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TMI Blog2024 (6) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... onthalia. 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 che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 also filed protest petition against the final report of the police and the proceeding under Section 138 of Negotiable Instrument Act, 1881 are pending before the concern Courts. 5. Learned Counsel for the plaintiff submitted that the defendant has no defence to the suit and the defence sought to be raised by the defendant is moonshine and sham. 6. Counsel for the plaintiff in support of his submissions relied upon the following judgments: i. (2022) 3 SCC 294 (B.L. Kashyap and Sons Limited vs-JMS Steels and Power Corporation and Another). ii. (2019) 7 SCC 577 (Sudin Dilip Talaulikar vs- Polycap Wires Private Limited and Others). 7. The defendant has filed an application being G.A. No. 7 of 2022 praying for grant of unconditional leave to defend the suit being C.S. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff one broker, namely, Ramesh Sarogi informed Shri Gopal Kumar Sanei who is the one of the director of the plaintiff that the defendant is going to sell some lucrative properties in Kolkata and Asansol. The plaintiff was interested to purchase the properties, accordingly, talks between the director of the plaintiff and the defendant was held and on 3rd January, 2011 and 4th January, 2011, the plaintiff paid total amount of Rs. 4,05,00,000/- in two instalments to the defendant by transferring the amount through RTGS. On receipt of the said amount, the defendant has handed over several original deeds of Asansol Property and a deed of Dover Lane, Kolkata property to the plaintiff. 14. In the month of September, 2011, the defendant informed the plaintiff that due to some technical difficulties, the defendants are not in a position to convey the said properties to the plaintiff and the defendant agreed to return the amount to the plaintiff. The defendant has issued two cheques of Rs. 2,50,00,000/- and Rs. 1,55,00,000/-to the plaintiff dated 8th April, 2014. The cheques issued by the defendant were dishonored with the reasons insufficient finds . After dishonored of the above cheques, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiff, on 3rd January, 2011, the plaintiff paid a total sum of Rs. 4,05,00,000/- (Rupees Four crores five lakhs only) to the defendant. w) The defendant faced severe financial crisis in the business and could not repay the aforesaid sum of Rs. 4,05,00,000/- (Rupees Four crores five lakhs only). Though the aforesaid amount was secured by the deposit of the original title deeds, the plaintiff insisted for issuance of the post-dated cheque and accordingly, the defendant issued two cheques, being cheque No. 117588 dated 8th April, 2014 drawn on Federal Bank, Overseas Branch, Kolkata for a sum of Rs. 2,50,00,000/- (Rupees Two crore fifty lakhs only) and cheque No. 117590 dated 8th April, 2014 drawn on Federal Bank, Overseas Branch, Kolkata for a sum of Rs. 1,55,00,000/- (Rupees One crore fifty five lakhs only), aggregating to Rs. 4,05,00,000/- as security. The defendant requested the plaintiff not to encash the cheques without prior intimation as the bank accounts had no sufficient funds to encash these cheques. x) The plaintiff assured the defendant that upon payment of aforesaid sum of Rs. 4,05,00,000/-, the plaintiff would return the original title deeds to the defendant. y) Despit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss and damages but has not explained how the defendant has suffered such loss and damages and the defendant has also not made any claim by filing any separate suit or by way of counter claim, thus it cannot be said to be the defence of the defendant. 22. As regard payment of interest, the defendant has issued cheque No. 117614 dated 29th January, 2015 for an amount of Rs. 4,05,00,000/- being the principal amount and cheque No. 117615 dated 29th January, 2015 of Rs. 2,02,71,000/- as interest accrued on principal amount. The defendant has further issued cheque No. 117628 dated 28th February, 2015 of Rs. 13,00,000/- being the further interest. 23. The defendant by a letter dated 29th December, 2014, admitted the said amounts which reads as follows: December 29, 2014 G. S. Fertilizers (P) Ltd. 113, Park Street Kolkata-16 Dear Sir, We had taken a sum of Rs 1,70,00,000 on 3.1.2011 and Rs. 2,35,00,000 on 4.1.2011 totalling Rs. 4,05,00,000.00 (Rs four crore five lakhs) from you against agreement for sale of our properties at Asansol and Dover lane Kolkata. Due to some technical reason we could not finalise the sale deed of the above properties and therefore we had returned your money vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case the Court may in its discretion impose condition as to the time or mode of trial but not as to payment into Court or furnishing security. (d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine, then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend. (e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then, although ordinarily the plaintiff is entitled to leave to sign judgment, the court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into court or otherwise secured and give leave to the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence. 32.2. In IDBI Trusteeship, this Court modulated the aforementioned principles and laid down as follows: 17. Accordingly, the principles stated in para 8 of Mechelec case will now stand superseded, given the amendment of Order 37 Rule 3 and the binding decision of four Judges in Milkhiram case, as follows: 17.1. If the defendant satisfies the court that he has a substantial defence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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