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2024 DIGILAW 1202 (CAL)

Pradeep Kumar Saraogi v. Pradip Kumar Agarwal

2024-06-27

KRISHNA RAO

body2024
JUDGMENT : KRISHNA RAO, J. 1. The Plaintiffs have filed the present application for a judgment upon admission for a sum of Rs.1,33,33,333/- along with an interest of 18% per annum. 2. The plaintiff nos. 2 and 4 are the daughters, and the plaintiff no. 3 is the daughter-in-law, of the plaintiff no. 1, and they are all engaged in a family business. 3. The defendant is a distant relative of the plaintiffs, being the plaintiff no. 1’s sister’s husband’s brother. 4. The defendant had requested the plaintiff for financial assistance of Rs. 1 (One) Crore, and accordingly after discussions between the plaintiffs and the defendant, the plaintiffs have agreed to pay the discussed amount of Rs.1 (One) Crore to the defendant. It was also discussed between the parties that the advanced requisite sums would be repaid by the Defendant within 5 (five) Years, and that the said advances could be recalled in case of default or at the option of the Plaintiffs for any reason on demand, whichever was earlier. 5. It was also further agreed, that the defendant, would continue to make regular payment of interest at the rate of 10% per annum. 6. The Plaintiff No. 2 has lent and advanced a sum of Rs.30,00,000/- to the defendant on 13th July, 2015, by RTGS through the HDFC Bank, Stephen House Branch, the Plaintiff No. 3 has lent and advanced a sum of Rs.40,00,000/- to the defendant on 13th July, 2015, by RTGS through the same bank and the Plaintiff No. 4 has lent and advanced an amount of Rs.30,00,000/- by RTGS through the same bank on 13th July, 2015. 7. The defendant has confirmed the acknowledgment of the total amount of Rs. 1(One) Crore by executing and signing thereof a confirmation of accounts in favour of the plaintiffs. 8. Pursuant to the agreement between the parties, the Defendant has made payments of interest to the plaintiff no. 2, an aggregating sum of 1st Rs.11,15,342.47/- up to October, 2019. An aggregating sum of Rs.14,87,123.29/- was paid to the Plaintiff No. 3 up to 1st October, 2019 and an aggregating sum of Rs.11,15,342.47/- was paid to Plaintiff No. 4 up to 1st October, 2019. 9. The defendant, however, defaulted in his obligation to pay interest and also failed to discharge his liabilities towards repayment of the principal amount. 10. An aggregating sum of Rs.14,87,123.29/- was paid to the Plaintiff No. 3 up to 1st October, 2019 and an aggregating sum of Rs.11,15,342.47/- was paid to Plaintiff No. 4 up to 1st October, 2019. 9. The defendant, however, defaulted in his obligation to pay interest and also failed to discharge his liabilities towards repayment of the principal amount. 10. The plaintiffs submit that they have on several occasions, attempted to discuss the repayment with the defendant, directly as well as through well-wishers and family for payment of interest as well as principal amount. But despite such repeated attempts, the defendant failed to repay any sum or interest after 1st October, 2019. 11. Left with no recourse, the plaintiffs by a letter dated 22nd July, 2022, the plaintiffs called upon the defendant seeking repayment of the outstanding sum of Rs.1,33,33,333/- within 7 (seven) days of receipt of the letter, to which the defendant had replied by a letter dated 6th August, 2022 and stated that the plaintiffs are making incorrect, false and fictitious statements and the sums paid by the defendant to the plaintiffs are payment for purchase of shares and not the interest amount. 12. The defendant had failed to repay the amount along with interest inspite of receipt of notice accordingly the plaintiffs have filed the suit. The claim of the plaintiff is as follows: S. No. Particulars Amount (in Rs.) 1. Principal sum advanced by Smt. Anu Saraogi on 13.07.2015 30,00,000/- 2. Interest due on sum of Rs. 30,00,000/- advanced by Smt. Anu Saraogi on 13.07.2015 from 01.10.2019 to 31.07.2022 10,00,000/- 3. Principal sum advanced by Smt. Priyanka Saraogi on 13.07.2015 40,00,000/- 4. Interest due on sum of Rs. 40,00,000/- advanced by Smt. Priyanka Saraogi on 13.07.2015 from 01.10.2019 to 31.07.2022 13,33,333/- 5. Principal sum advanced by Smt. Priya Saraogi on 13.07.2015 30,00,000/- 6. Interest due on sum of Rs. 30,00,000/- advanced by Smt. Priya Saraogi on 13.07.2015 from 10,00,000/- Total Amount Due 1,33,33,333/- 13. Learned Counsel for the plaintiffs submits that the defendant has made clear, unambiguous, and unequivocal admission of the debts received from the plaintiffs by providing acknowledgement by way of confirmation of accounts in writing. He submits that the defendant has also admitted the received amount by paying the interest till 1st October, 2019, by way of transfer in the bank account. 14. He submits that the defendant has also admitted the received amount by paying the interest till 1st October, 2019, by way of transfer in the bank account. 14. Learned Counsel for the plaintiffs submits that the defendant has unequivocally admitted the debts received from the plaintiff and the defendant has no defence and thus the plaintiff is entitled to get judgment on admission. 15. The defendant submits that the instant application is not maintainable in its present form inasmuch as the instant suit is also barred by limitation, since the suit has been filed for recovery of money beyond the period of the three years. 16. The defendant states that it has never agreed for repayment of the loan amount of Rs.1 (One) Crore, within 5 years and at 10% interest per annum and claiming of such interest on the alleged advanced sum, by the plaintiffs, is illegal without having any license of money laundering. 17. The defendant further submits that the payments, i.e. Rs.11,15,342.47/- Rs.14,87,123.29/- and Rs.11,15,342.47, to the Plaintiff Nos. 2, 3 and 4, were made for purchase of shares and has no nexus and/or relation to the alleged advanced sum whatsoever. 18. The defendant claims that the plaintiffs have made false and frivolous allegations in the letter dated 22nd July, 2022 and the response of the defendant dated 6th August, 2022, states the actual event of affairs. 19. Learned Counsel for the defendant submits that the four plaintiffs have jointly filed the suit and as per alleged transactions three plaintiffs, i.e., plaintiff nos. 2, 3 and 4 have made different transactions and have received the alleged interest on different account, thus different cause of action has arose with respect to each plaintiffs and thus the suit is not maintainable. 20. He submits that the amount which the plaintiffs are claiming as interest, i.e. not the interest amount, that is different transactions for share purchase. 21. Learned Counsel for the defendant submits that in the reply to the legal notice, the defendant has explained that the amount which the defendant has paid to the plaintiffs through bank transaction are not the interest but it was a purchase of shares but inspite of the same, the plaintiffs have filed the present suit as well as the present application. 22. 22. Learned Counsel for the defendant relied upon the judgment in the case of State Bank of India vs. M/s Midland Industries and Others, AIR 1988 Delhi 153 and submitted that judgment upon admission by the defendant under Order 12, Rule 6 is not matter of right, it is the discretion of the Court; so that if a case involves questions which cannot be conveniently disposed of on a motion under the rule, the Court may, in exercise of its discretion, refuse the motion. 23. He further relied upon the judgment of Rajjo Kuar and Another vs. Debi Dial and Others, 1896 SCC Online All 82 and submitted that it is obvious that the controlling words are “the same cause of action” and that Section does not allow plaintiffs to join in one suit in respect of causes of action in which they are not at all jointly interested. 24. Heard the Learned Counsel for the respective parties, perused the materials on records and the judgment relied by the defendant. Order 12, Rule 6 of the Code of Civil Procedure, 1908, reads as follows: “6. Judgment on admissions: (1) Where admissions of fact have been made either in the pleading or otherwise; whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question-between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.” 25. The plaintiff no. 2 has transferred an amount of Rs.30,00,000/- from her personal account maintained with the HDFC Bank by way of RTGS on 13th July, 2015, Plaintiff no. 3 has transferred an amount of Rs.40,00,000/- from her account maintained with the HDFC Bank by way of RTGS on 13th July, 2015 and the plaintiff no. 4 has transferred an amount of Rs.30,00,000/- from her account maintained with the HDFC Bank by way of RTGS in the account of the defendant maintained with the Allahabad Bank, Berhampur Branch. 3 has transferred an amount of Rs.40,00,000/- from her account maintained with the HDFC Bank by way of RTGS on 13th July, 2015 and the plaintiff no. 4 has transferred an amount of Rs.30,00,000/- from her account maintained with the HDFC Bank by way of RTGS in the account of the defendant maintained with the Allahabad Bank, Berhampur Branch. The confirmation of account from the month of April 2015 to 31st March 2016 shows that the above mentioned amounts have received by the defendant. 26. The bank statements of each of the plaintiffs show that the defendant has paid interest to the plaintiffs up to the month of October, 2019. The defendant has paid interest of Rs.11,15,342.47/- to the plaintiff no. 2, Rs.14,87,123.29/- to the plaintiff no. 3 and Rs.11,15,342.47/- to the plaintiff no. 4. After 1st October, 2019, the defendant stopped paying interest to the plaintiffs. 27. The defendant has taken the defense that the amount which the plaintiffs are treating the same as interest is not an interest, it is the purchase of shares by the plaintiffs but the defendant has not disclosed any documents in support of his submissions. The defendant has neither produced any share certificate purchased by the plaintiff nor any details of the share purchase certificate. 28. The point of limitation, the plaintiffs have paid the amount to the defendant om 13th July, 2015 by way of RTGS and as per the account details, the defendant has paid the interest upto 1st October, 2019 and the suit is filed in the year 2022, as per records, the plaintiffs have affirmed affidavit of the plaint before the Notary Public on 13th September, 2022 but the suit was presented before the Court on 31st October, 2022. As per the claim of the plaintiff, the plaintiff has claimed interest from 1st October, 2019. As per law for recovery of money suit is to be filed within three years. The plaintiffs have also taken the ground of pandemic Covid-19. The issue with regard to the limitation is to be decided during trial whether the plaintiff is entitled to get benefit of pandemic Covid-19 and in the application for judgment upon admission cannot be decided the said fact. 29. The plaintiffs have also taken the ground of pandemic Covid-19. The issue with regard to the limitation is to be decided during trial whether the plaintiff is entitled to get benefit of pandemic Covid-19 and in the application for judgment upon admission cannot be decided the said fact. 29. As regard to filing of the suit by the plaintiffs jointly though the defendant has taken the plea that each plaintiff has got their separate cause of action and cannot joint in a single suit. Order 1, Rule 1(a) and (b) of the Code of Civil Procedure, 1908, reads as follows: “1. Who may be joined as plaintiffs - All persons may be joined in one suit as plaintiffs where: (a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative. (b) if such persons brought separate suits, any common question of law or fact would arise.” In the present suit, the plaintiffs have paid their respective amount to the defendant from their different account though on the same day and the defendant has paid interests to the plaintiffs (though the defendant has denied that the said amount is not interest) in their respective account. This Court is of the view that the same is the matter of trial. 30. In the case of State Bank of India vs. Midland Industries and Others (Supra), the Delhi High Court has categorically held that the preliminary issue raised by the defendant in this case go to the very root of the suit and are likely to non-suit the plaintiff if these were found against the plaintiff. In the present case also there is no clear, unambiguous and unequivocal admission on the part of the defendant. The issues raised by the defendant go to very root of the suit and the same to be decided during the trial only. 31. In view of the above, G.A. No. 1 of 2022 is dismissed.