Calcutta High Court

Anchor Investments Private ... vs Tci Finance Limited on 8 December, 2022

                                       1


                  IN THE HIGH COURT AT CALCUTTA

                 (Ordinary Original Civil Jurisdiction)

                            ORIGINAL SIDE

                        [COMMERCIAL DIVISON]



Present:

The Hon'ble Justice Krishna Rao

                           IA No: GA/2/2019
                        (Old No. GA/2406/2019)
                                      In
                             CS/133/2019


              ANCHOR INVESTMENTS PRIVATE LIMITED
                                      Vs.
                         TCI FINANCE LIMITED



           Mr. Rajarshi Dutta, Adv.
           Mr. Debargha Basu, Adv.
           Mr. V.V.V. Sastry, Adv.
                                            ...For the plaintiff.


           Mr. Aritra Basu, Adv.
           Mr. Abhijit Sarkar, Adv.
                                            ...For the defendant.



Heard on               : 01.12.2022

Judgment on            : 08.12.2022
                                        2


Krishna Rao, J.:


      The plaintiff has filed the instant application for final Judgment and

Decree for a sum of Rs. 83,46,507/- against the defendant under the

provisions of Chapter XIIIA of the Original Side Rules of this Court.


      The plaintiff had initially filed the instant suit before the Ordinary

Original Civil Jurisdiction. Subsequent to filing of the suit, the plaintiff had

filed an application being GA 5 of 2021 praying for transfer of the instant

suit along with the pending applications before this Court (Commercial

Division) vide order dt. 19.07.2022, this Court has allowed the prayer (a) to

(c) of the Master's summons.


      The plaintiff had also filed an application being GA 2198 of 2019 but

vide order dt. 26.11.2019, the said application was withdrawn. Vide order

dt. 18.08.2020, when the suit was proceeded with the Ordinary Original

Civil Jurisdiction, the Court had passed an interim order directing the

defendant to furnish security for the sum of Rs. 83,46,507/- to the

satisfaction of Registrar High Court within a period of two weeks from the

date of passing the order. As the defendant has not furnished security in

terms of the order dt. 18.08.2020, the Court had passed an order on

15.09.2020

directing the ICICI Bank, Kheraitabad Branch, Hyderabad to

freeze account no. 000805002397 only to the extent of Rs. 83,46,507/-

standing in the name of TCI Finance Limited and the said freezing shall be

to the credit of CS 133 of 2019.

In the mean time being aggrieved and dissatisfied with the order dt.

18.08.2020, the defendant had preferred an appeal being APO No. 85 of

2020 but due to the order dt. 15.09.2020, the appeal preferred by the

defendant was become infructuous and accordingly the said appeal was

dismissed on 29.09.22020.

Inspite of the several directions passed by this Court, the defendant

has not filed affidavit-in-opposition with respect of the instant application

and accordingly the plaintiff had preferred an application being GA 3 of

2020 praying for placing the instant application (GA 2406 of 2019) for

immediate hearing under the heading "Chamber application for final

disposal (unopposed)". The application filed by the plaintiff is disposed of in

terms of prayer (c) of the Master's summons by directing the application

being GA 2406 of 2019 to be placed for hearing immediately under the

heading "Chamber application for final disposal" and the interim order dt.

15.09.2020 was made absolute.

As the defendant has not filed affidavit-in-opposition in the instant

case inspite of several opportunities given to the defendant, this Court has

taken up for hearing of the instant application.

The Counsel for the defendant has raised preliminary objection on the

ground that the plaintiff has prayed for judgment and decree in terms of the

provisions of Chapter XIIIA of the Rules on the Original Side of this Court

but the said rule is not applicable in the Commercial Division. The Counsel

for the defendant further submits that after the transfer of the instant suit

before this Court, the plaintiff ought to have taken appropriate steps for

amendment of the prayer of the instant application but the petitioner has

not taken any steps and thus no decree can be passed by this Court under

the said Chapter.

Counsel for the defendant has relied upon Order XIIIA of the Code of

Civil Procedure and submits that in sub-rule 4 the procedure has been

prescribed for summary judgment but the plaintiff has not complied with

the provisions of Clause 4 of the said order.

Counsel for the defendant further submits that in para 46 as well as

in prayer (b) of the Master's summons, the plaintiff has prayed for decree

under Chapter XIIIA of the Original Side Rules though the said rules is not

applicable before this Court and thus the application filed by the plaintiff is

liable to be dismissed.

Counsel for the plaintiff submits that in usual course of business

between the plaintiff and the defendant, the defendant through its

representative had approached the plaintiff for short time financial

assistance for an aggregate sum of Rs. 1 Crore in the form of corporate

deposit and as per the request of the defendant, the plaintiff had agreed to

pay the said amount.

Counsel for the plaintiff submits that on 13.01.2016, the plaintiff has

transferred an amount of Rs. 50,00,000/- in the account of the defendant

from HSBC Bank for 180 days with effect from 13.01.2016 to 10.07.2016 @

17% per annum. Subsequently on 25.01.2016, the plaintiff has again

transferred an amount of Rs. 50,00,000/- in the account of the defendant

for 180 days with effect from 25.01.2016 to 22.07.2016 @ 17% per annum.

Vide letter dt. 25.01.2016, the defendant had agreed to repay the said

amount with the interest. On 25.01.2016, the defendant had forwarded the

post dated cheques for interest and principal amount, letter of undertaking,

receipt of ICD amount and demand promissory note. The defendant had

made payment of Rs. 3,76,230/- towards the interest.

As per the request of the defendant, the ICD in respect of the first as

well as second transactions were extended from time to time which are as

follows :

      Extension          Term                            Period

      1                  11/7/2016 to 08/01/2017         182 days

      2                  09/01/2017 to 07/07/2017        180 days

      3                  08/07/2017 to 04/11/2017        120 days

      4                  05/11/2017 to 04/02/2018        92 days



      Particulars        Interest amount                 Date

      1st Extension      Rs. 3,80,410/-                  27.01.2017

      2nd Extension      Rs. 3,77,260/-                  15.07.2017

      3rd Extension      Rs. 2,51,507/-                  21.11.2017

      4th Extension      Rs. 1,92,822/-                  21.02.2018



      First Part

      a. Principal Sum                        Rs. 25,00,000/-



      b. Term                            177 days

      c. Period                          5/2/2018 to 31/7/2018

      d. Interest                        17% per annum

      Second Part

      a. Principal Sum                   Rs. 25,00,000/-

      b. Term                            208 days

      c. Period                          5/2/2018 to 31/8/2018

      d. Interest                        17% per annum

After the extension of time, the defendant had again submitted

required documents to the plaintiff. On 9th August, 2018, the defendant has

paid Rs. 25,00,000/- together with interest of Rs. 1,93,870/- being the part

payment of the first transaction and the defendant had further requested for

extension for remaining amount and accordingly same was extended as

follows :

      Extension/Renewal    Term                            Period

      1                    1/9/2018 to 30/09/2018          30 days

      2                    01/10/2018                to 31 days
                           31/10/2018

Upon extension of time, the defendant had sent the following documents :

"a. Letter of undertaking dated 29 September 2018;

b. Demand promissory note dated 29 September 2018;

c. Money receipt dated 29 September 2018;

d. Cheques covering the principal sum and interest payable thereon both dated 1 November 2018."

On expiry of the term period when the plaintiff had called the

defendant for payment, the defendant had requested for some time for

payment and as per the instructions of the defendant, the plaintiff had

presented the cheque of Rs. 25,00,000/- for encashment in the month of

January, 2019 but the same was dishonoured with the remark "Funds

Insufficient" and accordingly the plaintiff had issued notice to the defendant

for initiation of proceedings under Section 138 of the Negotiable Instrument

Act as the defendant is liable to pay Rs. 27,81,781/- being the part of the

first transaction along with interest.

In the meantime, the tenure of ICD in respect of the second

transaction had also expired for the total amount of Rs. 50,00,000/-out of

which the defendant had paid interest of Rs. 3,76,230/- to the plaintiff till

28th July, 2016. As per the request of the defendant, the time for payment of

second transaction was also extended from time to time which are as follows

      Extension/Renewal Term                              Period

      1                      23/7/2016 to 18/01/2017      180 days

      2                      19/01/2017 to 17/07/2017     180 days

      3                      18/07/2017 to 31/12/2017     167 days



     4                      01/01/2018 to 01/04/2018             91 days




     Particulars        Interest amount                   Date

     1st Extension      Rs. 3,76,230/-                    30.01.2017

     2nd Extension      Rs. 3,77,260/-                    05.08.2017

     3rd Extension      Rs. 3,50,014/-                    28.12.2017

     4th Extension      Rs. 1,90,726/-                    05.04.2018




     First Part

     a. Principal Sum                          Rs. 25,00,000/-

     b. Term                                   182 days

     c. Period                                 02/04/2018 to 30/09/2018

     d. Interest                               17% per annum

     Second Part

     a. Principal Sum                          Rs. 25,00,000/-

     b. Term                                   213 days

     c. Period                                 02/04/2018 to 31/10/2018

     d. Interest                               17% per annum



Extension/Renewal Amount                     Term                      Period
1                 Rs 25,00,000/-             1/10/2018              to 61 days
                                             30/11/2018
2                    Rs 25,00,000/-          01/10/2018             to 92 days
                                             31/12/2018

In all time after the extension of time, the defendant had submitted

the following documents :

"a. Letters of undertaking dated 29 September 2018;

b. Demand promissory note dated 29 September 2018; c. Money receipts dated 29 September 2018;

d. Cheques covering the principal sum and interest payable thereon dated 1 December 2018 and 1 January 2019."

On expiry of the extended period, the plaintiff had requested the

defendant for payment and the defendant had sought for some time for

repayment of loan along with interest and the plaintiff had accepted the

request made by the defendant. Subsequently, the defendant had issued two

cheques to the plaintiff for an amount of Rs. 25,00,000/- each and plaintiff

had presented the said cheques for encashment but said cheques were

dishonoured. The plaintiff had issued notice to the defendant for initiation of

proceeding under section 138 of the Negotiable Instruction Act. Inspite of

receipt of notice the defendant has neither paid principal amount nor

interest to the plaintiff.

Considered the rival submissions of the respective parties, perused

the application, various orders and the documents relied by the plaintiff.

As regard the contention raised by the defendant with regard to

maintainability this Court finds that the plaintiff had initially filed the

instant suit before the Ordinary Original Civil Jurisdiction and during the

pendency of the suit before the said Court, the plaintiff had filed an

application under Chapter XIIIA of the Original Side Rule of this Court.

Subsequently the plaintiff has filed an application for transfer of the suit

along with connected application before this Court (Commercial Division)

being IA No. GA 5 of 2021 in the Master's Summons the plaintiff has prayed

following reliefs :-

"a) An order be passed directing transfer of the present suit being C.S. No. 133 of 2019 along with all pending application(s) therein to the Commercial Division of this Hon'ble Court;

b) Upon the present suit being transferred to the Commercial Division of this Hon'ble Court, the petitioner's application for summary judgment, being GA No. 2406 of 2019, be placed for hearing immediately under the heading "Chamber Application for Final Disposal" before the appropriate Bench taking up such matters.

c) An order be passed directing the department to mark the suit as the Commercial suit and permit the petitioner to file all additional documents as may be require dunder the Commercial Courts Act, 2015.

d) Ad-interim orders in terms of the prayer above.

e) Such further and/or other orders be passed and/or direction or directions be given as this Hon'ble Court any deem fit and proper."

The G.A. 5 of 2021 was disposed of on 19.07.2022 by passing the

following order :

"This is an application for transfer of this suit from the Ordinary Original Civil Jurisdiction to the Commercial Division.

It is fairly submitted by the parties that the disputes which from the subject matter of the suit is a "commercial dispute" within the meaning of the Commercial Courts Act. 2015. The claim in this suit is also within the ambit of the Act.

In view of the aforesaid, there shall be an order in terms of prayers (a) to (c) of the Master's Summons.

Accordingly, GA/5/2021 stands disposed of."

In the said order, the application filed by the plaintiff for summary

judgment being G.A. No. 2406 of 2019 (Instant Application) was also

transferred. As the plaintiff had filed the instant application before the

Ordinary Original Civil Jurisdiction and accordingly the plaintiff had prayed

for a summary judgment under Chapter XIIIA of the Original Side Rules of

this Court.

It is well settled law that mere mentioning wrong provision the

application cannot be rejected. In the case of P.K. Palanisamy -versus- N.

Arumugham & Anr. reported in (2009) 9 SCC 173, the Hon'ble Supreme

Court held that :

"27. Section 148 of the Code is a general provision and Section 149 thereof is special. The first application should have been filed in terms of Section 149 of the Code. Once the court granted time for payment of deficit court fee within the period specified therefor, it would have been possible to extend the same by the court in exercise of its power under Section 148 of the Code. Only because a wrong provision was mentioned by the appellant, the same, in our opinion, by itself would not be a ground to hold that the application was not maintainable or that the order passed thereon would be a nullity. It is a well-settled principle of law that mentioning of a wrong provision or non-mentioning of a provision does not invalidate an order if the court and/or statutory authority had the requisite jurisdiction therefor.

28. In Ram Sunder Ram v. Union of India [(2007) 13 SCC 255 : (2008) 2 SCC (L&S) 603 : (2007) 9 Scale 197] it was held: (SCC pp. 260-61, para 19) "19. ... It appears that the competent authority has wrongly quoted Section 20 in the order of discharge whereas, in fact, the order of discharge has to be read having been passed under Section 22 of the Army Act.

'9. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law.' (See N. Mani v. Sangeetha Theatre [(2004) 12 SCC 278] , SCC p. 280, para 9.)

Thus, quoting of wrong provision of Section 20 in the order of discharge of the appellant by the competent authority does not take away the jurisdiction of the authority under Section 22 of the Army Act. Therefore, the order of discharge of the appellant from the army service cannot be vitiated on this sole ground as contended by the learned counsel for the appellant."

In view of the above, this Court held that the point of maintainability

raised by the defendant has no leg to stand and thus rejected.

As regard on merit of the application, the defendant inspite of several

opportunities has not filed his affidavit. The documents relied by the plaintiff

on the basis of which the plaintiff has filed the instant suit it reveals that on

the demand of the defendant, the plaintiff has provided financial assistance

of Rupees One Crore at the rate of 17% interest per annum and the

correspondences made between the plaintiff and the defendant from time to

time. The defendant had admitted that the defendant had availed financial

assistance of Rupees One Crore from the plaintiff with interest. The

documents executed by the defendant admit that the defendant had availed

financial assistance with interest from the plaintiff and on the request of the

defendant the time period for return of the said amount was extended. The

defendant had also issued cheques to the plaintiff for realisation of the said

amount but the cheques issued by the defendant were dishonoured. The

defendant had paid interest on two occasions to the plaintiff and also return

an amount of Rs. 25,00,000/- out of one crore. When the defendant had

return the amount of Rs. 25,00,000/- on 9th August, 2018, the defendant

vide e-mail dt. 9th August, 2018 assured the plaintiff that the balance

amount will be paid on the following dates :

31.10.2018 ... Rs. 25 Lacs 30.11.2018 ... Rs. 25 Lacs 31.12.2018 ...Rs. 25 Lacs.

The defendant has not made payments to the plaintiff as per the

dates mentioned above and vide e-mail dt. 10th December, 2018, the

defendant has forwarded a revised plan to the plaintiff by informing that the

defendant will pay the balance amount of Rs.75,00,000/- in four installment

which are as follows :

      31.01.2019         ..Rs. 10.Lacs
      28.02.2019         .. Rs.15 Lacs
      31.03.2019         ..Rs.25 Lacs
      30.04.2019         .. Rs.25 Lacs.

The defendant inspite of time fixed by himself had not paid the

amount along with interest to the plaintiff and on 9th March, 2019 had again

sent a mail to the plaintiff requesting the plaintiff for extension of time for

payment till the month of March, 2019. On 7th January, 2019 the defendant

had sent a mail informing the plaintiff that the defendant will clear the total

liability by 31st March, 2019 and requested not to deposit cheques for

encashment.

This Court had considered the documents issued by the defendant in

favour of the plaintiff by admitting that the defendant had acknowledged the

amount of Rupees One Crore with the promise to return the same with

interest @17% per annum and by several documents the defendant had

admitted that he will return the said amount but the defendant had return