Calcutta High Court
Newever Vincom Private Limited vs Debabrata Ghosh on 27 August, 2024
IN THE HIGH COURT AT CALCUTTA
COMMERCIAL DIVISION
ORIGINAL SIDE
Present :
The Hon'ble Justice Krishna Rao
CS-COM/670/2024
[Old No.CS/238/2023]
NEWEVER VINCOM PRIVATE LIMITED
-VS-
DEBABRATA GHOSH
Mr. Ratanlal Joshi, Adv.
Mr. K. C. Garg, Adv.
Mrs. Sunita Agarwal, Adv.
... for the plaintiff
Hearing concluded on : 27.08.2024
Judgment on : 27.08.2024
Krishna Rao, J. :
1. The plaintiff has filed the present suit praying for decree for a sum of
Rs.1,58,46,390/- along with interest @ 15% per annum.
2. The plaintiff is a non-banking financial company registered to carry on
the business of Non-Banking Financial Institution without accepting
public deposits. The defendant is carrying business as developer in real
estate. The defendant in the process of developing certain piece and
parcel of a land admeasuring an area of 4 Cottahs, located and situated
as part of premises No.12, Sitaram Road, Bansdroni, Kolkata-700070
and approached the plaintiff to finance the said project of the defendant.
As per the request made by the defendant, the plaintiff had agreed to
provide temporary financier and short-term credit facilities for the
development of the said project undertaken by the defendant by
executing a Memorandum of Understanding dated 7th March, 2013.
3. The plaintiff had agreed to pay as loan to the defendant amounting to
Rs.1 crore. Initially the plaintiff has paid Rs.30 lakhs to the defendant on
7th March, 2013 as part payment of the total loan of Rs.1 crore. The
defendant in order to show his bona fide, consequent to disbursement of
the first tranche of Rs.30 lakhs agreed to give possession of the entire 2nd
floor of premises no.134/B, Block-G, New Alipore, Kolkata and premises
no.44 Humayun Kabir Sarani, Ward no.81, Kolkata as temporary
security of the advance amount paid by the plaintiff to the defendant in
terms of the Memorandum of Understanding. The balance loan amount
of Rs.70 lakhs was paid by the plaintiff to the defendant in five tranches
i.e. Rs.20 lakhs at the time of execution of Sale Agreement of two flats,
Rs. 20 lakhs at the time of commencement of Civil Work, Rs.10 lakhs
after completion of 1st slab casting of the front portion, Rs.10 lakhs after
completion of 2nd slab casting of the front portion and Rs.10 lakhs after
completion of 3rd slab casting of the front portion.
4. The defendant has paid the interest up to December 2019 and thereafter
the defendant has neither paid the interest nor returned the principal
amount and failed to comply with the terms and conditions of the
Memorandum of Understanding dated 7th March, 2013.
5. Subsequently, the defendant has issued cheque of Rs.1,16,45,000/- but
the same was also dishonoured. After the dishonour of the cheque, the
plaintiff has issued notice to the defendant for repayment of the loan
amount along with interest but in spite of receipt of the notice, the
defendant failed to pay the said amount. The plaintiff had initially filed a
suit before the Regular Division being CS/152/2023 but by an order
dated 8th August, 2023 the plaintiff has withdrawn the said suit praying
leave to file a fresh suit by complying with the statutory requirement in
terms of the Commercial Courts Act. After withdrawal of the said suit,
the plaintiff had initiated pre-litigation process but the defendant failed
to appear before the mediation and non-starter report was filed on 11th
October, 2023. After receipt of the non-starter report, the plaintiff has
filed the present suit.
6. After filing of the suit, the plaintiff has taken appropriate steps for
issuance of writ of summons but the writ of summons could not be
served upon the defendant either through the Bailiff of this Court or
through postal authorities. Accordingly, as per the order passed by this
Court, the plaintiff has published the notice of the suit in English and
Bengali newspaper for information of the defendant regarding the
pendency of the suit but in spite of the publication of the notice, none
appeared on behalf of the defendant and by an order dated 1st July, 2024
this Court has fixed the matter in the list of Undefended Suit.
7. To prove the case, the plaintiff has examined one witness, namely, Pradip
Kumar Bhimrajka who is one of the share holders of the plaintiff
company. During his evidence, the plaintiff has exhibited altogether 9
(nine) documents which are as follows :
Exhibit-A is the authorization of the plaintiff company in favour
of P.W.1.
Exhibit-B is the Memorandum of Understanding entered
between the plaintiff and the defendant, dated 7th March, 2013.
Exhibit-C is the declaration given by the defendant dated 20th
January, 2017.
Exhibit-D is another declaration given by the defendant dated
16th January, 2021.
Exhibit-E (collectively) is the cheque No.039209 dated 30th April,
2021 of Rs.1,16,45,000/- along with cash deposit receipt and
cheque return memo.
Exhibit-F is the Cheque No.039210 dated 28th June, 2021 of
Rs.1,16,45,000/-.
Exhibit-G is the legal notice dated 7th July, 2021.
Exhibit-H collectively are the speed post receipts and track
reports.
Exhibit-I is the non-starter report.
8. Exhibit-B i.e. the Memorandum of Understanding proves that the
defendant has entered into a Memorandum of Understanding with the
plaintiff on 7th March, 2013 wherein the plaintiff has agreed to pay Rs.1
crore as loan amount to the defendant for development of the property
out of which the plaintiff has paid Rs.30 lakhs as first instalment out of
Rs. 1 crore. The plaintiff has paid the balance amount of Rs.70,00,000/-
in five tranches.
9. It is not denied that the plaintiff has not paid the said amount as agreed
between the parties. By a declaration dated 20th January, 2017 the
defendant has agreed that he will pay the amount within 15 to 30 days
and in case he fails to pay the said amount, he will sell his own property
of New Alipor being Flat No. 134/B, Block-G, New Alipore, Kolkata and
liquidate the entire amount to the plaintiff. The said document is marked
as Exhibit-C. In spite of the declaration, executed by the defendant, the
defendant has not paid the said amount and accordingly, the defendant
has executed second bond on 16th January, 2021 wherein the defendant
has declared that he will repay the loan amount immediately by selling
his property and will register the second floor premises of the property in
favour of the plaintiff on or before 31st January, 2024.
10. In spite of the execution of the bond dated 16th January, 2021 which is
marked as Exhibit-D, the defendant failed to pay the said amount and
accordingly, the defendant had issued cheque being No.039209 dated
30th April, 2021 of Oriental Bank of Commerce for Rs.1,16,45,000/- in
favour of the plaintiff which is marked as Exhibit-E. The plaintiff has
presented the said cheque but the same was dishonoured. After the
dishonour of the said cheque, the defendant had issued another cheque
dated 28th June, 2021 of Oriental Bank of Commerce in the name of the
plaintiff for a total sum of Rs.1,16,45,000/- being Exhibit-F and the said
chqeue was also presented by the plaintiff for encashment but the same
was also dishonoured. After the dishonour of the said cheque, the
plaintiff had issued the notice to the defendant on 7th July, 2021 calling
upon the defendant to pay the amount of Rs.1,16,45,000/- along with
the interest within 15 days from the date of receipt of the notice. The said
notice was duly served upon the defendant but in spite of receipt of the
notice, neither the defendant has paid any amount nor has sent any
reply to the plaintiff and accordingly, the plaintiff has filed the instant
suit.
11. Considered the submission made by the counsel for the plaintiff. Perused
the plaint and the documents as exhibited and the evidence of the
plaintiff's witness.
12. This Court finds that as per the request made by the defendant, the
plaintiff has entered into a Memorandum of Understanding with the
defendant on 7th March, 2013. As per the said Memorandum of
Understanding, the plaintiff has paid the total amount of Rs. 1 crore to
the defendant. The defendant has paid the interest to some extent till the
month of December 2019. Thereafter the defendant has neither paid
interest nor has returned the principal amount. In the meantime, the
defendant has executed an undertaking in favour of the plaintiff
confirming that he will repay the said amount but neither the defendant
has paid the amount nor had transferred the flat in favour of the plaintiff
as per the undertaking given by the defendant.
13. From the record it reveals that the defendant has not fulfilled the
undertaking submitted by him and accordingly, he had issued cheques
of Rs.1,16,45,000/- but both the cheques were dishonoured and the
same was also informed to the defendant but the defendant has neither
paid the amount nor has given any reply. After filing of the suit, writ of
summon was sent through the Bailiff as well as postal authorities but
the same could not be served upon the defendant and accordingly, the
plaintiff has taken appropriate steps for publication of the notice of the
suit. In spite of the publication of the notice, the defendant failed to
appear in the suit.
14. Considering the above materials on record, this Court finds that the
plaintiff has proved its case that the plaintiff has paid an amount of Rs. 1
crore to the defendant but the defendant has not returned the said
amount in spite of execution of the undertakings and in spite of issuance
of cheques in favour of the plaintiff.
15. In view of the above, this Court finds that the plaintiff is entitled to get a
decree for a sum of Rs.1,16,45,000/- along with interest with effect from
30th April, 2021 till the realization of the said amount. Hence, the
defendant is directed to pay the amount of Rs.1,16,45,000/- along with
interest at the rate of 15% per annum from 30th April, 2021 till the
realization of the said amount.
16. CS-COM/670/2024 (Old No.CS/238/2023) is disposed of.
17. Decree be drawn accordingly.
(KRISHNA RAO, J.)
sp3/RS
