Sanjay Kumar Agarwal v. Sanjay Kumar Satish Kumar

IA No: GA-Com 1 of 2024 APDT No. 2 of 2024 with CS No. 70 of 2022

IN THE HIGH COURT AT CALCUTTA

In appeal from its ORDINARY ORIGINAL CIVIL JURISDICTION CIVIL APPELLATE JURISDICTION (Commercial Division) Sanjay Kumar Agarwal

Versus

Sanjay Kumar Satish Kumar Before:

The Hon'ble Justice I. P. MUKERJI And The Hon'ble Justice BISWAROOP CHOWDHURY Date: 6th May 2024 Appearance:

Mr. Rupak Ghosh, Advocate Mr. Pradip Kr. Ghosh, Advocate Mr. Chandan Mondal, Advocate Mr. Bidesh Ghosh, Advocate for the appellant Mr. K. C. Garg, Advocate Ms. Sunita Agarwal, Advocate for the respondent The Court: We are in a position to dispose of the appeal, dispensing with all formalities.

This is not a case calling for a summary judgment. We have gone through the impugned judgment and decree dated 28th August 2023. The narration of facts and evidence in that judgment itself goes to indicate the complication in the transactions between the parties.

We attach particular importance to two documents, one at page 106 and the other at page 209 of the stay petition. Both the statements of account show entries of Sajjan Kumar and Satish Kumar for the period from 1st April 2017 to 5th February 2021.

At page 209, the entries dated 17th June 2017 and 7th July 2017 show that sums of Rs.10,50,000/- and Rs.10,00,000/- were shown as debit entries on the respective dates in the account of the appellant/defendant. Mr. Ghosh submitted that this represented payments by the appellant/defendant to the agent of the respondent, Flozal Estate Private Limited.

Then again the statement of accounts at page 106 of the stay petition show that identical amounts were credited on the same dates in the account of the respondent/plaintiff.

We notice that these transactions which are of paramount importance have not been analysed properly by the learned judge. If the appellant/defendant succeeds in proving the above payments, he would be absolved of his alleged liability. For this solitary reason the case for obtaining summary judgment falls.

This is not the case where the case of the appellant/defendant is non-existing or extremely weak and that the court should have in normal course proceeded to pronounce judgment against him but out of sympathy allows him to contest the suit upon furnishing security. We are not saying that we have made conclusive scrutiny with regard to the transactions between the parties. They are kept open to stand proof of trial.

We are of the view that the appellant/defendant has more than an arguable or reasonable defence and that should be allowed to defend the suit without security (See Mechalec Engineers -vs- M/s. Basic Equipment Corporates reported in A. 1977 SC 577 following Smt. Kiranmoyee Dassi -vs- Dr. J. Chatterjee reported in 49 CHN 246). The impugned judgment and decree dated 28th August 2023 is set aside.

We expedite the trial of the suit. The appellant/defendant has already been permitted to file the written statement by the trial court. We order cross discovery of documents by 12th June 2024; inspection forthwith.

List the suit for trial on 26th June 2024.

The appeal (APDT 2 of 2024) and the connected application (IA No: GA-Com 1 of 2024) are disposed of accordingly. (I. P. MUKERJI, J.) (BISWAROOP CHOWDHURY, J.) R. Bose