O-30 IN THE HIGH COURT AT CALCUTTA ORDINARY ORIGINAL CIVIL JURISDICTION GA No.3163 of 2015 CS No.234 of 2015 GA2313OF2016RISHIKESH MERCANTILE PRIVATE LIMITED -VSTUF METALLURGICAL PRIVATE LIMITED -AndGA3165of 2015 CS237of 2015 GA2311of 2016 BLOOMING PROJECTS PRIVATE LIMITED -VSTUF METALLURGICAL PRIVATE LIMITED -AndGA3176of 2015 CS236of 2015 GA2310of 2016 SHAPE PROJECTS PRIVATE LIMITED -VSTUF METALLURGICAL PRIVATE LIMITED Mr.Jishnu Choudhury, Adv.Mr.A.K.Upadhyay, Adv.Advocate for the plaintiffs Mr Utpal Bose, Sr.Adv.Sakya Sen, Adv Shiladitya Bose, Adv.Rohit Mukherjee, Adv.Advocate for the Defendant BEFORE: The Hon’ble JUSTICE SANJIB BANERJEE Date: November 21, 2016.
The Court:- The parties agree that the nature of the claim in all three matters is the same and the same defence would have to be assessed.
The fiRs.of the matters listed is taken up for consideration by referring to the facts and the papers pertaining thereto.
As indicated by the parties, the facts and the corresponding papers pertaining to other claims are similar and the result in the other two matters should be governed by the result herein.
In all three cases, the plaintiff in a money claim applied fiRs.for an order in the nature of attachment before judgment and, subsequently, applied for a judgment on admission.
The applications for attachment before judgment contain the usual averments, but do not demonstrate that the common defendant is either impecunious or is taking steps to dispose of its assets in any manner.
The defendant suggests that unless the twin tests, of an impeccable claim and the impecuniosity or ill-motive of a defendant to a money claim, are demonstrably met, an attachment under Order XXXVIII Rule 5 of the Code can not be issued.
The plaintiff claims that sometime in September, 2012 the plaintiff gave a loan of Rs.70 lakh and the relevant payment was received by the defendant through RTGS.
There is no denial by the defendant of the receipt of such payment; or, indeed, of the receipt of the sums of Rs.1.60 crore from Blooming Projects Private Limited and Rs.30 lakh from Shape Projects Private Limited.
The plaintiff asserts that such loan of Rs.70 lakh was given with interest at an agreed rate, but no document in such regard was executed.
The plaintiff refers to the tax deducted at source by the defendant while paying the interest due on such loan till the end of financial year 2012-2013.
The defendant admits that interest for such period was paid and tax was deducted at source in such regard.
In addition, the plaintiff relies on the e-mail of the statutory auditors of the defendant issued on July 23, 2015.
The plaintiff claims that it would be evident from such mail that there was a loan transaction between the parties and such was the accepted position on behalf of the company as recently as in 2015.
It is necessary that the opening part of the relevant mail of July 23, 2015 is quoted : “Discussed with you on the phone, the income tax case for the assessment year 2013-14(financial year 2012-13) of TUF Metallurgical Pvt Ltd is under scrutiny.
During the said year, companies gave us the following loans : Blooming Projects Pvt Ltd – Rs.1.60 Cr your following Rishikesh Mercantile Pvt Ltd – Rs.70 lac Shape Projects Pvt Ltd – Rs.30 lac Since these loans have been taken in the year which is under scrutiny, we have to furnish the following documents in order to prove the identity, genuineness and creditworthiness of these loans/companies:” The plaintiff asserts that in the light of the completely dishonest defence taken by the defendant, to the effect that the money was not obtained by the defendant as a loan but was paid by the plaintiff in pursuance of some joint venture, it will be evident that the statutory auditors of the defendant regarded the transaction as a loan.
The plaintiff also refers to its reply of August 10, 2015 to the defendant’s statutory auditors’ mail of July 23, 2015.
The plaintiff forwarded copies of the documents sought.
Most significantly, a copy of the plaintiff’s reply to the statutory auditors of the defendant company was forwarded to the defendant and marked to a particular director.
In support of the prayers made in the two petitions, the plaintiff relies on an unreported judgment of this Bench rendered on October 11, 2012 in GA No.1989 of 2012, GA No.2168 of 2012 and AP No.480 of 2012 (Sourav Ganguly versus Mahuaa Media Pvt Ltd).A passage from page 8 of the unreported judgment is placed where there is a reference to a previous single Bench judgment, an order passed by a Division Bench and a Supreme Court judgment.
The plaintiff relies on the recognition in the relevant passage and the judgments quoted therein that it may not do in the present day and age to virtually admit a claim or demonstrate no defence against it, but wait for the trial without the defendant being required to furnish any security.
The substance of the defence is that a gentleman by the name of Prabhat Kasera represented the plaintiffs in matters pertaining to the acquisition of a Bahrain manufacturing facility by the plaintiffs in joint venture with the defendant.
It is claimed that the defendant has a subsidiary in Dubai and the plaintiffs or the persons in control of the plaintiffs including the said Kasera were desirous that the defendant and its said subsidiary be involved in connection with the acquisition of the plant.
As to the apparent loan transactions, the defendant claims that this was a mode of payment by the plaintiff to the defendant against monies expended by the defendant’s Dubai subsidiary in connection with the acquisition of the Bahrain plaint.
There is no scrap of paper which is cited by the defendant in support of its contention that the plaintiff was obliged or otherwise required to make any payment to the defendant or its Dubai subsidiary in connection with the alleged joint venture.
Indeed, it appears from some of the documents pertaining to the joint venture that Prabhat Kasera executed a few of them.
Prabhat Kasera appears to be a director of the defendant, though he may also be a director in one of the three plaintiff companies involved herein.
As to the Form 26AS, which demonstrates payment of TDS by the defendant to the plaintiff in 2013, there is no answer from the defendant.
It is not even attempted to be asserted on behalf of the defendant that such payment may have been on account of something other than payment of interest.
The defendant, however, suggests that the interest had been inadvertently tendered upon the staff of the defendant’s accounts section misunderstanding the transaction.
The defendant seeks to explain away the mail of July 23, 2015 by saying that it was issued by its statutory auditors on the perception of such auditors as to the nature of the transaction, but it was not the perception of the defendant that the transactions between the plaintiffs herein and the defendant were in the nature of loans.
It is submitted that the statutory auditors had issued mails to the plaintiffs without reference to the defendant.
Fortunately, when meaningless and apparently false defences are taken, there are other trails or signs that can be used to discredit the same.
In the present case, though the mail of July 23, 2015 does not appear to have been marked to the defendant company, the plaintiff’s response of August 10, 2015, by which the relevant documents were forwarded, was marked to the company and the attention of a particular director was also drawn to the same.
In the event the defendant was not aware of any mail addressed by its statutory auditors to the plaintiffs, upon receipt of the letter dated August 10, 2015, reasonable enquiries ought to have been made and it could have been discovered that the statutory auditors had misread the transaction to be a loan when it may have been something else.
It does not appear that despite the defendant being made aware of the statutory auditors’ requisition by e-mail of July 23, 2015, the perception as to the nature of the transaction was rectified by or on behalf of the defendant.
The defence is completely moonshine and there is nothing to justify the non-payment by the defendant of the loans obtained from the three plaintiffs.
The defendant, however, seeks to suggest that merely because a prima facie claim has been established, it should not follow that security should be directed to be furnished.
A case of admission has been made out by the plaintiffs in each of the matteRs.There is no denial of the receipt of the initial sum tendered in September, 2012 by each of the plaintiffs to the defendant.
There is an unquestioned document of 2013 in each case evidencing the deduction of tax at source for payment of interest by the defendant to each of the plaintiffs.
The nature of the transaction is corroborated by the mail of the statutory auditors of the defendant, though the contents of such mail may not be directly regarded as the admission on which a judgment on admission may be founded against the defendant.
It is further evident that the defendant’s contention that the defendant was not aware of the mail of July 23, 2015 is belied by the fact that the plaintiffs’ response thereto was marked to the defendant and the defendant was put on notice in such regard.
Since there is no defence to the claim and the defendant does not allay the misgivings of the Court as to its conduct by furnishing any security, there will be a decree in favour of the plaintiffs in each case.
GA3163of 2015, GA2313of 2016 and CS234of 2015 are disposed of by passing a decree in favour of the plaintiff and against the defendant in the sum of Rs.70 lakh together with the balance interest due to the plaintiff at the rate of 14 per cent per annum from April 1, 2013 till full payment.
The rate of interest is evident from the quantum of tax deducted at source indicated in the relevant Form 26AS.
GA3165of 2015, GA2311of 2016 and CS237of 2015 are disposed of by passing a decree in favour of the plaintiff and against the defendant in the sum of Rs.1.60 crore together with balance interest thereon at the rate of 14 per cent per annum from April 1, 2013 till full payment.
Again, the rate of interest is evident from the quantum of tax deducted at source in the Form 26 AS relied upon by the relevant plaintiff.
GA3176of 2015, GA3163of 2015, GA2313of 2016, GA3165of 2015 and GA2311of 2016 are disposed of by passing a decree in favour of the plaintiff and against the defendant in the sum of Rs.30 lakh together with balance interest thereon at the rate of 14 per cent per annum from April 1, 2014 till full payment.
The rate of interest is evident from the quantum of TDS deducted as appearing from the relevant Form 26 AS.
In addition, the defendant will pay each of the plaintiffs costs assessed at Rs.1.5 lakh.
Let the decrees be drawn up expeditiously.
Since decrees have been passed in respect of the claims in the suits, the subsisting orders of injunction will continue till the relevant decretal debt is discharged.
The defendant prays for the stay of the operation of the decree, which is refused.
(SANJIB BANERJEE,J.) Gour/S.Chandra