Jalan Niketan Private Limited vs Avani Projects And Infrastructure Limited

Moushumi Bhattacharya, J.

The plaintiff has filed the suit against the defendant for money lent and advanced by way of a short term inter-corporate loan to the defendant for a

sum of Rs.1 crore for a period of 182 days, namely, 21st October, 2013 to 20th April, 2014, at the rate 15 per cent per annum. The defendant

acknowledged the receipt of the said sum and agreed and accepted the terms of repayment.

It appears from the orders passed in these proceedings that the defendant has not been represented from at least June, 2017. Despite an order dated

13th June, 2017 for direction of affidavits, no affidavit-inopposition has been filed in the matter. This fact has been recorded by an order dated 21st

November 2017 and a decree was passed by Hon’ble Justice Soumen Sen in a Chapter XIIIA proceedings for a sum of Rs.14,17,808/together

with interest at the rate of 10% per annum on the said sum from April 2015 until realisation; and a decree for a sum of Rs.65,753/- being the balance

interest amount. A cheque had been issued on 21st April 2015 by the defendant which was dishonoured on presentation. The latter decretal amount

was directed to carry interest at the rate of 10% per annum from April 2015 until realisation. The balance claim was relegated to the suit. An order

dated 6th February 2018 passed by Hon’nle Justice Sahidullah Munshi refers to a report dated 23rd August 2015 of the Deputy Sheriff that

although one Sanket Sarawgi, entered appearance on 25th April 2017, no written statement was filed in the matter. The suit was therefore fixed for

hearing as an undefended suit under commercial division.

The case made out in the plaint is this; the plaintiff is a company engaged in the business of real estate and construction. The defendant is a public

limited company also engaged in the business of construction. By an oral request made by the defendant in October 2013, the plaintiff granted an

unsecured short term inter-corporate loan to the defendant for Rs.1 crore at the rate of 15% per annum and for the period of 21st October 2013 to

20th April 2014. By a letter dated 21st April 2014, the defendant requested the plaintiff to renew the short term loan for a further period of 182 days,

namely, on and from 21st April 2014 to 19th October 2014 at the rate of 15% per annum. The letter also stated that the defendant had issued two post

dated cheques in favour of the plaintiff both dated 20th October 2014 drawn up Deutsche Bank, Shakespeare Sarani for principle sum of Rs.1 crore

and a sum of Rs.6,73,151/- towards interest on the principle sum.

The defendant had, in acknowledgement if its liability towards the plaintiff deposited the TDS amount upon the interest amount. The said interest for

the period of 21st October, 2013 to 20th April 2014 was a sum of Rs.6,73,151/- and the TDS amount to be deposited upon such sum was Rs.65,753/-.

However, only an amount of Rs.6,575/- was booked for TDS by the defendant in respect of the transaction with the plaintiff, on 18th July, 2014, and

credited to the Central Government. The defendant had paid the plaintiff a sum of Rs.4,76,384/- being the balance interest amount payable at the end

of the 1st Loan term ending 20th April, 2014 and had issued a cheque for a sum of Rs.59,178/- being Cheque No.527352, dated 21st April, 2014 being

the amount of interest after deducting TDS therefrom (Rs.65753-Rs.6575), which was dishonoured upon presentation.

On completion of the second loan term as on 20th October, 2014, the cheque bearing No. 267414 being the interest sum, was presented by the plaintiff

to its Banker, Andhra Bank, Chowringee Road, Kolkata, for encashment whereupon it was returned unpaid to the plaintiff for the reason “Funds

Insufficientâ€. The defendant was intimated of such dishonour when the defendant requested the plaintiff to refrain from presenting the cheque for a

sum of Rs.1,00,00,000/- but sought for a renewal of the said loan on the same terms as agreed earlier. The defendant also offered to club the amount

of interest for the whole year, being two consecutive terms (i.e. from 21st April, 2014 to 31st March, 2015) and pay the interest amount of

Rs.14,17,808/- at the end of the third term to which the plaintiff agreed.

This would also appear from the fact that the defendant in discharge of its liabilities towards the plaintiff deducted TDS @ 10% on the interest sum of

Rs.14,17,808/-. Therefore a sum of Rs.1,41,781/- was booked towards TDS by the defendant on 1st October, 2015 and deposited to the credit of the

Central Government in respect of the deductee/plaintiff. Although, TDS on the above amount of Rs.14,17,808/- was deducted by the defendant and

deposited to the credit of the Central Government, the said amount on interest was never paid to the plaintiff by the defendant.

By reason of the short term inter-corporate loan given by the plaintiff to the defendant at the agreed rate of interest and in view of the fact that the

defendant has failed and neglected to repay the said amount to the plaintiff, has also been acknowledged by the defendant in a confirmation of

accounts dated 1st April 2015 for a sum of Rs.1,12,76,027/-. It is the plaintiff’s case that the plaintiff has made several oral requests to the

defendant for repayment of the money lent and advanced but no part of the outstanding amount has been released by the defendant. The plaintiff

therefore claims a sum of Rs.1,26,93,835/- being the sum of Rs.1,12,76,027/- as mentioned in the confirmation of accounts and the further interest of

Rs.14,17,808/-.

In order to prove his case the plaintiff has produced various documents which were marked as Exhibits and are as follows:-

Exhibit-A: Board resolution of the plaintiff company dated 29th April, 2018.

Exhibit-B: Letter dated 21st April, 2014 issued by defendant acknowledging the renewal of the short term inter corporate loan granted by the plaintiff

alongwith two cheques both dated 20th October, 2014 bearing cheque nos.267413 and 267414 for a sum of Rs.1,00,000/- and Rs.6,73,121/-

respectively.

Exhibit-C: Ledger account for the Financial Year 2014-15.

Exhibit-D: TDS certificate in Form No. 16A dated 10th February, 2015, issued U/s 203 of the Income Tax Act, 196 and Annual Tax Statement in

Form No.26AS dated 6th November, 2015, issued under Section 203 AA of the Income Tax Act.

Exhibit-E: Statement of confirmation of accounts dated 1st April, 2015.

This Court has gone through the deposition of Pratiik Jalan, Director of the plaintiff company. The witness has deposed as to a letter dated 21st April

2014 from the director/authorised signatory of the defendant to the plaintiff acknowledging the defendant’s request for renewal of the short term

loan of Rs.1 Crore from 21st April 2014 to 19th October 2014 at 15% per annum and enclosing a cheque dated 20th October 2014 for Rs. 1 Crore

drawn on Deutsche Bank, Shakespeare Sarani Branch towards repayment of loan and a cheque drawn on the same date and on the same bank for

Rs.6,73,151/- towards interest at 15% from 21st April 2014 to 19th October 2014 (Exhibit-B); after deducting TDS at 10% being Rs.74,794/- from the

gross interest of Rs.7,47,945/-. The witness has identified the signature on the inter-corporate loan document as that of one Mr. Ginoria and of Mr.

Aniruddha Daga in respect of the two cheques.

The witness has further deposed that the cheque for the interest amount of Rs.6,73,151/- was dishonoured and the cheque for the principle amount

being of Rs.1 Crore was not presented due to the request made by the defendant. The ledger account maintained by the plaintiff for the year 2014-

2015 in relation to the loan given to the defendant and reflecting that Rs.1,12,08,713/-, being the principle amount and the interest outstanding as on

October 2014. The contents of this document has been proved by the defendant; (Exhibit-C) which the witness deposed was maintained in the usual

course of business. The TDS certificate given by the defendant showing that TDS had been submitted by the defendant against the payment for the

year April 2014 to June 2014 and the document downloaded from the website of the income tax department showing that TDS had been deposited by

the defendant on behalf of the plaintiff have been proved by the plaintiff’s witness and marked as Exhibit-D. The witness has identified the TDS

certificate namely Form 16A which the defendant gave the plaintiff as well as a Form 26AS which the defendant downloaded from the website of the

Income Tax Department. The witness has certified the contents of both these documents. The confirmation of accounts for 2014-2015 provided by

the defendant to the plaintiff confirming that payment of Rs.1,12,76,027/- is outstanding as on 31st March 2015 from the defendant to the plaintiff has

been proved and marked as Exhibit-E. The witness deposed that this document had been received by the plaintiff in the usual course of business.

Witness has further proved the ledger account maintained by the plaintiff for the defendant for the year 2015-2016 where an opening balance of

Rs.1,12,76,027/- payable to the plaintiff is reflected out of which the principle amount is of Rs.1 Crore and interest is of Rs.12,76,027/-: Exhibit-F. The

witness, being the director of the plaintiff has signed and affirmed the plaint on 11th January 2017 and has also stated that the plaint was filed under

his instructions. There is no reason to disbelieve or discount the evidence of the witness. In any event, the evidence has not been disproved by way of

a cross-examination on behalf of the defendant.

It is clear therefore that the loan given by the plaintiff to the defendant at the agreed rate of interest pursuant to an oral agreement between the

parties, has not been repaid by the defendant. Exhibit-B proves that the defendant had not only accepted the loan but had also requested for its

renewal for a second term at the same rate of interest and had also enclosed post dated cheques for that purpose. The TDS certificates show that

TDS had been deposited by the defendant specifically against payments received by the defendant from the plaintiff. The confirmation of accounts

(Exhibit-E) provided by the defendant to the plaintiff for the period 2014-2015 also shows that the defendant confirmed and acknowledged that

Rs.1,12,76,027/- remained outstanding as on 31st March 2015. The documents disclosed do not leave any doubt that the defendant is indebted to the

plaintiff for the sum of Rs.1,26,93,835/- claimed in the plaint being a sum of Rs.1,12,76,027/- as mentioned in the confirmation of accounts and a

further interest of Rs. 14,17,808/- being the interest amount payable from 21st April 2015 to 31st March 2016, calculated on the basis of an year

having elapsed after the date of confirmation of accounts. The defendant has made no effort in honouring its repayment obligations under the oral

agreement made with the plaintiff. The second post dated cheque enclosed together with the letter dated 21st April 2014 (Exhibit-B) was dishonoured

and the first cheque towards principle amount had not been presented by the plaintiff at the request of the defendant. The defendant therefore has no

defence to the claim. Moreover, the defendant has chosen to remain unrepresented despite several directions passed by this Court.

For the reasons as stated above, the suit is decreed in terms of prayer (a) of the plaint, that is, for a sum of Rs.1,26,93,835/-, subject to any amounts

which may have already been realised by the plaintiff pursuant to the decree passed on 21st April 2017 for a sum of Rs.14,17,808/- together with

interest at the rate of 10% and for a sum of Rs.65,753 at the rate of interest at 10% per annum from April 2015 until realisation. The defendant is

directed to pay the decretal amount within a period of three months from the date of communication of the decree, failing which the defendant would

be liable to pay further interest at the rate of 15% per annum on the entire decretal amount till realisation thereof.

The suit is decreed for the sum as indicated above. The department is directed to draw up and complete the decree as expeditiously as possible.

Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual

formalities.