Delhi High Court
M/S. Mahalaxmi Toys & Anr. vs Shri Jawahar Lal Goel & Ors. on 2 March, 2010
Author: Aruna Suresh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.44/2010 & CM Nos.3882/2010 & 3883/2010
Date of Decision: March 02, 2010
M/S MAHALAXMI TOYS & ANR. ..... Appellants
Through: Mr.Javed Khan, Advocate.
Versus
SHRI JAWAHAR LAL GOEL & ORS. ..... Respondents
Through: None.
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(3) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not?
(3) Whether the judgment should be reported
in the Digest ?
JUDGMENT
ARUNA SURESH, J. (Oral)
1. Respondents filed a suit under the provisions of Order 37
CPC for recovery of Rs.2,50,000/- on the basis of two cheques bearing
No.514252 dated 6th September 2000, for a sum of Rs.1,75,000/- and
another cheque bearing No.514251 dated 30th September 2000, for a sum of
Rs.75,000/- respectively. These two cheques, on presentation, were
dishonoured by the concerned bankers vide memo dated 27 th March, 2001
on the ground „funds insufficient‟. However, appellants failed to pay the
said amount despite service of legal notice dated 12 th April 2001.
2. Appellants were granted leave to defend the suit. Trial Court
vide its order dated 20th October 2005, passed a decree for Rs.2,50,000/-
along with pendentelite and future interest at the rate of 12% per annum
from the date of filing of the suit till realization. Challenge to the said
judgment and decree by the appellants in the First Appellate Court also
failed.
3. This appeal has been filed by the appellants raising substantial
questions of law, as detailed in sub-paras I to L of Grounds for Appeal.
4. Learned counsel for the appellants has argued that the suit
was barred by period of limitation and therefore, judgment and decree of the
Trial Court is void ab initio. While awarding decree in favour of the
respondents, Trial Court did not properly appreciate evidence of the parties.
5. I find no force in the submission of learned counsel for the
appellants. It is not in dispute that appellants did not plead in their written
statement that the suit was barred by period of limitation. It is also admitted
by learned counsel for the appellants that question of limitation was never
raised before the Trial Court or before the Appellate Court. Learned
counsel has emphasised on the cross-examination of PW-1 Bhagat Swaroop
to say that loan of Rs.4,00,000/- was taken in 1992 by one of the partners of
respondent No.1 and therefore, apparently, the impugned cheques, which
were issued by the appellants in favour of the respondents in the year 2000,
in no manner, extend the period of limitation and the suit is barred under
law of limitation and therefore a substantial question of law needs
formulation and adjudication if the suit of respondent is barred by period of
limitation.
5. It has come in cross-examination of Bhagat Swaroop that at
the time of taking loan appellants had issued four cheques, however, all the
four cheques were taken away by the appellants and in lieu of the cheques
they had issued three cheques for a sum of Rs.3,50,000/-. On 3rd December
1995, appellants took away the said three cheques. Bhagat Swaroop has
deposed that appellants used to take back the earlier cheques and issue fresh
cheques in lieu of that on personal request and they used to issue cheques
only for the principal amount and interest was being paid in cash. It seems
that appellants had been issuing cheques from time to time and finally two
impugned cheques, one dated 6 th November, 2000 for Rs.1,75,000/- and
other dated 30th September, 2000 for Rs.75,000/- were issued by appellants
to pay off the loan of Rs.2,50,000/-.
6. Trial Court, while deciding issue No.1, made following
observations:-
"7. .....The present suit is under order 37 of
CPC based on cheques which are within the
period of limitation, therefore, in the considered
opinion of this court the suit of the plaintiff is
maintainable in the present form.".
7. Thus, it is clear that even though the issue of limitation was
not raised before the Trial Court, however, being a question of law, Trial
Court did consider this aspect of the matter and gave its findings. Findings
of the Trial Court, as above, were never under challenge before the
Appellate Court.
8. Defence which was raised by the appellants before the Trial
Court was that the amount as against the said two cheques stood duly paid
for which they also submitted a statement of accounts in para 1 (reply on
merits) on the written statement. Since appellants failed to substantiate
these payments as claimed and failed to prove the cash book in evidence,
Trial Court passed the impugned judgment and decree and upheld by the
Appellate Court.
9. Under these circumstances, no substantial question of law, as
suggested, needs formulation as no such question arises on the facts and
circumstances of this case. Not only that, appellants have to show that a
question of law needs adjudication, they have also to show that such
question of law is a substantial question of law and needs determination.
10. Since no substantial question of law arises in the appeal, I find
no merits in the same. It is dismissed accordingly.
CM Nos.3882/2010 (for stay) & 3883/2010 (for exemption)
11. With dismissal of the appeal, both these applications have
become infructuous. Hence, the same stand dismissed accordingly.
(ARUNA SURESH)
JUDGE
MARCH 02, 2010
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