Calcutta High Court
Smt. Bhawana Bothra vs Smt. Sudha Kankaria on 16 November, 2023
OD- 4
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
CS/162/2020
IA NO: GA/1/2021
SMT. BHAWANA BOTHRA
VS
SMT. SUDHA KANKARIA
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date : NOVEMBER 16, 2023.
Appearance:
Mr. Rudrajit Sarkar, Adv.
Mr. Jai Kumar Surana, Adv.
Mr. Abhimonyu Roy, Adv.
..for the plaintiff/petitioner
Mr. Subrata Goswami, Adv.
Mr. Debrup Bhattacharjee, Adv.
...for the respondent/defendant
The Court: The plaintiff has filed the present application praying for
judgement on admission for a sum of Rs.36,25,000/-.
Counsel for the plaintiff submits that the defendant has borrowed an
amount of Rs.25,00,000/- on 9th April, 2014 from the plaintiff. The said
amount was transferred by the plaintiff in the account of the defendant on 9th
April, 2014. After receipt of the said amount, the defendant has paid interest
of Rs.1,25,342/- on 3rd August, 2015, 2nd December, 2015, 25th March, 2016,
25th August, 2017 and 10th January, 2018. Thereafter, the defendant has
neither paid an interest nor has returned the principal amount. The
defendant had also issued the confirmation of account with effect from 1st
April, 2014 to 31st March, 2016 wherein it reveals that the defendant has
borrowed an amount of Rs.25,00,000/- and paid the interest thereof. The
defendant had stopped paying interest and had also not returned the
principal amount, the plaintiff had issued a legal notice to the defendant on
19th November, 2019 calling upon the defendant for refund of Rs.25,00,000/-
along with interest at the rate of 15% per annum. In spite of receipt of notice,
the defendant has neither sent any reply nor had paid the principal amount
as well as the interest as claimed in the said notice and accordingly, the
plaintiff has filed the present suit.
Counsel for the plaintiff submits that as per statement of account
and confirmation of account, the defendant has admitted the amount of
Rs.25,00,000/- received by the defendant and it is also admitted that the
defendant has not returned the said amount as well as the interest after the
month of January, 2018. Counsel for the plaintiff submits that the defense set
out by the defendant is moon shine and prays for judgment on admission for
an amount of Rs.36,25,000/- along with interest at the rate 15% per annum
till the realization of the said amount.
Per contra, learned Counsel for the defendant submits that the
confirmation of accounts dated 1st April, 2015 and 1st April, 2016 which the
plaintiff has relied upon is not issued by the defendant and the signature
appearing in the said confirmation on account is not of the defendant.
Learned Counsel for the defendant submits that one Smt. Bhawana
Bothra has filed the present suit against the defendant, but the statement of
account which the plaintiff relied upon is standing in the joint name of
Bhawana/Shailesh Bothra and as such the suit filed the plaintiff alone
cannot maintain without Shailesh Bothra as plaintiff.
Counsel for the defendant further submits that the suit filed by the
plaintiff is barred by limitation as the defendant alleged to have borrowed loan
on 9th April, 2014 and the plaintiff has filed the suit in the month of
December, 2020 and as such the suit is liable to be dismissed on the ground
of limitation.
Learned Counsel for the defendant further submits that the alleged
legal notice dated 19th November, 2019 was never served upon the defendant
and it is admitted by the plaintiff that only the intimation was given by the
postal authority with regard to the legal notice but, there is no averments
whether the defendant has refused to accept the said notice or the defendant
has refused to claim the said notice and as such it cannot be said that the
notice was served upon the defendant. Counsel for the defendant submits
that no decree can be passed as the plaintiff has not obtained any licence
under the West Bengal Money Lending Act. Counsel for the defendant further
submits that the plaintiff has admitted in the affidavit in reply that the
plaintiff has applied for the money lending licence but the same has not been
granted.
Considered the submission made by the Counsel for the respective
parties, perused the materials on record.
As per the case of the plaintiff, the plaintiff has lent and advanced a
sum of Rs.25,00,000/- to the defendant on 09th April, 2014 and the defendant
has paid the interest till 10th January, 2018 and the suit was filed in the
month of December, 2020 and thus, the suit is within the prescribed time of
limitation.
Section 19 of the Limitation Act reads as follows:
19. Effect of payment on account of debt or of interest on
legacy. - Where payment on account of a debt or of interest on a
legacy is made before the expiration of the prescribed period by the
person liable to pay the debt or legacy or by his agent duly
authorised in this behalf, a fresh period of limitation shall be
computed from the time when the payment was made :
Provided that, save in the case of payment of interest made before
the 1st day of January, 1928, am acknowledgement of the payment
appears in the handwriting of, or in a writing signed by, the person
making the payment.
Explanation.- For the purposes of this section,-
(a) where mortgaged land is in the possession of the mortgagee,
the receipt of the rent or produce of such land shall be deemed to
be a payment;
(b) "debt" does not include money payable under a decree or
order of a court.
In the present case, though as per the case of the plaintiff the first
interest was paid on 3rd August, 2015 and it was continued till 10th January,
2018, but, the plaintiff has failed to produce any document with regard to the
payment of interest by the defendant on 3rd August, 2015, 2nd December,
2015 and 25th March, 2016 which reflects in the confirmation of account. The
said confirmation of account is denied by the defendant and as such this
Court is of the view that with regard to the payment of interest by the
defendant from 3rd August, 2015 to 25th March, 2016 is the matter of trial
which is required to the proved by the plaintiff during the trial. As regard the
grant of licence under the Money Lenders Act, the plaintiff in affidavit in reply
has admitted that the plaintiff has applied for grant of licence but the same
has not been granted till date.
In view of the admission made by the plaintiff in the affidavit in
reply, no decree can be passed on admission as prayed for by the plaintiff.
As regards the service of notice, it is also admitted by the plaintiff
that the intimation was given by the postal authority to the defendant, but
there is no averments that the defendant has refused to accept the said notice
or refused to claim the said notice and thus, this Court is of the view that
whether the notice was served upon the defendant or the defendant has
refused or not claimed is to be decided during trial of the suit.
In view of above, this Court finds that the application filed by the
plaintiff for judgement on admission is misconceived and no decree can be
passed on admission as the defendant has raised triable issues which can be
decided only during the trial.
Accordingly, GA No. 1 of 2021 is dismissed.
(KRISHNA RAO, J.)
Sbghosh
