JUDGMENT : Krishna Rao, J.: 1. The plaintiff has filed an application being GA 2 of 2018 praying for judgment and decree against the defendant for a sum of Rs. 1,36,94,687/-along with interest on admission. The defendant has filed an application under Order VII, Rule 11 of the Code of Civil Procedure, 1908 being GA 3 of 2022 for dismissal of the suit. 2. The plaintiff is in the business of importing and thereafter selling Indonesian Steam Coal in the local market. The defendants are the traders in coal, coke dust and coke fines. The plaintiff and the defendants buy and sell each other’s products from one another and maintain mutual, open and current account. Lastly on 20th August, 2011, the plaintiff sold and the defendants brought coal worth of Rs. 1,60,49,096.92/-and the defendants accepted delivery of the coal and the invoices without any demur or protest. On 31st March, 2012 and 21st April, 2012, the defendants sold and plaintiff brought coke dust worth of Rs.13,47,892/-. The defendants made the payment to the plaintiff time to time and the last payment was made by the defendant to the plaintiff on 5th July, 2014 at Rs. 10,00,000/-by way of cheque. 3. Mr. Sarvapriyo Mukherjee, Learned Advocate representing the plaintiff submits that on 20th August, 2011, Indonesian Steam Coal is sold and delivered by the plaintiff to the defendants and raised invoice of Rs. 1,60,49,096.92/-and the same was not disputed by the defendants. He submits that on 31st March, 2012 and 21st April, 2012, the defendants sold and delivered coke dust and raised invoices for an amount of Rs. 13,47,892/-. 4. Mr. Mukherjee submits that in between 31st March, 2012 to 11th December, 2012, the defendants made part payment of Rs.48,00,000/-after adjusting the part payment of Rs.13,47,892/-on account of coke dust sold by the defendants to the plaintiff and after the adjustment of the said amount, an amount of Rs.99,01,204.92/-falls due and payable by the defendants to the plaintiff. 5. Mr. Mukherjee submitted that on 1st April, 2014, the defendants have issued confirmation of accounts to the plaintiff showing that the aggregate amount due and payable by the defendants to the plaintiff is Rs. 99,01,204.92/-. He submits that on 5th July, 2014, the defendants have made the last payment of Rs. 10,00,000/-by way of cheque and after deducting the said amount, an amount of Rs. 99,01,204.92/-. He submits that on 5th July, 2014, the defendants have made the last payment of Rs. 10,00,000/-by way of cheque and after deducting the said amount, an amount of Rs. 89,01,204.92/-is due and payable by the defendant to the plaintiff. 6. Mr. Mukherjee submits that the balance sheet and Schedule of balance sheets filed by the defendants as on 31st March, 2015 with the Income Tax Authority showing that the defendants owe the plaintiff a sum of Rs. 89,01,204.92/-after adjustment of Rs. 10,00,000/-in the previous financial year. He submits that on 1st April, 2016, the defendants sent confirmation of accounts to the plaintiff showing that an amount Rs. 89,01,204.92/-is payable to the plaintiff. He submits after filing of the suit, the defendants forwarded a copy of confirmation of account for the financial year 2015-2016 duly signed on behalf of the defendant no. 1 for confirmation and signature of the plaintiff. He submits that the confirmation of account also indicates that a sum of Rs.89,01,204.92/-is due and payable by the defendant to the plaintiff. 7. Mr. Mukherjee submitted that the defendants have no defence whatsoever to such unequivocal admission and the defendants have admitted the liability of Rs.89,01,204.92/-towards the plaintiff in the balance sheet and confirmation of account. 8. Mr. Mukherjee submitted that the application filed by the defendants under Order 7, Rule 11 of the Code of Civil Procedure is not maintainable as none of the grounds of the application is covered under the said provision. He submits that suppression of facts is not a ground for rejection of plaint. He submits that while considering an application under Order VII, Rule 11 of the CPC only averments and documents produced along with the plaint are required to be considered and the defense cannot be looked into. 9. Mr. Mukherjee submitted that the defendant has filed an application for rejection of plaint only for the purpose to delay the proceeding initiated by the plaintiff under Chapter XIIIA of the Original Side Rules of this Court. He submits that the plaintiff has filed the suit in the month of July 2017 and thereafter the plaintiff has filed the present application under Chapter XIIIA of the Original Side Rules. The defendant has not filed written statement in time and has filed an application for extension of time. He submits that the plaintiff has filed the suit in the month of July 2017 and thereafter the plaintiff has filed the present application under Chapter XIIIA of the Original Side Rules. The defendant has not filed written statement in time and has filed an application for extension of time. In the month of May 2022, pleadings of Chapter XIIIA application was completed and it was ready for hearing but in the meantime the defendant has filed an application under Order 7, Rule 11 of the Code of Civil Procedure in the month of June 2022. 10. Mr. Mukherjee relied upon the following judgments in support of his case : “i. 2011 SCC Online Cal 119 (Adhunik Ispat Limited – vs-Triveni Infrastructure Development Co. Limited). ii. (2018) 5 SCC 644 (Soumitra Kumar Sen –vs- Shyamal Kumar Sen & Ors.). iii. 2016 SCC OnLine Cal 12071 (Soumitra Kumar Sen – vs- Shyamal Kumar Sen & Ors.). iv. 2023 SCC OnLine Cal 293 (Poddar Projects Limited & Anr. –vs- Economic Transport Organization Ltd.). v. (2021) 6 SCC 366 (Asset Reconstruction Company (India) Limited –vs- Bishal Jaiswal & Anr.). vi. (2002) 3 SCC 684 (Chief Commissioner of Income Tax, Cochin –vs- Kesaria Tea Co. Ltd.). vii. (1999) 2 SCC 355 (Commissioner of Income Tax, Calcutta –vs- Sugauli Sugar Works (P) Ltd.).” 11. Mr. Arik Banerjee, Learned Advocate representing the defendants submits that the plaintiff has filed an application for summary judgment by supressing material facts amounting to fraud. He submits that the plaintiff has intentionally supressed material facts which amount to violation of Order VI, Rule 2 of the Code of Civil Procedure, 1908 and thus the suit is liable to be dismissed. 12. Mr. Banerjee submitted that the goods supplied by the plaintiff were of substandard and inferior quality. Immediately on receipt of the goods, the defendants on 29th August, 2011 in writing disputed the quality of the goods and informed the plaintiff that the coal is beyond sub-specification and requested to lift the materials as the defendant is not liable to make payment of such defective goods. He submits that subsequently the defendants have also raised dispute by sending reminders to the plaintiff with regard to the inferior and defective quality of goods by letters dated 17th November, 2011, 30th December, 2011 and 30th January, 2012. 13. Mr. He submits that subsequently the defendants have also raised dispute by sending reminders to the plaintiff with regard to the inferior and defective quality of goods by letters dated 17th November, 2011, 30th December, 2011 and 30th January, 2012. 13. Mr. Banerjee submitted that subsequently a settlement agreement was entered between the plaintiff and the defendant whereby the entire dues were settled for a sum of Rs.73,00,000/-. He submits that in Clause 3 of the agreement that the balance amount of the invoice of 20th August, 2011 which is for a sum of Rs.87,49,096.92/-will be settled by raising respective credit notes and debit notes and the entire process was to be completed by 31st December, 2012. He submits that subsequent to the execution of the settlement agreement, the defendant has paid substantial amount to the plaintiff by way of cheque on 24th May, 2012 for a sum of Rs.20,00,000/-, 11th June, 2012 for Rs.10,00,000/-, 7th August, 2012 for Rs.8,00,000/-and 10th December, 2012 for Rs.10,00,000/-. He submits that further payment due under the settlement agreement was adjusted by selling of coke dust by the defendants to the plaintiff for a sum of Rs.13,47,891/-. He submits that further payment of Rs.10,00,000/-have been made by the defendants to the plaintiff on 4th July, 2014. 14. The plaintiff has received all the communications without any protest. Mr. Banerjee submitted that the plaintiff is not complying with the settlement agreement by raising credit notes for the amount of goods which was not payable. On various occasions, the defendants have sent letters to the plaintiff requesting the plaintiff to raise credit notes so that the amounts can be matched and closed. 15. Mr. Banerjee submitted that the balance confirmation relied by the plaintiff were issued by the plaintiff to the defendants as per the normal accounting practice since the respective accounting entries have not been matched till date between the plaintiff and the defendants by raising respective credit notes and debit notes as per settlement agreement. 16. Mr. 15. Mr. Banerjee submitted that the balance confirmation relied by the plaintiff were issued by the plaintiff to the defendants as per the normal accounting practice since the respective accounting entries have not been matched till date between the plaintiff and the defendants by raising respective credit notes and debit notes as per settlement agreement. 16. Mr. Banerjee submitted that since the respective credit notes has not been raised by the plaintiff and also giving credit notes for the defective quality of goods, the defendant could not raise debit notes for writing off such figure from their books of accounts and without receiving credit notes from the plaintiff, the accounts once shown in books of accounts could not be removed and thus it was shown in the balance confirmations and balance sheet till 31st March 2015 though it was never due to the plaintiff. 17. Mr. Banerjee submitted that the plaintiff without performing its obligation under the settlement agreement by raising credit notes is now taking the advantage of such figures shown in the books of accounts of the defendants claiming admission on the part of the defendants. He submits that as the said entries were making a wrong impression, the defendant no.1 by taking recourse of Section 41 of the Income Tax Act, 1961 has recasted the accounts by writing off such figure shown in the balance sheet. He submits that by writing of such figures shown in the balance sheet, the defendant has treated them as profit and has paid a tax on the amount with the Income Tax Authority. 18. Mr. Banerjee submitted that as on the date of filing of the suit, the balance sheet does not show any debt figure of Rs. 87,49,096.92/-which the plaintiff is claiming from the defendant by way of summary judgment. 19. The plaintiff sold and delivered 3553.190 MT Indonesian Steam Coal to the defendant on 20th August, 2011 at the rate of Rs. 4343.09 per MT and raised invoice for a total sum of Rs. 1,60,49,096.92/-. 20. The defendants have sold and delivered coke dust to the plaintiff and raised invoices of Rs. 13,47,892/-dated 31st March, 2012 and 21st April, 2012. The defendants have made time to time part payments to the plaintiff. After giving credit for the payments made by the defendants and after adjustments for the goods sold by the defendants a sum of Rs. The defendants have sold and delivered coke dust to the plaintiff and raised invoices of Rs. 13,47,892/-dated 31st March, 2012 and 21st April, 2012. The defendants have made time to time part payments to the plaintiff. After giving credit for the payments made by the defendants and after adjustments for the goods sold by the defendants a sum of Rs. 89,01,204.92 is due and payable by the defendants to the plaintiff. 21. The admitted facts by both the parties are as follows: a. Sold and delivered 3553.190 MT Indonesian Steam Coal at the rate of Rs. 4343.09 per MT by the plaintiff to the defendants and raising invoice of Rs. 1,60,49,096.92 against the defendants. b. Sold and delivered of coke dust by the defendants to the plaintiff and raising invoices against the plaintiff for an amount of Rs. 13,47,892/-. c. Defendants have made part payment of Rs. 48,00,000/-after adjusting an amount of Rs. 13,47,892/-and the balance amount of Rs.99,01,204.92 due and payable by the defendants to the plaintiff. d. Defendants have made further payment of Rs. 10,00,000/-on 5th July 2014 to the plaintiff and after deducting an amount of Rs. 89,01,204.92/-. 22. The plaintiff relied upon the following documents as admission by the defendants for summary judgments: a. Confirmation of accounts issued by the defendants to the plaintiff dated 1st April, 2014 showing that the amount due and payable to the plaintiff is Rs. 99,01,204.92. b. Balance sheet and schedule of balance sheet filed by the defendant with the Income Tax Authority showing that the defendants owe the plaintiff a sum of Rs. 89,01,204.92/-after adjustment of Rs. 10,00,000/-in the previous financial year. c. Confirmation of accounts issued by the defendants to the plaintiff dated 1st April 2016 showing that the amount due and payable to the plaintiff is Rs. 89,01,204.92/-. d. Confirmation of accounts for the financial year 2015-16 duly signed by the defendant no.1 for confirmation and signature of the plaintiff indicating that a sum of Rs. 89,01,204.92/-is due and payable by the defendants to the plaintiff. e. Admission made by the defendant in paragraph 3(g) and annexure “F” of G.A. No. 3 of 2022 filed by the defendants. 23. The defendants have relied upon the following documents by denying the admission as claimed by the plaintiff and stated that the plaintiff has suppressed the material facts: a. Sampling Reports dated 26.08.2011 and 03.03.2012. e. Admission made by the defendant in paragraph 3(g) and annexure “F” of G.A. No. 3 of 2022 filed by the defendants. 23. The defendants have relied upon the following documents by denying the admission as claimed by the plaintiff and stated that the plaintiff has suppressed the material facts: a. Sampling Reports dated 26.08.2011 and 03.03.2012. b. Intimations regarding supply of inferior quality of Steam Coal by the plaintiff to the defendants. c. A compromise settlement entered between the defendant and the plaintiff dated 5th March 2012. d. Statement of accounts from 1st April 2011 to 10th July 2014 showing that the defendants have made payments to the plaintiff from time to time. e. Letters issued by the defendants to the plaintiff for sending credit notes for settlement of payment and books of account of Rs. 87,490,96.92/-. 24. Mr. Mukherjee relied upon the judgment reported in 2011 SCC OnLine Cal 119 (Adhunik Ispat Limited –vs- Triveni Infrastructure Development Co. Limited) and submitted that the claims of the defendant are unworthy and frivolous defences and there is no attempt by the defendant to explain away the admission save and except relying upon the forged and fabricated documents. 25. Mr. Mukherjee relied upon the judgments reported in 49 CWN 246 (Kiranmoyee Dassi -vs- Dr. J. Chatterjee), (2017) 1 SCC 568 (IDBI Trusteeship Services Ltd –vs- Hubtown Ltd.) and 2023 SCC OnLine Cal 293 (Poddar Projects Limited and Another –vs- Economic Transport Organization Ltd.) and submitted that defendant has failed to make out any defense to the claim of the plaintiff on merits or disclose any fact which entitle the defendant to defend the suit filed by the plaintiff. 26. Mr. Banerjee relied upon the judgment reported in 2018 SCC Online Del 11911 (Rockwool International A/s and Anr –vs- Thermocare Rockwool (India) Pvt. Ltd), (1976) 4 SCC 687 (M/s Mechelec Engineers & Manufacturers –vs- M/s Basic Equipment Corporation), AIR 1990 Cal 405 (Cycle Corporation of India Ltd – vs- Biswanath Dhandhania and Others) and (2017 ) 2 Cal LJ 83 (M/s Sirohia Finvest Co. Pvt. Ltd –vs- M/s Tirrihannah Co. Pvt. Ltd –vs- M/s Tirrihannah Co. Ltd.) and submitted that the defendant has made out a specific defence that the major quantity of the goods supplied by the plaintiff was inferior and defective quality as per lab report, subsequently a settlement agreement was entered between the plaintiff and the defendant and as per the agreement, the defendant has paid the amount but the plaintiff has not submitted credit notes to settle the book of accounts. He submitted that the defence raised by the defendant is not a moonshine and the issues raised by the defendant is a triable issue which is to be decided only after taking evidence of the parties. 27. The plaintiff denied with regard to the execution of the compromise settlement agreement dated 5th March, 2012 as the Shri Sur Prakash who alleged to have signed in the compromise settlement as an authorized representative of the plaintiff, was neither the employee of the plaintiff nor the plaintiff has at any point of time given an authority or authorization to sign or represent the plaintiff company. The plaintiff has also denied the stamp of the plaintiff company appearing on the document dated 5th March, 2012. The plaintiff has also denied the letters, signatures and stamps appearing in the said letters relied by the defendants which is alleged to be the reminder sent by the defendants to the plaintiff for sending credit notes for settlement of payment and books of accounts. 28. As regard the balance confirmation and the balance sheet of the defendant which the plaintiff has relied as admitted documents, the defendant no.1 by taking the recourse of Section 41 of the Income Tax Act, 1961 has recasted the accounts by writing off said figures shown in the balance sheet. By writing off such balance sheet, the defendants have treated the same as profit and have paid the income tax on the said amount. 29. As per the contention of the plaintiff that the removal of the entry of the balance sheet is unilateral and no consent has been obtained from the plaintiff for removal of the said entry. The Counsel for the plaintiff relied upon the statements made in paragraphs 3 and 5 of the Sur Rejoinder filed by the defendant which reads as follows : “3. The Counsel for the plaintiff relied upon the statements made in paragraphs 3 and 5 of the Sur Rejoinder filed by the defendant which reads as follows : “3. I say that as per the standard practice of the Indian Accounting System that once Receivables entered into the Accounts of the Assesses, same cannot be write off, at the instance of the assesse. That the Chartered Accountant of this answering defendant/Respondent, thus, continued to carry forward the purported claims of the Plaintiff/Applicants, although those were subsequently found not payable due to disputes cropped up thereafter. 5. I say that, during the relevant period, I have been told by our accountant, that as per the Indian Accounting Standard and provisions, once the amount/figure reflecting in the balance sheet for the period of 2014-15, same will stand or carry forwarded in the books of accounts of M/s kalika Enterprises until M/s Sarogi Udyog Private Limited would not issue credit note to them, as per the assurances of the joint settlement vide compromises settlement dated 5th March 2012. I have been further told that a credit note or debit note serves the purpose of accounting adjustment to settle the correct amount of value in the Books of Accounts for any invoice already issued by the supplier to the customer, notifying the customer that the party has been credited a certain amount due to an error or some other reasons. I have further advised that without receiving credit note, books of accounts will not be cleared, as there will be mismatch in the books of accounts of both the parties. Upon receiving credit note from party, the purchaser have to issue debit note to match their respective books of accounts.” 30. Mr. Mukherjee relied upon the judgment reported in (1999) 2 SCC 355 (Commissioner of Income Tax, Calcutta –vs- Sugauli Sugar Works (P) Ltd.) and (2002) 3 SCC 684 (Chief Commissioner of Income Tax, Cochin –vs- Kesaria Tea Co. Ltd.) and submitted that a unilateral action on the part of the assesse by way of writing off the liability in its accounts does not necessarily mean that the liability ceased in the eye of law. 31. This Court considered the judgments relied by the plaintiff. Ltd.) and submitted that a unilateral action on the part of the assesse by way of writing off the liability in its accounts does not necessarily mean that the liability ceased in the eye of law. 31. This Court considered the judgments relied by the plaintiff. It is settled law that if the defendant has no defense or the defense set up is illusory or sham or practically moonshine, the plaintiff is entitled for summary judgment but judgments relied by the plaintiff is distinguishable or this Court finds that the defendant has raised defense to claim on its merits. 32. Considering the above facts, this Court finds that the defendants have raised their defence on the basis of the documents and the plaintiff had taken the specific plea that the documents relied by the defendant are forged and the person who has executed the agreement was neither an authorized person of the plaintiff nor he was the employee of the plaintiff. The plaintiff has also denied the reminders, stamps and signatures appearing in the said reminders. The plaintiff has also taken the stand that the removal of the entry of the balance sheet is unilateral. The fact remains that the defendant has recasted the balance sheet by writing off the figure shown in the balance sheet. The defendant has relied upon the income tax document, which cannot be ignored at this stage and the validity of the said document is required to be decided during the trial and not in the present application. In view of the above, this Court finds that the defendants have raised triable issues which only can be decided after adducing evidence by the parties and no summary judgment and decree can be passed. G.A No. 2 of 2018 (Old GA No. 1551 of 2018) is thus dismissed. 33. As regard to the application filed by the defendant for rejection of plaint, this Court finds that the plaintiff has denied the execution of the agreement and the reminders sent by the defendants to the plaintiff. The specific case of the defendant is that the plaintiff has suppressed the said agreement and documents. The validity of the documents is required to be proved by the parties. In view of the finding made in para 32 supra, G.A. No. 3 of 2022 is also thus dismissed.