Calcutta High Court
Padma Sonthalia vs Vivek Kumar Kathotia on 1 September, 2023
ORDER SHEET
OD-9
CS No. 194 of 2022
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGNAL CIVIL JURISDICTION
PADMA SONTHALIA
VERSUS
VIVEK KUMAR KATHOTIA
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date: 1st September, 2023.
Appearance:
Mr. Rupak Ghosh, Adv.
Mr. Varun Kothari, Adv.
Mr. Nikunj Berlia, Adv.
Ms. Saolini Bose, Adv.
For the plaintiff.
The Court :- The plaintiff being the sole witness is examined in chief in
full. No one appears to cross-examine the plaintiff. Although on 18 th August,
2023 when the plaintiff was in the witness box and had been partly examined
in chief Mrs. Manju Agarwal, Advocate, instructed by L.P.Manot & Co,
appeared and submitted that she had been instructed to appear on behalf of
the defendant. The matter was, therefore, adjourned on 18 th August, 2023 to
allow Mrs. Agarwal and the defendant to take steps. No steps were taken by
25th August, 2023 and as such further examination in chief of the plaintiff
took place on 25th August, 2023.
After considering the averments in the plaint and the evidence laid on
behalf of the plaintiff, it is evident that the plaintiff had lent and advanced a
sum of Rs.45,50,000/- to the defendant in aggregate as accommodation loan
at the request of the defendant who was known to the plaintiff's husband. It is
also borne out from the record that after adjustment of the repayments made
and the interest paid a sum of Rs.38,91,609/- comprising of the unpaid
principal and interest was due and payable by the defendant to the plaintiff as
on 25th June, 2022 when the plaintiff had caused a demand notice dated 25 th
June, 2022 to be issued through her advocate which has been duly received by
the defendant as will appear from the postal receipts, the photocopies whereof
are exhibited and the track report downloaded from the official website of the
India Post also exhibited in this suit. The contents of the demand notice has
also been proved and exhibited.
The plaintiff has proved the remittance of the money. The plaintiff's
version that the same was given as loan to the defendant is to be accepted in
absence of any contrary version. The amount given to the defendant are
reflected in the bank account statements in respect of the plaintiff's bank
account maintained with UCO Bank at Kolkata Main Branch and ICICI Bank
Limited at Sakinaka Branch, Mumbai. The passbook issued by UCO Bank has
been exhibited. In absence of any contrary version, it is to be presumed that
the said passbook was issued to the plaintiff in usual course of business by
the bank with regard to the plaintiff's ledger maintained with the said bank.
Similar has to be the presumption in respect of the bank account statement
issued by the ICICI Bank Limited which is, in fact, authenticated by the seal
and signature of the bank. The entries by which the money was disbursed to
the defendant from the plaintiff's said two accounts have been also identified
by the plaintiff in course of deposition.
The defendant neither entered appearance upon receipt of the writ of
summons nor filed his written statement. The Department has issued a
certificate certifying that the defendant has not entered appearance. There is
also a certificate issued by the defendant that no written statement has been
filed. Only after obtaining the said certificate, the defendant applied before the
Registrar, Original Side and after placing the suit in the warning list, it has
been brought in the list of this Court. The defendant had, therefore, been
afforded ample opportunity to contest this suit. The defendant, however, chose
not to do so. The defendant despite being given another opportunity on 18 th
August, 2023 also did not avail.
In absence of the written statement or any cross-examination, the
evidence of the plaintiff has to be taken to the true in his face value. The
plaintiff cannot demonstrate receipt of the money as repayment except
deposing that she did not receive the same. It was for the defendant to appear
and substantiate that the money or a part thereof has been repaid. The version
of the plaintiff that she has received part payment and interest which on being
adjusted with her dues comes to Rs.38,91,609/- as on 30 th June, 2022 is to be
accepted. The plaintiff has also substantiated the facts and figures of the sum
owed by the defendant to the plaintiff through a ledger collated from the bank
statement which was prepared by the plaintiff's son at her instruction. The
plaintiff has also proved two confirmation of accounts respectively dated 1 st
April, 2017 and 1st April, 2018. In absence of any contrary version, the
authenticity of the confirmation of accounts cannot be disputed. The
confirmation of accounts also establish that the money was taken by the
defendant from the plaintiff as loan.
It is also apparent from the last confirmation account that a sum of
Rs.44,54,192 was due and payable by the defendant to the plaintiff as on 1 st
April, 2018. The plaintiff has, in fact, claimed a sum lesser than the said
figure of Rs.44,54,192/-. There is as such no occasion to doubt the
correctness of the deposition of the plaintiff.
The plaintiff, therefore, has proved that the plaintiff had lent out money
to the defendant as accommodation loan and is entitled to recover the same as
the same has not be repaid by the plaintiff. The exact figure of the principal
sum is not available but the sum of Rs.38,91,609/- which comprises of the
principal and interest is accepted to be the principal sum due and payable to
the plaintiff as on 1st July, 2022 by the defendant.
Although, the plaintiff has claimed interest at the rate of 9% per
annum, but in absence of any written document it is open to the Court to
allow a reasonable rate of interest which may be less than the rate at which
interest is charged and claimed. The rate of interest charged by the plaintiff is
accepted for the pre-suit period but for the period from 1 st July, 2022 after
taking into account of the present rate of interest given by the nationalized
banks to a senior citizen, the rate of interest is about 6% to 7% per annum.
In the aforesaid facts and circumstances, the plaintiff is to receive
interest at the rate of 6% per annum on and from 1 st July, 2022 until
repayment. The rate of interest awarded is reasonable and fair taking into
account the ratio laid down in the judgment reported in 2021(11) SCC 543
(State of Andhra Paresh & Anr. vs. Dinavahi Lakshmi Kameswari).
Moreover, I have allowed interest at a higher rate for the pre-suit period. No
cost is also awarded as the plaintiff is allowed to add the pre-suit interest with
the principal to compound it as the principal due and payable on 1 st July,
2022.
In the aforesaid facts and circumstances, there shall be a decree for a
principal sum of Rs.38,91,609/- along with simple interest at the rate of 6%
per annum. Since the defendant has remained unrepresented and the suit is
being tried as an undefended suit, the plaintiff shall serve a copy of this
judgment and order downloaded from the official website of this Court to the
defendant at his last known address informing him that the principal sum
along with accrued interest till 31st August, 2023 shall have to be paid by 30th
September, 2023 failing which the interest at the rate of 6% will accrue on the
principal sum of Rs.38,91,609/- on and from 1 st July, 2022 until the date of
repayment and the plaintiff shall be entitled to realize the same from the
defendant.
The suit is, accordingly, decreed and disposed of, however, without any
order as to costs.
(ARINDAM MUKHERJEE, J.)
snn
