Kanchan Devi Kochar vs Jaideep Halwasiya
2021 Latest Caselaw 97 Cal/2

OD 7

                                  ORDER SHEET

                                 IA NO.GA/1/2020
                                        In
                                    CS/71/2020

                     IN THE HIGH COURT AT CALCUTTA
                   ORDINARY ORIGINAL CIVIL JURISDICTION
                              ORIGINAL SIDE



                             KANCHAN DEVI KOCHAR
                                   VERSUS
                              JAIDEEP HALWASIYA



  BEFORE:
  The Hon'ble JUSTICE DEBANGSU BASAK
  Date: 2nd February, 2021.

  (Via Video Conference)


                                                                         Appearance:
                                                           Mr. Amritam Mandal, Adv.
                                                           Mr. Anil Chowdhury, Adv.
                                                                   ...for the petitioner

                                                            Mr. Reetobroto Mitra, Adv.
                                                                 Mr. A.P. Gomes, Adv.
                                                                 ...for the respondent

The Court: In a suit for recovery of money lent and advanced, the plaintiff

seeks judgment upon admission as also an order of injunction.

Learned advocate appearing for the plaintiff submits that, the plaintiff lent

and advanced a sum of Rs.50 lakhs to the defendant. The defendant did not

repay the same despite demands. He submits that the defendant from time to

time acknowledged the liability. He draws the attention of the Court to the tax

deducted at source certificate submitted by the defendant. He draws the

attention of the Court to the balance confirmation executed by the defendant.

Learned advocate appearing for the defendant submits that the claim of the

plaintiff is barred by limitation. He submits that the tax deducted at source

certificate is beyond the period of limitation. So far as the balance confirmation

dated April 1, 2017 is concerned, he submits that, the same does not contain the

signature of the defendant. He submits that the entire liability was repaid by the

defendant. That is the principal reason why the suit was not filed all this time.

Learned advocate appearing for the plaintiff submits that the defendant is

likely to dispose of the assets available to it unless restrained. He submits that

the defendant is developing an immovable property where the defendant as the

developer is entitled to 33.33% of the developed property. He seeks an order of

injunction on the sale of the developer's allocation in such project.

Prima facie it appears that the plaintiff lent and advanced money from the

defendant. In fact the defence of the defendant is that it repaid the entire loan

amount. Such defence raised ought to be considered after affording the parties

an opportunity of filing pleadings. At this stage, it appears that there is a

balance confirmation, which is within the period of limitation. Limitation being a

mixed question of law and fact, it would be appropriate to decide the issue of

limitation after affording the parties an opportunity to file their pleadings.

The plaintiff having made out a prima facie case and the balance of

convenience and inconvenience being in favour of the plaintiff, it would be

appropriate to restrain the defendant from disposing of the developer's allocation

in respect of the immovable property described in paragraph 25 of the petition

without obtaining prior leave of the Court.

Let affidavit-in-opposition be filed within three weeks from date; reply, if

any, within two weeks thereafter. List the application as 'Adjourned Motion' five

weeks hence.

(DEBANGSU BASAK, J.)

B.Pal