ORDER
SHEET GA NO.299 OF 201.CS NO.350 OF 201.IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE LIFELINE VINCo.PVT.LTD.Versus MIHIJAM VANASPATI LTD.BEFORE: The Hon'ble JUSTICE PATHERYA Date :
4. h July, 2013.
Appearance: Ms.Manju Agarwal,Advocate appears Mr.R.K.Chowdhury, Mr.T.Saraf, Advocate appear The Court : By order dated 25th April, 2013, the defendant was given time to file an application for leave to defend.
Subsequent to the said order after taking extension, the application for leave to defend was filed by the defendant and the sole reason for seeking leave to defend either unconditional or on terms and leave to file a written statement is that C.S.No.332 of 2012 has been filed.
One Prabhu Dayal Sarawagi was instrumental in the plaintiff making inter-corporate deposit in the defendant and it was on the basis of such inter corporate deposit that loan had given by the defendant to Shyam Steel Trading Company.
The understanding was that upon such deposit being given by the plaintiff sums would be loaned to Shyam Steel Trading Company by the defendant and, therefore, repayment would also be in the same sequence that is in the event Shyam Steel Trading Company was able to liquidate the loan amount, the defendant would make payment to the plaintiff and the person who knew about this was none other than Mr.Prabhu Dayal Sarawagi.
Therefore, it is necessary to examine Mr.Prabhu Dayal Sarawagi and for that purpose leave be given to the defendant to defend the suit on condition and for such purposes, the defendant is ready and willing to secure sums payable to the plaintiff.
The said application is opposed by the plaintiff on the ground that the transactions between the plaintiff, the defendant and Shyam Steel Trading Company are independent and distinct from each other.
The payment between the plaintiff and the defendant was through RTGS that is bank to bank and post-dated cheque was not only given for interest but also for the principal sum.
The case which is sought to be made out in these proceedings was also made out in the proceeding initiated under Sections 433 and 434 of the Companies Act, 1956 by the sister concern of the plaintiff being Shining Vyapar Private Limited.
Such case of the defendant was disbelieved and the winding up application admitted.
The appeal filed was also dismissed and although it has been submitted by counsel for the plaintiff that a special leave petition has been filed, such is not known to the plaintiff.
Therefore, this application warrants no order and be dismissed.
Having considered the submissions of the parties, the only ground sought to be made out by the defendant for seeking leave to defend unconditionally or on terms is that the transaction between the plaintiff and the defendant is dependant upon the transaction between the defendant and one Shyam Steel Trading Company.
The person who is aware of such inter-transaction is no other than one Prabhu Dayal Sarawagi, who is a party in C.S.No.332 of 2012 filed by the defendant.
To ascertain the involvement of Mr.Prabhu Dayal Sarawagi, the letters issued by him on 25th July, 2012 is of relevance.
In the said letter he has denied his involvement in the said transaction between the parties.
All that he was asked to do by he defendant is to resolve the disputes as the parties were known to him.
Beyond that he was in no way involved or connected with the said transactions.
This will also be evident from the letter written by the plaintiff dated 26th July, 2012 wherein it has been categorically stated that all that Mr.Prabhu Dayal Sarawagi did was to introduce the plaintiff to the defendant and beyond that the parties have continued to deal with each other directly without any intervention of Prabhuji.
Therefore, what emerges is that the transactions between the plaintiff and the defendant and the defendant and Shyam Steel Trading Company were distinct, independent and separate and in no way were they inter-dependent.
In case it was interdependent, then on the day payment was made by the plaintiff to the defendant on the very same day payment ought to have been made by the defendant to M/S.Shyam Steel Trading Company but this is not the case made out in the application for leave to defend.
It has also not been submitted that the post-dated cheques paid on account of interest corresponds to the payment of interest or crediting of interest vis-a-vis the loan given to Shyam Steel Trading Company.
Therefore, the case of inter-dependence of the two transactions made out by the defendant cannot be accepted and, accordingly, this application fails.
Another point to be noted is that Shining Vyapar Private Limited a sister concern of the plaintiff had also made a inter-corporate deposit with the defendant but the forum chosen by it to recover its dues is by filing a winding up petition.
To do so, a notice under Section 433 of the Companies Act 1956 was issued on 14th July, 2012.
A notice had been issued by the plaintiff on 25th July, 2012 to the defendant and anticipating proceedings, to preempt the same, C.S.No.332 of 2012 was filed by the defendant on 1st October, 2012 making Shri Prabhu Dayal Sarawagi a party defendant therein.
Therefore, this is another reason for not passing an order on this application and the application is, accordingly, dismissed.
All parties concerned are to act on a signed photocopy of this order on the usual undertakings.
(PATHERYA, J.) sb.