Arijit Banerjee, J.

(1) This application has taken out by the plaintiff/petitioner praying for a judgment upon admission against the respondent for the sum of Rs. 54,05,000/-.

The petitioner’s Case:

(2) The petitioner’s case is that a tripartite agreement dated September 19, 2009 was entered into by and between the petitioner, the respondent and the respondents C & F agent Sunrise Telelinks Pvt. Ltd. wherein the petitioner was appointed by the respondent as a super distributor for mobile handsets/phones in various parts of West Bengal. According to the said arrangement the petitioner was required to first pay the price of the products and then collect the products from Sunrise and then distribute the same. In or about July 2010, the respondent approached the petitioner with request for a loan of Rs. 50 lakhs repayable on demand with 3 per cent interest per month for expansion of the business of the respondent. The petitioner agreed to advance such loan and transferred the amount of Rs. 50 lakhs to the respondent’s bank by way of RTGS on August 2, 2010. On the same day, the petitioner also handed over a sum of Rs. 50 lakhs in cash to the respondent on account of advance to be made to Sunrise. The said money was then paid by the respondent to Sunrise against which the petitioner collected goods from time to time.

(3) The respondent failed to make payment on account of interest on the said loan. From February 2011, the petitioner repeatedly called on the respondent to arrange for repayment of the said loan of Rs. 50 lakhs along with interest but the respondent kept on requesting for time to make such repayment. On or about April 9, 2011 the respondent handed over to the petitioner a post dated cheque of Rs. 50 lakhs towards the principal amount and another post dated cheque for Rs. 4,05,000/- towards service of interest for three months. Both the cheques were dated July 1, 2011. At the time of handing over the said cheques the respondent’s representative duly acknowledged the fact that those cheques were being made over for payment of the loan by endorsing the same on Photostat copies of the cheques (Annexures “B” and “C” to the petition).

(4) Thereafter, the respondent started adopting various evasive tactics in order to avoid repayment to the petitioner. By an email dated June 7, 2011, the respondent alleged that the petitioner owed to Sunrise a sum of Rs.57,75,443.76 towards the purported dues for products delivered to the petitioner on credit. The petitioner denied such allegation.

(5) On June 29, 2011, discussion was held between the petitioner and the respondent whereat the respondent confirmed that the petitioner may deposit the post dated cheques dated July 1, 2011. Accordingly, the petitioner deposited the said two cheques on June 30, 2011 so that the same becomes due for clearance on the next day i.e. July 1, 2011.

(6) On June 30, 2011, the petitioner received another email from the respondent again claiming that the petitioner owed money to Sunrise and therefore, the petitioner should not deposit the said two cheques. By its email dated July 1, 2011 the petitioner denied such allegations.

(7) Both the post dated cheques dated July 1, 2011, were dishonoured on presentation on the instruction of the respondent.

(8) Thereafter, there was further exchange of correspondence between the petitioner and the respondent and the petitioner caused to be issued notice under Section 138 of the Negotiable Instruments Act for dishonour of the aforesaid two cheques. In the reply to the notice under Section 138 of the Negotiable Instruments Act, the respondent contended, inter alia, that the cheque of Rs. 50 lakhs had been given by the respondent to the petitioner as security deposit and it could not be encashed by the petitioner since it received goods from Sunrise value of which was in an excess of Rs. 50 lakhs.

(9) The respondent is deliberately trying to confuse the sum of Rs. 50 lakhs paid in advance on account of goods whi