IMPORTANT POINT
Cheques may constitute mode of payment by plaintiff and they may constitute evidence of transaction of loan, but they cannot said to be basis of money suit.

JUDGMENT

Krishna Rao, J.—The plaintiff has filed the present application under Chapter XIIIA of the Original Side Rules of this Court for decree for a sum of Rs.13,75,000/- or in the alternative compensation assessed at Rs.13,75,000/- and interest.

2. The plaintiff contents that in the month of June’ 2015, the defendant had approached the father of the plaintiff for grant of temporary loan for a sum of Rs.10 lacs along with interest at the rate of 18% per annum on demand. As there was a longstanding relationship and acquaintance of the father of the plaintiff with the defendant, the plaintiff had agreed to lent and advance a sum of Rs.10 lacs to the defendant vide cheque No. DJ2143967 dated 15th June, 2015 of Kotak Mahindra Bank, Kali Krishna Tagore Street Branch, Kolkata. The defendant has encashed the amount on 17th June, 2015.

3. After receipt of the loan amount, the defendant failed to return either principal amount or the interest accrued therein inspite of several requests made by the plaintiff to the defendant. On 21st July, 2017, the plaintiff had issued notice to the defendant calling upon the defendant for payment of the amount along with interest and the notice was duly received by the defendant but despite receipt of notice neither the defendant has returned the amount along with interest or sent any reply to the said notice.

4. The plaintiff is relying upon the bank statement wherein on 17th June, 2015 an amount of Rs.10 lacs was withdrawn by the defendant from the said account and the legal notice sent by the plaintiff was duly received by the defendant.

5. Ms. Manju Agrawal, learned Advocate representing the plaintiff relied upon the judgment reported in 2017 (4) ICC 442 (Cal) (Savitri Properties Pvt. Ltd. -vs- Avani Projects & Infrastructure Ltd.), AIR (36) 1949 Cal 479 (Smt. Kiranmoyee Dassi and Another -vs- Dr. J. Chatterjee) and (1976) 4 SCC 687 (M/s. Mechelec Engineers & Manufactures -vs- M/s Basic Equipment Corporation).

6. The defendant contents that the plaintiff only on the basis of the cheque and the legal notice has filed the present application for Judgment and Decree. The cheque is not as a loan and there is no contractual relationship between the plaintiff and the defendant. The plaintiff has not filed any documents other than the cheque to establish that the said amount is a loan amount along with interest. It is contended that merely issuance of cheque will not create any contract. The defendant had raised specific defence in paragraph 5 (a to s) of the affidavit-in-opposition which reads as follows:—

“5. (a) The respondent is, inter alia, engaged in the business of food grains and pulses and is a merchant and commission agent dealing with such products, having a yearly turnover of more than Rs. 100 Crores.

(b) The respondent has been carrying on business under the name and style of “M/s Omprakash Gupta & Sons” and is still the sole proprietor thereof. The respondent has been in the business since 1975 with transactions across India and overseas.

(c) The respondent deals with various agents and/or middle men, in the usual course of business.

(d) The respondent has had priod dealing with the father of the petitioner, namely, Shiv Kumar Agarwal. In fact, the respondent has supplied goods to the father of the petitioner on several occasions and continues to do so. The respondent has acted as a broker/commission agent on several deals, for supplying goods on behalf of the father of the petitioner to others. The respondent has been in the business since 1975 and has acquired substantial goodwill and reputation in the market. Several persons, including the father of the petitioner, regularly approaches the respondent to help complete transactions, with a third party for sale and/or purchase of goods in the market.

(e) Sometime in May, 2015, Shiv Kumar Agarwal had approached the respondent