A plaintiff is entitled to summary judgment if the defendant has no defence to the claim and the plaintiff has been able to prove their case on the available evidence in a summary manner.

Indra Prasanna Mukerji, J.

G.A. 993 of 2012 connected with C.S. 282 of 2011

The cause of action of the plaintiff in this suit is recovery of moneys lent and advanced by them to the defendants. Between 2nd July, 2007 and 3rd April, 2008 a total sum of Rs. 70 lakhs was lent and advanced. The money was credited into the joint accounts of the defendants.

2. Admittedly, there was no agreement between the parties for payment of interest. The defendant sought to make part payment of the said loan by a cheque dated 30th November, 2008 for Rs. 20 lakhs and two cheques for Rs. 20 lakhs each of the same date. All these cheques were dishonoured. The reason assigned by the bank was insufficiency of funds. Then again in September, 2009 the defendants tried to make part payment of the above debt by two cheques for Rs. 20 lacs and Rs. 10 lacs respectively, which were also dishonoured in the same manner.

3. Mr. Ghosh, learned advocate for the plaintiff submits that these payments were unconditional admission of liability by the defendants. Furthermore, they represented part payment.

4. The suit was instituted on 29th November, 2011; the writ of summons was served upon the defendants in January, 2012; the defendants entered appearance on 24th January, 2012. This Chapter XIII-A application was taken out on 11th April, 2012 before filing of a written statement by the defendants.

5. The defence sought to be advanced by the defendants is most astounding.

6. The first point of defence was that the plaintiff was an incorporated company. It did not have registration as a Non-Banking Financial Institution, as allegedly required by the Reserve Bank of India Act, 1934 to enable the company to lend and advance money. It was also submitted from the bar that the plaintiff did not have a licence under the Bengal Money Lenders Act, 1940. The defendants denied that Rs. 70 Lakhs or any part thereof were lent and advanced to the plaintiff. The sum allegedly lent and advanced by the plaintiff was not real, it was only a "paper entry". Cheques were drawn in favour of the defendants. Soon thereafter the plaintiff received back the entire money in cash. The first defendant retained his commission only. The cash was handed over under the direction of one Kailash Agarwal, a director of the plaintiff.

7. Furthermore, it was submitted that ten blank cheques were handed over to the plaintiff.

8. The dishonoured cheques have been explained in this way. The plaintiff utilised the blank cheques scanned the signature of the first defendant and printed the same on the cheques.

9. The defence of the defendants is most difficult to accept. The plaintiff has annexed statements of accounts of HDFC Bank Limited, Stephen House, BBD Bagh, Kolkata which maintained in their account. These moneys according to the plaintiff were paid by cheques dated 2nd July, 2007, 15th September, 2007, 1st February, 2008, 27th March, 2008 and 3rd April, 2008. The first two and the last transactions were worth for Rs. 10 Lakhs each. The third and fourth were for Rs. 20 lakhs each.

10. Mr. Ghosh, learned counsel appearing for the plaintiff giving details of the statements of accounts shows that these amounts were actually debited from the bank account. He submitted, which I accept that there were corresponding credit entries in the joint bank accounts of the defendants. No evidence whatsoever was brought on record by the defendants to show that these moneys, as alleged by them, were very quickly withdrawn from the account of the defendants, in cash, and handed back to the plaintiff or its representative.

11. Furthermore, there is no correspondence whatsoever to suggest the case now made out in the affidavit-in-opposition.

12. This story about blank cheques being handed over to the plaintiff by the defendants, whereon, the scanned signature of the defendants was printed is most difficult to believe. All the dishonoured cheques were returned by the bank, upon advice and the defendants, in my opinion were ful