* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA Nos. 362/2016 & 382/2016
21st April, 2017
+ RSA No. 362/2016
GARIMA GOEL ..... Appellant
Through: Mr. P.P.Mittal and Mr. Prashant
Kumar Mittal, Advocates.
versus
VARUN GUPTA ..... Respondent
Through:
+ RSA No. 382/2016
GARIMA GOEL ..... Appellant
Through: Mr. P.P.Mittal and Mr. Prashant
Kumar Mittal, Advocates.
versus
VARUN GUPTA ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. Two appeals are filed by the plaintiff in the suit. Two appeals are filed because the trial court passed the judgment only partly decreeing the suit. The suit was filed by the appellant/plaintiff for recovery of Rs.75,704/- which was only decreed for Rs.54,000/- along with interest. Appellant/plaintiff therefore filed the first appeal seeking RSA No. 362/2016 & conn. Page 1 of 5 the higher amount as claimed in the suit. Respondent/defendant filed his first appeal against the judgment and decree decreeing the suit for Rs.54,000/- along with interest.
2. The judgment in RSA No. 362/2016 challenges the impugned judgment dated 19.9.2016 passed in the first appeal filed by the respondent/defendant in the suit, and who is the husband of the appellant/plaintiff. By the impugned judgment the first appeal of the respondent/husband/defendant was allowed and the suit was dismissed on the ground that suit had sought recovery of the amounts paid by appellant/wife/plaintiff to the respondent/husband/defendant as rent for being paid to the landlord of the premises and which the respondent/husband/defendant had promised to refund this rent paid by the appellant/plaintiff with respect to the tenanted premises, but it was found that the appellant/plaintiff had already received and been reimbursed the self same amount as HRA from her employer being the government. In effect, the first appellate court by the impugned judgment dated 19.9.2016, which is the subject matter of RSA No. 362/2016, has held that the suit which was decreed for Rs.54,000/- along with interest had to be dismissed because the amount claimed by the appellant/plaintiff stood already reimbursed to her from her RSA No. 362/2016 & conn. Page 2 of 5 employer and thus appellant/plaintiff cannot seek reimbursement once again from the respondent/husband/defendant.
3. RSA No. 382/2016 is filed by the appellant/wife/plaintiff against the judgment of the first appellate court dated 19.9.2016 dismissing the first appeal as time-barred. The appellant/plaintiff had filed the first appeal seeking decree of the higher amount of Rs. 75,704/- instead of the lesser amount decreed of Rs. 54,000/-.
4. Section 41 of the Indian Contract Act, 1872 reads as under:-
"41. Effect of accepting performance from third person.--When a promisee accepts performance of the promise from a third person, he cannot afterwards enforce it against the promisor."
5. As per the provision of Section 41 of the Indian Contract Act, if the liability of a person is discharged by another person, the person to whom the amount is paid and towards whom liability is to be discharged, can no longer claim the amount from the original person. Putting it in other words, a promisor cannot seek discharge of promise from the promisee in case what was to be performed by the promisor to the promisee had already been performed in favour of the promisee by some other person. In this case, promisee being the appellant/plaintiff sought performance of promise of the respondent/husband/defendant with respect to payment of rent of the tenanted premises where the RSA No. 362/2016 & conn. Page 3 of 5 parties were living. Appellant/plaintiff admittedly is a government servant and she has received the rental payment from her employer being the government. The first appellate court noticed that this aspect was concealed by the appellant/plaintiff at the time of filing of the suit. Irrespective of the aspect of concealment, the first appellate court has held that the liability of the respondent/defendant towards the appellant/plaintiff stood discharged on account of appellant/plaintiff already having received the HRA from her employer being the government. Though the first appellate court has not taken aid of Section 41 of the Indian Contract Act, the principle applied by the first appellate court is in terms of Section 41 of the Indian Contract Act, and I do not find therefore any illegality in the judgment of the first appellate court setting aside the judgment of the trial court decreeing the suit for an amount of Rs.54,000/- along with interest.
6. Once the suit itself as a whole had been dismissed, then the appellant/plaintiff was not entitled to higher amount or the costs or the interest, and therefore, the appeal filed by the appellant/plaintiff against the judgment of the trial court dated 10.12.2015 was also bound to be dismissed, irrespective of the issue of limitation.
7. In view of the above, no substantial question of law arises. Both the Regular Second Appeals are dismissed.
RSA No. 362/2016 & conn. Page 4 of 5
8. At the request made on behalf of the counsel for the appellant/plaintiff it is clarified that no observations in the impugned judgment of the first appellate court as regards any alleged offence committed by the appellant/plaintiff, will in any manner prejudice the appellant/plaintiff, and which aspect if is in issue in an independent proceeding, whether civil or criminal, the same will be decided in those proceedings.
APRIL 21, 2017/ib VALMIKI J. MEHTA, J
RSA No. 362/2016 & conn. Page 5 of 5