IMPORTANT POINT
The court established that a defendant must present a substantial defense to avoid summary judgment; mere assertions without evidence do not suffice.

JUDGMENT :

KRISHNA RAO, J.

1. The plaintiff has filed an application being G.A. No. 6 of 2022 for summary judgment and decree against the defendant for Rs.7,23,63,548/- along with interest. The defendant has filed an application being G.A. No. 7 of 2022 praying for leave to defend the suit unconditionally being C.S. No. 116 of 2017.

2. The plaintiff has filed the suit being C.S. No. 116 of 2017 against the defendant for recovery an amount of Rs.7,23,63,548/- along with interest. The plaintiff has advanced an amount of Rs.1,70,00,000/- on 3rd January, 2011 by way of RTGS and a sum of Rs.2,35,00,000/- on 4th January, 2011 by RTGS totaling Rs.4,05,00,000/- to the defendant for purchase of immovable properties and the defendant has acknowledged the said amount. In the month of September, 2011, the defendant has informed the plaintiff that the defendant is not in a position to convey the properties to the plaintiff and the defendant agreed to return the amount received by the defendant to the plaintiff. The defendant to discharge its lability had issued two cheques being No. 117588 dated 8th April, 2014 of Rs.2,50,00,000/- of Federal Bank, Overseas Branch, Kolkata and cheque No. 117590 dated 8th April, 2014 of Rs.1,55,00,000/- of Federal Bank, Overseas Branch, Kolkata.

3. The plaintiff has presented the said cheques for encashment but the same were dishonored with the remark ‘insufficient funds’. The defendant with a covering letter dated 28th April, 2014, sent two cheques being Cheque No. 128672 and cheque No. 128673 dated 20th May, 2014 of Rs.2,50,00,000/- and Rs.1,55,00,000/- . The defendant by a letter dated 29th December, 2014 by admitting the dues and expressed regret for return the said cheques and sent other two cheques being No. 117614 dated 29th January, 2015 of Rs.4,05,00,000/- being the principal amount and cheque No. 117615 dated 29th January, 2015 of Rs.2,02,71,000/- being an interest amount accrued on the principal amount. On 29th January, 2015, the director of the defendant requested the plaintiff to present the said cheques for clearance on 28th February, 2015 and the defendant has also handed over a further cheque No. 117628 dated 28th February, 2015 of Rs.13,00,000/- being further interest. As per the request of the defendant, the plaintiff has presented the cheques for encashment but all the cheques returned with the reasons ‘insufficient funds’.

4. The plaintiff has initiated a proceeding against the defendant under Section 138 of the Negotiable Instrument Act, 1881 as well as filed an application under Section 156(3) of the Code of Criminal Procedure, 1971 for initiation of criminal proceeding against the defendant and as per the order of the Court, the Park Street Police Station has registered a case against the directors of the defendants under Section 420/406/120B of the Indian Penal Code, 1980. Being aggrieved with the criminal case initiated against the directors of the defendant, the directors of the defendant have preferred three separate revisional applications before the High Court being CRR No. 1397 of 2015, CRR No. 1475 of 2015 and 1476 of 2015. In the said revisional application, the High Court at the time of grant of stay of the criminal proceeding directed the directors of the defendant to deposit an amount of Rs. 3 crores and accordingly the same was deposited with the Registrar, Appellate Side of this Court. During the pendency of the Criminal Revisional applications, the police has submitted final report and thus the proceeding initiated by the directors of the defendant under Section 482 of the Code of Criminal Procedure has become infructuous. In the said application, the Counsel for the defendant prays for withdrawal of the said amount but the High Court has directed that the said amount of Rs. 3 crores shall be deemed to be seized by the Investigating Officer in the course of investigation and given liberty to the plaintiff to file protest petition against the final report. The plaintiff has al