Delhi High Court
Sh. Sanjay Mahajan vs Sh. Sunil Sharma & Anr. on 28 September, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No. 291/2016
% 28th September, 2016
SH. SANJAY MAHAJAN ..... Appellant
Through: Mr. Sarvesh Singh, Mr. Dhananjay
Kumar Singh and Mr. H.S. Rawat,
Advocates.
versus
SH. SUNIL SHARMA & ANR. ..... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. Appl. No. 35930/2016 (for exemption)
Exemption allowed subject to just exceptions.
C.M. stands disposed of.
C.M. Appl. No. 35929/2016 (for condonation of delay of 55 days in filing the
appeal under Section 151 CPC)
and
C.M. Appl. No. 35931/2016 (for condonation of delay of 16 days in re-filing
the appeal under Section 151 CPC)
These are applications seeking condonation of delays of 55 days in filing
and 16 days in re-filing the appeal.
For the reasons stated in the applications, the same are allowed and
delays are condoned.
C.Ms stand disposed of.
RSA No. 291/2016
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 Court dated 2.8.2014 and
the First Appellate Court dated 19.3.2016; by which the courts below have
dismissed the suit for recovery of Rs.68,800/- filed by the appellant/plaintiff.
2. The facts of the case are that the appellant/plaintiff claims that he
gave a loan of Rs.40,000/- to the defendant no.1 (originally sole defendant) by
cheque and which was not re-paid and hence the subject suit was filed for
Rs.68,800/- being the principal amount of Rs.40,000/- along with interest
totaling to Rs.68,000/-. When the suit was filed there was only one defendant,
i.e, respondent no. 1 herein, and this defendant filed a written statement stating
that the cheque which was issued by the appellant/plaintiff was not in the name
of defendant no. 1, but was in the name of defendant no.2/company. The
appellant/plaintiff thereafter added respondent no.2/defendant no. 2/company as
the defendant in the suit. In the written statement of defendant no. 2 as also of
the defendant no. 1 it was stated that the appellant/plaintiff was appointed as a
distributor of defendant no. 2/company with respect to supply of phones for the
states of Karnataka and Maharashtra and therefore he had given the subject
cheque of Rs.40,000/- to the defendant no. 2. The appellant/plaintiff has
received various phones from defendant no. 2 and had even used six out of ten
mobile phones, but has had not settled the accounts of defendant no. 2 and has
instead falsely filed the subject suit.
3. The courts below have dismissed the suit as against respondent
no.1/defendant no. 1 because it was found that the cheque on the basis of which
the suit was filed was issued in the name of respondent no.2/defendant no.2 and
therefore there was no loan granted to the respondent no.1/defendant no.1 as
was the case of the appellant/plaintiff. As regards respondent no.2/defendant
no.2, it was held that the suit was barred by limitation because defendant no. 2
was added as a defendant vide Order dated 6.12.2010 and which would be the
date of filing of the suit against respondent no.2/defendant no.2 as per Section
21 of the Limitation Act, 1963, and since the subject cheque was dated
5.7.2004, Article 20 of the Limitation Act, came in and thereby the suit having
been filed against respondent no.2/defendant no.2 beyond three years of the
grant of loan on 5.7.2004, the same was barred by limitation.
4. The trial court had in the suit on 25.4.2011 framed the following
issues:-
"1. Whether the plaintiff is entitled for decree of Rs.68,800/- as prayed
for? OPP
2. Whether the suit is barred by law and is without any cause of
action? OPD
3. Relief."
5. The documents which were filed by the respective parties have
been stated in paragraphs 6 and 7 of the judgment of the trial court and the same
read as under:-
"(6) In order to substantiate his case, the plaintiff has examined himself as
PW1 and Sh Syad Faisal Huda, Forensic Expert as PW2 and relief upon the
following documents:-
(a) Statement of account as Ex.PW1/1.
(b) Receipt of one set of T-918 dt. 20.09.2004 as Ex.PW1/2.
(c) Receipt of 10 T-918 Mobile and 10 T 919 mobiles dt. 21.06.2004
as Ex.PW1/3.
(d) Delivery challan dt. 29.03.2004 as Ex.PW1/4.
(e) The copy of notice dt. 03.04.2007 as Ex.PW1/5.
(f) Original registered AD as Ex.PW1/7.
(g) The copy of UPC as Ex.PW1/6.
(h) Detailed report given by PW2 as Ex.PW2/A.
(7) On the other hand, defendant No. 1 is examined as DW1 on behalf of
both the defendants and he relied upon the following documents:-
(a) Memorandum of association as Ex.DW1/1.
(b) Copy of agreement of distributorship between plaintiff and
defendant No. 2 as Ex.DW1/2.
(c) Copy of challan as Ex.DW1/3 & 4.
(d) Copy of reply given by defendant as Ex.PW1/5 alongwith its
acknowledgement card and receipt Ex.PW1/6, 7 & 8 respectively."
6. The trial court while discussing issue no. 1 has held that, and as
already stated above, that appellant/plaintiff failed to prove grant of any loan to
respondent no.1/defendant no.1 as the cheque was issued by the
appellant/plaintiff in the name of respondent no.2/defendant no.2 and not in the
name of respondent no.1/defendant no.1. So far as issue with respect to suit
being barred by limitation against respondent no.2/defendant no.2 is concerned,
the same was dealt with under issue no. 2 and which relevant discussion and
conclusion of the trial court reads as under:-
Whether the suit is barred by law and is without any cause of action? OPD
Onus to prove this issue lies upon the defendants. Evidence produced on
record shows that the money through cheque was paid by the plaintiff to
defendant no. 2 on 06.07.2004. As per the case of plaintiff, this amount was
paid as loan. Article 20 of schedule of The Limitation Act, 1963 provides that
the period of limitation of three years for filing suit for recovery of such
amount shall start commencing from the day when money is paid. It implies
that this period of limitation should expire on 05.07.2007. The present suit was
filed against defendant no. 1 on 05.07.2007 and then defendant no. 2 was
allowed to be impleaded vide order dt. 06.12.2010 passed by Ld. Predecessor
of this Court. Section 21 of The Limitation Act provides that suit against an
added party shall be deemed to be instituted on the day when it is added as a
party unless the Court orders it to be deemed impleaded from an earlier date. It
is not disputed that defendant no. 2 is not ordered to be deemed impleaded as a
party from any other day. Hon'ble Apex Court in Ramalingam Chettiar vs
P.K. Pattabiraman reported as AIR 2001 SC 1185, has held that "in the
absence of any order that the impleadment of newly added or substituted party
shall take effect from the date of institution of a suit, the period of limitation so
far as the newly added or substituted persons are concerned shall run from the
date of their impleadment in the suit". Thus the suit is deemed instituted
against defendant no.2 w.e.f. 06.12.2010 i.e. the day on which the period of
filing of the suit had already expired. Expiry of the period of limitation of
filing a suit bars the legal remedy before the court. Thus it is held that the suit
of the plaintiff against the defendant no. 2 is barred by law and due to failure
on the part of plaintiff to prove the existence of any friendly loan as discussed
during the decision of earlier issue, it is held that the suit of the plaintiff
against the defendants is without any cause of action." (underlining added)
7. Learned counsel for the appellant/plaintiff only argued that the suit
be decreed only against respondent no.2/defendant no.2 by arguing that the suit
is within limitation because the suit should be taken to have been filed against
respondent no.2/defendant no.2 on the original date of filing of the suit,
however, it is seen that when the order was passed by the trial court impleading
defendant no. 2 there was no prayer made by the appellant/plaintiff for
respondent no.2/defendant no.2 being taken as a party from the date of filing of
the suit, and accordingly the trial court has by referring to the judgment of the
Supreme Court in the case of Ramalingam Chettiar Vs. P.K. Pattabiraman and
Another, (2001) 4 SCC 96 held that as against the respondent no.2/defendant
no.2, the suit will be taken to have been filed only when defendant no. 2 was
added as a party and on which date the period of three years had already expired
because defendant No. 2 was added on 6.12.2010 and limitation of three years
expired with respect to the cheque on 5.7.2007. Thus the courts below have
rightly held the suit to be time barred against respondent no.2/defendant no.2.
8. In view of the above discussion, no substantial question of law
arises for this second appeal to be entertained under Section 100 CPC, and the
same is accordingly dismissed.
SEPTEMBER 28, 2016 VALMIKI J. MEHTA, J
AK
