Starlite Vyapaar Pvt. Ltd vs Sng Fashions Pvt. Ltd
2022 Latest Caselaw 1924 Cal/2

                                      1


ODC-5

                                CS/108/2018

                 IA NO. GA/1/2018 (Old No: GA/2743/2018)

                     IN THE HIGH COURT AT CALCUTTA

                 ORDINARY ORIGINAL CIVIL JURISDICTION

                           COMMERCIAL DIVISION

                         STARLITE VYAPAAR PVT. LTD.

                                     Vs.

                          SNG FASHIONS PVT. LTD.



BEFORE :

The Hon'ble JUSTICE KRISHNA RAO

Date: 13th July, 2022.

                                                                   Appearance:

                                                Mr. Shuvasish Sengupta, Adv.
                                                  Mr. Soumyajit Mishra, Adv.
                                                       Mr. Balarko Sen, Adv.
                                                            ....for the plaintiff




                                 ORDER

The plaintiff has filed the suit praying for a decree of Rs. 72,67,390/-

along with interest and further interest @ 18 % per annum. The writ of

summon was served pylon the defendant on 26.06.2018. As per the report of

Deputy Registrar (Ct. & J) dt. 18.09.2019, defendant entered appearance

through the Ld. Advocate Sanchari Chakraborty on 03.09.2018. As per the

report of the Deputy Registrar dt. 19.09.2018 till 12:10 p.m dt. 19.09.2018 no

written statement was filed.

The plaintiff has filed the instant application under Chapter XIII - A of

the Original Side Rules praying for a decree and final judgment against the

defendant as per the prayer made in the Master's Summon under prayers

(a),(b),(c) & (d). The plaintiff is carrying on business of non-banking financial

institution. In the month of March, 2011, the defendant had approached the

plaintiff for financial accommodation for an amount of Rs. 50 lacs with an

assurance to pay interest @ 9 % per annum to the plaintiff accordingly, on

30.03.2011, the plaintiff had transferred an amount of Rs. 50 lacs in the

account of the defendant by way of Real Time Gross Settlement (RTGS). On

receipt of the said amount, the defendant had acknowledged the receipt of the

same on 30.03.2011. As per the assurance, on receipt of principal amount of

Rs. 50 lacs, the defendant had paid interest for about three times i.e. on

11.07.2014, 09.09.2015, 20.09.2016. The defendant had also issued post

dated cheque of ICICI Bank to the defendant for an amount of Rs. 50 lacs.

The plaintiff had presented the said cheque on 27.03.2017 but the same

was dishonoured with the endorsement account closed. As the defendant had

not return the said amount and had also not paid the interest in spite of the

request made by the plaintiff, the plaintiff had filed a complaint before the

Court of Ld. Chief Metropolitan Magistrate for the offence under Section

420/406/34/120 IPC and the same is pending before the Ld. Court.

As the defendant has admitted the claim of the plaintiff by

acknowledging the amount of Rs. 50 lacs and also paying interest for some

time and accordingly, the plaintiff has filed the instant application under

Chapter XIII-A of the Original Side Rules for passing the judgment and decree.

Chapter XIII-A Rule 3 reads as follows:-

"3. When application to be made:- Where the defendant in any suit which is within the terms of Rule 1has entered appearance the plaintiff may, as regard any claim which is within the terms of Rule, on affidavit made by himself or by any other person who and swear positively to the facts verifying the cause of action and the amount claimed, if any, and stating that in his behalf there is no defence to the claim, apply to the judge or final judgment for the amount claim together with interest, if any, or for the recovery of the land (With or without rent or mesne profits ) as the case may be and costs:

Provided that as against any defendant who has filed a written statement such application shall not be permissible unless the summon is taken out as in Rule 4 mentioned within 10 days after receipt of notice of the entering of appearance under Chapter VIII, Rule 18."

In the case of Manil Lal Sharma vs. Usha Beltron Limited reported in

CAL LT 2004 (3) HC 271, happily come to the rescue of the plaintiff. The

defendant's objection is negative by paragraph 4.2, 4.3 and 4.4 of this

judgment which are as follows:-

"44.2. In order to appreciate the situation we may scan the expression used in Rule 3. The provision proceeds to prescribe that an application shall not be permissible unless the summons is taken out within 10 days of receipt of notice of entering appearance under Chapter VII Rule 18 against a defendant who has filed a written statement. The qualification is provided against a defendant who has filed a written statement, the application under Chapter XIII-A shall not be permissible unless the summons is taken out within the time limit prescribed. The expression used may be interpreted in both the manner as Mr. Pal has

contended as well as Mr. Chatterjee has contended. Such question had cropped up before this Court in an unreported decision by Hon'ble Sengupta, J. Sitting singly in GA No. 3116 of 2001, CS No. 187 of 2001 (Calstar Steel Limited v. M/s. Deekay Coconut Oil Industries & Ors.) disposed of on July 11, 20022. In the said decision, it was held that Chapter XIII-A does not provide any time limit for taking out a Master's Summons where writ of summons has been served irrespective of the defendants entering appearance. But, from Rule 3 proviso, it appears that the 10 days limit would be applicable in a case where the written statement is filed simultaneously with the entering of appearance. Such 10 days limitation will not be applicable where the entering appearance is not simultaneously or immediately followed by the filing of the written statement and Master's Summons can be taken out in an appropriate case at any time. In order to apply for 10 days limitation, two conditions are to be fulfilled - (1) there must be a notice of entering appearance in the suit and (2) simultaneously with the entering appearance there must be filling of written statement. Anything short of either of these two things the aforesaid rigidity period of 10 days will not be applicable."

In the instant case, the defendant has received writ of summon on

26.06.2018 and had entered appearance on 03.09.2018 and as per the report

of the Deputy Registrar dt. 10.09.2018 no written statement is filed and thus

the application filed by the plaintiff is maintainable.

The Hon'ble Supreme Court in the judgment reported in (2017) 1 SCC

568 has fixed the following guidelines:-

"17. Accordingly, the principles stated in para 8 of Mechelec case will now stand superseded, given the amendment of Order 37 Rule 3 and the bindings decision of four judges in Milkhiram case, as follows:-

17.1. If the defendant satisfies the Court that he has a substantial defence, that is, a defence that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit.

17.2. If the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the

plaintiff is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend.

17.3. Even if the defendant raises triable issues, if a doubt is left with the trial Judge about the defendant's good faith, or the genuineness of the triable issues, the trial Judge may impose conditions both as to time or mode of trial, as well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit of security.

17.4. If the defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit of security or both can extended to the entire principal sum together with such interest as the court feels the justice of the case requires.

17.5. If the defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to Judgment forthwith.

17.6. If any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or substantial defence is raised), shall not be granted unless the amount should admitted to be due is deposited by the defendant in court."

As per record of the instant case, the defendant had not filed any written

statement. It also appears from record that since, for the long time the

defendant is not appearing in the said suit. Defendant had served the copy of

affidavit-in-opposition to the counsel for the plaintiff but the same was not filed

in the department and the said affidavit-in-opposition is not available in the

case record. Copy of the affidavit-in-opposition is supplied by the counsel for

the petitioner to this court at the time of hearing of the instant application.

In the affidavit-in-opposition filed by the defendant, the defendant has

admitted that the defendant had approached the plaintiff for financial

accommodation of Rs. 50 lacs for his business but had denied the interest of @

9 % per annum. The defendant had also admitted that a cheque is given to the

plaintiff for security. The defendant has admitted by way of his

acknowledgement dt. 30.03.2011 that the defendant has received an amount

of Rs. 50 lacs by RTGS as loan for business purpose and the said receipt of the

defendant is duly corroborated in the bank statement of the plaintiff dt.

30.03.2011.

The defendant has taken the plea that vide letter dt. 26.05.2014 had

informed the plaintiff not to present the said cheque in the bank as due to the

pressure of the bank the defendant has closed the current account but in spite

of having the knowledge the plaintiff has deposited the said cheque on

27.03.2017. The defendant has also stated that the plaintiff has lastly made

the demand in the month of January, 2012 specifying that entire payment is to

be made by the petitioner on or before 31.03.2012 and thereafter, no payment

was made by the defendant and the plaintiff has not taken any action within

the limitation period.

Though the defendant is not appearing in the suit but in the affidavit-in-

opposition, the defendant has taken the point of limitation and as per the letter

dt. 26.05.2014, the defendant has informed the plaintiff that the defendant has

closed the current account and requested not to present the said cheque in the

bank but in the year 2017, the plaintiff had presented the said cheque. In the

plaint, the plaintiff has mentioned the date of cause of action as 20.09.2016 i.e.

the last date of payment of interest but the defendant has denied with regard to

the interest and the document which the plaintiff is relied that the defendant

has paid the interest that is executed by the plaintiff only and there is no

evidence that the defendant has paid any interest to the plaintiff.

After considering the above, the Court finds that the defendant has

raised triable issue with regard to interest and the point of limitation and thus

the plaintiff is not entitled to get the relief as prayed for in the instant

application.

GA 1 of 2018 (Old No: GA 2743 of 2018) is thus dismissed.

(KRISHNA RAO, J.)

p.d