Calcutta High Court
Umang Goenka vs A.B. Nirvan Builders Private Limited & ... on 15 January, 2025
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
GA No. 1 of 2023
In
CS No. 124 of 2023
Umang Goenka
Versus
A.B. Nirvan Builders Private Limited & Ors.
Mr. Jishnu Chowdhury, Sr. Adv.
Mr. Rahul Das
Mr. Tanay Agarwal
Mr. Chitresh Saraogi
... For the plaintiff.
Mr. Krishnaraj Thaker, Sr. Adv.
Mr. Suddhasatva Banerjee
Mr. Saumabho Ghose
Mr. Souvik Majumdar
Mrs. Anyapurba Banerjee
... For the defendants.
2
Hearing Concluded On : 11.12.2024
Judgment on : 15.01.2025
Krishna Rao, J.:
1. The plaintiff has filed the present application being GA No. 1 of 2023 in
CS 124 of 2023 under Order 12 Rule 6 of the Code of Civil Procedure,
1908 praying for judgment and decree on admission for a sum of Rs.
2,78,00,000/- along with interest @ 18% per annum totaling in Rs.
30,86,30,569/- or in alternative for an order of injunction restraining
the defendants from dealing with or disposing of or alienating or
transferring or encumbering their assets and properties and from
withdrawing any amounts from their bank accounts.
2. The defendant nos. 2 and 3 approached the plaintiff for a loan of Rs.
2,78,00,000/- and in view of the relationship between the plaintiff and
the defendants, the plaintiff agreed to makeover a loan to the
defendants. The terms and conditions of the loan were discussed
between the parties and it was agreed between the parties that the
plaintiff would lend and advance a sum of Rs. 2,78,00,000/- to the
defendants with the interest @ 18% per annum. The defendant no. 1
would be received the said amount on behalf of the other defendants
and is re-payable on demand. It was further agreed between the parties
at the end of each financial year, the defendants would execute
necessary balance confirmation certificate confirming the principal
amount due to the plaintiff for the purpose of tax.
3. The plaintiff has paid a total sum of Rs. 2,78,00,000/- to the
defendants through the defendant no. 1 on eleven tranches i.e. on and
from 9th December, 2006 to 6th April, 2010 amounting of Rs.
10,00,000/-, Rs. 40,00,000/-, Rs.25,00,000/-, Rs. 75,00,000/-, Rs.
15,00,000/-, Rs. 50,00,000/-, Rs. 6,00,000/-, Rs. 12,00,000/-, Rs.
10,00,000/-, Rs. 18,00,000/-, Rs. 17,00,000/- respectively. At the end
of each financial year, the defendants executed and made over balance
confirmation certificates to the plaintiff upto 31st March, 2021. From
the end of year 2021 and for the financial year ending 31st March,
2022, the defendants failed and neglected to issue balance confirmation
to the plaintiff. The plaintiff by an email dated 16th October, 2022 and a
letter dated 14th June, 2023 called upon the defendants for repayment
of the loan amount of Rs. 2,78,00,000/- along with interest accrued
therein. The defendants failed to pay the principal amount as well as
interest as demanded by the plaintiff, the plaintiff has filed the present
suit.
4. Mr. Jishnu Chowdhury, Learned Senior Advocate representing the
plaintiff submits that the defendants have admitted and acknowledged
the debts in the balance confirmations executed by the defendants for
the financial years 2006-2007, uptil 26th September, 2007, 2010-2011,
2011-2012, 2012-2013, 2014-2015, 2016-2017, 2017-2018, 2019-
2020 and 2020-2021.
5. Mr. Chowdhury submits that the defendants have not denied with
respect to the receipt an amount of Rs. 2,78,00,000/- from the plaintiff
which was duly transferred from the accounts of the plaintiff to the
accounts of the defendants on and from 9th December, 2006 to 6th
April, 2010. He submits that the defendants have also not denied with
regard to the balance confirmations showing the total amount of Rs.
2,78,00,000/-.
6. Mr. Chowdhury further submits that the plaintiff came to know that
the defendant nos. 2 and 3 are involved circumstances and have
numerous creditors in the market. He submits that the defendant nos.
2 and 3 were the real estate developers and have developed several
projects in past but at present, the defendant nos. 2 and 3 do not have
any project which is upcoming. He submits that the involvement of the
defendants at present is as lenders in many projects which have been
taken over by other persons. He submits that the defendant nos. 2 and
3 and their concerns are at the stage of insolvency. Mr. Chowdhury
further submits that the plaintiff and her family members and concerns
have filed several suits against the defendant nos. 2 and 3 and their
family concerns claiming total amount of Rs. 114 Crores.
7. Per contra, Mr. Krishnaraj Thaker, Learned Senior Advocate
representing the defendant no. 1 submits that the plaintiff has filed the
present application for judgment upon admission relying upon the
balance confirmations. He submits that the plaintiff has alleged that
the balance confirmation had been issued by the defendants but the
same was issued only by the defendant no. 1, thus there is no
admission on behalf of the defendant nos. 2 and 3 in any manner
whatsoever. He submits that the defendant nos. 2 and 3 have not
received any amount from the plaintiff. He submits that in the
application, there is no document to show that the plaintiff is entitled
to get any interim relief against the defendant nos. 2 and 3.
8. Mr. Thaker submits that it is settled law that a contract entered into by
a company must be in writing. He submits that the alleged oral
contract as relied upon by the plaintiff with a company is null and void.
He submits that there exist written contracts which the plaintiff has
suppressed in order to make out the case of oral agreement. He
submits that for the alleged similar transaction with Mr. Manoj Kumar
Bhagat, the plaintiff has instituted similar suits being CS No. 122 of
2023, CS No. 123 of 2023 and CS No. 125 of 2023.
9. Mr. Thaker submits that the moneys were advanced in December, 2006
to April, 2010 but there is not a single instance of payment of any
amount of interest as claimed by the plaintiff @ 18% per annum. He
submits that there is not a single instance of deposit of tax deducted at
source by the defendant no. 1 company on account of interest. He
further submits that other than the notice dated 14th June, 2023 which
was sent just a month before for filing of the suit, the plaintiff has not
demanded for payment of interest from the defendant no. 1, though the
alleged transaction was in December, 2006 to April, 2010.
10. Mr. Thaker submits that in the email dated 16th October, 2022, the
husband of the plaintiff not even alleged that the plaintiff or her
husband had provided any funds as loan to the defendant no. 1 or
other companies of the Bhagat Group and Companies. On the contrary,
the contention in the said email is that moneys were advanced towards
buildings, plots and projects. He submits that as per the allegation
made by the plaintiff, the defendants have executed and made over
balance confirmation certificates to the plaintiff uptill 31st March, 2021
but none of the documents were signed by the defendant nos. 2 and 3.
He submits that the said documents only records the fact that an
aggregate amount of Rs. 2,78,00,000/- has been paid by the plaintiff to
the defendant no. 1 and there is no mention of the alleged interest @
18% per annum.
11. Mr. Thaker submits that the defendant nos. 2 and 3 received a notice
under Section 41A of the Cr.P.C. from the Bidhannagar Police Station
and from the said notice only, the defendants came to know for the first
time that the husband of the plaintiff had filed a criminal complaint
against the defendant nos. 2 and 3 for the offence under Sections
420/406/34 of the IPC. He submits that the defendant nos. 2 and 3
obtained certified copy of complaint, FIR dated 1st July, 2022 in which
the husband of the plaintiff has correctly stated that the real
transaction between the parties is the real estate ventures of the
Bhagat Group of Companies on a revenue sharing model. He submits
that in the complaint dated 1st July, 2022, the husband of the plaintiff
has also provided several indentures, agreements, allotment letters and
various Memorandum of Understanding (MOU) to the police authorities
and from the said documents, it reveal the true transactions between
the parties which the plaintiff has suppressed before this Court.
12. Heard the Learned Counsel for the respective parties, perused the
materials on record and the judgments relied by the parties. The
plaintiff has filed the suit praying for a decree for a sum of Rs.
30,86,30,569/- along with interim interest and interest upon judgment
@ 18% per annum. In the present application, the plaintiff has prayed
for judgment and decree upon admission. The plaintiff has mainly
relied upon the confirmation of accounts from 1st April, 2006 to 31st
March, 2021 total amounting to Rs. 2,78,00,000/-. As per the case of
the plaintiff, the balance confirmations are necessary for tax purposes
and are issued confirming loans and on the basis of the balance
confirmations, decree be passed on admission. In this context, the
plaintiff has relied upon the judgment in the case of Ajay Kumar
Agarwal -vs- Green Concretex Global Limited reported in 2020 SCC
OnLine Cal 2123 and submitted that wherein the Coordinate Bench of
this Court held that:
"33. The defence sought to be raised in the
present proceeding, in my opinion, is incongruous,
vague, nebulous and convoluted. The defence is
moon shine. In my opinion, no triable issue has
been raised by the respondent to the extent of the
amount covered by the cheques furnished by the
respondent to the petitioner which were
dishonoured. It will be a travesty of justice to
relegate such claim of the petitioner to trial. The
object of Order XII Rule 6 of the Code of Civil
Procedure is to enable a party to obtain a speedy
judgment at least to the extent of the admission
made by the other party. The admission may be in
the pleading or otherwise. A pre-suit admission
would also suffice. In the present case, I have no
reason to believe that the balance confirmations
were procured by the petitioner dishonestly. The
confirmation statements clearly amount to
admission. The cheques furnished by the
respondent to the petitioner also amount to
admission of liability to the extent of the aggregate
amount of the cheques."
13. The plaintiff has also relied upon the judgment in the case of Rishabh
Bengani -vs- Jaideep Halwasiya reported in 2020 SCC OnLine Cal
382 and submitted that in the said case also there was a balance
confirmation of the defendant and the defendant has acted upon the
balance confirmation, the defendant deposited Tax Deducted at Source
on 31st March, 2019 for a sum of Rs. 99,452/-. The Coordinate Bench
of this Court has accepted the said balance confirmations and passed
judgment upon admission with regard to the principal amount and
relegated the suit for trial with respect to interest.
This Court has considered both the judgments relied by the
plaintiff and finds that in the case of Ajay Kumar Agarwal (supra),
this Court has not only considered the balance confirmation but has
also considered that the defendant had issued eleven postdated
cheques in favour of the plaintiff for a total sum of Rs. 87,46,313/-,
though the claim of the plaintiff was Rs. 1,11,51,507/- and accordingly,
the Coordinate Bench of this Court has allowed judgment upon
admission only for a sum of Rs. 87,46,313/-, thus the said judgment is
distinguishable from the facts of the present case.
In the case of Rishabh Bengani (supra), the Coordinate Bench of
this Court has considered the balance confirmation of the defendant
upto the March 31, 2018 as well as Tax Deducted at Source on 31st
March, 2019 for a sum of Rs. 99,452/-. In the present case, the
plaintiff has relied upon the balance confirmation but has not produced
any document with respect to the Tax Deduction at Source and it is the
specific defence of the defendants in the present case that the plaintiff
has not shown any document to prove the Tax Deduction at Source,
thus the said judgment is also distinguishable from the facts of the
present case.
14. The plaintiff says that the defendants unable to explain the admission
about the balance confirmations and thus the plaintiff is entitled to get
judgment and decree upon admission. In this context, the plaintiff has
relied upon the judgment in the case of Uttam Singh Duggal & Co.
Ltd. -vs- United Bank of India & Ors. reported in (2000) 7 SCC 120
wherein the Hon'ble Supreme Court held that:
"12. As to the object of Order 12 Rule 6, we
need not say anything more than what the
legislature itself has said when the said provision
came to be amended. In the Objects and Reasons
set out while amending the said Rule, it is stated
that "where a claim is admitted, the court has
jurisdiction to enter a judgment for the plaintiff and
to pass a decree on admitted claim. The object of
the Rule is to enable the party to obtain a speedy
judgment at least to the extent of the relief to which
according to the admission of the defendant, the
plaintiff is entitled". We should not unduly narrow
down the meaning of this Rule as the object is to
enable a party to obtain speedy judgment. Where
the other party has made a plain admission
entitling the former to succeed, it should apply and
also wherever there is a clear admission of facts in
the face of which it is impossible for the party
making such admission to succeed."
15. The plaintiff has further relied upon the judgment in the case of Karam
Kapahi & Ors. -vs Lal Chand Public Charitable Trust & Anr.
reported in (2010) 4 SCC 753 wherein the Hon'ble Supreme Court held
that the phrase "approbate and reprobate" is borrowed from Scots law
where it is used to express the common law principles of election,
namely, that no party can accept and reject the same instrument.
16. The plaintiff has further relied upon the judgment in the case of
Adhunik Ispat Limited -vs- Triveni Infrastructure Development Co.
Ltd. reported in (2011) 2 CHN 527 wherein the Coordinate Bench of
this Court held that there are two elements as to judgment on
admission: the first is the factum and then there is the inference drawn
from the fact and the liability consequent thereupon. If the factum is
established, the maker of the admission is afforded an opportunity to
explain it away or dispute the liability that is the corollary to the
admission. If the factum is not proved, the matter ends.
In the present case, the plaintiff has relied upon the confirmation
of accounts. The defendants have denied with regard to the same,
firstly on the ground, the defendant nos. 2 and 3 have not issued the
said balance confirmations, secondly, no Tax Deduction at Source
shown by the plaintiff with respect to the said balance confirmations
thirdly, the defendants have taken specific defence that the said
amount is not of loan and is with regard to the investment in the real
estate project and the plaintiff has suppressed the agreement entered
between the parties, subsequently, the defendants have brought the
said document on record by way of supplementary affidavit when the
defendants came to know about the criminal case initiated by the
plaintiff against the defendants in which the plaintiff has disclosed the
agreements, thus the said judgments are distinguishable from the facts
of the present case.
17. The defendants have relied upon the supplementary affidavit, wherein
the defendants have disclosed the documents i.e. the FIR initiated by
the husband of the plaintiff against the defendant nos. 2 and 3, written
complaint, Memorandum of Understanding dated 30th December, 2006,
Memorandum of Understanding dated 2nd March, 2015 and the
Memorandum of Understanding dated NIL. In the complaint dated 1st
July, 2022 of the husband of the plaintiff made complaint against the
defendant nos. 2 and 3 to the Inspector-in-charge, Bidhannagar Police
Station alleging that:
"From around 2000 onwards, the
abovenamed accused persons Piyush Kumar
Bhagat and Raj Kishore Modi frequently came
regularly to my office at the abovementioned
address in Sector-5, Salt Lake and asked me to
give money for their business and joint projects
such as Club Town, Space Town, Vedic Village etc.
In 2001, I purchased a plot of 250 cottahs of
land at the site of Raj Kishore Modi and Piyush
Kumar Bhagat's upcoming "Vedic Village" project.
Once the project was becoming successful, in 2007
Raj Kishore Modi negotiated with me in my office to
enter into a joint venture in which he would
construct many bungalows on my plot of land as
part of the project (by this time Mr. Modi and Mr.
Bhagat had separated from their joint business
and Mr. Modi had taken over Vedic Village project).
In exchange for the rights to do so, I was allotted
12 (twelve) bungalows out of the new
constructions. However, I was never handed over
possession of said 12 bungalows even though the
construction was completed. Instead, Mr. Modi and
his team have sold my bungalows without my
express permission or knowledge, to other persons
who are now in possession of said property, Mr.
Modi has paid me a sum of Rs. 3.30 Crore, without
any clarification as to what the payment is for.
Despite multiple reminders and requests to give a
complete account and pay for the full value of my
12 bungalows (fair market value is around Rs. 25
Crore), Mr. Modi has refused to do so, indicating
that the vast majority of the proceeds from the sale
of my bungalows have been laundered away by
showing the sale price of bungalows at much lower
than market value and receiving payment from
buyers in cash.
Further, from around 2004, Piyush Kumar
Bhagat took money in the account of a number of
his companies, his personal accounts and also to
the account of his brother namely Mr. Manoj Kumar
Bhagat. As and when possible, I transferred a
hefty sum of amount several times, which totaled
an amount of Rs. 15.5 crore via
cheques/NEFT/RTGS bank transactions issued
from my Sector-5 Salt Lake office (details enclosed).
In exchange of the abovementioned transaction, the
accused persons namely Piyush Kumar Bhagat,
Manoj Kumar Bhagat, and their abovenamed
companies/concerns promised me and agreed to
sell and transfer flats, land plots, villas etc. in nis
various projects to my name vide Indentures,
agreements, allotment letters and various
Memorandums of Understanding (MOU).
However, till date, the said person did not
fulfill any of his aforementioned promises and
failed to transfer flats, land plots, villas etc. in his
various projects to my name vide Indentures,
agreements, allotment letters and various
Memorandum of Understanding (MOU) as promised
to my name, despite repeated requests by me over
a long span of time. I have also made repeated
requests to provide an account of money
transferred to them by me and how the funds are
being used but they have failed to provide me the
same. As per my knowledge, I believe that the
funds have been funneled and laundered by them
and their men and agents with nefarious purposes.
They have also refused to pay back my money with
accrued interest, despite repeated requests."
18. The defendants have also relied upon the Memorandum of
Understanding dated 30th December, 2006 entered between the
defendant no. 2 and the husband of the plaintiff wherein the husband
of the plaintiff agreed to jointly developed the Residential Project in the
proposed location wherein the responsibility of the defendant no. 2 is to
drive the entire process of land acquisition, construction including
marketing and selling of flats and the responsibility of the husband of
the plaintiff is restricted to provide necessary financial assistance for
completion of project. It is also agreed between the parties that both
would be entitled to equal share of revenue from the sale of the project
in terms of the building plan approval.
There are two other Memorandum of Understandings dated 2nd
March, 2015 and another is undated and in both the Memorandum of
Understandings only signature of one party is available and another
party is not available. The said agreements/ Memorandum of
Understandings relied by the husband of the plaintiff in the complaint
made to the police of Bidhannagar police station on the basis of which
an FIR has been initiated against the defendant nos. 2 and 3. In the
said complaint, the said documents are mentioned as follows:
"Details of money given along with supporting
bank statements and agreements."
In the supplementary affidavit, the defendant no. 2 has
categorically stated that only after receipt of the notice under Section
41A of the Code of Criminal Procedure, 1973, the defendant no. 2 came
to know about the said documents and had obtained the same.
With regard to the aforesaid document, the plaintiff has taken the
defence that the Memorandum of Understanding dated 30th December,
2006 is not properly stamped due to which the plaintiff has not
disclosed the same in the plaint and in the present application and the
same cannot be relied upon. As regard to two Memorandum of
Understandings, it is stated by the Learned Counsel for the plaintiff
that the same has not been executed by both the parties. It is further
case of the plaintiff that the case initiated before the police and the
Memorandum of Understandings are connected with the Vedic project
and not with regard to the loan amount of Rs. 2,78,00,000/- and as
such the said documents cannot be taken into consideration in the
present case. The Learned Counsel for the defendants submits that the
plaintiff has suppressed the material facts by not disclosing the
criminal case initiated against the defendant nos. 2 and 3 as well as
agreements/ Memorandum of Understandings which the plaintiff has
relied upon in the criminal complaint. The defendants have relied upon
the judgment in the case of Bhaskar Laxman Jadhav & Ors. -vs-
Karamveer Kakasaheb Wagh Education Society and Ors. reported
in (2013) 11 SCC 531 wherein the Hon'ble Supreme held that it is not
for a litigant to decide what fact is material for adjudicating a case and
what is not material. It is the obligation of a litigant to disclose all the
facts of the case and leave the decision-making to the court.
In the present case, the husband of the plaintiff made a written
complaint against the defendant nos. 2 and 3 on 1st July, 2022 by
disclosing details of money, bank statements and agreements. The wife
of the plaintiff has presented the plaint on 27th June, 2023 and the
same was admitted on the same date but in the plaint, the plaintiff has
not disclosed the complaint and the documents relied by her husband
in the said police complaint.
19. The defendants have relied upon the judgment in the case of Balraj
Taneja & Anr. -vs- Sunil Madan & Anr. reported in (1999) 8 SCC
396 wherein the Hon'ble Supreme Court held that under Order 12 Rule
6 of the Code of Civil Procedure, 1908, the court can, at an
interlocutory stage of the proceedings, pass a judgment on the basis of
admissions made by the defendant. But before the court can act upon
the admission, it has to be shown that the admission is unequivocal,
clear and positive. In the said case, the Hon'ble Supreme Court had
relied upon the judgment in the case of Razia Begum -vs- Sahebzadi
Anwar Begum reported in AIR 1958 SC 886 wherein the Hon'ble
Supreme Court held that Order 12 Rule 6 has to be read along with the
proviso to Rule 5 of Order 8. That is to say, notwithstanding the
admission made by the defendant in his pleading, the Court may still
require the plaintiff to prove the fact pleaded by him in the plaint.
In the present case, the plaintiff has relied upon the confirmation
of accounts as admitted document and prayed for judgment and decree
upon admission. The defendants have taken a specific defence that the
said confirmation of accounts are not signed by the defendant nos. 2
and 3 and there is not a single instance of deposit of Tax Deducted at
Source by the defendants and thus the same cannot taken as
confirmation of accounts. The defendants have a specific defence that
the said amount is invested in the project but the plaintiff has stated
that the said investment is with regard to Vedic Project which is no way
connected with the present case.
Considering the above, this Court finds that there is no
unequivocal admission on the part of the defendant nos. 2 and 3 and
the defence taken by the defendant nos. 2 and 3 is to be decided during
the trial whether the amount is in connected with investment in any
project or the agreement is admissible in evidence or not.
20. The plaintiff has also prayed for an injunction restraining the
defendants from dealing with their property and the bank accounts
connected with PAN No. AAECA2585R, PAN No. AGYPB3619C and PAN
No. ADJPB3555F. As per the case of the plaintiff, the defendant nos. 2
and 3 are involved in circumstances and have numerous creditors in
the market and the defendant nos. 2 and 3 were real estate developers
and have developed several projects but have not any projects which is
upcoming. The plaintiff has also stated that the defendant nos. 2 and 3
and their concerns are at the stage of insolvency. The plaintiff has
relied upon the judgment in the case of Tata Chemicals Limited -vs-
Kshitish Bardhan Chunilal Nath & Ors. reported in 2022 SCC
OnLine Cal 3343 wherein the Hon'ble Division Bench of this Court
held that there cannot be an absolute proposition that in a money
claim no order of injunction or attachment or receiver could be made.
Order 38 to Order 40 of the Code of Civil Procedure, 1908 does not
restrict the power of the court to pass any order that a court is
empowered to pass just because it is a money claim. We have already
discussed the circumstances when the court can exercise any of such
power.
The plaintiff has relied upon the judgment in the case of Kashi
Math Samsthan & Anr. -vs- Shrimad Sudhindra Thirtha Swamy
& Anr. reported in (2010) 1 SCC 689 wherein the Hon'ble Supreme
Court held that it is well settled that in order to obtain an order of
injunction, the party who seeks for grant of such injunction has to
prove that he has made out a prima facie case to go for trial, the
balance of convenience is also in his favour and he will suffer
irreparable loss and injury if injunction is not granted. But it is equally
well settled that when a party fails to prove prima farcie case to go for
trial, question of considering the balance of convenience or irreparable
loss and injury to the party concerned would not be material at all, that
is to say, if that party fails to prove prima farcie case to go for trial, it is
not open to the court to grant injunction in his favour even if, he has
made out a case of balance of convenience being in his favour and
would suffer irreparable loss and injury if no injunction order is
granted.
In the present case, the plaintiff has only made an averment that
the defendant nos. 2 and 3 are not having any project which is
upcoming. The defendant nos. 2 and 3 and their concerns are at the
stage of insolvency and borrowed about over Rs. 1,000 crores from
market but other than the said statement, there is no document to
prove the contentions of the plaintiff. There is no prima facie case and
balance of convenience is made out by the plaintiff for grant of interim
order for security deposit.
21. Considering the above, this Court did not find any merit in the
application either to pass judgment and decree on admission or to pass
injunction for security deposit as prayed for by the plaintiff.
22. In view of the above, GA No. 1 of 2023 in CS No. 124 of 2023 is
dismissed.
(Krishna Rao, J)
