Delhi High Court
Sh. Virender Kumar Jain vs M/S. Alumate (India) Pvt. Ltd. on 2 March, 2012
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.153/2004
% 2nd March, 2012
SH. VIRENDER KUMAR JAIN ..... Appellant
Through: None.
versus
M/S. ALUMATE (INDIA) PVT. LTD. ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This case is on the Regular Board of this Court since 2.2.2012.
No one appears for the parties although the matter is effective item No.10
on the Regular Board. It is 2.40 P.M.
2. The challenge by means of this Regular First Appeal (RFA)
filed under Section 96 of Code of Civil Procedure, 1908 (CPC) is to the
impugned judgment dated 22.11.2003 of the trial Court dismissing the suit
filed by the appellant/plaintiff under Order 37 CPC for recovery of `
3,49,000/- alongwith interest. The suit was dismissed as it was held to be
barred by limitation.
3. The facts of the case are that the appellant/plaintiff gave a
friendly loan to the defendant vide cheque No.172560 dated 22.4.1998
drawn on Punjab National Bank for a sum of ` 1 lakh and also by another
cheque drawn on the same bank numbered 177746 dated 18.10.1998 for `
1,50,000/-. The defendant executed promissory notes and receipts dated
22.4.1998 and 19.10.1998 showing the receipt of the loan. The
respondent/defendant is stated to have continued to pay interest till
10.3.2000 and since thereafter dues were not paid notice dated 14.12.2001
was issued to the defendant, which having proved futile, the subject suit
was filed on 8.2.2002.
4. The trial Court has held that the respondent/defendant has no
substantial defence to raise in view of the promissory notes and receipts
dated 22.4.1998 and 19.10.1998. The trial Court however dismissed the
suit as barred by limitation by making the following observations:-
"10. Now the question is about the right of plaintiff to judgment.
During arguments on application for leave to defend. Ld. Counsel for
respondent submitted that the present suit is barred by law of
limitation. An application in this regard under order 7 rule 11 (d) CPC
has also been moved for defendant. Reply to the same has been filed
for plaintiff submitting that as per section 19 of the Limitation Act. the
fresh period of limitation shall be computed from the time the payment
is made. As such in the present case the fresh period of limitation has
to be computed from 10.3.2000 when he filed the application for leave
to defend.
11. During arguments also on application for leave to defend.
Ld. Counsel for plaintiff has relied section 19 of Limitation Act to
show that the suit is within limitation. Section 19 of Limitation Act,
1963 is reproduced below:
"Where payment on account of a debt or of interest on a legacy
is made before the expiration of the prescribed period by the
person liable to pay the debt or legacy or by his agent duly
authorised in this behalf a fresh period of limitation shall be
computed from the time when the payment was made.
Provided that save in the case of payment of interest made before
the 1st day of January 1929 an acknowledgment of a payment
appears in the handwriting of or in a writing signed by the person
making the payment."
12. In the present case the case of the plaintiff is that the
defendant continued to pay interest till 10.3.2000 and fresh period of
limitation starts from 11.3.2000. It is worth noting that there is no case
of plaintiff that an acknowledgment of a payment appears in the
handwriting of or in a writing signed by the person making the
payment. In the absence of satisfaction of the condition of proviso to
section 19 Limitation Act 1963, fresh period of limitation shall not be
computed from the time when the payment was made. The suit is
barred by law of limitation if Section 19 Limitation Act is not
applicable. The present suit has been filed on 8.2.2002. Receipts
dated 22.4.98 and 18.10.2002 show that cheque no. 172580 and
077746 dated 22.4.98 and 18.10.98 have been paid on 22.4.98 and
18.10.98 respectively. Under article 20 to schedule of Limitation Act,
1963, the period of limitation in a case when lender has given the
cheque for money in a case when lender has given the cheque for
money is 3 years from the date when the cheque is paid. In the present
case this period of 3 years expires much before 8.2.2002.
13. In view of the above discussion, the present suit fails and is
dismissed being barred by law of limitation. File be consigned to
Record Room."
5. In my opinion, the suit of the appellant/plaintiff cannot be said
to be barred by limitation inasmuch as the averments in the plaint show that
the loan was given without fixing any date of repayment. Once that is so,
the loan would be a loan which would be repayable on demand. The
demand in this case is alleged to have been made upon the
respondent/defendant for the first time by the notice dated 14.12.2001. The
period of limitation therefore will be three years from 14.12.2001, and
therefore the suit which was filed on 8.2.2002 would be within limitation.
Suit for recovery of loan without a fixed period or a date of repayment is a
suit governed by Article 113 of the Limitation Act, 1963 as per which the
suit has to be filed within three years of arising of the cause of action. The
cause of action in this case will arise on sending of the legal notice dated
14.12.2001. I therefore hold that the suit was not barred by limitation.
6. In view of the above, appeal is accepted. Impugned judgment
is set aside. Suit of the appellant/plaintiff is decreed for a sum of `
3,49,000/- alongwith interest @ 9% per annum simple from the date of
filing of the suit till realization. Appellant is also entitled to costs of this
appeal. Decree sheet be prepared. Trial Court record be sent back.
VALMIKI J. MEHTA, J
MARCH 02, 2012
Ne
