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2018 Supreme(Cal) 506
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
MOUSHUMI BHATTACHARYA, J.
Jalan Niketan Private Limited – Plaintiff
Versus
Avani Projects And Infrastructure Limited – Respondent
CS No. 5 of 2017
Decided On : 10-07-2018
For the Plaintiff : Ms. Sonal Shah, Adv., Mr. K. Shah, Adv.
Non-repayment of a loan and acknowledgment of debt through documentary evidence can establish liability in a court of law.
Headnote:
Money Lent - Inter-corporate Loan - Income Tax Act, 1961 - Section 203, Section 203AA - The court decreed the suit for a sum of Rs.1,26,93,835/-, subject to any amounts which may have already been realised by the plaintiff pursuant to the decree passed on 21st April 2017 for a sum of Rs.14,17,808/- together with interest at the rate of 10% and for a sum of Rs.65,753 at the rate of interest at 10% per annum from April 2015 until realisation. The defendant is directed to pay the decretal amount within a period of three months from the date of communication of the decree, failing which the defendant would be liable to pay further interest at the rate of 15% per annum on the entire decretal amount till realisation thereof. The suit is decreed for the sum as indicated above.
Fact of the Case:
The plaintiff filed a suit against the defendant for money lent and advanced by way of a short term inter-corporate loan. The defendant failed to repay the loan and remained unrepresented in the proceedings.
Finding of the Court:
The court found that the defendant had not repaid the loan and had no defense to the claim. The suit was decreed in favor of the plaintiff for the claimed amount.
Issues: The main issue was the non-repayment of the inter-corporate loan by the defendant despite acknowledging the loan and issuing post-dated cheques for repayment.
Ratio Decidendi: The court relied on the plaintiff's evidence, including documents such as board resolutions, letters, ledger accounts, TDS certificates, and confirmation of accounts, to establish the defendant's liability for the outstanding amount.
Final Decision: The suit was decreed in favor of the plaintiff for a sum of Rs.1,26,93,835/-, with the defendant directed to pay the decretal amount within three months, failing which further interest would be applicable.
Moushumi Bhattacharya, J.
1. The plaintiff has filed the suit against the defendant for money lent and advanced by way of a short term inter-corporate loan to the defendant for a sum of Rs.1 crore for a period of 182 days, namely, 21st October, 2013 to 20th April, 2014, at the rate 15 per cent per annum. The defendant acknowledged the receipt of the said sum and agreed and accepted the terms of repayment.
2. It appears from the orders passed in these proceedings that the defendant has not been represented from at least June, 2017. Despite an order dated 13th June, 2017 for direction of affidavits, no affidavit-in-opposition has been filed in the matter. This fact has been recorded by an order dated 21st November 2017 and a decree was passed by Hon’ble Justice Soumen Sen in a Chapter XIIIA proceedings for a sum of Rs.14,17,808/- together with interest at the rate of 10% per annum on the said sum from April 2015 until realisation; and a decree for a sum of Rs.65,753/- being the balance interest amount. A cheque had been issued on 21st April 2015 by the defendant which was dishonoured on presentation. The latter decretal amount was directed to carry interest at the rate of 10% per annum from April 2015 until realisation. The balance claim was relegated to the suit. An order dated 6th February 2018 passed by Hon’ble Justice Sahidullah Munshi refers to a report dated 23rd August 2015 of the Deputy Sheriff that although one Sanket Sarawgi, entered appearance on 25th April 2017, no written statement was filed in the matter. The suit was therefore fixed for hearing as an undefended suit under commercial division.
3. The case made out in the plaint is this; the plaintiff is a company engaged in the business of real estate and construction. The defendant is a public limited company also engaged in the business of construction. By an oral request made by the defendant in October 2013, the plaintiff granted an unsecured short term inter-corporate loan to the defendant for Rs.1 crore at the rate of 15% per annum and for the period of 21st October 2013 to 20th April 2014. By a letter dated 21st April 2014, the defendant requested the plaintiff to renew the short term loan for a further period of 182 days, namely, on and from 21st April 2014 to 19th October 2014 at the rate of 15% per annum. The letter also stated that the defendant had issued two post dated cheques in favour of the plaintiff both dated 20th October 2014 drawn up Deutsche Bank, Shakespeare Sarani for principle sum of Rs.1 crore and a sum of Rs.6,73,151/- towards interest on the principle sum. The defendant had, in acknowledgement if its liability towards the plaintiff deposited the TDS amount upon the interest amount. The said interest for the period of 21st October, 2013 to 20th April 2014 was a sum of Rs.6,73,151/- and the TDS amount to be deposited upon such sum was Rs.65,753/-. However, only an amount of Rs.6,575/- was booked for TDS by the defendant in respect of the transaction with the plaintiff, on 18th July, 2014, and credited to the Central Government.
4. The defendant had paid the plaintiff a sum of Rs.4,76,384/- being the balance interest amount payable at the end of the 1st Loan term ending 20th April, 2014 and had issued a cheque for a sum of Rs.59,178/- being Cheque No.527352, dated 21st April, 2014 being the amount of interest after deducting TDS therefrom (Rs.65753-Rs.6575), which was dishonoured upon presentation.
5. On completion of the second loan term as on 20th October, 2014, the cheque bearing No. 267414 being the interest sum, was presented by the plaintiff to its Banker, Andhra Bank, Chowringee Road, Kolkata, for encashment whereupon it was returned unpaid to the plaintiff for the reason “Funds Insufficient”. The defendant was intimated of such dishonour when the defendant requested the plaintiff to refrain from presenting the cheque for a sum of Rs.1,00,00,000/- but sought for a renewal of the said loan on the same terms as agreed earlier. The
