[Cites 7, Cited by 0]
Calcutta High Court
Subhas Chandra Agarwalla vs Dr. Sonali Basu on 25 March, 2026
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
Present :
THE HON'BLE JUSTICE ARINDAM MUKHERJEE
IA GA NO. 2 of 2025
In
CS 199 of 2024
SUBHAS CHANDRA AGARWALLA
VS
DR. SONALI BASU
For Plaintiff : Mr. Aritra Basu, Adv.
Mr. Souradeep Banerjee, Adv.
Ms. Sonia Sharma, Adv.
.........Advocates
For the Defendant : Mr. Pourush Bandyopadhyay, Adv.
Mr. Kamran Hussain, Adv.
Mr. Shivam Pathak, Adv.
......... Advocates
Heard On : 25th March, 2026.
Judgment on : 25th March, 2026.
Arindam Mukherjee, J:
1) In a suit for money lent and advanced the plaintiff has taken out
the instant application inter alia for judgement on admission.
2) It is the case of the plaintiff as borne out from the plaint and the
documents annexed to the application are as follows:-
a) The defendant joined a school by the name of Sri Sri
Academy, Asansol of which the plaintiff is the Patron.
b) The defendant represented to the plaintiff that she had taken
loan at high interest rate against two flats and jewelleries
from LIC Housing Finance. Two flats are respectively flat no.
5G and 5F at the 4th floor of premises no. 37 Marias Bhumi
Road, Ward no. 3, Dumdum, Dist- North 24 Parganas
(hereinafter for the sake of convenience referred to as the said
flats). The huge interest was causing hardship to the
defendant for which she wanted a loan of Rs. 54,00,000/-
from the plaintiff on the understanding that a sum of Rs.
1,00,000/- will be paid on monthly basis from her salary to
repay the loan in 54 monthly instalments without any
interest. On the basis of such request, the plaintiff agreed to
give a temporary accommodation loan of Rs. 54,00,000/- on
the same being repaid by a monthly instalment of Rs.
1,00,000/- to be adjusted from the defendant's salary. The
defendant also handed over copies of the title deed of the said
two flats to the plaintiff.
c) The agreement by which the plaintiff agreed to lend out Rs.
54,00,000/- and defendant agreed to receive said sum as the
loan took place at the plaintiff's office situated at the 4th
Floor, Ideal Centre, 9, AJC Bose Road, P.S- Shakespeare
Sarani, Kolkata- 700 017 within the Ordinary Original Civil
Jurisdiction of this Court.
d) In terms of the said agreement the plaintiff had in two
tranches transmitted a sum of Rs. 27,00,000/- on 29th
December, 2022 and 3rd January, 2023 through his banker
Axis Bank Ltd. Shakesphere Sarani Branch also within the
jurisdiction of this Court. The plaintiff has annexed the bank
account statements of the plaintiff's account maintained with
Axis Bank.
e) The defendant paid only a sum of Rs.1,75,000/- out of
Rs.54,00,000/- and resigned from the said school thereby
leaving an unpaid amount of Rs. 52,25,000/-.
f) The plaintiff by a letter dated 14th December, 2023 called
upon the loan and requested the defendant to pay the said
sum of Rs.52,25,000/- at the earliest.
g) The defendant according to the plaintiff after receiving the
said letter handed over a cheque for Rs. 52,25,000/- drawn
on Axis Bank Limited, Jhansi-284001 (UP) Branch towards
repayment of the unpaid loan. The said cheque was dated
16th July, 2024 and bears the number 105793. The said
cheque on being presented for encashment was dishonoured
for "funds insufficient". The plaintiff has annexed a
photocopy of the said cheque as also the cheque returning
memo.
h) The plaintiff has claimed interest at the rate of 18% from 14th
December, 2023 to 16th September, 2024 aggregating to 277
days. The interest component as shown in the plaint is Rs.
7,13,749/-. The plaintiff therefore has claimed a decree for
Rs. 59,38,749/- and further interest at the rate of 18% till
repayment.
i) The suit was instituted on or about 18th September, 2024.
3) The plaintiff says that receipt of the money aggregating to Rs.
54,00,000/- is admitted by the defendant. The receipt of the letter
dated 14th December, 2023 is also admitted by the defendant. No
payment except Rs.1,75,000/- has been admittedly made out of
the said sum of Rs.54,000/-.
4) The defendant, however, has attempted to deny the receipt of the
money as loan. It is the case of the defendant that the same was
by way of a gift from the plaintiff to the defendant. The defendant
has also denied the signature on the cheque as also the
handwriting contained in the said cheque but has admitted that
cheque was against the bank account of the defendant. The
plaintiff says that there is no corroborating evidence in support of
the case sought to be made out by the defendant. The defence of
the defendant, therefore, is ex facie sham coupled with admission
of receipt of the money, non-payment thereof except a sum of Rs.
1,75,000/- complied with issuance of cheque for the exact sum of
Rs. 52,500/- which was dishonoured for funds insufficient entitles
the plaintiff to a judgment on admission. The plaintiff in support
of his case has relied upon the judgment reported in 2016 SCC
Online Cal 7418(Concast Steel & Power Limited v. Ramesh
Gudla) and 2011(2) CHN 527 (Adhunik Ispat Limited v. Triveni
Infrastructure Development Co. Limited).
5) The plaintiff, therefore, prays for a judgment on admission for a
sum of Rs.59,38,749 with further interest at the rate of 18% per
month.
6) The defendant has firstly taken the point that there is no
admission. Assuming without admitting the case of admission, if
any, as made out by the plaintiff is also conditional and is capable
of being explained. The documents relied upon by the plaintiff are
disputed and as such there can be no judgment on admission as
prayed for by the plaintiff. The defendant in this regard has
referred two judgements reported in AIR 2006 Cal 137 (Smt.
Dipali Biswas & Ors. Versus Reserve Bank of India), (2005)
CHN 601 (Dinesh Kumar Singhania Vs Calcutta Stock
Exchange Association Limited). The defendant has also denied
the agreement between the plaintiff and the defendant, pursuant
to which the sum of Rs. 54,00,000/- was remitted to the
defendant by the plaintiff. The said sum of Rs.54,00,000/- was
according to the defendant given as gift by the plaintiff to the
defendant and as such the question of loan does not arose. It is
the further case of the defendant that the plaintiff was closely
associated with the defendant's banking and financial affairs and
had access to the signed instruments and banking particular and
indicates though not pleaded in clear terms that the cheque was
obtained in view of such relationship. The defendant has also
submitted that the cheque was never made over to the plaintiff. It
was given to the school authority of Sri Sri Academy School,
Asansol which was used by the plaintiff as admission of liability.
The defendant has also submitted that there can be no admission
on the part of the defendant on the basis of presumption as
contained under Section 118 of Negotiable Instrument Act, 1881
(hereinafter referred to as N.I Act). The presumption under the
said Section is rebuttable and the defendant has prima facie
rebutted the same and should be afforded an opportunity to prove
her case by supporting evidence at the trial. No decree on
judgment on admission can be passed at this stage. The
defendant on being denied of such opportunity if judgment on
admission is made accepting the contention of the plaintiff, the
defendant will be highly prejudiced. The defendant with regard to
presumption under N.I. Act has relied upon judgment reported in
(1993) 3 SCC 35 (Bharat Barrel & Drum Manufacturing
Company Versus Amin Chand Payrelal).
7) The defendant also says that the return of cheque for insufficiency
of fund does not establish the underlying debt nor can it be
construed acknowledgement of liability to hold that there is a
presumption as to admission of liability. In this context the
defendant has relied upon judgement reported in (2023) 16 SCC
125 [Rajaram S/O Sriramulu Naidu (Since Deceased) Through
Legal Representatives Versus Maruthachalam (Since
Deceased) Through Legal Representatives].
8) The defendant has also contended that judgment on admission
under the provisions of Order XII Rule 6 of Code of Civil
Procedure, 1908 (in short CPC) cannot be passed on the
presumption that the cheque was for the discharge of any debt or
other liability. It should be also held in the facts of the case that
the cheque was admittedly executed. The defendant has denied
the execution of the cheque. In support of this contention, the
defendant has relied upon a judgment reported in 2019 (5) SCC
418 (Basalingappa Versus Mudibasappa).
9) It is ordinarily unbelievable that someone will gift a sum of Rs.
54,00,000/- without any document to an outsider i.e., not related
or connected with the donor. The gift is ordinarily contemplated
out of mutual love and affection of the donor to the done which is
clearly expressed either in writing or by conduct. In the instant
case, there is no supportive fact or document wherefrom it will
borne out or demonstrate that there was mutual love and
affection between the plaintiff and the defendant for which the
plaintiff had gifted the sum of Rs. 54,00,000/- to the defendant.
Moreover there is no corroborating evidence in support of the gift.
If the amount was given as a gift by the plaintiff to the defendant,
the defendant ought to have shown it as a gift in her books of
accounts on the basis whereof her income tax return was filed in
respect of the relevant assessment year. Admittedly the monthly
salary of the defendant made her annual income tax taxable
during the relevant period for which the defendant had to file her
income tax return for the financial years 2022-2023 corresponding
to the assessment years 2023-2024. Even though the defendant
is a salaried person still then receipt of Rs.54,00,000/- in a
financial year would attract income tax on the same which was
obligatory on the part of the defendant to explain. The defendant
has produced no corroborating documents like her books of
accounts and income tax return to demonstrate that the money
received by the defendant from plaintiff was on account of gift to
rebut the presumption as to loan.
10) The defendant says that the sum of Rs. 1,75,000/- was adjusted
from her salary towards part repayment of the loan. If such
adjustment had taken place contrary to the wishes of the
defendant, the defendant ought to have raised protest against the
same immediately after coming to know about the adjustment.
There is no protest letter either pleaded or disclosed by the
defendant in respect thereof.
11) The receipt of the letter dated 14th December, 2023 is not
disputed by the defendant. If the amount claimed by the plaintiff
as unpaid loan in the said letter was by way of gift as contended
by the defendant then the defendant ought to have replied to the
same and disputed that the money claimed by the plaintiff is not
loan but a gift. The defendant has not raised any protest. There is
no pleading to that effect or any document disclosed in that
regard.
12) So far as the cheque is concerned, the defendant has tried to
make out a case that the cheque was not issued by the defendant
by denying the signature and the hand writing contained therein.
The dishonour of cheque is evident from the cheque return memo.
This fact was also known to the defendant immediately after 22nd
July, 2024 as her bank had communicated the same after
deducting the charges for dishonour. The defendant had allegedly
made no protest to the bank complaining about fraudulent act on
the part of the plaintiff. No complaint was also lodged with the
police authorities immediately after 22nd July, 2024. There is no
statement or complaint to the police after the cheque was
fraudulently obtained by the plaintiff from the defendant as
alleged by the defendant. No protest letter to the bank has also
been disclosed. There is also no other transaction between the
plaintiff and the defendant for which the plaintiff and had given
the money coupled with exact amount in the cheque demonstrate
that preponderance of facts supports the plaintiff's case.
13) The argument made by the defendant as to presumption under
Section 118 of the N.I. Act is also untenable in the facts of the
case. In any event the explanation sought to be given by the
defendant that the said cheque was made over to the school
authority in blank is shorn of particulars and is not supported by
any fact or document.
It is correct that an admission can be explained by way of rebuttal.
The explanation given by the defendant and considered in the light
of the chain of events is much short of explanation by which the
plaintiff's claim can be rebutted. There is neither any direct
evidence nor the preponderance of the facts support the
defendant's case.
14) The judgment in Uttam Singh Duggal (supra) lays the guidelines
for adjudicating an application for judgment on admission. The
judgment in Bharat Barrel (supra) cited by the defendant lays
down the law that presumption as to issuance of a cheque is for a
consideration is rebuttable by direct evidence or by preponderance
of facts goes against the defendant as preponderance of facts on
the contrary establishes the case of the plaintiff. In the case of
Rajaram (supra) cited by the defendant it has been held that in a
civil suit based on admission through issuance of cheque is based
on preponderance of probability unlike a criminal case where the
prosecution has to prove beyond reasonable doubt as to the
execution of the cheque. This legal provision has been further
elucidated in Basalingappa (supra). The denial of the cheque
having not been issued by the defendant is also not acceptable as
preponderance of probabilities in the instant case takes the same
out of the ratio laid down in Rajaram (supra). The ratio laid down
in the other judgments cited by the defendant does not fit into the
facts of the case made out by the defendant although, there is no
dispute as to the same.
15) After hearing the parties, considering the materials on record
and the judgments cited at the bar and the discussion as
aforesaid, I do not find any substance in the argument advanced
by the defendant in the context of the case in hand.
16) In the aforesaid facts and circumstances, the plaintiff is entitled
to a judgment on admission for a principal sum of Rs.52,25,000/-.
17) There is no rate of interest pleaded by the plaintiff in the
agreement. However, in view of the provisions of Section 90 of the
N.I. Act a cheque being a negotiable instrument on its dishonor
attracts interest at the rate of 18% per annum. The cheque as per
the return memo was dishonoured on 22nd July, 2024.
18) The plaintiff, therefore, shall be entitled to interest at the rate of
18% per annum from 22nd July, 2024 until realization of the
principal sum of Rs. 52,25,000/-.
In view of the provisions of Order XII Rule 6 of CPC, a decree
follows.
19) The decree on the basis of the judgment on admission be drawn
up expeditiously.
20) With the passing of the judgment on admission followed by a
decree which is executable, if not satisfied, the interim order of
injunction in respect of the said two flats stands vacated and/or
discharged.
GA 2 of 2025 is disposed of.
CS 199 of 2024
The plaintiff submits that with the passing of the judgment on
admission for which a decree follows, there remains no
outstanding issue or claim of the plaintiff. The plaintiff, therefore,
submits that the suit be also disposed of in terms of the decree
that is passed on judgment on admission.
By consent of the parties, the suit is treated as on the day's list
and is decreed in terms of the judgment on admission passed in
favour of the plaintiff as against the defendant in GA 2 of 2025.
CS 199 of 2024 stands disposed of.
(ARINDAM MUKHERJEE, J.)
S.Mandi/pa
