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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 514/2015 & CM No.13780/2015
% Date of Judgment: 23rd May, 2017
SHITAL PRASHAD KALRA ..... Appellant
Through: Mr.Ashwani Bharadwaj, Adv.
versus
NARESH BAHADUR & ORS. ...... Respondents
Through: Mr.Tarun Jaitley, Adv. with
Ms.Himani Bhatnagar, Adv. for R-1
to 3.
CORAM:
HON'BLE MR. JUSTICE VINOD GOEL
VINOD GOEL, J. (ORAL)
1. Challenge in this appeal is judgment and decree dated 6th April, 2015 passed by the Court of Additional District Judge-II, Central, Tis Hazari Court, Delhi, by which the suit of the appellant for recovery of Rs.10,19,200/- was dismissed.
2. The respondent No.2 is the sister of the wife of the appellant/plaintiff and respondent No.1 is the husband of the respondent No.2. Respondent No.3 is the foster sister of the respondents No.1 and 2. It is alleged that on persuasion of respondents No.1 and 2, the appellant deposited a sum of 1,49,000/- on various dates in the bank account No.10001952591, State Bank of India, Nirman Bhawan, New Delhi, of respondent No.1/defendant No.1. The details of the same are as under:
14.05.2010 Rs.24,000/-
RFA 514/2015 Page 1 of 6
17.05.2010 Rs.25,000/-
18.05.2010 Rs.25,000/-
19.05.2010 Rs.25,000/-
20.05.2010 Rs.25,000/-
21.05.2010 Rs.25,000/-
3. The appellant had also deposited a sum of Rs.2,21,000/- on various dates in the bank account of proprietor firm of respondent No.1 i.e. M/s Universal Infrastructure Phase-II, Mohali, bearing No.11971131000893, Oriental Bank of Commerce, Connaught Place, New Delhi. The details are as under:
13.05.2010 Rs.48,000/-
15.05.2010 Rs.43,000/-
19.05.2010 Rs.49,500/-
21.05.2010 Rs.30,500/-
22.05.2010 Rs.30,000/-
28.05.2010 Rs.20,000/-
4. On asking of respondents No.1 and 2 the appellant also deposited a sum of Rs.25,000/- each on 14.05.2010, 17.05.2010, 18.05.2010, 19.05.2010, 20.05.2010 and 21.05.2010 totalling to Rs.1,50,000/- in bank account No.10413775997, State Bank of India, Nirman Bhawan, New Delhi, of respondent No.3.
5. These deposits were made by the appellant on an assurance of respondents No.1 and 2 that the amount so deposited shall carry interest @ 24% per annum.
RFA 514/2015 Page 2 of 66. The appellant alleged to have written a letter dated 22.02.2013 asking the respondent No.1 to return the amount so deposited with them. He also approached pre-litigative Mediation and Conciliation Centre of Government of NCT of Delhi, Vikas Bhawan, New Delhi, where the matter could not be settled.
7. In his suit the appellant/plaintiff claimed principal sum of Rs.5,20,000/- with interest @ 24% per annum from 01.06.2010 to 30.05.2014 amounting to Rs.4,99,200/- totalling to Rs.10,19,200/-.
8. Despite service of summons by way of publication in the newspaper Dainik Tribune the respondents did not appear before the Trial Court and they were proceeded ex-parte on 10th December, 2014.
9. In support of his case, the appellant had examined himself as a sole witness as PW-1. He placed on record 12 original pay in slips Ex.PW- 1/1 to Ex.PW1/12 of making deposits in the bank accounts of defendants No.1 and 2. He also filed six original pay in slips Ex.PW- 1/13 to Ex.PW-1/18 with respect to the amount which he had deposited in the account of respondent No.3. He also filed one original postal receipt Ex.PW-1/19 dated 22.02.2013 addressed to the respondent No.1. The copy of the report of pre-litigative Mediation and Conciliation Centre dated 22.05.2014 is Ex.PW-1/20.
10. After hearing the learned counsel for the appellant, the Trial Court appreciated that in the month of May, 2010 the appellant had deposited Rs.3,70,000/- in the bank account of respondents No.1 and 2 and further Rs.1,50,000/- in the bank account of respondent No.3. However, the Trial Court found that the suit having been filed on 23 rd August, 2014 was barred by limitation.
RFA 514/2015 Page 3 of 611. It is argued by the learned counsel for the appellant that the amount deposited by the appellant in the bank accounts of the respondents was to be returned to him on demand and as such Article 22 of the Schedule to the Limitation Act, 1963 (in short "Act") was applicable and the limitation will start from the date of the demand i.e. 22.02.2013.
12. He further argued that the learned Trial Court has erred in applying Article 19 of the Act to the facts of the present case. He submits that copy of letter dated 22.02.2013 could not be placed on record and he has filed Photostat copy of the letter dated 22.02.2013 along with Ground of Appeal. He has also relied upon the judgment of Apex Court in V.E.A. Annamalai Chettiar v. S.V.V.S. Veerappa Chettiar, AIR 1956 SC 12.
13. I have heard the learned counsel for the parties and perused the record.
14. The evidence of the appellant before the Trial Court having deposited Rs.2,21,000/- in the bank account of proprietary firm of respondent No.1, Rs.1,49,000/- in the bank account of respondent No.1 and Rs.1,50,000/- in the bank account of respondent No.3 totalling to Rs.5,20,000/- went unrebutted and unchallenged since the respondents No.1 & 3 were ex-parte before the learned Trial Court. All these deposits were made by the appellant in the respective accounts of the respondents No.1 & 3 in the month of May, 2010. The suit was filed by the appellant on 23.08.2014. The appellant has not placed on record any written agreement executed between the parties. He also not examined any other witness that the respondents had agreed to return the amount with interest @24% per annum. Since learned counsel for the appellant has relied upon Article 22 of the Act and has RFA 514/2015 Page 4 of 6 also disputed the applicability of Article 19 of the Act, it is necessary to advert to both the Articles of the Act, which read as under:
Description of Suit Period of Time from
Limitation which period
begins to run
19. For money Three years When the loan
payable for money is made.
lent.
22. For money Three years When the
deposited under an demand is
agreement that it made.
shall be payable on
demand, including
money of a customer
in the hands of his
banker so payable.
15. Article 19 of the Act applies to a suit for recovery of money payable on account of money lent for which the period of limitation is three years and time from which the period of limitation begins is the date when the money is lent. Under Article 22 of the Act, for money deposited under an agreement that it shall be payable on demand, including money of a customer in the hands of his banker so payable, the period of limitation is three years and time from which the period of limitation begins is the date when the demand is made.
16. There is no evidence that the money deposited by the appellant in the accounts of respondents No.1 & 3 was payable on demand. The appellant had not tendered in evidence the alleged letter dated 22.02.2013 addressed to the respondent No.1 vide postal receipt Ex.PW-1/19. Postal receipt is not connected to the letter. The appellant has not even requested to adduce additional evidence under RFA 514/2015 Page 5 of 6 Order XLI Rule 27 CPC. Even the photocopy of the letter which is placed on record along with Ground of Appeal is addressed to respondent No.1 and not the respondent No.3. He has also not examined any witness in support of his case that the money so deposited in the accounts of the respondents No.1 & 3 was payable on demand. Therefore, the appellant cannot be allowed to claim that his suit is covered under Article 22 of the Act.
17. It is noticed that the respondent No.2 has unnecessarily been made a party as admittedly the appellant has not deposited any amount in her account.
18. Since the money was deposited on various dates in accounts of respondents No.1 & 3 in the month of May, 2010 and the suit having been filed on 23.08.2014 for which Article 19 providing three years limitation shall be applicable and the limitation is to run from the dates of deposit. Therefore, the appellant fails to show that the suit was filed within the period of limitation and the Trial Court has arrived at a right conclusion that the suit was barred by limitation. I find no merit in the appeal. The same is dismissed with cost of Rs.25,000/- payable to respondent No.2.
CM No.13780/2015 In view of the dismissal of the appeal, the application is also dismissed.
VINOD GOEL, J.
MAY 23, 2017/jitender RFA 514/2015 Page 6 of 6