Jai Parkash Gupta vs Oriental Bank Of Commerce
2011 Latest Caselaw 4799 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.393/2002

                                Reserved on: 23rd September, 2011

%                               Pronounced on: 27th September, 2011

JAI PARKASH GUPTA                                    ...... Appellant
                          Through:    Mr. Sameer Dewan, Adv.

                          VERSUS

ORIENTAL BANK OF COMMERCE                              ...... Respondent
                   Through:           Mr. Gunjan Kumar, Adv. for
                                      Mr.Saran Suri, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    1.   Whether the Reporters of local papers 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?

VALMIKI J. MEHTA, J.

1. The challenge by means of this Regular First Appeal under

Section 96 of the Code of Civil Procedure, 1908 is to the impugned

judgment of the Trial Court dated 14.2.2002. The impugned judgment

dismisses the suit of the appellant/plaintiff on account of being barred by

time.

2. The facts of the case as pleaded by the appellant/plaintiff in

the plaint were that he sold certain property as a commission agent and

broker for M/s. Skipper Sales Pvt. Ltd. being the property at 3rd Floor, 5,

Bhagwan Dass Road, New Delhi. For this transaction M/s. Skipper Sales

Pvt. Ltd. had to pay the plaintiff a commission of Rs.86,400/- towards

brokerage. It was pleaded that only half of the amount being a sum of

Rs.43,200/- was paid by M/s. Skipper Sales Pvt. Ltd. to the

appellant/plaintiff, and, the balance 50% payment was not made. The

further case in the plaint was that M/s. Skipper Sales Pvt. Ltd. drew two

cheques of Rs.43,200 and Rs.36,700/- in favour of Sh. M.K.Gupta, the

brother of the appellant/plaintiff (who was also a commission agent), and

which two cheques were credited in the account of Sh. M.K.Gupta. Since

both Sh. M.K.Gupta and M/s. Skipper Sales Pvt. Ltd. had an account with

the respondent/defendant/bank, therefore, by a transfer entry, the

amount of the cheques was transferred from the account of M/s. Skipper

Sales Pvt. Ltd. to the account of Sh. M.K.Gupta. The further case in the

plaint was that when the appellant/plaintiff demanded a sum of

Rs.43,200/- from M/s. Skipper Sales Pvt. Ltd. it was allegedly found that

the amount was deposited in the account of Sh. M.K.Gupta. It was further

pleaded in the plaint that the plaintiff sent a legal notice dated 12.10.1981

to M/s. Skipper Sales Pvt. Ltd., with a copy to the respondent/defendant to

pay the amount of Rs.43,200/-, but the same was not paid. It was further

pleaded in the plaint that the respondent/defendant/bank had filed a suit

in the Court of the Civil Judge at Ghaziabad against Mrs. Malti Gupta,

widow of Sh. M.K.Gupta and Smt. Manti Devi, mother of Sh. M.K.Gupta for

the recovery of Rs.3,32,063.47 and in which suit the appellant/plaintiff

was made a party as a guarantor. That suit of the respondent/defendant

against the appellant/plaintiff was dismissed vide judgment dated

19.7.2000. In this suit, the appellant/plaintiff alleges that one Mr.

M.L.Sarin, Manager of the respondent/defendant/bank stated that there

was a reverse entry made from the account of Mr. M.K.Gupta and which

amount was lying in the sundry account. The appellant/plaintiff therefore

laid out a case that the appellant/plaintiff was entitled to this amount lying

in the sundry account.

3. The respondent/defendant appeared and contested the suit by

stating that the transaction in question on the basis of which amount was

claimed was of the year 1981 and the suit was filed twenty years later in

the year 2001 and therefore no records were available inasmuch as the

records are weeded out after 10 years as per the RBI guidelines. It was

also pleaded that the filing of the suit by the respondent/defendant/bank

for recovery against the appellant/plaintiff at Ghaziabad cannot extend

the period of limitation. The suit was argued to be barred by time as

having been filed in the year 2001 for a claim which arose, assuming it

arose, in the year 1981.

4. Before proceeding further, I may state that the plaint of the

appellant/plaintiff was totally vague as to how the

respondent/defendant/bank is liable inasmuch as unless the

respondent/defendant/bank credited a cheque in the account of

Sh.M.K.Gupta although the same was drawn in favour of the

appellant/plaintiff issued by M/s. Skipper Sales Pvt. Ltd., the

appellant/plaintiff would have no cause of action against the bank. The

appellant/plaintiff actually and only either had a cause of action against

M/s. Skipper Sales Pvt. Ltd. for recovery of the 50% balance commission of

Rs.43,200/- or against Sh. M.K.Gupta who may have wrongly taken away

the commission of Rs.43,200/- by getting a cheque issued in his name

instead of the appellant/plaintiff. On the face of it therefore the

averments in the plaint were vague and did not construe sufficient cause

of action to claim the relief of recovery of money against the respondent-

bank. Merely because the respondent/defendant/bank reverses an entry

from the account of Sh. M.K.Gupta cannot mean that the said amount was

in fact the amount to which the appellant/plaintiff was entitled to,

inasmuch as it was never the case of the appellant/plaintiff that any

cheque drawn in his name by M/s. Skipper Sales Pvt. Ltd. was wrongly

credited, instead of his account, to the account of his brother Sh.

M.K.Gupta.

5. The Trial Court has dismissed the suit as being barred by

Limitation by holding that the Article 24 of the Schedule to the Limitation

Act, 1963 applies in the following words:-

"14. Plaintiff has filed a suit for recovery of Rupees 2,06,496/- on 29.1.2001. Admittedly the plaintiff stated that the cause of action for filing of the present suit accrued on the dates mentioned in the plaint which in the instant case when the defendant credited and transferred the sum of Rs.79,900/- which is inclusive of the amount claimed by the plaintiff and credited in the account of M.K.Gupta the brother of the plaintiff since deceased on 25.1.1980 by the defendant.

15. The plaintiff has further stated that on 7.12.1981 when the amount was transferred in the sundry account, the cause of action accrued in favour of the plaintiff to file the present suit. Cause of action has been defined in Order II of the Code of Civil Procedure:- Cause of action in its general term means a cause of action for which the suit was brought. A cause of action is that which gives the occasion and foundation of the suit as held in AIR 1970 s.c.

Page 105. It includes every fact which would be necessary for the plaintiff to prove if traversed in order to support his right to judgment of the court as held in AIR 1975 Delhi Page 15.

16. Article 24 of part I of the Limitation Act prescribes a period of recovery of the money payable by the defendant to the plaintiff for the money received by the defendant for the plaintiff's use as three years from the time money was received. It is the case of the plaintiff that the suit is based on the bill dated 12.2.1979 and when the payment was due and subsequently when the amount of the half of the commission was erroneously deposited in the account of Sh.M.K.Gupta the deceased brother the plaintiff. It is an admitted case of the plaintiff that the said cause of action accrued on 25.1.1980 and 7.12.1981, which in itself is beyond period of limitation.

17. The plaintiff also wishes to exclude the period wherein the defendant had filed a suit against the said Sh.M.K.Gupta wherein the plaintiff was the guarantor. Such a ground is not available to the plaintiff as there was no order restraining the filing of the present suit or the release of the payment."

6. Though in my opinion, the Trial Court has wrongly applied

Article 24, inasmuch actually it is Article 113 which applies, however, the

same will not make any difference because the period of limitation under

both the Articles is 3 years from arising of the cause of action. As per the

appellant/plaintiff himself the cause of action had arisen allegedly in 1981

itself when he had come to know of wrong entry having been made in the

account of his brother Sh.M.K.Gupta instead of the appellant/plaintiff.

Assuming that there was any cause of action for this entry, and which is

very much doubted because the cheque issued by M/s. Skipper Sales Pvt.

Ltd. has not been proved to be in the name of the appellant/plaintiff (and

consequently there cannot be any liability at least against the

respondent/defendant/bank), however, even if we take that the limitation

began in 1981, the suit should have been filed definitely by the years

1984-1985, however the suit has been filed much much later in the year

2001 and therefore the same has been rightly held to be barred by

limitation by the impugned judgment. As per para 8 of the plaint, the

appellant/plaintiff in the year 1981 itself had himself sent the legal notice

to M/s. Skipper Sales Pvt. Ltd., with the copy to the

respondent/defendant/bank on allegedly coming to know that an amount

of Rs.43,200/- has been deposited in the account of Sh. M.k.Gupta and not

in the account of the appellant/plaintiff. As already stated, though there

was no cause of action against the respondent/defendant/bank inasmuch

as the cheque was not proved to have been drawn in the name of the

appellant/plaintiff by M/s. Skipper Sales Pvt. Ltd., and thus the cause of

action can only be against either M/s. Skipper Sales Pvt. Ltd. of having

drawn the cheque in the name of Sh.M.K.Gupta instead of the

appellant/plaintiff or against Mr. M.K.Gupta for wrongly receiving the

amount, yet, assuming that any cause of action had arisen the same

arose in the year 1981 as per the appellant/plaintiff himself and therefore

the suit filed in the year 2001 has been rightly dismissed by the impugned

judgment as being barred by limitation. One of the main object of

Limitation Act, 1963 is that a suit should be filed within a particular period

of time because otherwise valuable evidences may be lost and which

evidence is necessary to decide the suit. The respondent/defendant/bank

claimed that it had no record of transaction of the year 1981, for the suit

filed in 2001, as records have been weeded out after 10 years as per

instructions of RBI, and which is in my opinion, is another valid reason for

the suit to have been rightly barred by limitation. The Trial Court has also

rightly dis-allowed exclusion of any period with respect to the suit filed

against the appellant/plaintiff in the Court at Ghaziabad because there is

no provision for exclusion of limitation merely because a suit is pending

against the appellant/plaintiff.

7. In view of the above, there is no merit in the appeal which is

accordingly dismissed, leaving the parties to bear their own costs.

SEPTEMBER 27, 2011                              VALMIKI J. MEHTA, J.
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