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2008 Supreme(Cal) 944
IN THE HIGH COURT AT CALCUTTA
Ashim Kumar Banerjee & Tapas Kumar Giri, JJ.
Madan Lal Periwal & Ors.
Vs
Basudeo Khaitan & Ors.
A.P.D. No. 98 of 2008, C.S. No. 243 of 2003
Decided on : September 23, 2008
For the Appellant: Mr. P.K.Das, Mr. Dhruba Ghosh, Mr. Susanta Bose.
For the Respondent: Mr. Pratap Chatterjee, Mr. Asish Chakraborty. Mr. Ananda Prasad Agarwal.
The court has the discretion to grant leave to defend a suit, and may impose conditions on such leave, including the furnishing of security, where the defendant raises triable issues indicating a fair or bona fide defense.
Headnote:
CONTRACT - DISPUTE RESOLUTION - ESCROW ACCOUNT - INTEREST - DISBURSEMENT - LEAVE TO DEFEND - CONDITIONAL LEAVE - SECURITY - IMMOVABLE PROPERTY - INJUNCTION.
Fact of the Case:
1. Parties agreed to resolve disputes through mediation by appellant no.1 and deposit sale proceeds of shares in an escrow account. 2. The firm holding the account utilized the funds and paid interest. 3. After partial disbursement, a balance of Rs. 56,12,250 remained payable, which was not paid despite demand, leading to a suit by the respondents. 4. The appellants contested, claiming unresolved disputes, non-appearance of other groups, and the need for their consent for disbursement. 5. The single judge granted a summary judgment for Rs. 16,17,826 and conditional leave to defend for the balance, subject to deposit of Rs. 39,94,424.
Finding of the Court:
1. The appellants were not entitled to retain the money despite demand from the respondents. 2. The money was not held in an escrow account, as the appellants had utilized it and paid interest. 3. The appellants failed to show a good defense on the merits, but raised triable issues indicating a fair or bona fide defense. 4. The appellants were granted conditional leave to defend, subject to furnishing security for the balance claim.
Issues: 1. Whether the money was held in an escrow account and could not be disbursed without the consent of all parties to the agreement. 2. Whether there were disputed questions of fact that could only be resolved in a regular trial. 3. Whether the appellants were entitled to unconditional leave to defend.
Ratio Decidendi: 1. The court followed the guidelines set out in M/s Mechelec Engineers & Manufacturers for granting leave to defend. 2. The court held that the appellants had raised triable issues indicating a fair or bona fide defense, although not a positively good defense, and were entitled to leave to defend on condition of furnishing security. 3. The court modified the security requirement from cash deposit to a charge on the appellants' shares in their dwelling house and the partnership firm's immovable property.
Final Decision: 1. The appeal was partly allowed. 2. The appellants were granted liberty to pay Rs. 16,17,826 to the respondents in installments, with interest. 3. The appellants were granted leave to defend the suit, subject to furnishing security by way of a charge on their shares in their dwelling house and the partnership firm's immovable property. 4. An injunction was issued restraining the appellants from dealing with or disposing of their shares in the said properties.
ASHIM KUMAR BANERJEE, J:
The respondent in the appeal were members of a Joint Hindu Family, inter alia, known as Khaitan Family. They were also controlling various closely held companies registered under the provisions of the Companies Act, 1956. Disputes and differences arose between the Khaitans. To resolve the dispute amongst themselves they approached Mr. Madan Lal Periwal, the appellant no. 1 abovenamed, a common friend and well-wisher to the said family. Memorandum of Understanding was executed by and between the parties. It was agreed that Shri Periwal in consultation with one Mr. Govind Kanoria would resolve the disputes between the Khaitans. The Khaitans were divided in four groups as would appear from the said Memorandum of Understanding appearing at pages 32-33 of the Paper Book. Accordingly Shri Periwal started to resolve the disputes between the parties. As a process of mediation the groups sold their shares in two companies namely Salimbong Tea Company Limited and Seeyok Tea Company Limited and deposited the sale proceeds with M/s Hazarmal Laxminarayan, a partnership firm under the control and management of Shri Pariwal. It was agreed by and between the parties that upon resolution of the disputes the amount deposited by the parties would be disbursed according to the settlement. The parties also agreed that the said deposit would be utilised by the said partnership firm and the firm would pay interest @15% per annum on the said deposits. Accordingly the shares were sold and the parties deposited their sale proceeds with the appellant no. 2. It is the case of the respondent/plaintiffs that Periwal disbursed the said amount partly through the said firm. The firm also paid interest @12% per annum (the rate of interest was subsequently reduced by consent) Income-tax was also deducted at source while paying the interest. After taking into account the sums already disbursed and interest already paid a sum of Rs. 56,12,250.00 still remained due and payable by Periwals and/or his partnership firm which Periwal and/or the said firm and/or its partners failed and neglected to pay despite demand. The respondent/ plaintiffs filed a suit in this court being C.S.No. 243 of 2003. Periwals entered appearance after receipt of the writ of summons. The respondents/ plaintiffs then took out a master summons, inter alia, praying for a summery judgment as against Periwals. Pertinent to note, the other groups of Khaitan family being the proforma-defendants in the said suit and the respondents no. 9 to 21 herein did not enter appearance. The appellants contended before us that writ of summons were yet to be served upon them.
2. Periwals contested the said application by filing affidavit-in-opposition. In the said affidavit they contended that the amount disclosed by the Khaitans/plaintiffs did not reveal the exact amount outstanding. According to Periwals a sum of Rs. 87.00 lacs was deposited by the plaintiff group whereas a sum of Rs. 5338683.00, Rs. 1325000.00 and Rs. 418491.00 were paid respectively in the years 1996, 1999 and 2000. The learned Judge on perusal of the pleadings came to a finding that on the own showing of the Periwals sum of Rs. 16,17,826.00 still remained due and payable to the Khaitans/Plaintiffs.
3. The claim was resisted by Periwals, inter alia, on the ground that disputes were not fully resolved as jewelleries were yet to be distributed. In any event until and unless the other group appeared in the suit and consented refund of the sums payable to the Khaitans/Plaintiff the amount could not be said to be payable by the Khaitans/Plaintiffs. It was also contended that Khaitans/Plaintiffs disturbed status quo to the detriment of the other group and refused to restore the status quo despite direction given by the mediator. It was also contended that as per the arrangement the amount was shown to have been deposited as a loan transaction without being liable for payment of interest till the dispute was resolv
