Madhusri Konar & Anr vs New Central Book Agency Pvt. Ltd. & ...
2021 Latest Caselaw 300 Cal/2

                     IN THE HIGH COURT AT CALCUTTA
                       Ordinary Original Civil Jurisdiction
                                ORIGINAL SIDE


Present:
The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA


                              IA No: G.A.9 of 2020
                                C.S.219 of 2016

                            Madhusri Konar & Anr.
                                       Vs.
                 New Central Book Agency Pvt. Ltd. & Anr.



For the Plaintiffs                :    Mr. Debnath Ghosh, Adv.

                                       Mr. Soumya Roychowdhury, Adv.

                                       Mr. Sarosij Dasgupta, Adv.

                                       Mr. Dwip Raj Basu, Adv.



For the Defendants               :     Mr. Reetobroto Mitra, Adv.
                                       Mr. Siddhartha Banerjee, Adv.
                                       Mr. Sankarsan Sarkar, Adv.
                                       Mr. L.R. Mondal, Adv.
                                       Mr. M.M. Rahman, Adv.




Last Heard on                    :     05.03.2021.



Delivered on                      :    17.03.2021.
                                       2


Moushumi Bhattacharya, J.

1. This is an application filed by the plaintiffs under Order XIII-A of The

Civil Procedure Code, as amended by The Commercial Courts Act, 2015, for

Summary Judgment.

2. In the present application, the plaintiffs have claimed a decree for

Summary Judgment for a sum of Rs.90,01,828/- for the period 2011-2012

on account of outstanding royalty and for a sum of Rs.1,50,02,790/- for the

period 2012-2013 and 2013-2014together with interest at 18% per annum

on the amounts taken cumulatively. The plaintiffs rely on the amended

Order XIII-A as introduced by the Commercial Courts Act for seeking the

relief as stated.

3. The plaintiffs are the daughter and the son-in-law, respectively, of one

Dr. Durlav Chandra Dutta, who was the Head of the Department of

Obstetrics and Gynaecology, Nil Ratan Sarkar Medical College and Hospital,

Kolkata and wrote several textbooks on Obstetrics and Gynaecology during

his lifetime. The plaintiffs' claim relates to royalties from the sale and

publication of the textbooks after the death of Dr. Durlav Chandra Dutta.

The plaintiffs claim that the late Dr. Durlav Chandra Dutta granted a non-

exclusive licence, which was terminable in nature, to the father of the

defendant no.2 to publish the textbooks for certain territories. The

defendants refute the claims and the basis thereof.

4. Mr. Debnath Ghosh, assisted by Mr. Soumya Roychowdhury and Mr.

Sarosij Dasgupta, learned counsel appearing for the plaintiffs urge that

Order XIII-A, as amended would apply to a suit transferred to the

Commercial Division under Section 15 of The Commercial Courts Act,2015

for seeking Summary Judgment. On the factual score, counsel primarily

relies on two Statements of Royalties payable to the first plaintiff from

1/04/10 to 31/03/2011, which shows an amount of Rs.95,25,803/- and

from 1/04/11 to 31/03/2012 showing an amount of Rs.100,73,694.25/.

The second document which has been shown to the court is a letter dated

6th November, 2013 issued by the defendant no.1 to the plaintiffs which,

according to counsel, contains an unequivocal admission that the

defendants would pay 50% of 2 crores within August 2013 and the

remaining 1 crore within March 2014. It is submitted that the statement of

royalty for the period 2011-2012which was due and payable has also been

clearly admitted by the defendant no.2 in the trial of a suit filed by the

defendants in the City Civil Court against plaintiffs challenging the

termination of the agreement dated 7th November, 1981.

5. Mr. Reetobroto Mitra with Mr. Siddhartha Banerjee and Mr.

Sankarsan Sarkar, learned counsel appearing for the defendants,

categorically dispute any admission made on the part of the defendants and

submit that the defendants have in any event made substantial payments as

evident from the letter dated 6th November, 2013. Counsel urges that an

application for Summary Judgment should be rejected where the plaintiffs

by their very averments have raised triable issues which are incapable of

being summarily decided. Counsel relies on pleadings to show that the

plaintiffs have disputed the contents of the written statements and further

have also disputed the nature of the licence given to the father of the second

defendant for publishing of the Textbooks. With regard to the claimed

quantum, counsel submits that the statements of royalty payable would

show that the defendants had already paid an amount of Rs.94,93,563/- to

the plaintiffs till November, 2013 and the same would be evident from the

averments in the application itself. Further, the relevance of the alleged

admission in the letter dated 6th November, 2013 would have to be seen in

the particular context in which the letter was issued. Counsel submits that

the amount of Rs.1,50,02,790/- has been claimed on the basis of

conjectures without any particulars as to how the plaintiffs arrived at the

said sum. Counsel urges that the application of the newly amended Order

XIII-A, cannot give any advantage to the plaintiffs since the Commercial

Division of this court was the receiving court and not the instituting court of

the instant suit. Counsel suggests that the plaintiffs are proceeding with the

instant application for Summary Judgment after four years from the

institution of the suit after the plaintiffs lost their right to proceed under

Chapter XIIIA of the Original Side Rules of this court. Counsel suggests that

the present application is hence an abuse of process of court since the

plaintiffs failed to take any steps for four years and delayed the framing of

issues even after the suit was transferred to the Commercial Division.

6. The point to be decided in the present application is whether the

plaintiffs can be permitted to seek Summary Judgment under the amended

Order XIII-A in a suit which has subsequently been transferred to the

Commercial Division of this court; and if such point is decided in the

affirmative, whether the materials before the court are sufficient to entitle

the plaintiffs to Summary Judgment. The reasons which follow are divided

into the following sections for convenience.

I. Whether the amended Order XIII-A would apply to an application for

Summary Judgment after the suit has been transferred to the Commercial

Division?

7. The matter was directed to appear before the Commercial Division by

an order dated 13th February, 2018 passed by a Learned Judge. The parties

proceeded on the basis of the said order and treated the matter as a matter

to be heard by a Commercial Division of this court. The defendants object to

the plaintiff taking benefit of the amended Order XIII-A since the plaintiff

lost the right to file an application under Chapter XIII-A of the Original Side

Rules of this Court for Summary Judgment. Reliance has been placed on

Tarachand Ghanshyamdas vs State of West Bengal; AIR 1955 Cal 258,

Kalidas Pal vs Sripati M. Roychowdhury; AIR 1979 Cal 14 and Besant vs. G

Naraniyah; 1914 Indian Appeals 314 on the principle that a suit filed in a

court having a specific jurisdiction will be governed by the rules of that

court itself. These cases do not assist the defendants since none of these

decisions considered the effect of an amendment to an existing law

governing the relevant procedure which would have a bearing on a party's

right to take the benefit of the amended law under Chapter XIII-A of the

Original Side Rules. The decisions cited on behalf of the plaintiffs in this

respect, namely, Khaitan (India) Ltd. vs. Maharshi Commerce Ltd.; (2013) 2

CHN 383 and Shree Shree Gopal Jew vs Jumbo Traders Pvt. Ltd.; (2007) 1

CHN 237 also do not come to the assistance of the plaintiffs since the cases

relied on involved transfer of a suit from a subordinate court to this Court

and the relevance of a jurisdictional bar of the transferee court in trying the

suit. None of these cases can be equated with that of a regular suit being

transferred to the Commercial Division and tried as a commercial suit

thereafter pursuant to the Commercial Courts Act coming into effect from

23rd October, 2015.

8. Section 15(1) of the Commercial Courts Act, 2015, relating to transfer

of pending suits read with Section 15(3), makes it clear that all suits relating

to a commercial dispute of a specified value shall be transferred to the

Commercial Division of a High Court and further that upon such suit or

application being transferred, the provisions of the Commercial Courts Act

shall apply to those procedures which were not completed at the time of

transfer. There is nothing in the Commercial Courts Act to indicate a bar

from taking recourse to the provisions of the Commercial Courts Act or the

Civil Procedure Code as amended by the former once a suit/application has

been transferred to the Commercial Court or Commercial Division under

Section 15(3) of the 2015 Act. Denuding the plaintiffs of a right given under

the newly-amended Order XIII-A where there is no statutory bar for

disallowing the plaintiffs would amount to curtailing the scope and objective

of the 2015 Act of speedy resolution of disputes. The framework of Order

XIII-A itself contains the speed breakers; namely, (a) that an application

under this provision shall not be made if the suit was originally filed under

Order XXXVII; (b) cannot be made before service of summons on the

defendant; (c) after framing of issues. These are the only impediments

contemplated under Order XIII-A. This issue is hence answered in the

affirmative and this court is of the view that the amended Order XIII-A

would apply to suits for Summary Judgment albeit such suits being filed as

regular suits and transferred to the Commercial Division subsequently.

II. Whether the plaintiffs are entitled to Summary Judgment under

the amended Order XIII-A of The Code of Civil Procedure Code on the

materials disclosed in the application?

9. Order XIII-A of the CPC was amended by the Commercial Courts Act,

2015 for including within its scope classes of suits which involve a claim

pertaining to any Commercial Dispute, including a part of a claim or a

counter-claim and in which an application for Summary Judgment can be

made at any time after summons was served on the defendant but before

framing of issues in the suit. Order XIII-A sets out the procedure by which

the Court may decide a claim in relation to the Commercial Dispute without

recording oral evidence. The ground on which an order or judgment may be

made under this provision is upon the court coming to a finding that the

plaintiff has no real prospect of succeeding in the claim.

10. In this application, the plaintiffs have relied on three documents for

Summary Judgment under Order XIII-A. Since the prayers in the

application are for two separate decrees for Summary Judgment for a sum

of Rs.90,01,828/- and Rs.1,50,02,790/-, respectively, it would be

convenient to assess the claims individually.

Rs.90,01,828/-

11. The document relied on under this claim is a Statement of Royalty

payable to Dr. Durlav Chandra Dutta (the present plaintiffs are claiming

under the late Dr. Dutta) in relation to a pending amount of Rs.95,25,803/-.

12. The statement pertains to the period 1/04/10 to 31/03/2011. The

connected pleading to Annexure-D of the application, namely, the Statement

of Royalty states that the defendants admitted and acknowledged that the

royalty on account of two Textbooks written by Dr. Dutta was

Rs.95,22,817/-. The complaint is that the defendants, despite repeated

requests, failed and neglected to pay the outstanding sum of Rs.95,22,817/.

In the later part of the same paragraph, however, the plaintiffs have given a

tabulated statement of the payments received from the defendants from 25th

March, 2013 to 10th September, 2013 for a sum of Rs.84,93,563/-. The

paragraph following the statement confirms that after postponing the

payments on the ground of alleged financial difficulties, the defendants

made over four post-dated cheques of various amounts from 2nd October,

2013 to 31st October, 2013 and after giving credit for the amounts received,

a sum of Rs.90,01,828/- remained outstanding for the period 2011-2012.

13. The plaintiffs have hence admitted that the defendants have already

paid an amount of Rs.94,93,663/- taking into account the sum of

Rs.84,93,563/- paid till 10th September, 2013 together with the aggregate

amount of Rs. 10,00,000/- received by the plaintiffs from 2nd October, 2013,

to 31st October, 2013. The fact of receipt of payments subsequent to 25th

March, 2013, as would appear from the statement in paragraph 17 of the

application regarding payments received from March 2013 to September

2013, therefore runs contrary to the document relied upon by the plaintiffs

on alleged outstanding amounts for the period 1/04/2010 to 31/03/2011.

Rs.1,50,02,790/-

14. The document relied upon in support of this claim (Annexure-H) is a

letter written by the defendant no.1 to the plaintiffs on 6th November, 2013.

A paragraph of the said letter has been shown to contend that the

defendants have accepted the fact that outstanding royalties are payable to

the plaintiffs. Paragraph 33 of the application reiterates the averment that

"The petitioners bona fide believe that the respondents have sold over.........copies of

the Textbooks ...........during the period 1st April, 2012 to 9th October, 2013. Based on the

figures for the previous years, a sum of Rs.1,50,02,790/- would be payable on account of

royalty on such sales. The petitioners are entitled to and claim outstanding royalty aggregate

to Rs.1,50,02,790/-.........." .

15. In the letter of 6th November, 2013, the defendant no.1 disputes the

claim of non-payment of royalty of Rs.2 crores for 2010-2011 and 2011-

2012 as "concocted, false" with the specific denial of the said amount. The

defendants record in the said letter that the plaintiffs have received 50% of

Rs.1 crore and that the defendants have already started making payment of

the remaining 50% of which the plaintiffs have encashed Rs.2,50,000/-.

Although the defendants in the said letter have promised to clear the

balance amount within March 2014, the fact that the plaintiffs have received

50% of Rs.1 crore has been clearly stated. This would also be corroborated

from the statement given by the plaintiffs of an amount of Rs.84,93,563/-

received till 10th September, 2013 and further amounts received from 2nd

October, 2013 to 31st October, 2013.

16. The other document relied upon is a Statement of Royalty from

1.4.2011 to 31.3.2012 (Annexure E to the application) amounting to

Rs.100,73,694.15/- (approx). Since the relevant period as evident from this

document is April 2011 to March 2012, the amount due runs contrary to

the statement of payments received in paragraphs 17 and 18 of the

application. Due to the apparent inconsistency, this Court cannot rely on

this document as evidence of the indebtedness of the defendants to the

plaintiff.

17. The claim of the plaintiffs for Summary Judgment of the payments

must hence be rejected for the following reasons.

18. Order XIII-A Rule 3 - "Grounds for Summary Judgment"-gives a

discretion to the court to pronounce Summary Judgment on a claim on the

following conditions;

i) that the defendant has no real prospect of successfully defending

the claim and

ii) there is no other compelling reason why the claim should not be

disposed of before recording of oral evidence.

19. The amended Order XIII-A is in keeping with the objective of The

Commercial Courts Act, 2015 for speedy disposal of high-value commercial

disputes and for providing an independent mechanism for early resolution of

such disputes. The provision presumes that the case of the party seeking

Summary Judgment is so clear and beyond any scope of dispute that the

court has little option but to dispose of the claim without trial, provided the

Court is satisfied that the opposing party cannot set up a credible defence

warranting oral evidence. The language of the amended Order XIII-A may be

compared to the leave granted to a defendant to defend a summary

procedure and set up a "substantial defence" in aid thereof under Order

XXXVII of the CPC. The similarity of purpose can also be found in Chapter

XIIIA of the Original Side Rules of this Court which requires a defendant to

set up a "good defence" to the claim on merits or disclose such facts as may

be deemed sufficient to entitle him to defend the claim (under Rule 6 of

Chapter XIII-A). Although the threshold of a "good defence" or "substantial

defence" has made way to the court being satisfied that the defendant has

"no real prospect of successfully defending the claim", the requirement of

the plaintiff to establish a clear, unequivocal and unimpeachable claim on

merits - one that cannot be dislodged by the defendant - remains.

20. In the present case, the documents relied on for Summary Judgment

being the Statements of Royalty will have to be read with the plaintiffs' own

statements of having received payments from the defendants from March to

October 2013. The letter of 6th November, 2013 relied upon by the plaintiffs

also contains specific denials of the amounts claimed by the plaintiffs. There

is hence no document showing a clear and unequivocal admission or

acknowledgment on the part of the defendants that an amount of

Rs.90,01,828/- or Rs.1,50,02,790/- is due and owing to the plaintiffs. For

seeking Summary Judgment, the plaintiffs are under an obligation to

substantiate each of the claims by documents which could show that the

defendants cannot have any possible manner of successfully defending the

claim. "The bona fide belief" without particulars of the amounts outstanding

is simply not enough for the purposes of Order XIII-A.

21. Once a claim is disputed, the court is compelled to assess the strength

of the claim by permitting the parties to lead evidence to prove such claim.

The right to lead evidence is a valuable right given to a plaintiff/defendant

under the CPC, which a party can only be deprived of upon the court being

satisfied that there are compelling reasons for taking the summary route for

pronouncing judgment.

22. Ambalal Sarabhai Enterprises Ltd. vs. K.S. Infraspace LLP; 2019 SCC

Online SC 1311 reiterates that the provisions under The Commercial Courts

Act must strictly be construed since the object behind the constitution of

Commercial Divisions is to put matters on fast track for speedy resolution of

commercial disputes. The legislative intent behind the Order XIII-A was

reiterated in Su-Kam Power Systems Ltd. vs. Kunwer Sachdev; 2019 (80) PTC

225 (Del).

23. For the above reasons, this court is not convinced that there are

compelling reasons for allowing the claims of the plaintiffs under the

amended Order of XIII-A of The Code of Civil Procedure without recording of

oral evidence.

24. G.A. 9 of 2020 is accordingly dismissed without any order as to costs.

Urgent Photostat certified copy of this Judgment, if applied for, be

supplied to the parties upon compliance of all requisite formalities.

(MOUSHUMI BHATTACHARYA, J.)