Rishabh Bengani vs Jaideep Halwasiya

Debangsu Basak, J

The Court : In a suit for recovery of money lent and advanced, the plaintiff seeks judgment and decree on admission for a sum of Rs.2,35,00,000/-.

Learned Advocate appearing for the plaintiff submits that, the defendant acknowledged the liability by executing balance confirmation and paid Tax

Deducted at Source on the same. According to him, the last balance confirmation is for Rs.2 crores. The balance confirmation is upto March 31,

2018. The defendant did not repay the sum of Rs.2 crores despite such balance confirmation. The plaintiff issued a demand notice. The defendant

replied thereto denying the liability. He submits that, the defendant has no defence to the claim of the plaintiff.

Learned Advocate appearing for the defendant submits that, the so-called balance confirmation cannot be construed to be a balance confirmation in

view of the fact that the same is undated and the same is claimed to be signed on behalf of the defendant. He submits that, the transaction is actually

one of exchange of cash with cheque. The defendant made over cash to the plaintiff and the plaintiff in turn made over the money in cheque. The

account, however, was subsequently squared off in 2018. Consequently, the defendant did not execute any further balance confirmation after the

account being squared off. Therefore, according to him, a judgment on admission need not be granted.

Having considered the rival contentions of the parties, I find that, the suit is for recovery of money lent and advanced. There is a balance confirmation

of the defendant upto March 31, 2018. The balance confirmation is undated. However, the contents of the balance confirmation state that the balance

confirmation is for the period from April 1, 2017 to March 31, 2018. Although the balance confirmation was not signed by the defendant himself, it

was signed on his behalf. The defendant acted in terms of the balance confirmation. The defendant deposited Tax Deducted at Source on March 31,

2019 for a sum of Rs.99,452/-. In fact, the defendant deposited Tax Deducted at Source on earlier occasions also in respect of the same transaction.

The Tax Deducted at Source demonstrates the value of the original transaction. The defendant cannot be allowed to claim before the Revenue

Authorities that, there was a transaction of money lent and advanced by the plaintiff to the defendant and in the suit claim that, the transaction was not

as claimed before the Revenue Authorities. Since, the defendant voluntarily accepted the position that, the plaintiff lent and advanced money to the

defendant of the amount that the defendant acknowledges by depositing Tax Deducted at Source, in my view, the defence of the defendant defence

to the portion of the claim of the plaintiff on the basis of the Tax Deducted at Source is moonshine. Therefore, there is no ground to disbelieve the

balance confirmation as appearing at Annexure-B page 19 of the application. By the balance confirmation the defendant acknowledged a sum of Rs.2

crores to be due and payable by the defendant to the plaintiff as on March 31, 2018.

In view of the discussions above, the contention of the defendant that, the money stood repaid in 2018 cannot be accepted. There is no evidence on

record to such effect.

In such circumstances, there will be a decree for a sum of Rs.2 crores in favour of the plaintiff. The balance of the claim of the plaintiff is relegated to

the suit as the rate of interest is not agreed between the parties and there is no evidence on record to award a rate of interest. The rate of interest and

the balance claim are best adjudicated after affording the parties an opportunity to lead evidence with regard thereto.

There will be an unconditional stay of the decree for a period of four weeks from date for the defendant to secure the decree by deposit of title deeds

of immoveable properties with the Registrar, Original Side, to cover the decree. The Registrar, Original Side is at liberty to obtain valuation of the

property and ensure that, such property is free from all encumbrances, at the cost of the defendant. In the event, the Registrar, Original Side is

satisfied with valuation and the encumbrances of the immovable properties offered by the defendant, then, the stay granted will continue till the final

decree is passed in the suit. In the event of the defendant failing to secure the claim in the manner as provided, the plaintiff is at liberty to execute the

decree forthwith.

Since a balance of the claim of the plaintiff stands relegated to the suit, it would be appropriate to permit the defendant to file written statement.

Let written statement be filed within four weeks from date. Discovery and inspection to be completed within a fortnight thereafter. The plaintiff will

prepare the Judge’s Brief of Documents.

Supplementary affidavit filed in Court be taken on record.

Old G.A. No. 1855 of 2019, new G.A. No. 1 of 2019 in C.S. No. 127 of 2019 is disposed of without any order as to costs.