Calcutta High Court
Vikram Bachhawat (Huf) vs Smt. Sudha Kankaria on 8 September, 2022
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
Before:
The Hon'ble Justice Ravi Krishan Kapur
G.A 1 OF 2021
C.S 28 OF 2021
VIKRAM BACHHAWAT (HUF)
Vs.
SMT. SUDHA KANKARIA
For the petitioner : Mr. Satadeep Bhattacharya, Adv
Mr. Jai Kumar Surana, Adv
Mr. D. Surana, Adv
For the respondent : Mr. Subrata Goswami, Adv
Mr. D. Bhattacharjee, Adv.
Mr. S. Ghosh, Adv.
Reserved on : 12.05.2022
Judgment on : 08.09.2022
Ravi Krishan Kapur, J.:
1. The suit is for recovery of money arising out of money lent and
advanced. This application is filed for judgment upon admission.
2. Briefly, the facts of this case are as follows:
a) In or about 2015, the petitioner lent and advanced a sum of Rs.
40 lakhs to the respondent by way of a cheque. Upon
presentation, the cheque was duly encashed by the respondent.
b) The agreement by and between the parties stipulated that the
aforesaid financial accommodation was repayable along with
interest at the rate of 15% per annum. Between 19 March, 2015
till 30 November, 2017, the respondent regularly paid the
interest component in respect of the aforesaid loan on quarterly
basis.
c) The last interest paid was for the period from 1 August 2017 till
30 November, 2017 being a sum of Rs. 2,00,548/-.
d) Thereafter, the respondent had also signed Statements of Loan
Confirmation for the financial years ending 31st March, 2015,
31st March, 2016, 31st March, 2017 and 31st 2018
acknowledging her liability both towards principal and interest
respectively.
e) It is alleged on behalf of the petitioner that, the aforesaid
payments of interest along with the loan confirmation
statements constitutes a clear, categorical and unequivocal
admission of liability by the respondent towards both principal
and interest.
f) Thereafter, the respondents began to defaulted in repayment of
interest. Ultimately, the petitioner by a notice dated 9
September, 2019 was compelled to recall the entire loan as well
as the outstanding interest forthwith.
g) In reply, to the notice, the respondent by a letter dated 19
September, 2019 contented that the aforesaid transaction was
not a loan transaction. The said letter was duly replied to by a
letter issued on behalf of the petitioner dated 14th January
2020. Hence, this suit.
3. On behalf of the respondent it is contended that, the petitioner being a
Hindu Undivided Family (HUF) is not competent to institute this suit
in its own name. It is further contended that, the aforesaid
transaction between the parties is barred under the provisions of the
Bengal Money Lenders Act, 1940. It is also alleged that the entire
loan was financed through a broker, Shanti Kumar Surana and the
same was negotiated by the deceased husband of the respondent. It
is also contended that the respondent has handed over three antiques
paintings and antique wall mirrors to the respondent in an attempt to
square off the outstanding dues payable to the petitioner. Though,
the petitioner has agreed to take the aforesaid paintings and mirrors
in discharge of the entire outstanding dues, the petitioner refused to
record the same in writing.
4. I have considered the submissions made on behalf of the parties.
5. The object of Order 12 Rule VI of the Code of Civil Procedure 1908 is
to expedite trials and to enable a party to obtain a speedy judgement
at least to the extent of the reliefs which have admitted by the
defendant. This Rule can be invoked at any stage of the suit. The
Rule is enabling, discretionary and permissive. Basically, the Rule
permits the Court to sift through unworthy defences and relegate the
parties to trial to only on that aspect of the suit which requires
adjudication.
6. From the facts and circumstances of the case and the pleadings and
documents relied on by the parties in my view, the admitted facts
which emerge are as follows:
(a) The respondent has duly received and appropriated the
entirety of the principal sum of Rs. 40 lakhs paid by the
petitioner.
(b) The respondent has also made payment of the interest
component for a substantial period which is a categorical
admission of liability of the respondent.
(c) The respondent has also signed Confirmation of Accounts for
the year ending 31st March, 2015, 31st March, 2016 and 31st
March, 2017 and 31st March, 2018 which is a clear and
categorical admission of liability by the respondent towards
principal and interest.
7. Accordingly, in my view, the respondent has clearly, unambiguously
and unequivocally admitted its liability to the petitioner both towards
principal and towards interest. The claim of the petitioner is for a
present debt and such debt has become repayable upon demand by
the petitioner.
8. I also do not find any merit in the defence raised on behalf of the
respondent. There is no evidence whatsoever to substantiate the fact
that the petitioner is a money lender or is in the business of money
lending as contemplated under the Bengal Money Lenders Act, 1940
[Sitaram Poddar vs Bhagirath Chowdhury (2011) 2 CHN 969 at para
17, Bipin Vazirani Vs. V. Raheja Design Construction Private Limited
and Anr. 2018 SCC Online Bom 19972 at para 7).
9. It is next contended that the suit is not maintainable on the ground
that the same has been instituted in the name of the HUF. Thus, it is
urged that since the HUF is not a juristic entity it lacks competence to
file a suit. I find that, though the suit is filed in the name of the HUF,
it is the Karta who is described as representing the HUF both in the
body of the plaint and the cause title. Thus, the Karta is clearly shown
and named. The suit has been filed by the HUF through the Karta.
The transaction has been entered into by the Karta and it is
reasonably clear who the real parties to this suit are. Thus, I find no
merit in this contention (Shri Ganeshmull Surana vs Nagraj Surana
AIR 1953 Calcutta 294 at para 17).
10. The bare denial of the respondent in disputing the signature in the
loan confirmation statements is also without substance. There is also
no substance in the defence that the respondent has handed over
three antique paintings and three antique wall mirrors to square up
the loan of the petitioner or such agreement was entered into by and
between the parties. Admittedly, no written agreement exists between
the parties wherefrom it appears that there was any such agreement
by and between the parties. Thus, no credence can be given to the
defence. In any event, the story of the respondent is contradictory and
self defeating. If there is no outstanding amount repayable to the
petitioner, then why an attempt to square off the same? Accordingly, I
do not believe the story put forward by the defendant.
11. In view of the aforesaid, there shall be a decree for judgment upon
admission for a sum of Rs.58,50,137/- particulars whereof appear at
paragraph 17 of the application. The remaining claim of the
respondent stands relegated to trial. Insofar as the prayer for security
and injunction is concerned, liberty is granted to the plaintiff to take
necessary steps in accordance with law, if the decree remains
unsatisfied.
12. With the aforesaid directions, GA 1/2021 stands allowed.
(Ravi Krishan Kapur, J.)
