Abhishek Tea Industries Vs. Aspen Projects India Ltd. and ors. - Court Judgment

ORDER

SHEET GA NO.2208 OF2014WITH CS NO.251 OF2014IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE ABHISHEK TEA INDUSTRIES Versus ASPEN PROJECTS INDIA LTD.& ORS.……… BEFORE: The Hon'ble JUSTICE I.P.MUKERJ.Date : 28th July, 2014.

Mr.J.Chowdhury, Mr.C.Gupta, Mr.S.Ghosh, Mr.A.Agarwalla… appear.

Mr.S.K.Basu…appeaRs.The Court : The cause of action of the plaintiff is founded on goods sold and delivered by them to the fiRs.to ninth defendants.

This is disputed by Mr.Basu for the fiRs.defendant by saying that that the contract was only between the plaintiff and the fiRs.defendant.

The claim of the plaintiff on this account is Rs.13,31,312/- upto 30th April, 2014 exclusive of the interest claimed.

Now, it appears that from time to time the fiRs.defendant issued three cheques for Rs.1,11,000/- each in favour of the plaintiff.

These cheques were replaced by them from time to time, upon being dishonoured for insufficiency of funds.

Lastly, the fiRs.defendant issued three cheques for Rs.1,11,000/- each dated 27th March, 30th March and 3rd April, 2014 respectively in favour of the plaintiff.

These cheques were also dishonoured for insufficiency of funds.

Mr.Basu appearing for the fiRs.defendant tries to explain by producing the letter dated 5th May, 2014 that these cheques were handed over by his client to the plaintiff with a request not to encash them pending settlement of accounts.

I am unable to appreciate this submission.

FiRs.of all, I do not think it is possible in law to draw a cheque and at the same time request the payee not to seek its payment.

It is a negotiable instrument under the Negotiable Instruments Act, 1882.

It has to be encashed by the bank if presented for encashsment, unless the drawee is instructed by the drawer bank not to make payment.

Such instructions have their own consequences.

Secondly, even assuming that such a request may be made, the same being made more than one month after issuance of all the three cheques does not seem to be a very honest request at all.

Mr.Basu cites Fertiliser Corporation of India LTD.versus Indian Explosive Ltd.; reported in 2006[1].CHN659paragraph 25 to submit that in a money claim the property of the defendant cannot be attached.

This is not an absolute proposition of law.

The principle of law laid down in that case is that in a money claim simplicitor, the property of the defendant could not be attached.

Where the Court finds from the existing evidence that the defendant has absolutely no defence to the claim of the plaintiff it is entitled to pronounce judgement forthwith in a summary way.

[See Order XXXVII of the Code of Civil Procedure].It is also empowered to pronounce judgment upon admission in an appropriate case [See Order XII Rule 6 of the Code of Civil Procedure].Upon dishonour of a cheque for insufficiency of funds, there is straightaway an admission of liability clear and unequivocal as in this case.

The Court in such a case is empowered to pass judgment immediately.

Execution, in that event, is only a matter of course.

However, before a summary judgment is passed or a judgment upon admission pronounced, the Court may be required to give the defendant an opportunity of filing an affidavit.

When a judgment upon admission or a summary judgment is pronounced, the plaintiff would also have to wait for a certified copy of the decree to levy execution.

It is well known that a Court passing the decree has also the power to levy execution.

Therefore, in this time period when affidavits are directed to be exchanged or during which the certified copy of the decree is under preparation, the Court should use its power under Order XXXIX of the Code of Civil Procedure to issue an injunction restraining the defendant from dealing with those properties against which the Court is likely to levy execution.

To rely on technicalities to prevent such an exercise by the Court would result in denial of justice.

I would like to sound a note of warning that this kind of an order should not be passed in every case calling for a summary judgment or judgment upon admission, but should be made when, on a perusal of the application, the defendant does not appear to have any defence.

Let affidavits be filed according to the following directions: Let affidavit in opposition be filed by 12th August, 2014.

List this application on 20th August, 2014.

Affidavit in reply, if any, may be filed in the mean time.

Considering the above prima facie case and the balance of convenience, the fiRs.defendant or the defendants will not transfer its interest in its registered office at 16/7/2B, Keyatala Road, Kolkata-700 029 or encumber the same or deal with it without the leave of this Court until further ordeRs.Certified photocopy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

(I.

Pkd.

A.R.[C.R.].P.MUKERJI, J.)