JUDGMENT : Patherya, J. This application has been filed under Chapter XIII A of the Original Side Rules for summary judgment by the plaintiff against the defendant. 2. The case of the plaintiff is that financial assistance was given to the defendant from time to time since 2005 on terms and conditions agreed between the parties and after adjusting repayment a sum of approximate Rs.1.57 crore was due and payable by the defendant to the plaintiff as on 31st December, 2005. 3. In January 2006 under a MOU further assistance was given by the plaintiff to the defendant. 4. Out of the 33 post-dated cheques issued by the defendant on presentation 24 were dishonoured. As no payment was forthcoming and accounts confirmed C.S.164 of 2007 was filed for a decree for Rs.2,21,03,022.82 paisa. Writ of summons was also served on the defendant who has entered appearance but no written statement has been filed. Therefore, the application under Chapter XIII A has been filed and summary decree sought. 5. Defence of the defendant will be found in paragraphs 4, 6, 8, 9, 10 and 11 of its affidavit affirmed on 25th March, 2008 by Mayank Arora and mainly relates to payments made by it. It is also pleaded that no loan was received from the plaintiff but payments were made. The cheques which were issued were taken by force and the schedule does not reflect proper account. 6. Collateral security was also given against advance payment made. The plaintiff was not only a financer but also a broker-cum-financer and it is because of recovery of brokerage charge that it agreed to give financial assistance. Tea was sold by the plaintiff but the sale proceeds of such tea sold has not been adjusted. Books of account have been manipulated and the correspondence before the MOU of 2006 be looked into. Each of the defence of the defendant has been answered by the plaintiff. No particulars of the tea sold is reflected in the pleadings filed nor has any document been annexed. The existence of the MOU has also not been challenged. 7. The defence taken by the defendant is : i. The plaintiff’s license did not permit it to grant financial assistance. ii. The MOU is an agreement without consideration and therefore not enforceable in law. iii. The post dated cheques issued was given as collateral security against the advance made. iv. 7. The defence taken by the defendant is : i. The plaintiff’s license did not permit it to grant financial assistance. ii. The MOU is an agreement without consideration and therefore not enforceable in law. iii. The post dated cheques issued was given as collateral security against the advance made. iv. The schedule annexed does not reflect true and correct accounts. v. The cheques were encashed without intimation to the defendant and without settlement of accounts. vi. Tea was sold through the plaintiff or brokers identified by it and the sale proceeds adjusted. vii. The signatory to the Account Confirmation resigned from the defendant company on 6th July, 2006 and therefore could not have signed the Confirmation statement. viii. The plaintiff acted as a broker-cum-financer. ix. The books of accounts have been manipulated with the assistance of the then Manager Mr. Gupta. 8. Each of the said defence of the defendant company has been answered by the plaintiff in the affidavits filed by it. 9. There is no dispute that financial assistance was availed by the defendant company from the plaintiff and payment was also made as will appear from the Bank Statement of June 2005. 10. The Tea sold did not fetch Rs.1.94 Crore and the said has not been realised by the plaintiff. No particulars or documents of sale has been annexed. 11. Although manipulation of the books of account has been alleged no particulars have been given. All the correspondence relied on is prior to January 2006. 12. The defendant company has relied on a certificate issued by Manas Ghosh & Company, Chartered Accountants although its Chartered Accountant is S.S. Kothari & Company. 13. From the aforesaid it is clear that the defendant company has no defence and a decree be passed in favour of the plaintiff. 14. Counsel for the defendant company submits that the relief in the plaint sought is not to enforce the MOU nor is the Suit based on the dishonoured cheques as criminal proceedings have been initiated for the dishonoured cheques. Annexure-D is the schedule of the particulars of the claim as on 30th June, 2007 for a confirmation till 31st August, 2006. Even after the confirmation, payments were received by the plaintiff, this will appear from the supplementary affidavit affirmed by Mayank Arora on behalf of the defendant on 5th May, 2008. Annexure-D is the schedule of the particulars of the claim as on 30th June, 2007 for a confirmation till 31st August, 2006. Even after the confirmation, payments were received by the plaintiff, this will appear from the supplementary affidavit affirmed by Mayank Arora on behalf of the defendant on 5th May, 2008. The plaintiff has replied thereto and in the reply filed the plaintiff seeks to include loans given after 31st August, 2006. The signatory in the Confirmation filed with the Plaint and the documents annexed to the supplementary affidavit affirmed by Mayank Arora affirmed on 13th May, 2008 is of the same person. 15. Mr. C.L. Gupta according to the plaintiff was a Director who had signed the Confirmation of accounts till 31st August, 2006 but the said C.L. Gupta by a letter dated 14th August, 2006 returned his sim and mobile through his son, and the question of him signing a confirmation as on 31st August, 2006 cannot arise. 16. The principles applicable to a Chapter XIII A application has been laid down in 89 CWN 728, 49 CWN 246, AIR (1990) Cal 405 and the same be considered. The unreported judgment in the case of Sanjay Khemani vs. Jhunjhunwala Synthetics be also considered. 17. Correspondence exists which will reflect the plaintiff controlling and managing the affairs of the defendant and the confirmation has also been signed by a Director of the plaintiff. In view of the aforesaid the defendant has a good defence to the plaintiff’s claim and no decree be passed on the application filed and the defendant be allowed to defend the claim. 18. In reply plaintiff submits that the unreported decision is distinguishable on facts. The defence of the defendant has come through three affidavits filed - main and two supplementary affidavits. Case in the reply has not been denied and Balance Confirmation has not been disputed. In the written statement annexed to the affidavit filed on 25th March, 2008 the defendant has craved leave to refer to a schedule of payment made but no such schedule has been filed in these proceedings. Therefore, decree be passed. 19. Having considered the submissions of the parties the plaintiff is seeking a decree of Rs.2,21,03,022.82 paisa on an application filed under Chapter XIII A of the Original Side Rules. This is the amount claimed by the plaintiff in the suit. Therefore, decree be passed. 19. Having considered the submissions of the parties the plaintiff is seeking a decree of Rs.2,21,03,022.82 paisa on an application filed under Chapter XIII A of the Original Side Rules. This is the amount claimed by the plaintiff in the suit. The cause of action in the plaint is based not on the dishonoured cheques but on the confirmation of accounts till 31st August, 2006, and some sums paid subsequent to the date of confirmation. 31st August, 2006 is after 25th January, 2006 but the amount confirmed till 31st August, 2006 is an amount lesser than the amount in respect of which final Decree is sought. The particulars of payment beyond the confirmed amount finds mention in the affidavit affirmed by Vijay Sirohia on 7th May, 2008 but is not a part of the plaint. 20. The defendant has put up a defence of the plaintiff acting as a financier-cum-broker and realizing its dues from the customers of the defendant also itself selling the defendant’s Tea or engaging auction houses to sell the defendant’s Tea and realizing the sale proceeds. While the plaintiff has alleged giving credit for the amounts received, no particulars have been given. Similarly the defendant has not given any particulars of the sums realized by the plaintiff. The confirmation according to the plaintiff was by one Mr. C.L. Gupta who was a Director of the defendant but from the affidavits filed by the defendant it appears that Mr. C.L. Gupta had no connection with the defendant company as on 14th August, 2006 his arrear salary and cash reimbursements were collected and mobile and sim returned. Therefore, Mr. C.L. Gupta was not in a position or authorized to sign the confirmations after 14th August, 2006 or on 31st August, 2006. In case he was a Director of the defendant company necessary forms of his appointment so also resignation would have to be filed with the Registrar of Companies but no such documents have been filed inspite of them being public documents. Therefore, the defence of the defendant company is not a moonshine defence and cannot be brushed aside. 21. As the plaintiff’s plaint does not disclose at this stage the basis of the claim after the confirmation and the confirmation disputed will not entitle the plaintiff to a final decree in summary proceedings. Therefore, the defence of the defendant company is not a moonshine defence and cannot be brushed aside. 21. As the plaintiff’s plaint does not disclose at this stage the basis of the claim after the confirmation and the confirmation disputed will not entitle the plaintiff to a final decree in summary proceedings. On the other hand the defendant’s defence cannot be termed as moonshine. Triable issues have been raised by the defendant. Therefore, this application fails and is dismissed, more so, in view of AIR (1977) SC 577. 22. The defendant will file its written statement within three weeks from the date of this order. Discovery and inspection be completed within four weeks thereafter. Suit be listed for hearing two weeks thereafter. G.A. 2972 of 2007 & 1247 of 2008 stand disposed off.