Shining Vyapaar Private Limited v. Nil Kantha Saha
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE COMMERCIAL DIVISION
Present:
The Hon'ble Justice Krishna Rao CS-COM 505 of 2024 (Old No. CS 96 of 2023) Shining Vyapaar Private Limited
Versus
Nil Kantha Saha Mr. Rohit Banerjee Mr. Sudarshan Agarwal Ms. Kanchan Jaju ... For the plaintiff.
Hearing Concluded On : 12.07.2024 Judgment on : 09.08.2024 Krishna Rao, J.:
1.
The plaintiff has filed the present suit praying for Decree for a sum of Rs.11,50,000/- along with interest at the rate of 18% per annum.
2.
Plaintiff is a company incorporated under the provisions of the Companies Act, 1956.
3.
The defendant is carrying on business of building construction under the name and style of "M/s. Priyanti Construction". 4.
In the second week of December, 2009, the defendant approached the director of the plaintiff, for grant of a temporary accommodation of business loan for a sum of Rs.10,00,000/-, carrying an interest at the rate of 15% per annum for a period of 6 months and considering the relation between the plaintiff's director and the defendant's, the plaintiff agreed to provide for the same on the basis of the terms and conditions discussed between the parties.
5.
The entire loan amount was disbursed in favour of the defendant by way of an account payee cheque bearing No. 960194 dated 17th December, 2009 for an amount of Rs.10,00,000/-. Upon receipt of the loan amount, the defendant acknowledged the receipt of the same. The defendant also acknowledged his liability to repay the loan amount and issued confirmation of account for the period from 1st April, 2017 to 31st March, 2018; 1st April, 2018 to 31st March, 2019 and 1st April, 2019 to 31st March, 2020.
6.
The defendant had paid the quarterly interest to the plaintiff, and such payment of interest was being remitted by the defendant either by way of account payee cheque or by way of NEFT to the bank account of the
plaintiff and the last interest was paid for the quarter period ended on 30th June, 2022 being Rs.25,000/-.
7.
On 1st October, 2022, the defendant issued a cheque bearing No. 939428, towards realisation of the principal sum of Rs.10,00,000/-, wherein the defendant requested the plaintiff to present the said cheque in the middle of the month of November, 2022 and assured that the cheque would be honoured for encashment upon presentation. 8.
As per the request made by the defendant, the plaintiff had presented the said cheque on 14th November, 2022 for encashment but the said cheque was dishonoured for the reason "Advice not received". 9.
The plaintiff upon such default on the part of the defendant, issued a notice dated 24th November, 2022, through its Advocate, calling upon the defendant to forthwith repay the said sum of Rs.10,00,000/- along with the accrued interest at the rate of 18% per annum from the date of receipt of such notice and the said notice was duly served upon the defendant.
10. Despite receipt of such notice, the defendant neither replied to the notice nor had made any payment regarding the amount due to the plaintiff.
11. On 19th December, 2022, the plaintiff filed a complaint case before the Court of the Learned Chief Metropolitan Magistrate at Calcutta against
the defendant for the offence under Section 138 of the Negotiable Instrument Act, 1881, being Case No. CS/121632 of 2022.
12. On 5th April, 2024, Learned Counsel for the plaintiff has produced the service report issued by the Deputy Sheriff of Calcutta of this Court wherein it was certified that the Writ of Summons were duly served upon the defendant and as per the report of the Deputy Registrar (Legal), the defendant has not entered appearance either in person or through its Advocate. On the basis of the report, this Court placed the matter in the list of "Undefended Suit".
13. The plaintiff has examined one witness, namely, Mr. Prasanna Kumar Nahata, a practising Chartered Accountant of the plaintiff company and during his evidence altogether 7 (seven) documents were exhibited being "Exhibit A to Exhibit E" which are as follows: Exhibit - A: Copy of a 'Board Resolution' dated 17th November, 2022, wherein Mr. Prasanna Kumar Nahata, was appointed as an authorised person on behalf of the plaintiff company, by the Board of Directors of the plaintiff company to depose. Exhibit - B: Original copy of the Memorandum and Article of Association of the Plaintiff Company.
Exhibit - C: Copies of bank statement of the plaintiff company, by its bank, the Union Bank of India, from the period of 11th February, 2022 to 4th December, 2022.
Exhibit - D: Copy of Confirmation of Accounts of the defendant, for the period of 1st April, 2017 to 31st March, 2018.
Exhibit - D/1: Copy of Confirmation of Accounts of the defendant, for the period of 1st April, 2018 to 31st March, 2019.
Exhibit - D/2: Copy of Confirmation of Accounts of the defendant, for the period of 1st April, 2019 to 31st March, 2020.
Exhibit - E: C Certified copies of order sheet, evidence and affidavit-in-chief filed before the Learned 20th Metropolitan Magistrate in the Criminal Complaint Case No.
CS/121632/2022, filed by the plaintiff against the defendant, are all marked and exhibited collectively.
14. At the time of evidence of the plaintiff's witness, the plaintiff has exhibited the certified copy of the proceeding of criminal case initiated by the plaintiff against the defendant under Section 138 of the Negotiable Instruments Act, 1881, being Exhibit-E wherein it proves the money receipt executed by the defendant is marked as Exhibit-2 and the cheque issued by the defendant is marked as Exhibit-4 in the criminal proceeding.
15. From the statement of account being Exhibit-C, it is also apparent that the defendant has paid interest from time to time to the plaintiff till 30th June, 2022. Plaintiff has exhibited confirmation of accounts signed by both the parties from 1st April, 2017 to 31st March, 2020 being ExhibitD, D1 and D2.
16. The plaintiff's witness during his evidence stated that the plaintiff has produced the Memorandum of Article of Association being Exhibit-B to show that the plaintiff company can carry on the business of money lending to persons and entity as per Clause 7 and 10 of the said Memorandum of Association. Clause 7 and 10 reads as follows: "7. To lend and advance money out of surplus funds of the Company not immediately required either with or without security and give credit out of such fund to such persons (including government) and upon such terms and conditions as the Company may think fit but not amounting to Banking Regulations Act, 1949.
10. To invest any moneys of the Company out of the surplus funds of the Company not immediately required in such investments (excluding own shares or stock of the Company) & as may be thought proper out of the surplus funds of the Company, not immediately required."
17. The following question was put to the plaintiff witness no.1 in question no.63 which reads as follows:
"Drawing attention to paragraphs 6,7,8 and 9 of the affidavit of evidence wherein you have stated that an amount of Rs.10 Lakh was advanced as loan from the plaintiff to the defendants. What was the purpose of advancing this loan?/ The purposed was earning interest by
advancing loans to the defendant in their Real Estate Construction business."
18. This Court finds that as per Clause 7 and 10 of the Memorandum and Article of Association of the plaintiff company, the surplus funds of the company which is not immediately required for immediate investment can be lend and advanced. It is the specific case that the defendant has approached the plaintiff for business loan and after discussion, the plaintiff has lent and advanced an amount of Rs. 10,00,000/- to the defendant for business purposes and the same is proved from the cheque and money receipt executed by the defendant.
19. Considering the above facts and circumstances, this court finds that the plaintiff has proved the case that the plaintiff has lent and advanced a sum of Rs. 10,00,000/- to the defendant for business purposes at the rate of interest of 15% per annum and the defendant has received the said amount. Till June, 2022, the defendant has paid the interest and subsequently, the defendant stopped payment of interest. On demand, the defendant has issued cheque but the same was also dishonoured and the defendant failed to pay the principal amount and interest from the month of July, 2022.
20. In view of the above, this Court finds that the plaintiff is entitled to get an a decree for principal amount of Rs. 10,00,000/- along with interest at the rate of 15% per annum from the month of July, 2022 till the realisation of total amount.
21. Plaintiff has also filed cost budget sheet wherein the plaintiff has provided particulars of the expenditure made by the plaintiff for filing and proceeding the suit for recovery of the amount lend and advance to the defendant. As per the cost budget sheet, the plaintiff has paid Court Fee of Rs. 50,000/-, made miscellaneous expenditure of Rs. 25,000/- and Advocate Fee of Rs. 1,25,000/-. The suit filed by the plaintiff is commercial in nature and as amended Section 35 of the Code of Civil Procedure, the plaintiff is entitled to get cost. Considering Section 35 of the CPC and the cost budget sheet submitted by plaintiff this Court awarded cost of Rs.1,75,000/- against the defendant.
22. The defendant is directed to pay Rs. 10,00,000/- being principal amount along with interest at the rate fo Rs. 15% per annum from the month of July, 2022 till the realisation of the total amount. The defendant is also directed to pay Rs. 1,75,000/- being the cost of the suit.
23. CS-Com No. 505 of 2024 (Old No.CS 96 of 2023) is disposed of. Decree be drawn accordingly.
(Krishna Rao, J.)