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2020 Supreme(Cal) 605
IN THE HIGH COURT OF CALCUTTA
Arijit Banerjee, J.
Ajay Kumar Agarwal - Appellant
Versus
Green Concretex Global Limited - Respondent
G.A. No. 2439 of 2013, 3795 of 2013, 3723 of 2014; C.S. No. 286 of 2013
Decided On : 26-11-2020
Siddhartha Chatterjee, Advocate, Abir Lal Ghosh, Advocate, Jayati Chowdhury, Advocate, Rima Das, Advocate, Ranjana Seal, Advocate
The main legal point established in the judgment is that a party's vague and evasive denial of an admitted amount can lead to the court's conclusion of admission. Additionally, the court can grant attachment before judgment based on a party's dishonest conduct.
Headnote:
Recovery of Unpaid Price of Goods - Code of Civil Procedure - Order XXXVIII Rule 5 - The court found that the respondent had admitted liability to the petitioner for a sum of Rs.87,46,313/- based on balance confirmation statements and dishonoured cheques. The court passed a final judgment and decree for the admitted amount, while the rest of the claim including interest was left for trial.
Fact of the Case:
The petitioner supplied cement to the respondent and filed a suit for recovery of unpaid dues. The petitioner filed two interlocutory applications seeking judgment upon admission and attachment before judgment. The respondent also filed an application for leave to enter appearance and extension of time to file written statement and counter claim.
Finding of the Court:
The court found that the respondent had admitted liability to the petitioner for a sum of Rs.87,46,313/- based on balance confirmation statements and dishonoured cheques. The court passed a final judgment and decree for the admitted amount, while the rest of the claim including interest was left for trial. The court also granted the petitioner's application for attachment before judgment based on the respondent's dishonest conduct.
Issues: The issues involved the admission of liability by the respondent, the validity of balance confirmation statements, the nature of the dishonoured cheques, and the respondent's conduct in diverting funds and transferring business interests.
Ratio Decidendi: The court relied on Order VIII Rule 3 and 4 of the Code of Civil Procedure to determine that the respondent's denial of the admitted amount was vague and evasive, leading to the conclusion that the amount was admitted. The court also applied Order XXXVIII Rule 5 and Order XXXIX Rule 1 of the CPC to grant attachment before judgment based on the respondent's dishonest conduct.
Final Decision: The court passed a final judgment and decree in favor of the petitioner for the admitted amount of Rs.87,46,313/-. The court also granted the petitioner's application for attachment before judgment based on the respondent's dishonest conduct. The respondent's application for extension of time to file written statement was allowed with costs.
JUDGMENT
Arijit Banerjee, J. - In this suit filed by the petitioner for recovery of unpaid price of goods sold and delivered, the petitioner has taken out two interlocutory applications. The first application being GA No.2439 of 2013 filed on 16.08.2013 for judgment upon admission to the tune of Rs.1,11,51,507/- along with prayers to restrain the respondent from dealing with its properties pending disposal of the suit. The second application being GA No.3795 of 2013 filed on 17.12.2013 is one in the nature of an application under Order XXXVIII Rule 5 of the Code of Civil Procedure. The respondent also filed an application on 29.11.2014 being GA No.3723 of 2014 praying for leave to enter appearance in the suit and for extension of time to file its written statement and counter claim. I propose to deal with the applications in the order in which they were filed.
2. The petitioner's case in short is that between August 2010 and June 2013 he supplied cement to the defendant/respondent. From time to time, the respondent made payments of ad hoc sums. As on March 31, 2012, a sum of Rs.1,31,22,926/- was due and payable by the respondent to the petitioner.
3. In April 2012, the petitioner demanded payment of his outstanding dues from the respondent and refused to effect any further supplies until his dues were paid. The respondent persuaded the petitioner that it would cause its clients to pay directly to the petitioner. The respondent also gave eleven post dated cheques presentable for payment on various dates of June 2013. An ad hoc sum of Rs.18,56,519/- was paid by the respondent to the petitioner in April, 2012.
4. Between April, 2012 and June, 2013, the petitioner supplied further quantities of cement to the respondent. By a balance confirmation statement, the accounts department of the respondent confirmed that as on 28 February, 2013 a sum of Rs.2,72,44,307/- was payable by the respondent to the petitioner.
5. After March, 2013 the petitioner supplied cement worth Rs.3,17,32,700/- to the respondent. The petitioner relies on purchase orders and bills evidencing such supply, copies whereof are annexed to the affidavit-in-reply filed by the petitioner.
6. The post dated cheques that were issued by the respondent in favour of the petitioner were dishonoured upon presentation on the ground 'Payment Stopped by Drawer'. The petitioner contends that he was never intimated by the respondent that such instruction had been given to the bank.
7. In the aforesaid factual scenario the present suit was filed. In the suit, the petitioner filed an application on or about 16 August, 2013 praying for judgment upon admission to the tune of Rs.1,11,51,507/- and for other reliefs in the nature of attachment before judgment ('the first application'). Subsequently, another application was filed by the petitioner on 17 December, 2013 being GA 3795 of 2013 praying for reliefs also in the nature of attachment before judgment.
8. On the first application, an interim order was passed on 20 August, 2013, by a Learned Single Judge. However, the same was vacated on 2 September, 2013. The petitioner appealed. The Hon'ble Appeal Court disposed of the appeal by an order dated 10 September, 2013, the operative portion whereof reads as follows:
"We have considered the rival contentions. The parties are at the stage when the respondent is yet to file their affidavit. We do not know what is the worth of the respondent. We asked Mr. Banerji, he is unable to apprise us on that score. The acknowledgement of liability pleaded in the petition is not in dispute. The correspondence annexed to the pleadings are relied upon by Mr. Banerji himself where we would find, even in July, 2013 the respondent is asking its debtors to pay Rs.44 Lakhs to the appellant. The dues are not in dispute. The quantification would be done at the appropriate stage. We would have disposed of the application at this stage even relying upon the respondent's statement being made to Court as to the amo
