Calcutta High Court
Maadhawa Realpro Private Limited vs Sushila Jain & Ors on 25 June, 2025
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
COMMERCIAL DIVISION
Present:
The Hon'ble Justice Krishna Rao
I.A. No. G.A. 3 of 2023
With
G.A. (Com) No. 4 of 2024
In
C.S. (Com) No. 412 of 2024
[Old No. CS 182 of 2022]
Maadhawa Realpro Private Limited
Versus
Sushila Jain & Ors.
Mr. Kuldip Mallick
Mr. Arun Kumar Upadhyay
Mr. Dyutimoy Paul
Mr. Shantanu Mishra
... for the plaintiff.
Mr. Sarosij Dasgupta
Mr. Javed K. Sanwarwala
Ms. Madhurima Halder
Mr. S. A. Sanwarwala
Ms. S. Afrin
... for the defendant no.1.
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Hearing Concluded On : 10.06.2025
Judgment on : 25.06.2025
Krishna Rao, J.:
1. The plaintiff has filed an application being G.A. No. 3 of 2023, under
Order XII, Rule 6 of the Code of Civil Procedure, 1908, praying for
judgment upon admission. The defendant no.1 has filed an application
being G.A. (Com) No. 4 of 2024, under Order VII, Rule 11 of the Code
of Civil Procedure, 1908 for rejection of plaint and dismissal of suit.
2. Mr. Kuldip Mallick, Learned Advocate representing the plaintiff submits
that the plaintiff has filed an application for grant of injunction being
G.A. No. 1 of 2022. In the said application, the defendants have filed
affidavit-in-opposition and affirmed it on 3rd April, 2023, which was
served upon the Learned Advocate-on-record of the plaintiff on 4th
April, 2023, and in the affidavit-in-opposition at paragraph no.5, the
defendants have admitted the entire case of the plaintiff.
3. Mr. Mallick submits that the defendants have specifically and
unequivocally admitted the case made out in the plaint and thus the
defendants have no plausible defence and prayed for judgment upon
admission.
4. Mr. Mallick submits that subsequent to service of affidavit-in-
opposition in connection with G.A. No. 1 of 2022 dated 4th April, 2023,
the defendants have prayed for withdrawal of the said affidavit on the
ground that the said affidavit was only a draft and not a final one. He
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submits that such statement was belatedly made by the defendants
after the unequivocal statement was made in the said affidavit.
5. Mr. Mallick submits that the affidavit was not only affirmed but also
served to the plaintiff on 4th April, 2023, thus the defendants cannot
say that the said affidavit was draft.
6. Mr. Sarosij Dasgupta representing the defendant no.1 in his application
being G.A. (Com) No. 4 of 2024 submitted that there is no privity of
contract between the plaintiff and the defendants. He submits that
there is no contractual relationship between the plaintiff and the
defendants. He submits that the defendants have never entered into
contract of any nature with the plaintiff.
7. Mr. Dasgupta submits that the alleged unregistered Deed of Mortgage
dated 17th February, 2016, unregistered Supplementary Agreement
dated 2nd March, 2016 and the alleged 2nd registered Deed of Mortgage
dated 17th March, 2016, the name of the entity with which the
defendants have entered into the Deed of Mortgage was “Madhva Real
Estate Company Private Limited” but in the instant case, in the cause
title, the name of the plaintiff is “Maadhawa Realpro Private Limited”.
8. Mr. Dasgupta submits that all the cheques were made in favour of
“Madhva Real Estate Company Private Limited” and not in the name of
the plaintiff, namely, “Maadhawa Realpro Private Limited”. The plaintiff
has presented the cheques for encashment but the said cheques were
dishonoured with the reasons “Payee name deferred”. He submits that
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it is also not the case of the plaintiff that the plaintiff has filed the
present suit as agent or representative of the plaintiff (Maadhawa
Realpro Private Limited).
9. Mr. Dasgupta submits that there is no cause of action arose against the
defendants and there is no privity of contract between the plaintiff and
defendants. In support of his submissions, Mr. Dasgupta relied upon
the judgment in the case of M/s. Tinna Overseas Limited Vs. Food
Corporation of India and Anr. reported in 2012 SCC OnLine Del
5325 and in the case of Babu Ram and Others Vs. Dhan Singh and
Others reported in 1956 SCC OnLine Punj 139.
10. Mr. Dasgupta submits that the suit filed by the plaintiff is barred by
limitation. He submits that as per Clause-3 of the Deed of Mortgage
dated 17th February, 2016, the defendants ought to have been repaid
the amount within two years from the date of execution i.e. by 17th
February, 2018 and cause of action was till 17th February, 2021 but
the suit is filed in the month of July, 2022 without any explanation.
11. Mr. Dasgupta further submits that the 2nd Deed of Mortgage is dated
17th March, 2016 and the term of mortgage was only two years i.e uptill
17th March, 2018 and the suit ought to have filed by 17th March, 2021
but suit was filed in the month of July, 2022. He submits that despite
being the power given to the lender to liquidate the assets of the
defendants, the plaintiff did not exercise such power and such right
had exercised only on 23rd May, 2022, much after the expiry period of
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limitation. He submits that though the plaintiff has argued that the
limitation of the plaintiff is covered by the order passed by the Hon’ble
Supreme Court during pandemic Covid-19 but no such explanation or
averment have been made in the plaint.
12. Mr. Dasgupta submits that the suit for mortgage is dealt with, under
Order XXXIV of the Code of Civil Procedure, 1908 and such provisions
provides for three kinds of suits relating to immovable property. He
submits that Form Nos- 45 and 46 of the Code of Civil Procedure, 1908
which provides for forms of prayers in suits for foreclosure, sale and
redemption but the plaintiff has not prayed for any foreclosure or
injunction. He submits that the plaintiff has also not prayed for any
redemption of the immovable properties said to have been mortgaged
with it.
13. Mr. Dasgupta submits the suit filed by the plaintiff is not a commercial
suit as per Section 2(1)(c) of the Commercial Courts Act, 2015. He
submits that the plaintiff has not complied with the provisions of
Section 12A of the Commercial Courts Act, 2015 and the suit is not
covered under any of the Clauses of Section 2(1)(c) of the Commercial
Courts Act, 2015.
14. Mr. Dasgupta submits that the plaintiff has relied upon the fabricated
share certificates. He submits that as per Section 46 of the Companies
Act, 2013, every share certificate to be mandatorily signed by two
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directors and to bear the seal of the company but the same is missing
in the present case.
15. Mr. Dasgupta submits that inadvertently, the erstwhile Learned
Advocate-on-record of the defendants had served the unsettled copy of
an affidavit-in-opposition which was never filed in Court nor intended
to be filed and the same is not in the Court record. He submits that
upon realising such mistake, the erstwhile Advocate-on-record of the
defendants, has sent an e-mail to the plaintiff intimating that the
defendants are withdrawing the same and assured to send final copy of
the affidavit-in-opposition. The plaintiff instead of returning the same
has served the copy of affidavit in reply to the said affidavit-in-
opposition. Subsequently, the defendants have served final copy of the
affidavit-in-opposition to the plaintiff. He submits that taking
advantage, the service of unsettled copy of affidavit-in-opposition, the
plaintiff has filed an application being G.A. No. 3 of 2023 for judgment
upon admission.
16. Mr. Dasgupta submits that there is no unequivocal admission on the
part of the defendants. The plaintiff has filed the application only on the
basis of the unsettled affidavit-in-opposition which was never filed in
the Court.
17. Mr. Kuldip Mallick, Learned Advocate representing the plaintiff submits
that defendants entered into an agreement with the plaintiff
“Maadhawa Realpro Private Limited”. He submits that in the registered
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Deed of Mortgage dated 17th March, 2016, one Shri Suresh Kumar
Agarwalla, Director, being the Principal Officer of the Plaintiff Company
has executed the said deed on behalf of the Plaintiff Company. He
submits that the consideration of Rs. 2.50 Crores has been paid by the
Plaintiff Company to the defendant no.1 and the defendant no.1 has
received the consideration without any demure.
18. Mr. Mallick submits that the Deed of Mortgage dated 17th March, 2016,
has the PAN number of the Plaintiff Company being “AAGCM9123R”.
He submits that the registered Deed of Mortgage also contains the
photocopy of the PAN Card of the Plaintiff Company. He submits that
the defendant no.1 also handed over original share certificates of equity
shares held by the defendant no. 1 and in the defendant no.3 Company
to the plaintiff as security for the consideration amount of Rs. 2.50
Crores. He submits that the defendant no.1 has also handed over
signed share transfer forms of equity shares held by the defendant no.1
in the defendant no.3 Company to the plaintiff as security for the
consideration amount of Rs. 2.50 crores.
19. Mr. Mallick submits that in the contract where the parties have made
an agreement and one party records it erroneously, the other party, if
he knows at the time that there is an error, acts fraudulently if he
seeks to take advantage of such error and cannot be allowed to enforce
it. In support of his submissions, he has relied upon the judgment in
the case of W.C. Binns Vs. W. & T. Avery Ltd. reported in 1934 ILR
Vol LXI Cal 548.
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20. The case of the plaintiff is mainly based on 1st unregistered Deed of
Mortgage dated 17th February, 2016, Supplementary Agreement dated
2nd March, 2016 and registered Deed of Mortgage dated 17th March,
2016, entered between the parties and the cheques issued by the
defendants in favour of the plaintiff. The plaintiff has filed the suit in
the name of “Maadhawa Realpro Private Limited” and the deeds were
executed in the name of “Madhva Real Estate Company Private
Limited”. The defendants have also issued cheques in the name of
“Madhva Real Estate Company Private Limited” and on presentation of
the cheques, the cheques were dishonoured with the reasons “Payee
name differs”. The case made out by the plaintiff that though the name
of the plaintiff differs in the plaint and in the mortgage deeds but all the
deeds have been executed by one Shri Suresh Kumar Agarwalla and his
Election Identity Card and PAN Card are attached with the mortgage
deeds and the Plaintiff Company PAN Card is also attached with the
deed which reflects the name of the company as “Maadhawa Realpro
Private Limited”, the plaintiff herein. The plaintiff also says that the
defendants have had the knowledge of the deeds but has never objected
the same. It is submitted that inadvertently the name of the plaintiff’s
company is mentioned as “Madhva Real Estate Company Private
Limited” in the Deed but the correct name of the plaintiff company is
“Maadhawa Realpro Private Limited”. The plaintiff has relied upon the
judgement in the case of W.C. BINNS (supra) wherein the Hon’ble
Court held that where the parties have made an agreement and one
party records it erroneously, the other party, if he knows at the time
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that there is an error acts fraudulently and if he seeks to take
advantage of that error and cannot be allowed to enforce it. The Hon’ble
Court held that the defence was that the agreement set up by plaintiff
was obtained fraudulently which was always a legal defence. In this
case also the defence which the defendants have taken that the deeds
entered between the parties is “Madhva Real Estate Company Private
Limited” and the name of the plaintiff in the plaint is “Maadhawa
Realpro Private Limited”. The defendant has denied that the Plaintiff
Company and “Madhva Real Estate Company Private Limited” are one
and the same. The documents which the plaintiff has relied upon to
establish that the Director is the same and PAN Card is also same in
matter of trial.
21. The plaintiff has filed the present application for judgment upon
admission on the pretext that the defendants have filed an affidavit in
opposition in connection with G.A. No. 1 of 2022 which was served
upon the plaintiff on 4th April, 2023 and in the affidavit-in-opposition,
the defendant no.1 has made unequivocal admission with respect to
the claim of the plaintiff. The plaintiff particularly relied upon para 5(a)
to (f) of the said affidavit-in-opposition which reads as follows:
“5. I shall now proceed to categorically state the
actual facts and circumstances of the events
that occurred.
a. The Answering Respondent has filed a
Vacating Application (being G.A. No. 2 of
2022) wherein the facts and circumstances
of the instant case have been enumerated.
The Answering Respondent craves leave of
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this Hon’ble Court to refer to and rely upon
a copy of the aforementioned application at
the time of hearing, if necessary.
b. The Answering Respondent for the purpose
of availing a loan of Rs.2,50,00,000/-
(Rupees Two Crore Fifty Lakhs) had
executed a Deed of Mortgage dated 17th
February, 2016 in favour of the Plaintiff
Company herein who was represented by
one Suresh Kumar Agarwal. The said loan
was agreed to be a online credit/loan
facility agreed to be advanced given for
cordial relationship between the Petitioner’s
management and the Respondents. It
becomes pertinent to mention that the
Respondent No.2 stood as the guarantor
and the Respondent No.3 was the
confirming party in such Deed of Mortgage.
The Answering Respondent No.1 craves
leave of this Hon’ble Court to refer to and
rely upon the relevant clauses of the said
Deed at the time of hearing of the instant
Petition.
c. Thereafter a Supplementary Agreement was
entered into between the self-same parties
wherein it was agreed that Answering
Respondent shall pay 9% of Rs.2,25,000/-
(Rupees Two Lakhs Twenty Five Thousand)
the total finance charges interest for a year.
d. The relevant clauses of the supplementary
affidavit are set herein below for ease of
reference of this Hon’ble Court:
1. It is agreed by and between the parties
hereto that finance charges/interest on
Rs.2,50,00,000/- (Rupees Two Crore
Fifty Lacs Only) shall be paid by the
Mortgagor to the Mortgagee at the rate of
11four percent per month in the following
manner;
a. The mortgagor shall pay 9% of
Rs.2,25,000/- (Two Lacs twenty five
thousand) the total finance
charges/interest for a year i.e. 12
months by account payee cheque/
demand draft/pay order drawn in
favour of Mortgagee;
b. The mortgagor shall pay the
Rs.2,50,000/- (Rupees Two Lacs Fifty
Thousand) per month balance of
Rs.5,25,000/- (Five Lacs Twenty Five
Thousand) of the total finance
charges/interest after 12 month by
cash;
2. All other terms and conditions including
the liability of the Mortgagor to pay
interest/finance charges to the Mortgagee
as contained in the Mortgage Deed dated
17/02/2016 shall remain unchanged;
3. This supplementary agreement shall be
treated as a part and parcel of the
mortgage deed.
e. Subsequently as per legal advice, the
parties collated all the terms and conditions
as contained in the Deed of Mortgage dated
17th February, 2016 and the Supplementary
Agreement dated 2nd March, 2016 and
executed a registered Deed of Mortgage
dated 17th March, 2016.
f. The said Answering Respondent No.1
handed over Cheques vide letter dated 1st
July, 2016 .”
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22. The defendant no.1 has made out a case that inadvertently the
erstwhile Advocate-on-record of the defendant no.1 has served the copy
of the unsettled copy of affidavit-in-opposition to the plaintiff but when
it realised, on 12th April, 2023, the erstwhile Advocate-on -record of the
defendant no.1 had sent an e-mail to the plaintiff withdrawing the said
written statement and assured that they will served another copy of
affidavit-in-opposition. The plaintiff has also filed affidavit-in-reply to
the affidavit-in-opposition dated 4th April, 2023. The defendant no.1 has
served the another copy of affidavit-in-opposition to the plaintiff on 19th
April, 2023. The matter with regard to service of copy of affidavit-in-
opposition was brought to the notice of this Court and this Court by an
order dated 24th April, 2023, passed the following order:
“The Court :- There is an utter confusion in
this matter created by the defendant no.1 while
filing affidavit in opposition to this application.
Initially an affidavit affirmed on 3rd April, 2023
was served on the plaintiff. On the basis thereof
the plaintiff obtained a direction to file a reply
thereto. The affidavit in reply was affirmed on 12th
April, 2023. On the same very day the plaintiff/
petitioner received an electronic mail from the
defendant no.1 saying that the affidavit in
opposition affirmed on 3rd April, 2023 and served
on the plaintiff/petitioner was by mistake it should
be discarded. The defendant no.1 has now
affirmed another affidavit on 19th April, 2023. The
said affidavit filed in Court today is taken on
record.
Without prejudice to the rights and contentions
of the plaintiff/petitioner, if any, in respect of any
admission said to have made in the first affidavit
affirmed on 3rd April, 2023, the plaintiff/petitioner
shall be at liberty to use an affidavit in reply to the
affidavit in opposition affirmed on 19th April, 2023.
Let such affidavit in reply be filed by 10th May,
2023.
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Let this matter appear on 15th May, 2023.
The interim order already passed is extended
till 30th June, 2023 or until further orders
whichever is earlier.”
23. The affidavit-in-opposition which was served upon the plaintiff on 4th
April, 2023, was not filed in Court. The affidavit-in-opposition affirmed
on 19th April, 2023, was taken on record by an order dated 24th April,
2023 and directed the plaintiff to file affidavit-in-reply without prejudice
to the rights and contentions of the plaintiff with respect to any
admission have been made in the first affidavit served on 4th April,
2023.
24. The opposition which he has received on 4th April, 2023, subsequently,
the defendants have filed another affidavit and this Court has taken the
same on record. The first affidavit is not on record. The defendant no.1
has taken the stand that the said affidavit is unsettled one and the
same was informed to the plaintiff. In view of the above, this Court
finds that the same cannot be treated as unequivocal admission. The
matter is to be taken into consideration during trial whether the
affidavit which the defendant no.1 has served to the plaintiff was
unsettled one and can be relied upon as admission.
25. The defendants have also taken a stand that the suit is not a
commercial suit and is a suit for mortgage dealt under Order XXXIV of
the Code of Civil Procedure, 1908. The plaintiff has filed the suit for
recovery and money and for perpetual injunction. The plaintiff has
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relied upon mortgage deeds. The defendants state that the name
appearing in the deeds and the name of the plaintiff is different. It is
upon the plaintiff to prove that the name appearing in the deed and in
the plaint is of the same entity. If the plaintiff able to prove the same,
the case of the plaintiff would cover under Section 2(1)(c) of the
Commercial Courts Act, 2015 and thus it is the matter of trial and the
issue raised by the defendants cannot be decided in the present
application.
26. The defendants have also taken the ground of limitation. The plaintiff is
taking the benefit of the Order passed by the Hon’ble Supreme Court in
Suo Moto case wherein the Hon’ble Supreme Court has extended the
period of limitation during the period of Pandemic Covid-19. As per the
case of the defendants that the cause of action for filing the suit arose
on 17th February, 2021 and 17th March, 2021 but the plaintiff has filed
the suit in the month of July, 2022.
In the case of SUO MOTU WRIT PETITION (C) NO. 3 OF 2020
dated 10th January, 2022, the Hon’ble Supreme Court has passed the
following order:
“5.III. In cases where the limitation would
have expired during the period between
15.03.2020 till 28.02.2022, notwithstanding the
actual balance period of limitation remaining, all
persons shall have a limitation period of 90 days
from 01.03.2022. In the event the actual balance
period of limitation remaining, with effect from
01.03.2022 is greater than 90 days, that longer
period shall apply.”
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In the case of Prakash Corporates vs. Dee Vee Projects Limited
reported in (2022) 5 SCC 112, the Hon’ble Supreme Court has
considered the order passed in SMWP No. 3 of 2020 and held that:
“15. The major deal of arguments in the
present case has revolved around the orders
passed by this Court in Suo Motu Writ Petition
(Civil) No. 3 of 2020 and the effect thereof on the
prayer of the appellant for another opportunity to
file its written statement. Having regard to the
questions involved, it shall be apposite to take note
of all the relevant orders passed by this Court.
15.1. The said suo motu petition was taken
up by this Court in rather peculiar and
extraordinary circumstances in the wake of the
outbreak of Covid-19 Pandemic, where the normal
functioning of almost all the institutions got
disrupted due to serious illness of a large populace
and due to various containment measures taken by
the administrative authorities, including
lockdowns. The functioning of courts and other
juridical institutions also suffered setbacks and, in
fact, with regular spike in Covid-19 cases, when
the Governments announced lockdowns in the
interest of public safety and health, it was obvious
to this Court that the litigants and their authorised
agents would be facing serious hardships and
difficulties in relation to their litigations and more
particularly, in relation to the period of limitation
when it would be well-nigh impossible for them to
file the proceedings within the prescribed period of
limitation, if the same was expiring during the
period of such health emergencies and enforcement
of the measures of containment.
28. As regards the operation and effect of the
orders passed by this Court in SMWP No. 3 of
2020, noticeable it is that even though in the initial
order dated 23-3-2020, this Court provided that the
period of limitation in all the proceedings,
irrespective of that prescribed under general or
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special laws, whether condonable or not, shall
stand extended w.e.f. 15-3-2020 but, while
concluding the matter on 23-9-2021, this Court
specifically provided for exclusion of the period
from 15-3-2020 till 2-10-2021. A look at the scheme
of the Limitation Act, 1963 makes it clear that while
extension of prescribed period in relation to an
appeal or certain applications has been envisaged
under Section 5, the exclusion of time has been
provided in the provisions like Sections 12 to 15
thereof. When a particular period is to be excluded
in relation to any suit or proceeding, essentially the
reason is that such a period is accepted by law to
be the one not referable to any indolence on the
part of the litigant, but being relatable to either the
force of circumstances or other requirements of law
(like that of mandatory two months’ notice for a suit
against the Government. The excluded period, as a
necessary consequence, results in enlargement of
time, over and above the period prescribed.”
In the case of M/s Arif Azim Co. Ltd. vs. M/s Aptech Ltd.
reported in (2024) 3 SCR 73, the Hon’ble three Judges Bench of the
Supreme Court further considered the order passed in SMWP No. 3 of
2020 and the order passed in Prakash Corporates (supra) and held
that:
“84. The effect of the above-referred order of
this Court in the facts of the present case is that the
balance limitation left on 15.03.2020 would become
available w.e.f. 01.03.2022. The balance period of
limitation remaining on 15.03.2020 can be
calculated by computing the number of days
between 15.03.2020 and 27.03.2021, which is the
day when the limitation period would have come to
an end under ordinary circumstances. The balance
period thus comes to 1 year 13 days. This period of
1 year 13 days becomes available to the petitioner
from 01.03.2022, thereby meaning that the
limitation period available to the petitioner for
17invoking arbitration proceedings would have come
to an end on 13.03.2023.”
The defendants admitted that the cause of action for filing of the
suit arose on 17th February, 2021 and 17th March, 2021 but during the
said period, the total world was affected by Pandemic Covid-19. The
period of limitation from 17th February, 2021 to 28th February, 2022 is
to be excluded. Taking into consideration of the said period and the
judgment passed by the Hon’ble Supreme Court, this Court finds that
the plaintiff has filed the suit within the period of limitation.
27. Considering the above, this Court did not find any merit in both the
applications filed by the plaintiff as well as the defendants, thus, G.A.
No. 3 of 2023 and G.A. (Com) No. 4 of 2024 are accordingly
dismissed.
(Krishna Rao, J.)