M/S. S. L. Polypack Pvt. Ltd vs M/S. Nextra Developers Llp & Ors
2021 Latest Caselaw 117 Cal/2

IA NO.GA/3/2020 (Old No.GA/228/2020) In CS/114/2019

IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction Original Side

M/S. S. L. POLYPACK PVT. LTD.

VERSUS M/S. NEXTRA DEVELOPERS LLP & ORS.

For the Plaintiff : Mr. Debdatta Sen, Advocate Ms. Suchishmita Chatterjee, Advocate Mr. Malay Kr. Seal, Advocate

For the Defendants : Mr. Soumyajit Ghosh, Advocate Ms. Sananda Ganguli, Advocate Mr. Shubradip Roy, Advocate Mr. Guddu Singh, Advocate

Hearing concluded on : February 5, 2021

Judgment on : February 5, 2021

DEBANGSU BASAK, J. :-

The plaintiff seeks money decree in the suit.

According to the plaintiff, it lent and advanced a sum of Rs.1 crore to

the defendants. The defendants confirmed receipt of such sum. The

defendants acknowledged their liability to the plaintiff. However, despite

repeated requests and demands, the defendants did not repay the money

lent and advanced.

Learned Advocate appearing for the plaintiff draws the attention of

the Court to the documents evidencing payment of the sum of Rs.1 crore

by the plaintiff to the defendant no.1. He draws the attention of the Court

to the balance confirmation issued by the defendant no.1 from time to

time. He submits that, since the Court by the order dated January 13,

2021 while considering the application for revocation of leave under Clause

12 of the Letters Patent, 1865 was pleased to keep the issue of jurisdiction

open to be decided at the trial, at this stage, the Court should direct the

defendants to secure the claim of Rs.1 crore.

Learned Advocate appearing for the defendants submits that, the

plaintiff advanced the sum of Rs.1 crore for the purpose of purchasing two

plots. He submits that the defendants are ready and willing to make over

the two plots to the plaintiff. Such plots are of a value of Rs.1 crore.

Learned Advocate appearing for the defendants relies upon (1976) 4

SCC 687 (M/s. Mechelec Engineers Manufacturers vs. M/s. Basic

Equipment Corporation) and submits that, the plaintiff is not entitled to a

judgment or decree on admission. He submits that, the defence of

jurisdiction as raised by the defendants is sufficient to deny the claim of

the plaintiff. He refers to and relies upon an order dated January 13, 2021

passed in IA No.GA 5 of 2021 in CS No.114 of 2019. He submits that, the

issue of jurisdiction is yet to be finally decided by the Court.

Consequently, the Court should not consider grant of security also.

In the present suit, the claim of the plaintiff is on account of money

lent and advanced. There are documents on record which establish that

the plaintiff lent and advanced a sum of Rs. 1 crore to the defendant no. 1.

There are balance confirmations which are within the period of limitation

issued by the defendant no. 1. There are correspondence exchanged

between the parties wherein defendant No.1 admits receipt of the sum of

Rs. 1 crore from the plaintiff.

The defendant raises two defences. On one part the defendant

intends that the Hon'ble Court does not have jurisdiction to entertain the

instant suit.

On the application of the defendant for revocation of leave under

Clause 12 of the Letters Patent, by an order dated January 13, 2021 the

issue of jurisdiction was kept open to be decided at the suit. Today, since,

leave under Clause 12 of the Letters Patent, 1865 was not revoked on

January 13, 2021, it cannot be said that the Court is without jurisdiction.

The other defence of the defendant is that, the plaintiff paid a sum of

Rs. 1 crore for the purpose of purchasing two plots of land. As the plots of

land are readily available the plaintiff can take possession of such two

plots of land.

According to the plaintiff, it lent and advanced the money and is

seeking repayment thereof along with interest thereto. There are balance

confirmations issued by the defendant no. 1 for the sum of Rs. 1 crore.

M/s. Mechelec Engineers & Manufacturers notices Smt. Kiranmoyee

Dassi vs. J. Chatterjee reported at AIR 1949 Cal 479 and is of the

following view :

"8. In Sm. Kiranmoyee Dassi vs. Dr. J. Chatterjee, Das, J., after a

comprehensive review of authorities on the subject, stated the

principles applicable to cases covered by Order 17 C.P.C. in the form

of the following propositions :

(a) If the defendant satisfies the court that he has a good defence to

the claim on its merits the plaintiff is not entitled to leave to sign

judgment and the defendant is entitled to unconditional leave to

defend.

(b) If the defendant raises a triable issue indicating that he has a fair

or bona fide or reasonable defence although not a positively good

defence the plaintiff is not entitled to sign judgment and the

defendant is entitled to unconditional leave to defend.

(c) If the defendant discloses such facts as may be deemed sufficient

to entitle him to defend, that is to say, although the affidavit does

not positively and immediately make it clear that he has a defence,

yet, shews such a state of facts as leads to the inference that at

the trial of the action he may be able to establish a defence to the

plaintiff's claim the plaintiff is not entitled to judgment and the

defendant is entitled to leave to defend but in such a case the

court may in its discretion impose conditions as to the time or

mode of trial but not as to payment into court or furnishing

security.

(d) If the defendant has no defence or the defence set up is illusory or

sham or practically moonshine then ordinarily the plaintiff is

entitled to leave to sign judgment and the defendant is not entitled

to leave to defend.

(e) If the defendant has no defence or the defence is illusory or sham

or practically moonshine then although ordinarily the plaintiff is

entitled to leave to sign judgment, the court may protect the

plaintiff by only allowing the defence to proceed if the amount

claimed is paid into court or otherwise secured and give leave to

the defendant on such condition, and thereby show mercy to the

defendant by enabling him to try to prove a defence."

In my view, the facts of the present case, comes within clause (e) as

noted in paragraph 8 of M/s. Mechelec Engineers & Manufacturers

(supra).

The defendants may or may not succeed on the issue of jurisdiction.

However, as noted herein, the Court cannot be said to be without

jurisdiction as on date. The defendants have not disclosed any cogent

defence to the claim of the plaintiff on merits.

In such circumstances, it would be appropriate to direct the

defendants to furnish security to the satisfaction of the Registrar, Original

Side for a sum of Rs. 1 crore. Such security may be furnished within a

period of fortnight from date.

Learned advocate appearing for the defendants submits that, an

affidavit was affirmed on behalf of the defendant before the Notary Public.

In view of the ongoing pandemic the department although allowed

stamping of such affidavit but not allowed punching of the same and have

not accepted the same. She seeks leave to file such affidavit after the same

being punched by the department and treat it as the affidavit-in-opposition

in the instant proceeding.

Learned advocate appearing for the plaintiff does not have any

objection.

In such circumstances, affidavit-in-opposition as affirmed on behalf

of the defendant be accepted as the affidavit-in-opposition in the present

application. The department will punch the affidavit and record the same

as an affidavit filed in the instant proceeding.

Affidavit in reply on behalf of the plaintiff be taken on record.

IA No.GA 3 of 2020 in CS 114 of 2019 is disposed of accordingly.

(DEBANGSU BASAK, J.) B.Pal/TR