidavit-in-opposition, the defendant states that share 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. (15) 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 filing the instant application therein.
(16) By its letter dated 27th August, 2013 the defendant has clearly and unequivocally admitted the receipt of the sum of Rs. 3,69,00,000/- from the plaintiff with an obligation to repay the same with interest at 18% per annum. Although, no date of repayment is mentioned anywhere the fact that the defendant issued 15 post dated cheques all dated 15th February, 2014 for repayment of the principal sum of Rs. 3,69,00,000/- 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.
(17) The defence sought to be raised by the defendant is inconsistent, convoluted and in my opinion, not bona fide. If such moon shine 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.
(18) For the reasons aforesaid, this application succeeds. There shall be a final judgment and decree for a sum of Rs. 3,69,00,000/- along with interest at the rate of 18% 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 annum from the date of filing of the suit till payment of the decreetal amount by the defendant.
(19) 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 lacs on account of compensation. Let such claim stand to trial.
(20) The interim order passed by I.P. Mukherjee, J. on 14th May, 2014 in terms of prayer (c) of the petition shall continue till the disposal of the suit or payment of the decreetal sum by the defendant to the plaintiff. This, I feel, is necessary in view of the conduct and the frivolous defence sought to be raised by the defendant which is far from being honest.
(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.)