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Judgment
Sugato Majumdar, J.:
This is a suit for recovery of money.
The original Plaintiff company had been incorporated under the provisions of the Companies Act, 1913 having registered office at 4A, Woodburn Park, Kolkata-700020. Subsequently, the company had been changed into a private limited company and became registered under the Companies Act, 1956. The Plaintiff carries on business of manufacturing Polyethylene Terephthalate (in short PET) Resin and in the course of his business imports various raw materials including Purified Terephthalic Acid (in short PTA) required for manufacturing PET.
The sum and substances of the plaint case is as follow:
The Defendant is the proprietor of a sole proprietorship firm of the name of M/s Transmart Container Lines and carries on business, inter alia, for providing services in relation to export import market including handling the logistics of the transportation of materials. The Defendant carries on business at Bells House, 10A, Ho Chi Minh Sarani, Ground Floor, Kolkata-700071 within the jurisdiction of this Court.
The Defendant and the original Plaintiff had longstanding business relationship; the Defendant had been appointed on several occasions as the carrier for transporting the materials of the original Plaintiff. The Defendant used to act as an agent of a forwarder, namely, M/s T.K.M Global Logistic Limited (in short TKM). Subsequently, the erstwhile Plaintiff became the present Plaintiff company following the due process of law.
The Defendant had been appointed by the original Plaintiff for handling its consignment PTA to be shifted from Busan Korea and Kwang Yong to Holdia Port in India. The said PTA was required for regular manufacturing activities of the Plaintiff.
Three consignments were to be handled by the Defendant and the same had been accepted in the month of August/September 2012. The consolidated invoice value of the three consignments was US$ 1363164 equivalent to a sum of Rs.7,42,13,226/-. The Plaintiff made full payment for the entire cargo including the freight and shipment charges.
The Defendant had appointed M/s T.K.M Global Logistic Limited as the forwarder for the said consignment. After arrival of the cargo around the end of August, 2012. M/s T.K.M Global Logistic Limited refused to give delivery of the said consignment to the Plaintiff. Upon enquiry the Plaintiff came to learn from the said TKM that the reason of refusal was understanding amount payable by the Defendant to them. In view of the unpaid amount, TKM took the stand that till payment of the understanding amount by the Defendant, cargo would not be released and lien would be exercised on the said goods by the said TKM.
The Plaintiff was in urgent need of the goods as the manufacturing process at its plant was required to be operated continuously. For this reason the raw materials, so imported, was extremely important component. After discussing with TKM and at the Defendant’s request, the Plaintiff paid to the said TKM a sum of Rs.14,05,549/- and Rs.15,27,697/- on behalf of the Defendant against one of their pending bill being bill no. SI/12/575/CCU by cheque nos. 984998 and 984999 dated 3rd September, 2012 drawn on IDBI Bank, Kolkata so that the cargo could be released. Thus, the entire bill of the Defendant including all the charges relating to the said cargo had already been paid by the Plaintiff at the time the shipment started on 20/07/2012. However, as the Defendant had failed to make the necessary payments to TKM, the Plaintiff was constrained to pay a sum of Rs.14,05,549/- and Rs.15,24,697/- and the said payments had been accepted by the Defendant as a loan taken by it for discharge of the Defendants’ obligation to the said TKM. The Defendant, by its e-mail dated 23rd August, 2012 had requested the Plaintiff to pay the amount and had assured to repay the same.
Thereafter, the balance cargo of the Plaintiff had arrived but the Defendant still did not clear the entire outstanding and pending dues to TKM and the said TKM refused to release the Plaintiff’s cargo, after discussion the Plaintiff had to pay a sum of Rs.52,00,000/- loan to the Defendant to clear his dues with TKM so that the cargo could be released. The said sum was paid on 10th October, 2012 by the Plaintiff to the Defendant subsequently the Plaintiff was further constrained to pay for or on behalf of the Defendant is sum of Rs.18,00,000/- to Maersk Line India Pvt. Ltd., the owner of the ship, as and by way of demurrage charges.
Thus, a total amount of Rs.85,00,000/- had been provided as a loan to the Defendant by the Plaintiff, out of which Rs.15,00,000/- had been advanced on 4th September, 2012 and Rs.70,00,000/- had been advanced on 10th October, 2012. The Defendant further agreed to pay an interest at the rate of 18% per annum from the date on which they had been advanced to the Defendant and/or to TKM and/or to Maersk Line India Pvt. Ltd. It was also undertaken by the Defendant to repay the amount between November, 2012 to March, 2013. The Defendant further created security for repayment of the aforesaid amount by creating a charge in favour of the Plaintiff on an immovable property being premises no. 66/A/1 situated at Pally Mangal Colony, Thakurpur, Kolkata-700063 admeasuring approximately 1 cuttah 5 chittak 14 sq. ft. The property belonged to the mother of the Defendant. The mother of the Defendant as well as the Defendant himself had given an undertaking confirming that they would be depositing the original title deeds. The title deeds had been released from HDFC Finance Limited.
The Defendant admitted and acknowledged a sum of Rs.85,00,000/- lakh as outstanding and due. The Defendant had also handed over five cheques each containing Rs.5,00,000/- to the Plaintiff towards repayment but all the cheques were dishonoured.
As of now, the total outstanding amount stands as of Rs.1,16,95,294.50/- and principal amount of Rs.77,50,000/-with interest of Rs.39,45,294.50/- bearing interest 18% per annum.
Accordingly, the Plaintiff filed the suit for recovery of said sum of Rs.1,16,95,294.50/- with interest at a rate of 18% per annum along with other prayers.
The Defendant contested the suit by filing written statement.
The contention of the Defendant was that he is a sole proprietor of a proprietorship concern, namely, M/s Transmart Container Lines. The Defendant had good relationship with the Plaintiff. Because of such good relationship, he approached the Plaintiff for financial assistance in connection with business. The Plaintiff agreed to pay a sum of Rs.52 lakhs as loan to the Defendant. A total sum of Rs.51,48,000/- had been paid to the Defendant after deducting tax at source.
While giving loan of Rs.52 lakhs, the Plaintiff required the Defendant to pay some amount as security for which the Defendant handed over a cheque of Rs.14 lakhs to the Plaintiff in between 3rd September, 2012 and 6th September, 2012.
After obtaining loan of Rs.52 lakhs on 10th October, 2012, the Defendant paid a further sum of Rs.7,50,000/- from time to time by way of different cheques to the Plaintiff. Subsequently, the Defendant paid the balance amount of Rs.30,50,000/- to square off the loan.
It was further contended in the written statement that the Defendant was appointed as forwarding agent and duly discharged his duties in respect of consignments dated 05/07/2012, 13/07/2012 and 20/07/2012. After arrival of consignment of Holdia Port, the Plaintiff, without informing anything to the Defendant and without paying 2% brokerage charge to the Defendant, which the Defendant was entitled to directly approach M/s T.K.M Global Logistics Limited. There was no some due and payable by the Defendant to the said M/s T.K.M Global Logistics Limited as forwarding agent. In fact, the Defendant had paid a sum of Rs.53,90,000/- to them for its charge as forwarding agent.
Sometime in October 2012, the Plaintiff forced the Defendant to sign five undated cheques purportedly issued in the name of the Plaintiff bearing nos. 551964, 551965, 551966, 551977 and 551968 and upon being threatened the Defendant issued the said five undated cheques without putting any figure on the same. The Defendant was also forced to sign some blank documents and the signatures of the Defendant as well as his mother had been taken on blank cheque under threat and coercion. The said purported cheques have been issued and signed by the Defendant at the Plaintiff’s office when a Defendant was present for business discussions that the Plaintiff. This apart the Defendant was also forced to send e-mails dated 6th November, 2012, 10th December, 2012, 26th January, 2013, 22nd March, 2013 to the Plaintiff confirming the outstanding amount which had been taken as loan.
The Defendant filed a suit against the Plaintiff before the Learned District Judge at Alipore being Title Suit No. 189 of 2015 claiming for a declaration that the purported undertaking given by the Defendant as well as the Defendant’s mother are null and void and of no effect whatsoever.
The nutshell of the defence is that there is no outstanding dues payable by the Defendant to the Plaintiff and that the cheques and documents had been obtained by the Plaintiff from the Defendant by exercising force and coercion.
On the basis of rival pleadings, following issues were framed:
Whether the Plaintiff is entitled to a decree for the sum of Rs.1,64,46,057/- along with costs as claimed ?
Whether the Plaintiff is entitled to recover interest at the rate of 18 percent per annum on the outstanding amount as agreed by the Defendant in his undertaking?
The Plaintiff adduced documentary as well as oral evidences. Because of repeated absence of witness action on behalf of the Defendant had been closed by this Court.
Before a co-ordinate Bench of this Court an application was filed being GA 1517 of 2017, praying for judgment on admission. Co-ordinate Bench, in allowing the application directed the Defendant in terms of order dated 04/09/2018 to deposit sum of Rs.30.50 lakhs in cash with the Registrar, Original Side, High Court within the four weeks from the date filing which there shall be a decree for sum of Rs.30.50 lakhs together with interest at a rate of 10% from the date of institution of the suit until payment. The rest of the claim was relegated to the suit. Decree was drawn up subsequently. Since then, Defendant did not deposit the said amount.
The Defendant did not adduce any evidence in support of his claim although Plaintiff produced documentary as well as oral evidence. The written statement itself admitted lending of money. Plea of the written statement, plea taken by the Defendant in the Title Suit No. 199/2015 filed before the Learned Civil Judge, Junior Division at Alipore along with Ext.L, Ext.M, Ext.N & Ext.O establish that money had been lent. Part of the outstanding amount had been decreed on admission. The plea taken by the Defendant in the written statement has not been proved in absence of evidence.
Oral as well as documentary evidence adduced by the Plaintiff established its case and this Court comes to the conclusion that the Plaintiff is entitled to a decree for money. Principal amount was Rs.77,50,000/- out of which Rs.30,50,000/- had already been decreed. The outstanding principal amount is at present Rs.47,00,000/-. Interest had already been decreed at a rate of 10%. Therefore, Plaintiff shall be entitled to a decree for Rs.47,00,000/- as a principal with interest at a rate of 10% per annum on the said principal amount of Rs.47,00,000/- from the date of institution of the suit till repayment.
In nutshell, the instant suit is allowed.
The Plaintiff do get a decree of Rs.47,00,000/- with interest at a rate of 10% per annum from the date of institution of the suit till repayment.
The Defendant shall pay the amount within three months from the date of drawn up of a decree in case of default of which the Defendant shall be liable to pay from the date of default a further interest at a rate of 3% per annum on a sum of principal and capitalized interest.
The Plaintiff shall also be at liberty to draw up execution proceeding.
The instant suit accordingly stands disposed of.