M/S. Nextra Developers Llp & Ors vs M/S. S. L. Polypack Pvt. Ltd
2021 Latest Caselaw 313 Cal/2

                        I. A No. GA 1 of 2021
                        APOT No. 35 of 2021
                                 with
                         CS No. 114 of 2019
                 IN THE HIGH COURT AT CALCUTTA
                           In appeal from its
               ORDINARY ORIGINAL CIVIL JURISDICTION
                  CIVIL APPELLATE JURISDICTION



                   M/s. Nextra Developers LLP & Ors.
                                     Versus
                        M/s. S. L. Polypack Pvt. Ltd.




Before:
The Hon'ble Justice I. P. MUKERJI
            And
The Hon'ble Justice MD. NIZAMUDDIN
Date: 22nd March 2021

                                                                 Appearance:
                                              Mr. Karunesh Tandon, Advocate
                                              Mr. Soumyajit Ghosh, Advocate
                                              Ms. Sananda Ganguli, Advocate
                                                Mr. Shubradip Roy, Advocate
                                                            for the appellant
                                                Mr. Debdatta Sen, Advocate
                                               Mr. Malay Kr. Seal, Advocate
                                Mrs. Suchismita Ghosh Chatterjee, Advocate
                                                             for respondent

The Court: In an application made by the plaintiff/respondent for

judgment upon admission, on 5th February 2021, a learned single judge

of this Court, on consideration of the averments in the pleadings and the

documents, directed the Company (appellants/defendants) to furnish

security for a sum of Rs. 1 crore.

It follows that the Court did not at that point of time think it fit to

pass a judgment on admission but on the available evidence formed the

opinion that the appellants/defendants had practically no defence to the

claim of the plaintiff/respondent, following the judgment in M/s.

Mechelec Engineers Manufacturers vs. M/s. Basic Equipment

Corporation reported in (1976) 4 SCC 687. Thus, if the

appellants/defendants furnished security for a sum of Rs. 1 crore, it

would be entitled to defend the suit.

Aggrieved, the appellants/defendants prefer this appeal before us.

On examination of their letter dated 8th November 2017 it appears

that they acknowledged receipt of Rs. 1 crore from the

respondent/plaintiff as advance for purchase of a plot of land in an

upcoming township at Khar Khauda, Haryana. They acknowledged that

they had not been able to develop the land and that they would try to

refund the sum of Rs. 1 crore with interest by 31st March 2018.

Execution and issuance of this letter has been denied by the

appellants/defendants.

At the interlocutory stage the learned judge was required to go by

the available records. If by the available records, of which one document

is the above letter, the learned judge has formed the opinion that the

appellants/defendants has practically no defence to the claim of the

respondent/plaintiff, we find no reason to interfere with the decision.

In those circumstances, we do not think this appeal is fit for

admission.

Accordingly the appeal and the connected application are dismissed.

However, liberty is given to the appellants/defendants to furnish the

security as directed by the trial Court by 5th April 2021 and to apply

before it to furnish it in instalments.

(I. P. MUKERJI, J.)

(MD. NIZAMUDDIN, J.)

R. Bose