DINESH RANCHHODDAS KAPADIA Vs. MANOJ S KASLIWAL

JUDGEMENT

(1.) The plaintiff has instituted this suit for recovery of money lent and advanced. In the plaint, the plaintiff makes out a case that in the early part of 1993 the defendant approached the plaintiff for loan to meet certain urgent requirements following which the plaintiff had agreed to give such loan and the defendant had agreed to accept such loan on certain terms and conditions which, inter alia, includes as follows:

(2.) Such agreement was entered into or arrived at between the parties at the plaintiffs office at 64/65, Stephen House, 4, B.B.D. Bag (East), Calcutta-700001. In terms of the said agreement the plaintiff advanced a sum of Rs. 25,51,000/- to the defendant by way of a loan by a demand draft No. HSBC/1140586 dated 12th March, 1993 drawn on State Bank of Saurastra, Calcutta. The defendant duly accepted such payment and enchased the said demand draft. In spite of repeated demands and reminders, the defendant, however, had failed and/or neglected to pay the aforesaid amount or any portion thereof along with agreed interest. The plaintiff issued a legal notice on 2nd of November, 1995 through his Advocate calling back the said loan along with the interest at the rate of 24% per annum. The said notice was duly received and acknowledged by the defendant. The said notice was duly replied on behalf of the defendant by his advocate by a letter dated 20th November, 1995, denying liability. The said letter of the defendant was duly replied by the learned Advocate on behalf of the plaintiff by a letter dated 20th December, 1995 reiterating the demand. Since in spite of such notice the defendant had failed and neglected to pay the aforesaid loan amount, the present suit was instituted on 11th of March, 1996.

(3.) The defendant duly contested the said claim of the plaintiff by filing written statement. In the written statement, the defendant contended that such amount was paid by way of an earnest money in respect of an oral agreement for sale concerning about 200 acres of land at Diwas. The defendant contended that the plaintiff, on an earlier occasion, issued two several cheques being Cheque Nos. 657083 and 657084 for Rs. 20 lakhs and Rs. 5,51,000/- both dated February 18, 1993 respectively but such cheques were dishonoured on presentation. This fact was suppressed in the plaint. Thereafter the said bank draft was issued as part consideration towards the said oral agreement for sale. The defendant contended that none of the letters annexed to the plaint was ever received and/or served upon the defendant and the defendant had never authorized or instructed Mr. J.W. Mahajon to write a letter dated November 20, 1995 or to make any communication with the plaintiff or his advocate. The defendant denied the existence, validity and genuineness of the letters dated 2nd November, 1995, 20th November, 1995 and 20th December, 1995. The defendant further contended that on the contrary the defendant had forfeited the said amount, namely, Rs. 25,51,000/- in view of failure on the part of the plaintiff to pay the balance consideration within the time stipulated and/or agreed upon between the parties. The defendant contended that the plaintiff had agreed to purchase the total consideration was Rs. 2,04,08,000/- about 200 acres of agricultural land at village-Nagda, District- Diwas, in the State of Madhya Pradesh at a total consideration of Rs. 2,04,08,000/-. According to the defendant, such agreement was entered into in December, 1992 and the same would be evident from the letters dated February 18, 1993, March 15, 1993, April 28, 1994. The plaintiff in spite of knowledge and notice of such forfeiture suppressing the same instituted the instant suit. It was further contended that in view of the fact that no agreement was entered into at Calcutta and the payments, if at all, were required to be made at Mumbai, this Court has no territorial jurisdiction to try and determine the suit.