TaxTMI 
TaxTMI 
TaxTMI 
2023 (8) TMI 240
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....renewal by mutual agreement subject to the Defendants making payment of interest accrued thereon from time to time. The plaintiff has transferred an amount of Rs.50 lakhs by RTGS on April 4, 2011 and the defendants have acknowledged the same through a receipt confirming the interest at the rate of 17% per annum. Subsequently after renegotiation the interest rate was enhanced from 17% to 18% p.a. with effect from December 1, 2011 and the defendants have started paying the interest at the rate of 18% p.a. thereon. 4. The loan was renewed from time to time subject to the condition that the defendants shall continue to make payments of interest quarterly to the plaintiff. Till September 30, 2013, the defendants have paid the interest on the said loan and the defendants have also deposited Tax Deducted at Source (TDS) to the credit of the plaintiff on the interest payable to the plaintiff. Since October 1, 2013, the defendants failed to make payment of interest. The defendants requested for extension of time for payment of interest as well as the principal amount. On April 1, 2014 the defendants have issued a confirmation of account statement to the plaintiff. 5. In spite of several r....
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....Balasubramanian) and submitted that a probable defence needs to be raised, which must meet the standard of "preponderance of probability", and not mere possibility. He further submits that a bare denial of passing of consideration will not aid the case of the accused. 9. Mr. Ghosh relied upon the judgment reported in 2021 SCC Online Ker 7647 (M.M Rajeev vs. O.K Eldhose and Others) and submitted that even if the defendant's version is accepted as true, the filling up of the dates in an otherwise filled and signed cheque, not being material alteration, will not invalidate it. 10. Mr. Ghosh submits that there is no real defence available to the defendants to dispute the claim of the plaintiff and thus this is a fit case for passing a summary judgment and decree against the defendants. 11. Per contra, Mr. Krishnaraj Thaker, learned Advocate appearing on behalf of the defendants admitted that the loan facilities were availed by the defendants which was renewed from time to time. Mr. Thaker submits that sometimes in the month of November' 2013, it was agreed between the plaintiff and the defendants that the defendants would repay the loan on March 1, 2014 and at that point of time, th....
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....plete the said transaction and demanded a refund of the earnest money and accordingly the defendants accepted the repudiation of the agreement for sale in October 2016 and forfeited the earnest money. He further submits that the cheque which the plaintiff is relying upon was not dated January 16, 2017. He submits that the cheque No. 298282 of Canara bank, Chowringhee Branch, was made over to the plaintiff sometimes in or about November 2013 and the said cheque formed part of a cheque leaf book bearing No. 298201 to 298300 and the said cheque leaf book which contained cheque No. 298282 was exhausted in 2013 itself. He submits that the plaintiff to cover up its wrong repudiation of the agreement for sale, which it had entered into with the defendant No.1. The petitioner unlawfully inserted the date of January 16, 2017 in the said cheque without consent of the defendants and is in breach of the agreement between the parties. 15. Mr. Thaker submitted that there is a good defence settled by the defendants which the defendants will prove during the trial and thus no summary judgment can be passed in the present suit. 16. Mr. Thaker relied upon the judgement reported in a AIR 1949 Cal 4....
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....r of the plaintiff but the plaintiff failed to pay the balance amount and accordingly the amount paid by the plaintiff has been forfeited. It is the further case that the cheque which the plaintiff has relied upon has not been given in the year 2016 but it was given to the plaintiff as security in the year 2013 but the plaintiff has inserted the date of January 16, 2017 and presented for encashment without the consent and knowledge of the defendants. 21. The appellant relied on Smt. Kiranmayi Dasi (supra) wherein the following principles were formulated for grant of summary judgment: "(a) If the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend. (b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend. (c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend that is to say, although the a....
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....1976 : (1976) 4 SCC 687] will now stand superseded, given the amendment of Order 37 Rule 3 and the binding decision of four Judges in Milkhiram case [Milkhiram (India) (P) Ltd. v. Chamanlal Bros., MANU/SC/0376/1965 : AIR 1965 SC 1698 : (1966) 68 Bom LR 36], as follows: 17.1. If the defendant satisfies the court that he has a substantial defence, that is, a defence that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit. 17.2. If the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the plaintiff is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend. 17.3. Even if the defendant raises triable issues, if a doubt is left with the trial Judge about the defendant's good faith, or the genuineness of the triable issues, the trial Judge may impose conditions both as to time or mode of trial, as well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial caus....