Calcutta High Court
M/S. Sree Bishan Das Iron Works vs Basant Saha on 10 November, 2022
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IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
CS 153 of 2014
M/s. Sree Bishan Das Iron Works
Versus
Basant Saha
Mr. Arnab Mukherjee
Mr. B. K. Upadhyay
Mr. S. Pyne
.....For the Plaintiff
Mr. A. Bose
.....For the defendant
Heard on : 26.09.2022
Judgment on : 10.11.2022
Krishna Rao, J.:
The plaintiff has filed the instant suit praying for a decree for a sum of
Rs. 75,88,812/- along with interest. The plaintiff is a partnership firm and
the defendant deals in a scrap iron. Sometimes in the year 2005, the
defendant had informed the plaintiff that the defendant is owner of several
plots at Howrah being premises no. 18 and 18A G.T. Road, District -
Howrah and had entered into an agreement with M/s. Bhagwati Plasto
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Works (P) Ltd. for developing the said land by constructing building thereon.
The plaintiff had agreed to purchase some plots in the said project and had
paid an advance of Rs. 32,00,000/- to the defendant. After receipt of the
advance amount, the defendant had assured the plaintiff that a deed of
conveyance would be registered as early as possible. Even after the
assurance and receipt of the advance amount, the defendant failed to come
forward for registration of sale deed in favour of the plaintiff. As the
defendant has neither registered the deed nor has returned the amount to
the plaintiff, the plaintiff had made a complaint to the police authority on
27.04.2012
. The defendant had approached the plaintiff and requested some
time to repayment of the amount and also agreed that the defendant will pay
the said amount along with interest.
The defendant in writing admitted to pay Rs. 20,00,000/- towards
interest and Rs. 10,00,000/- as compensation to the plaintiff firm in
addition to the principal amount. The defendant had also issued three
account payee cheques in favour of the plaintiff, for an amount of Rs.
10,00,000/- dt. 02.08.2012, Rs. 10,00,000/- dt. 04.08.2012 and Rs.
12,00,000/- dt. 06.08.2012. It is the further case of the plaintiff that the
aforementioned cheques were issued by the defendant to the plaintiff with
regard to the principal amount and the defendant informed the plaintiff that
the balance amount of the Rs. 30,00,000/- has aforesaid shall be paid
within 6 to 8 months. The plaintiff had presented the said cheques for
encashment but all the cheques have been dishonoured with the
endorsement insufficient fund. The plaintiff issued legal notice to the
defendant calling upon the defendant for payment of an amount of Rs.
62,00,000/- along with interest. On receipt of the notice, the Counsel for the
defendant had sent a reply informing that the defendant is out of station
and he would be available last week of December, 2013 and after getting the
instructions from the defendant, he will give reply in detailed to the plaintiff.
It is further case of the plaintiff that thereafter neither the defendant has
given any reply nor had paid the said amount to the plaintiff and
accordingly the plaintiff has filed the instant suit.
After receipt of the writ of summons of the instant suit, the defendant
had entered appearance but had not filed written statement and
subsequently the defendant had filed an application being GA 2 of 2014
praying for extension of time to file of written statement. Inspite of filing the
application, the defendant has not proceeded with the said application and
accordingly vide order dt. 11.07.2022, this Court had dismissed the
interlocutory application for non-prosecution. As the defendant has not filed
written statement accordingly the suit was posted as undefended suit.
To prove the case of the plaintiff, the plaintiff had examined one
witness namely Jagdish Parshad Goel being the one of the partner for the
plaintiff firm. During his examination, the plaintiff has exhibited altogether
nine (9) exhibits being Exhibits - 'A' to Exhibit - 'I'.
Exhibit- A : A letter of authorization authorized by the firm to the
witness Shri Jagdish Parshad Goel to depose before this Court on behalf of
the plaintiff firm.
Exhibit - B : Confirmation letter issued by the defendant to the
plaintiff regarding receipt of Rs. 32,00,000/-.
Exhibit - C : Confirmation of account of Rs. 32,00,000/-.
Exhibit - D : Vide letter dt. 10.06.2011 issued by the plaintiff to the
defendant confirming that the plaintiff has received the confirmation from
the defendant.
Exhibit - E : The confirmation of account with respect of Rs.
32,00,000/-.
Exhibit - F : An undertaking submitted by the defendant to the
plaintiff regarding payment of interest and compensation dt. 07.05.2012.
Exhibit - G (Collectively) : Cheque of Rs. 50,000/- dt. 26.03.2014,
for an amount of Rs. 50,000/-, cheque dt. 04.08.2012 for an amount of Rs.
10,00,000/-, cheque dt. 02.08.2012 for an amount of Rs. 10,00,000/- and
cheque of Rs. 12,00,000/- dt. 06.08.2012.
Exhibit - H : The legal notice sent by the plaintiff to the defendant dt.
30.11.2013 along with acknowledgement card, copy of the reply sent by the
Counsel for the defendant dt. 16.12.2013.
Exhibit-'B' to Exhibit -'E' proves that the plaintiff has paid an amount
of Rs. 32,00,000/- to the defendant and the defendant had acknowledged
the same. Exhibit - 'F' on the basis of which the plaintiff is claiming that the
defendant has given an undertaking that the defendant has agreed to pay
Rs. 20,00,000/- as interest and Rs. 10,00,000/- as compensation cannot be
said to be proved as the scrap of paper only reveals that interest of Rs.
20,00,000/- and cash Rs. 10,00,000/- total Rs. 30,00,000/- , the said
Exhibit - F does not say that the said amount which is mentioned in the
said exhibit is interest in connection with the principal amount or the
compensation as claimed by the plaintiff. Exhibit - 'G' containing four
cheques out of which two cheques of Rs. 10,00,000/- and one cheque is Rs.
12,00,000/- dt. 02.08.2012, 04.08.2012 and 06.08.2012 total amounting to
Rs. 32,00,000/- but the plaintiff has also exhibited one cheque of IDBI Bank
dt. 26.03.2014 which the plaintiff has neither described in the plaint nor
there is any averment that the defendant has issued the said cheque to the
plaintiff. It is also surprise that the said cheque is dt. 26.03.2014 i.e. after
the legal notice but it is the specific case of plaintiff that the defendant has
not paid any amount to the plaintiff.
After going through the pleadings, the evidence and the documents
relied by the plaintiff, it is find that the transaction between the plaintiff and
the defendant was made in the year 2005 and subsequently the defendant
had issued the said cheque to the plaintiff on 06.08.2012 which was
dishonoured with the reasons insufficient funds. As per Exhibit - 'H', the
plaintiff had issued legal notice to the defendant on 30.11.2013 and the
Counsel for the defendant had sent a reply on 16.12.2013, after 16.12.2013
there is no correspondence between the plaintiff and the defendant. As per
the record, the plaintiff has filed the suit in the month of March, 2014 and
was presented before this Court on 21.04.2014, thus the suit is within time
as prescribed under law.
After considering the plaint, statement of witness and exhibits this
Court finds that the plaintiff is able to prove that the plaintiff has paid Rs.
32,00,000/- to the defendant but the defendant has not returned the said
amount to the plaintiff. The plaintiff is entitle to get a decree for a sum of Rs.
32,00,000/- (Rupees thirty two lakhs only) along with interest @ 12% per
annum with effect from 1st April, 2006 i.e. confirmation of account dt.
01.04.2007 (Exhibit-C) till realization of the decreetal amount.
The defendant is directed to pay an amount of Rs. 32,00,000/- along
with interest within sixty (60) days from date.
CS 153 of 2014 is allowed. Decree be drawn accordingly.
(Krishna Rao, J.)
