TaxTMI 
TaxTMI 
TaxTMI 
2024 (6) TMI 707
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....operties and the defendant has acknowledged the said amount. In the month of September, 2011, the defendant has informed the plaintiff that the defendant is not in a position to convey the properties to the plaintiff and the defendant agreed to return the amount received by the defendant to the plaintiff. The defendant to discharge its lability had issued two cheques being No. 117588 dated 8th April, 2014 of Rs. 2,50,00,000/- of Federal Bank, Overseas Branch, Kolkata and cheque No. 117590 dated 8th April, 2014 of Rs. 1,55,00,000/- of Federal Bank, Overseas Branch, Kolkata. 3. The plaintiff has presented the said cheques for encashment but the same were dishonored with the remark 'insufficient funds'. The defendant with a covering letter dated 28th April, 2014, sent two cheques being Cheque No. 128672 and cheque No. 128673 dated 20th May, 2014 of Rs. 2,50,00,000/- and Rs. 1,55,00,000/-. The defendant by a letter dated 29th December, 2014 by admitting the dues and expressed regret for return the said cheques and sent other two cheques being No. 117614 dated 29th January, 2015 of Rs. 4,05,00,000/- being the principal amount and cheque No. 117615 dated 29th January, 2015 of Rs. 2,02,7....
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....to be raised by the defendant is moonshine and sham. 6. Counsel for the plaintiff in support of his submissions relied upon the following judgments: i. (2022) 3 SCC 294 (B.L. Kashyap and Sons Limited -vs-JMS Steels and Power Corporation and Another). ii. (2019) 7 SCC 577 (Sudin Dilip Talaulikar -vs- Polycap Wires Private Limited and Others). 7. The defendant has filed an application being G.A. No. 7 of 2022 praying for grant of unconditional leave to defend the suit being C.S. No. 116 of 2017. The defendant received a copy of Writ of Summons along with copy of amended plaint on 12th February, 2021. The defendant filed Vakalatnama and affidavit of competency with the concern department on 7th October, 2021, by taking the benefit of the judgment passed by the Hon'ble Supreme Court dated 23rd September, 2021, during the Covid-19 period. 8. The Learned Counsel for the defendant by a letter dated 8th October, 2021 informed the Learned Counsel for the plaintiff about the appearance of the defendant but inspite of the said notice, the Counsel for the plaintiff has not served with the summons for judgment in Form No. 4A in Appendix-B. The defendant has filed an application for acc....
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.... month of September, 2011, the defendant informed the plaintiff that due to some technical difficulties, the defendants are not in a position to convey the said properties to the plaintiff and the defendant agreed to return the amount to the plaintiff. The defendant has issued two cheques of Rs. 2,50,00,000/- and Rs. 1,55,00,000/-to the plaintiff dated 8th April, 2014. The cheques issued by the defendant were dishonored with the reasons 'insufficient finds'. After dishonored of the above cheques, the defendant has issued other two cheques in place of earlier cheques dated 20th May, 2014 but the said two cheques were also dishonored. 15. After dishonor of second cheques, the defendant by a letter dated 29th December, 2014, expressed its regret for return of cheques and agreed to refund the money of the plaintiff with interest latest by 29th January, 2015. The defendant has again issued two cheques being cheque No. 117614 dated 29th January, 2015 for Rs. 4.05 Crores being the principal amount and cheque No. 117615 dated 29th January, 2015 for Rs. 2,02,71,000/- being the interest accrued on the principal amount. On 29th January, 2015, the director of the defendant requested the plain....
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.... 8th April, 2014 drawn on Federal Bank, Overseas Branch, Kolkata for a sum of Rs. 1,55,00,000/- (Rupees One crore fifty five lakhs only), aggregating to Rs. 4,05,00,000/- as security. The defendant requested the plaintiff not to encash the cheques without prior intimation as the bank accounts had no sufficient funds to encash these cheques. x) The plaintiff assured the defendant that upon payment of aforesaid sum of Rs. 4,05,00,000/-, the plaintiff would return the original title deeds to the defendant. y) Despite the same, the plaintiff presented the cheques and got it dishonored. The plaintiff wrongfully and illegally filed criminal complaints in different forums and same are pending. z) By an order dated 19th July, 2016, passed by this Hon'ble Court in CRR No. 1395 of 2016 with CRR No. 1475 of 2016 with CRR No. 1476 of 2016, the Hon'ble Court granted liberty to the defendant to deposit Rs. 3,00,00,000/- with the Registrar General, Hon'ble High Court at Calcutta. hh) The plaintiff is not entitled for any money as the plaintiff is wrongfully and illegally withholding the original title deeds and due to such act of the plaintiff, the defendant has suffered h....
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....dant by a letter dated 29th December, 2014, admitted the said amounts which reads as follows: "December 29, 2014 G. S. Fertilizers (P) Ltd. 113, Park Street Kolkata-16 Dear Sir, We had taken a sum of Rs 1,70,00,000 on 3.1.2011 and Rs. 2,35,00,000 on 4.1.2011 totalling Rs. 4,05,00,000.00 (Rs four crore five lakhs) from you against agreement for sale of our properties at Asansol and Dover lane Kolkata. Due to some technical reason we could not finalise the sale deed of the above properties and therefore we had returned your money vide cheques No 117588 and 117590 dated 8.4.2014 for Rs. 2,50,00,000 and Rs. 1,55,00,000 respectively on Federal Bank, Kolkata The above two cheques issued by us got retuned from the Bank due to reason for insufficient balance in our account. We again issued two cheques in your favour for Rs. 1,55,00,000 and 2,50,00,000 dated 20.05.2014 respectively but these two cheques were also returned by the bank due to Insufficient balance in our A/C. Thereafter we had discussion with you on this issue and expressed our regret for return of cheques and have finally agreed to refund your money with interest latest by 29.1.2015. We are issuin....
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.... allowing the defence to proceed if the amount claimed is paid into court or otherwise secured and give leave to the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence." 32.2. In IDBI Trusteeship, this Court modulated the aforementioned principles and laid down as follows: "17. Accordingly, the principles stated in para 8 of Mechelec case will now stand superseded, given the amendment of Order 37 Rule 3 and the binding decision of four Judges in Milkhiram case, 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 ....