The court applied the principles from IDBI Trusteeship case to determine the defendant's entitlement to leave to defend in a summary suit.

Soumen Sen, J.

1. The application for summary judgment and the application for leave to defend are taken up together and disposed of by this common order.

2. The plaintiff has filed a suit under order 37 of the Code of Civil Procedure for recovery of a sum of Rs.47,17,103/- on the basis of a dishonored cheque for Rs.45,13,974/- purported to have been issued by the defendant in favour of the plaintiff towards the balance price of the goods sold and delivered by the defendant to the plaintiff. After filing of the suit the plaintiff has taken out an application in GA No.1956 of 2017 for a summary decree for the aforesaid sum. Upon service of summons the defendant had taken out an application being GA No.2035 of 2017 for leave to defend.

3. Both the applications are taken up for consideration.

4. The plaintiff has stated that from time to time the plaintiff had sold supplied and delivered to the defendants Iron and Steel goods e.g. M.S. Sheets/plates, steel rods etc. and the defendant used to make part payments from time to time against the invoices raised by the plaintiff upon the defendant in respect of such goods. The parties maintained running and continuous account. Upon settlement of accounts, the accounts stated as on 31st March, 2015 would show a sum of Rs.57,53,585/- as due and payable by the defendant to the plaintiff. The said account for the year ending 31st March, 2015 has been settled between the parties and the balance carried forward to the next financial year. Between 26th November, 2015 and 28th December, 2015 the plaintiff sold and delivered further goods to the defendant from time to time and the defendant had made part payment to the plaintiff from time to time. After adjustment of accounts a sum of Rs. 45,13,974/- has remained due and payable by the defendant to the plaintiff as on 31st March, 2016. The defendant has acknowledged and confirmed its liability to pay the aforesaid sum by signing the confirmation of accounts dated 1st April, 2016 for a period from 1st April, 2015 to 31st March 2016. The plaintiff has relied upon confirmation of accounts alleged to have been signed by the defendant on 31st March 2016 acknowledging the aforesaid sum. The plaintiff alleged that in acknowledgement of its dues the defendant had issued a cheque being No.000672 dated 3rd January, 2017 drawn upon Standard Chartered Bank, 19, N.S. Road, Kolkata - 700001 in favour of the plaintiff for the aforesaid sum. The said cheque however, was dishonored on presentation and returned to the plaintiff by its bank, Kotak Mahindra Bank with the remarks "Account closed". After dishonour of the cheque the plaintiff has demanded payment of its dues by a legal notice dated 2nd February, 2017. In spite of service of such notice the defendant did not pay the aforesaid sum. The defendant however, by a letter dated 9th February, 2017 raised false and frivolous allegations with a view to delay payment of debts.

5. The defendant in the application for leave to defend has alleged that the entire claim of the plaintiff is based on disputed facts which cannot be decided in a summary manner. The suit is barred by limitation. The defendant has made payments to the plaintiff by way of cheques/RTGS/NEFT which needs to be adjusted. The defendant in paragraph nine of the application for leave to defend has disclosed various payments made by the defendant to the plaintiff and has stated that such payments are required to be set off against the amount claimed by the plaintiff. The defendant further alleged that the defendant is having a factory/manufacturing unit at Baidyabati, Hooghly, and office at 167-A, Vivekananda Road, Kolkata and for the purpose of proper business transaction with different parties, the defendant company used to keep signed blank cheques in the office of the defendant. The plaintiff used to visit the office of the defendant in connection with the said business transaction and had easy access to the office premises of the defendant