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Calcutta High Court
Sonia Kothari vs Rupnath Pal on 17 April, 2025
OCD-8
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
COMMERCIAL DIVISION
ORIGINAL SIDE
CS-COM/315/2024
[Old No. CS/194/2021]
IA No. GA-COM/2/2024
SONIA KOTHARI, PROPRIETOR OF M/S. KRISHNA KREATION
-VS-
RUPNATH PAL, PROPRIETOR OF M/S. GULMOHAR
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date : April 17, 2025.
Appearance:
Mr. Rohit Mukherji, Adv.
Mr. Pankaj Agarwal, Adv.
Ms. Champa Pal, Adv.
...for the plaintiff
1.
Mr. Rohit Mukherji, learned counsel, is appearing for the plaintiff.
2. None appears on behalf of the defendant.
3. In terms of the order passed by this Court dated 3rd January, 2025,
the plaintiff had again sent a notice to the defendant and has filed
affidavit-of-service. It reveals that the notice was sent to the
defendant by speed post but the same was returned with the
endorsement ‘addressee cannot be located’. In the meantime, the
plaintiff has obtained a report from the Deputy Registrar (Legal)
dated 9th January, 2025 wherein the plaintiff found that the
defendant has entered appearance through its Learned Advocate Mr.
Soumya Bhattacharya on 14th December, 2022. When the plaintiff
came to know about the same, the plaintiff had served a notice to
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the Learned Advocate on Record of the defendant on 28th January,
2025. On receipt of the said notice, learned advocate for the
defendant had sent an e-mail to the Advocate-on-Record of the
plaintiff intimating that he has retired from all the briefs in
connection with the present case. Let the affidavit-of-service be kept
with the record.
4. The plaintiff has filed the present application being GA-
COM/2/2024 praying for judgment upon admission for an amount
of Rs.10,98,243/- along with the interest at the rate of 12% per
annum.
5. Learned counsel for the plaintiff submits that in between 4th July,
2019 to 19th November, 2019, as per the request of the defendant,
the plaintiff has supplied the goods sold and delivered to the
defendant being the readymade garments total amounting to
Rs.16,35,934/-. The supply made by the plaintiff was duly received
and accepted by the defendant without any demur or protest. Till 5th
March, 2020, the defendant had made part payments amounting to
Rs.5,29,611/- out of total amount of Rs.16,35,934/-. Subsequently,
the defendant has not paid any amount in spite of several requests
made by the plaintiff.
6. On 9th August, 2020, a meeting was held between the plaintiff and
the defendant in presence of two individuals and minutes of meeting
was recorded in writing wherein it was agreed between the plaintiff
and the defendant that the defendant will pay an amount of
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Rs.11,06,323/- within 30th November, 2020 and no interest shall be
charged on payment of the said amount in its entirety by 30th
October, 2020. It was further agreed between the parties that if the
defendant fails to pay the amount by 30th October, 2020, an interest
at the rate of 12% per annum shall be charged for delayed payment.
7. Post meeting of August 9, 2020, the plaintiff had again sold and
delivered goods to the tune of Rs.3,21,920/- and the said goods
were duly received by the defendant without any demur and protest.
On receipt of the said materials, the defendant had paid an amount
of Rs.3,30,000/- and as such the plaintiff had adjusted the said
amount of Rs. 8,080/- with the previous dues which was payable to
the plaintiff. Accordingly, the defendant is liable to pay the further
amount of Rs.10,98,243/- (Rs. 11,06,323 – Rs. 8,080 = Rs.
10,98,243).
8. In spite of the Minutes of Meeting entered between the parties, the
defendant has failed to pay the said amount. The plaintiff had
issued a legal notice to the defendant on 25th August, 2021, calling
upon the defendant for payment of Rs.10,98,243/- along with
interest at the rate of 12% per annum total amounting to
Rs.12,92,465.69. The said notice was duly received by the defendant
but in spite of receipt of the said notice, the defendant has not paid
the amount. Accordingly, the plaintiff has filed the instant suit for
recovery of the said amount.
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9. After filing of the suit, writ of summons was served but in spite of
receipt of writ of summons, the defendant has not entered
appearance and, accordingly, the suit was placed in the list of
“undefended suit”. The plaintiff has filed the present application
praying for judgment upon admission. The notice of the present
application was also sent to the defendant but the same cannot be
served as the addressee cannot be located but it was found that the
defendant has entered appearance and the learned counsel for the
plaintiff has served the copy of the notice to the learned advocate
appearing for the defendant but the learned advocate for the
defendant has informed the plaintiff that he has retired from the
case. Accordingly, the matter is taken up for hearing.
10. It is found from the record that the plaintiff has claimed an
amount of Rs.12,92,465.69 along with the interest at the rate of
24% per annum from the defendant on the ground that as per the
request of the defendant, the plaintiff has supplied the materials to
the total amount of Rs.16,35,934/- out of which the defendant has
paid only Rs.5,29,611/- and subsequently a meeting was held on 9 th
August, 2020 wherein both the parties in presence of two
independent witnesses have agreed as follows:
1) Old dues of Rs.11,06,323/- shall be cleared
within 30.11.2020.
2) No interest shall be charged on payments
remitted upto 30.10.2020
3) Interest @ 12% per annum shall be charged for
the delayed period only after 75 days of interest
5free credit for the amount remitted in November
2020.
4) New Billing shall be At discount of 26% and
payments for the same to be made in 45 days.
5) Billing would be done as per the order received
from M/s. Gulmohar only.
6) Delivery shall be done as per mutual
discussions in Princep Street, Kasipure and can
be self picked as well.
11. After the said agreement, the plaintiff had again supplied the
materials for a total tune of Rs.3,21,920/- out of which the
defendant has paid Rs.3,30,000/- in which the plaintiff had
adjusted the remaining amount of Rs. 8,080/- out of the total
balance amount of Rs.11,06,323/-. In the meantime, the defendant
has also paid an amount of Rs.2000/- to the plaintiff on 13th
September, 2021. Thereafter, the defendant has not paid any
further amount.
12. On 25th August, 2021, the plaintiff had sent legal notice calling
upon the defendant to pay the amount of Rs.12,92,465.69 which
was duly received by the defendant on 28th August, 2021 but in
spite of receipt of the said notice, the defendant has not paid any
amount.
13. Considered the submission made by the Counsel for the plaintiff.
Perused the materials on record.
14. This Court finds that by a meeting dated 9th August, 2020, the
defendant had admitted the claim of Rs.11,06,323/- as on 9th
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August, 2020. In the said meeting, it was also agreed that he will
clear the dues by 30th November, 2020 and it was also agreed that
by 30th October, 2020 if the defendant paid the total amount, no
interest will be charged and if the defendant fails to pay the amount
by 30th October, 2020, interest at the rate of 12% per annum shall
be charged.
15. After the said agreement, the plaintiff had supplied materials for a
total tune of Rs.3,21,920/- but the plaintiff has paid Rs.3,30,000/-
thus, this balance amount of Rs. 8,080/- was adjusted by the
plaintiff to the earlier balance amount. The defendant has not paid
the balance amount of Rs.10,98,243/-as agreed by the defendant.
16. The plaintiff has relied upon the judgments in the case of Himani
Alloys Limited Vs. Tata Steel Limited reported in (2011) 15
Supreme Court Cases 273, Uttam Singh Duggal & Co. Ltd. Vs.
United Bank of India And Ors., reported in (2000) 7 SCC 120
and an unreported judgement passed by this Court in the case of
Usha Martin Limited Vs. Hema Springs Private Limited & Ors.
in CS-COM/387/2024 dated 28th June, 2024 and submitted that
the defendant in the present case has admitted the claim of the
plaintiff by executing Minutes of the Meeting in presence of the
plaintiff as well as two independent witnesses but in spite of the
admission of the claim, the defendant failed to pay the said amount.
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17. Counsel for the plaintiff submits that the judgment relied upon by
the plaintiff is squarely applicable in the present case and is entitled
for judgement upon admission.
18. Considered the materials on record and the judgments relied by
the plaintiff. This Court finds that the defendant in the Minutes of
Meeting dated 9th August, 2020, has admitted that he will clear the
amount of Rs.11,06,323/- on 30th November, 2020 but the
defendant has not paid the said amount. As per the agreement, the
plaintiff has supplied further materials for a total sum of
Rs.3,21,920/- but the defendant has paid an amount of
Rs.3,30,000/- and the plaintiff has adjusted Rs.8,080/- in the
balance amount of Rs.11,06,323/- The remaining balance is
required to be paid by the defendant is Rs.10,98,243/- which the
defendant has not paid.
19. The defendant has admitted the claim of the plaintiff but has not
paid the amount. The defendant has also agreed that if the
defendant fails to pay said amount, defendant will pay interest at
the rate of 12% per annum.
20. Considering the above, this Court finds that the plaintiff is
entitled to get the judgment upon admission for a total sum of
Rs.10,98,243/- along with interest at the rate of Rs.12% per annum
with effect from 14th September, 2021 till the realization of the
decretal amount.
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21. The defendant is directed to pay an amount of Rs.10,98,243/-
along with interest at the rate of 12% per annum with effect from
14th September, 2021 till the realization of the decretal amount.
22. GA-COM/2/2024 is disposed of.
23. CS-COM/315/2024 is also disposed of.
24. Decree will be drawn accordingly.
(KRISHNA RAO, J.)
sp3/Sbghosh
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