* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No. 149/2017
% 24th May, 2017
M/S KUMAR FOOD INDUSTRIES LTD. ..... Appellant
Through: Mr. R.K.Jain, Adv.
versus
THE CENTRAL BANK OF INDIA AND ANR. ..... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL) CM No. 20080/2017 (delay of 121 days in re-filing) For the reasons stated in the application, delay of 121 days in re- filing the appeal is condoned. CM stands disposed of. CM No.20079/2017 (Exemption) Exemption allowed subject to just exceptions. CM stands disposed of.
RSA No. 149/2017
1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the appellant/plaintiff impugning the concurrent judgments of the courts below; of the Trial RSA No. 149/2017 Page 1 of 3 Court dated 6.1.2016 and the First Appellate Court dated 23.7.2016; by which the courts below have rejected the suit plaint filed by the appellant/plaintiff under Order VII Rule 11 CPC on account of the suit being barred by time.
2. The subject suit was filed by the appellant/plaintiff pleading that the appellant/plaintiff was enjoying cheque/draft discounting facility to the extent of Rs.25 lacs from the respondent no.1/defendant no.1 and that it was found that the respondent no.1/defendant no.1 had been illegally charging commission/interest at Rs.4 per thousand in violation of an understanding. The charges which have been said to have been illegally debited are in an account which was operative till December 1999 i.e the charges were debited in the account till December 1999. The subject suit was filed in February 2005.
3. The courts below have held, and rightly so, that Article 113 of the Limitation Act, 1963 applies and which is a residuary Article with respect to the filing of suits. As per Article 113 of the Limitation Act the period of three years begins when the right to sue accrues. In the present case, the right to sue had accrued when the alleged illegal charges were debited in the account of the appellant/plaintiff with respect to the cheque/draft discounting facility RSA No. 149/2017 Page 2 of 3 and which account with respect to debit of illegal charges was operated till December 1999. Therefore, though the actual cause of action with respect to different charges accrued prior to December 1999, the cause of action at the very last arose in December 1999 whereafter there are no alleged illegally debited charges as claimed by the appellant/plaintiff. Suit therefore had to be filed by within three years from December 1999 i.e at best till December 2002. But the suit has however been filed in February 2005 i.e well beyond the period of three years after the last charge was debited in the account in December 1999. The suit plaint was therefore rightly rejected by the courts below as being barred by time.
4. Learned counsel for the appellant/plaintiff argues that the relationship between the appellant/plaintiff and the respondent no.1/bank was of principal and agent, however, I fail to understand as to how if a cheque discounting facility is given to a customer there arises a relationship of principal and agent between the bank and its customer. Relationship between the bank and customer is as between a person who gives a loan and a person who takes a loan i.e creditor and debtor.
5. No substantial questions of law arises. Dismissed.
MAY 24, 2017/ib VALMIKI J. MEHTA, J
RSA No. 149/2017 Page 3 of 3