Delhi High Court

Jitender Kumar Gupta vs Sukhbir Singh Saini on 19 September, 2012

Author: Vipin Sanghi

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           Date of Decision: 19.09.2012

%      FAO(OS) 456/2012

       JITENDER KUMAR GUPTA                   ..... Appellant
                    Through: Mr. S.K.Chaudhary, Advocate

                        versus

       SUKHBIR SINGH SAINI                                  ..... Respondent
                    Through:             None.

       CORAM:
       HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
       HON'BLE MR. JUSTICE VIPIN SANGHI


VIPIN SANGHI, J. (Oral)

C.M. No. 16514/2012 (exemption)

Exemption is allowed, subject to all just exceptions. FAO(OS) No. 456/2012

1. The appellant assails the order dated 5th July, 2012 passed by the learned Single Judge on his application being I.A. No. 3262/2011 and CS(OS) No. 17/2011. By the impugned order, the learned Single Judge has dismissed the aforesaid application preferred by the appellant/plaintiff under Section 14 of the Limitation Act, 1963 and, consequently the suit has also been dismissed as being barred by limitation.

2. In a nutshell, the case of the appellant/plaintiff is that the

appellant/plaintiff and one Shri Bal Kishan Saini were carrying on business jointly. The plaintiff filed a suit against Shri Bal Kishan Saini and their business entity M/s Devred (India) Pvt. Ltd. for rendition of accounts on 30th May, 2006. In that suit, the appellant/plaintiff filed an application under Order 1 Rule 10 CPC read with Order 6 Rule 17 CPC for impleadment of the respondent herein Shri Sukhbir Singh Saini, as a defendant on 3rd November, 2006 which was eventually dismissed on 8 th November, 2010. The respondent herein also filed a suit on 19th August, 2006 against the appellant and Shri Bal Kishan Saini, brother-in-law of the appellant, alleging them to be his tenants in his property and claiming recovery of rent. The respondent filed yet another suit on 29 th September, 2006 for a declaration that he is not the proprietor of M/s Victoria Creations, and instead, the appellant and Shri Bal Kishan Saini are the proprietors of the said firm. This suit was dismissed in default on 22nd January, 2010. Thereafter, the appellant/plaintiff preferred the present suit for recovery of Rs. 65,83,590/- against the respondent Shri Sukhbir Singh Saini on the basis of the acknowledgement alleged to have been made by the respondent of the dues payable by him to the appellant in the balance sheet of the proprietorship concern M/s Victoria Creations, alleged to be of the respondent. The present suit was filed on 3rd January, 2011. The appellant/plaintiff also filed the aforesaid application under Section 14 of the Limitation Act for exclusion of the time spent in pursuing the application for impleadment, as aforesaid, in his earlier suit preferred against Shri Bal Kishan Saini for rendition of accounts which remained pending during the period 3rd November, 2006 to 8th November, 2010. The appellant also claimed that he was entitled to the exclusion of the

period from 29th September, 2006 till 22nd January, 2010, which was the time spent by the appellant in defending the declaratory suit filed by the respondent, as aforesaid, which was eventually dismissed in default.

3. The learned Single Judge by a detailed and considered order has rejected the application under Section 14 of the Limitation Act. He has taken into account various decisions placed before him in arriving at his conclusion.

4. The submission of learned counsel for the appellant before us is that the appellant acted bona fide and the requirement of Section 14 of the Limitation Act is only that the plaintiff should have prosecuted, in good faith, the other proceeding. It is not necessary that the other proceedings should be substantive proceedings like a suit or some other similar proceedings. Even an application filed to seek impleadment of the party, who is the defendant in the suit in question, would qualify as a proceeding for the purpose of Section 14 of the Limitation Act. He submits that in the earlier suit preferred by the appellant against Shri Bal Kishan Saini, wherein the appellant was seeking rendition of accounts from Shri Bal Kishan Saini, upon the disclosure of Shri Bal Kishan Saini in his written statement - that the respondent Shri Sukhbir Singh Saini is liable to make payment of the suit amount, the appellant had sought his imleadment while simultaneously seeking to amend the suit by invoking Order 6 Rule 17 CPC. He submits that when the said application was preferred on 3rd November, 2006, the period of limitation to sue the respondent herein had not expired. He submits that the said application for impleadment and amendment came to be decided and dismissed by

the Court only on 8th November, 2010. He submits that, had the said application been rejected in the year 2006 itself or sometime thereafter, he would have filed the suit in question within the period of limitation. He submits that the appellant cannot be made to suffer on account of delay in the disposal of the aforesaid application for impleadment and amendment, as no party can be made to suffer on account of the act of the court.

5. Having perused the impugned order and heard learned counsel for the appellant, we find no merit in this appeal and are inclined to dismiss the same. As noticed hereinabove, the learned Single Judge has taken note of various decisions on the subject. Since we are in agreement with the reasoning and conclusions of the learned Single Judge, we do not propose to once again delve into the various decisions on the subject. Suffice it to say that the application preferred by the appellant under Order 1 Rule 10 read with Order 6 Rule 17 CPC in the earlier suit was not dismissed on account of defect of jurisdiction or other cause of a like nature. The learned Single Judge has observed in the impugned order that the said application was dismissed on merits. Learned counsel for the appellant has not even urged before us that this finding of the learned Single Judge is not in order. This being the position, one of the basic ingredients of Section 14 did not exist. The pendency of the suit of the respondent for declaration certainly could not give cause to the appellant to withhold its own action for recovery against the respondent as, for the purpose of invoking Section 14 of the Limitation Act, it is essential that the earlier civil proceeding is the one

instituted by the plaintiff who seeks exclusion of time by resorting to Section 14 of the Limitation Act. The argument that the appellant should not be made to suffer for the delay in disposal of his application for impleadment also has no merit. A party who litigates in a Court does so at his own peril. It is not for the Court to advise him as to what steps he needs to take to safeguard his interests. The appellant should have known that the disposal of his application may take time. There was no guarantee that the same would be allowed. When he saw that the limitation for filing the recovery suit against the respondent was about to expire, it was for him to take appropriate steps to ensure that the claim does not become barred by limitation. There is also merit in the finding of the learned Single Judge that the application for impleadment was moved in a suit to seek rendition of accounts. The respondent had no concern with the internal dealings or accounting of M/s Devred (India) Pvt. Ltd. of which the appellant and Shri Bal Kishan Saini were the partners/Directors. The respondent, possibly, could not have rendered any accounts of the said company to the appellant. The said impleadment application was wholly meritless and the dismissal was accepted by the appellant. Thus, the earlier proceeding against the respondent could not be considered as undertaken in good faith and bona fide, which is also a requirement of Section 14 of the Limitation Act.

6. Since we are in agreement with the impugned decision, we consider it appropriate to set out the following extract therefrom:

"9. The foremost requirement to be fulfilled to bring section 14 of the limitation act into picture is that the earlier proceedings before another court

failed due to defect of jurisdiction or cause of like nature. It cannot be lost sight of the fact as has been reiterated in the above cited case law that the expression cause of like nature has to be construed ejusdem generis and analogous to the defect of jurisdiction and not otherwise. However as to what are the causes of like nature are not enumerated in the said section, they have to be decided from case to case. Admittedly, in the facts of the case at hand, the application for impleadment was dismissed on merits and it was not due to any other defect of jurisdiction or other cause of like nature that the court was not able to entertain the said application and hence the time spent by the plaintiff in pursuing the said application cannot be excluded for the purposes of limitation of the present suit.

10. The other requirement was that for the purpose of application of section 14 to the case, the plaintiff must have instituted the earlier proceedings in good faith. What is good faith as has been already discussed is the suit instituted with due care and attention under the bonafide belief and impression. For the purpose of the present case the plaintiff at the first instance filed a suit against Shri Bal Krishan alone for rendition of accounts and thereafter sought to implead the present defendant. It is not the case of the plaintiff that the proceedings initiated by him were in a wrong forum or before a court which did not have the power to entertain it under the bonafide mistake or in good faith but that as the application was dismissed therefore the period spent by him in pursuing the same should be excluded. Thus the requirement of section 14 of that of good faith is not fulfilled in the present circumstances.

11. Another facet of the argument of the plaintiff was that the time spent in pursuing the suit for declaration filed by the defendant for declaration

should be excluded. The said contention of the plaintiff is equally devoid of any merit as nothing prevented the plaintiff to seek his own legal remedy of filing a recovery suit even if he was contesting the suit for declaration filed by the defendant. Therefore, the plaintiff cannot be countenanced to contend that as he was pursuing the suit for declaration filed by the defendant, he could not have filed the suit for recovery against the defendant. What exacerbates this argument of the plaintiff is that he himself has in the application for impleadment stated that the defendant had filed a suit for recovery against the plaintiff. What had impeded or barricaded the plaintiff from filing a suit for recovery against the defendant has not been put forth by the plaintiff and what has been echoed from his application and the plaint time and again is that he could not have filed the present suit till the time the fate of the application for impleadment or the suit for declaration could be known. This court however cannot appreciate such argument of the plaintiff as the same is bereft of any substance.

12. The object of Limitation Act is that there must be a quietus to the litigation between parties for resolving disputes within a narrowed down time frame. It is also of value that the parties preferring claims after a long time would do more injustice than justice as the evidence which is required to prove the case would be lost due to the passage of time. The often echoed maxim that law is with the vigilant is the grundnorm of the justice dispensation system. It is ingeminated that a litigant has to be not only vigilant for his right but he has to be vigilant to see that he takes legal recourse within the period of limitation and any laxity, pretermission or negligence in not taking steps to take legal recourse within the prescribed

period of limitation would certainly be advantageous to the party in default.

13. In the light of the above discussion, the present case does not deserve exercise of discretion by this Court in favour of the plaintiff. The plaintiff hence is not entitled to the exclusion of the period from 3.11.2006 to 8.11.2010 or 29.9.2006 till 22.1.2010 for computing the period of limitation for this suit.