Meenakshi Goenka vs Manoj Kumar Bhagat
2025 Latest Caselaw 888 Cal/2

Calcutta High Court

Meenakshi Goenka vs Manoj Kumar Bhagat 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. 121 of 2023



                           Meenakshi Goenka

                                  Versus

                           Manoj Kumar Bhagat




           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 defendant.
                                         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 No. 121 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. 45,00,000/- along with interest @ 18% per annum totaling

in Rs. 1,18,82,918/- or in alternative for an order of injunction

restraining the defendant from dealing with or disposing of or alienating

or transferring or encumbering his assets and properties and from

withdrawing any amounts from their bank accounts.

2. The defendant approached the plaintiff for a loan of Rs. 45,00,000/-

and in view of the relationship between the plaintiff and the defendant,

the plaintiff agreed to makeover a loan to the defendant. 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. 45,00,000/- to the defendant with the interest @ 18% per

annum. The defendant would be received the said amount and is re-

payable on demand. It was further agreed between the parties at the

end of each financial year, the defendant would execute necessary

balance confirmation certificate confirming the principal amount due to

the plaintiff for the purpose of tax.

3. On 26th September, 2017, the plaintiff has paid a total sum of Rs.

45,00,000/- to the defendant. At the end of each financial year, the

defendant executed and made over balance confirmation certificates to

the plaintiff upto 31st March, 2020. From the end of year 2021, the

defendant 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 defendant for repayment of the

loan amount of Rs. 45,00,000/- along with interest accrued therein.

The defendant 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 defendant has admitted and acknowledged

the debt in the balance confirmations executed by the defendant for the

financial year 2019-2020.

5. Mr. Chowdhury submits that the defendant has not denied with respect

to the receipt an amount of Rs. 45,00,000/- from the plaintiff which

was duly transferred from the account of the plaintiff to the account of

the defendant on 26th September, 2017. He submits that the defendant

has also not denied with regard to the balance confirmations showing

the total amount of Rs. 45,00,000/-.

6. Mr. Chowdhury further submits that the plaintiff came to know that

the defendant is involved circumstances and has numerous creditors in

the market. He submits that the defendant was the real estate

developer and has developed several projects in past but at present, the

defendant does not has any project which is upcoming. He submits

that the involvement of the defendant at present is as lenders in many

projects which have been taken over by other persons. He submits that

the defendant and his concerns are at the stage of insolvency. Mr.

Chowdhury further submits that the plaintiff and her family members

have filed several suits against the defendant and his family concerns

claiming total amount of Rs. 114 Crores.

7. 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 Canon Properties

Private Limited, the plaintiff has instituted suit being CS No. 120 of

2023.

8. Mr. Thaker submits that the moneys were advanced in 2017 but there

is no 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 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, though the alleged transaction was of the year 2017.

9. 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 many funds as loan to the defendant 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 the balance confirmation

only records the fact that an aggregate amount of Rs. 45,00,000/- has

been paid by the plaintiff to the defendant and there is no mention of

the alleged interest @ 18% per annum.

10. Mr. Thaker submits that the defendant received a notice under Section

41A of the Cr.P.C. from the Bidhannagar Police Station and from the

said notice only, the defendant came to know for the first time that the

husband of the plaintiff had filed a criminal complaint against the

defendant for the offence under Sections 420/406/34 of the IPC. He

submits that the defendant 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.

11. 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.

1,18,82,918/- 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, 2019 to 31st

March, 2020 total amounting to Rs. 45,00,000/-. 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."

12. 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.

13. The plaintiff says that the defendant 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."

14. 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.

15. 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 but no Tax Deduction at Source shown by the plaintiff with

respect to the said balance confirmations thirdly, the defendant has

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 defendant has brought the said document on record by way of

supplementary affidavit when the defendant came to know about the

criminal case initiated by the plaintiff against the defendant in which

the plaintiff has disclosed the agreements, thus the said judgments are

distinguishable from the facts of the present case.

16. The defendant has relied upon the supplementary affidavit, wherein the

defendant has disclosed the documents i.e. the FIR initiated by the

husband of the plaintiff against the defendant, 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 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."

17. The defendant has also relied upon the Memorandum of Understanding

dated 30th December, 2006 entered between the A.B. Nirvan Builders

Pvt. Ltd. represented by its Director Mr. Piyush Kumar Bhagat 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 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. 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 has categorically

stated that only after receipt of the notice under Section 41A of the

Code of Criminal Procedure, 1973, the defendant 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. 45,00,000/- and as such

the said documents cannot be taken into consideration in the present

case. The Learned Counsel for the defendant submits that the plaintiff

has suppressed the material facts by not disclosing the criminal case

initiated against the defendant as well as agreements/ Memorandum of

Understandings which the plaintiff has relied upon in the criminal

complaint. The defendant has 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 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.

18. The defendant has 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 defendant has taken a specific defence that there

is not a single instance of deposit of Tax Deducted at Source by the

defendant and thus the same cannot taken as confirmation of

accounts. The defendant has 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 and the defence

taken by the defendant 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 and the amount claimed by

the plaintiff is loan amount of investment in the project.

19. The plaintiff has also prayed for an injunction restraining the defendant

from dealing with his property and the bank accounts connected with

PAN No. ADJPB3555F. As per the case of the plaintiff, the defendant is

involved in circumstances and has numerous creditors in the market

and the defendant was the real estate developer and has developed

several projects but have not any projects which is upcoming. The

plaintiff has also stated that the defendant and his 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 is not having any project which is upcoming. The

defendant is and his concerns are at the stage of insolvency and

borrowed about over Rs. 1,000 crore 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.

20. 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.

21. In view of the above, GA No. 1 of 2023 in CS No. 121 of 2023 is

dismissed.

(Krishna Rao, J)