Bajrang Lal Agarwal vs Ravi Kant Agarwal
2022 Latest Caselaw 2212 Cal/2

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


BEFORE:
The Hon'ble Justice Ravi Krishan Kapur


                                  GA 1 of 2022
                                CS No.76 of 2022

                            BAJRANG LAL AGARWAL
                                       VS
                             RAVI KANT AGARWAL



For the Petitioner                    : Mr. Satadeep Bhattacharya, Adv.
                                        Mr. Uttam Sharma, Adv.

For the Respondent                    : Mr. Rajarshi Dutta, Adv.

Mr. S. Nayak, Adv.

Mr. B. Ghosh, Adv.

Reserved on                           : 16.06.2022

Judgment on                           : 18.08.2022


Ravi Krishan Kapur, J.:

1. This is an application for judgment upon admission. The suit is filed for

recovery of money lent and advanced. The petitioner claims a decree of

Rs.1,06,43,220/- (inclusive of interest).

2. Pursuant to negotiations by and between the petitioner and the

respondent, the petitioner lent and advanced a sum of Rs.80 lacs to the

respondent. The said sum was repayable with interest @ 12 per cent per

annum. Initially, the respondent was to repay the said amount within a

period of 120 days from the date of receipt. Pursuant thereto, on 4

September, 2014, the petitioner by way of Real Time Gross Settlement

(RTGS) advanced a sum of Rs.80 lacs to the respondent. The respondent

duly received the said amount and also acknowledged the same by a

letter dated 4 September, 2014.

3. Thereafter, prior to expiry of 120 days period, the respondent approached

the petitioner and sought for an extension to repay the entire principal

amount alongwith outstanding interest. Subsequently, it was agreed by

and between the parties that on and from 3 January, 2015 the

respondent would pay the petitioner interest @ 12 per cent per annum

on quarterly basis and the loan would be repayable on demand. Between

1 January, 2015 to 31 March, 2019, the respondent paid an aggregate

sum of Rs.43,92,331/- to the petitioner on account of interest.

Thereafter, on 31 June, 2019 the respondent issued a post dated cheque

for Rs.3,20,877/- on account of interest. Upon presentation of the said

cheque, the same was dishonoured on the ground of "Insufficient

Funds". By a letter dated 8 December, 2021 the petitioner was compelled

to recall the entire loan and the outstanding interest thereon @ 12 per

cent per annum.

4. On 8 December, 2021 the respondent handed over a post-dated cheque

for the entire principal sum of Rs.80 lacs to the petitioner dated 31

December, 2021 with an assurance that the same would be honoured.

On 1 January, 2020 the said cheque for Rs.80 lacs was dishonoured

upon presentation on the ground of "Insufficient Funds". Thereafter, by a

notice dated 14 January, 2022 the petitioner called upon the respondent

to pay the entire principal amount alongwith interest. Despite receipt of

the notice dated 14 January, 2022, the respondent neither made any

payment on account of the principal amount nor on account of overdue

interest. In this background, the petitioner was compelled to file this suit

for an aggregate sum of Rs.1,06,43,290/- (inclusive of interest). Upon

filing of this suit, the petitioner has filed this application for judgment

upon admission.

5. It is contended on behalf of the petitioner that in view of the facts

enumerated hereinbelow, the petitioner is entitled to a decree for

judgment upon admission:

(a) The letter dated 4 September, 2014 whereby the respondent has

admittedly received the entire loan amount of Rs.80 lacs and

acknowledged that the same would be repaid within 120 days

alongwith interest @ 12 per cent per annum.

(b) Confirmation of accounts duly signed on behalf of the respondent

dated 31 March, 2019 whereby payment of interest on quarterly basis

@ 12 per cent per annum to the petitioner is unequivocally and

categorically admitted

(c) The issuance of the cheque towards interest dated 1 August, 2019 for

a sum of Rs.3,20,877/- by the respondent towards interest which was

subsequently dishonoured on the ground of "Insufficient Funds".

(d) The issuance of a post-dated cheque for Rs.80 lacs dated 31 March,

2021 which was also dishonoured on the ground of "Insufficient

Funds".

(e) It is also alleged that from the Affidavit in Opposition filed by the

respondent to this application, that it would be evident that there is no

dispute to the incontrovertible case of the petitioner. In this connection

reliance is placed on paragraphs 4, 5, 8 and 10 respectively of the

Affidavit in Opposition wherefrom it appears that "there were repeated

talks of settlement and assurances made to the petitioner by the

respondent that the entire amount would be repaid", "a loan had been

taken from the petitioner, the payment of interest of Rs.43,92,331/- in

respect of the above transaction has also been admitted by the

respondent". Thus, it is contended that, on a conjoint reading of the

averments contained in the Affidavit in Opposition, the admission of

liability made by the respondent is clear, unequivocal and categorical.

6. On behalf of the respondent, it is contended that the entire claim of the

petitioner is barred by limitation. Moreover, in view of the provisions

contained inter alia in section 13 of the Bengal Money Lenders Act, 1940,

no decree can be passed in this suit since the petitioner is not registered

as a money lender and neither does the petitioner holds a licence.

Additionally, it is contended that there are no circumstances warranting

any order under Order 38 Rule 5 of the Code of Civil Procedure.

7. Order 12 Rule 6 of the Code of Civil Procedure, 1908 contemplates a

speedy judgment at least to the extent of admission by the respondent.

The Rule applies whether there was a clear admission of facts on the face

of which it is impossible for the opposite party to succeed. The provision

is enabling, discretionary and permissive and bestows wide powers on

the Court [See: Uttam Singh Duggal & Co. Ltd. Vs. Union Bank of India

(2000) 7 SCC 120, Ravish Chandra Jain vs. Raj Rani Jain (2015) 8 SCC

428 and Karan Kapali and Others vs. Lal Chand Charitable Trust and

Another (2010) 4 SCC 753].

8. I find that the fact that the respondent has duly received the entire

principal sum of Rs.80 lacs from the petitioner is clear, admitted and

unequivocal. It is also an admitted position that the respondent has

repeatedly made payments on account of interest in respect of the above

transaction aggregating to Rs.43,92,331/- since inception. The liability of

the respondent both towards principal and the interest is also admitted

from the loan confirmation statements duly signed by the respondent

and the issuance of post-dated cheques both towards principal and

interest payable @ 12% per annum by the respondent. I also find that

notwithstanding the notice dated 14 January, 2022, the respondent

neither made any payment towards the outstanding dues of the

petitioner nor replied to the same. In view of the aforesaid, I find that the

respondent has unequivocally, unambiguously and categorically

admitted its liability to the petitioner.

9. A contract of loan of money is a contract whereby one person lends or

agrees to lend a sum of money to another in consideration of an express

or implied promise to repay that sum on demand or at a fixed or

determinable time or conditionally upon an event which is a certainty. A

claim for money lent is a claim for debt. If A has paid money to B then in

the absence of any cogent reason or defence, there is a prima facie

obligation to repay the amount by B. The onus now shifts on B to show

that the money is not repayable. Ordinarily, in such cases since a

present debt is created the money becomes repayable at once on

demand. The demand is not required to be clothed in the language of

politeness. The demand maybe oral or written or can also be inferred

depending on the facts and circumstances of the case. The language of

the demand is immaterial provided it has the effect. (Bullen & Leake on

Pleadings, 18th Edition page 269).

10. I do not find any merit in the defence of the respondent that the

suit is barred under any provisions of the Bengal Money Lenders Act,

1940. There is no evidence whatsoever to substantiate the fact that the

petitioner is a "money lender" or in the business of "money lending" as

contemplated under the provisions of the Act (Sitaram Poddar vs.

Bhagirath reported in (2011) 2 CHN 969). This defence is often cited in

such matters and is in my view dishonest and inequitable. The plea of

not having a license never crossed the mind of the respondent when he

negotiated the transaction, nor when he received the principal amount

and appropriated the same nor when he paid interest regularly and

consistently for years. Nevertheless, such a plea only dawns on the

respondent when the time of repayment of the loan ripens. Thus, apart

from being not tenable in law, I find the same to be inapplicable to the

facts of this case. I also do not also find any merit in the submission of

the respondent that the claim of the petitioner is barred by limitation. A

jural relationship between the parties within the prescribed period of

limitation is evident from the facts of this case. On the other hand, I find

that the defence of the respondent is vague, moonshine and pure myth

and no credence ought to be given to the same.

11. I also find that there are apparent contradictions in the Affidavit in

Opposition filed on behalf of the respondent. The respondent by its letter

dated 4 September, 2014 initially admitted to the entire transaction.

Thereafter, the respondent has also issued post-dated cheques thereby

acknowledging its liability both towards principal and interest

respectively. There are also loan confirmation statements signed by the

respondent admitting its liability to the petitioner. The respondent has

also regularly made part payment towards interest over the years. I also

do not find any substance in the contention of the respondent that the

loan confirmation statement have been forged or interpolated. The

allegation of forgery is unsubstantiated and bereft of particulars. Hence,

for the forgoing reasons in my view, the admission of liability both

towards principal and interest is clear, unambiguous and unconditional.

Barnwal Marketing & Ors. Vs. Gee Pee Infotech Pvt. Ltd. 2015 (1) CHN 476

@ para 16, Ajay Kumar Agarwal vs. Green Concretex Global Limited 2020

SCC OnLine Cal 2123 @ paras 33 and 34 and Padma Logistics & Khanij

Pvt. Ltd. vs. Ideal Unique Realtors Pvt. Ltd. 2022 SCC OnLine Cal 126.

12. It is common in such matters for respondents to take unworthy,

meritless and frivolous defences simply with the intent of procrastinating

matters. Recalcitrant parties take advantage of the known delays in the

judicial process simply to frustrate the petitioner. There must be a

robust, pragmatic and commercial sense approach in such matters.

13. For the foregoing reasons, in my view the petitioner is entitled to

an order in terms of prayer (a) of the Notice of Motion. The rest of the

claim of the plaintiff is relegated to trial. With the aforesaid directions,

GA 1 of 2022 stands disposed of. Insofar as the prayer for injunction is

concerned, since the petitioner is being granted a decree in this

application, liberty is granted to the petitioner to apply for execution of

the decree and seek appropriate reliefs in accordance with law, if the

circumstances so warrant.

(Ravi Krishan Kapur, J.)