Garima Goel vs Varun Gupta
2017 Latest Caselaw 1952 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   RSA Nos. 362/2016 & 382/2016

                                                      21st April, 2017
+     RSA No. 362/2016

GARIMA GOEL                                                 ..... Appellant
                           Through:      Mr. P.P.Mittal and Mr. Prashant
                                         Kumar Mittal, Advocates.

                           versus

VARUN GUPTA                                               ..... Respondent

Through:

+     RSA No. 382/2016

GARIMA GOEL                                                 ..... Appellant
                           Through:      Mr. P.P.Mittal and Mr. Prashant
                                         Kumar Mittal, Advocates.

                           versus

VARUN GUPTA                                               ..... Respondent
                           Through:

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. Two appeals are filed by the plaintiff in the suit. Two

appeals are filed because the trial court passed the judgment only partly

decreeing the suit. The suit was filed by the appellant/plaintiff for

recovery of Rs.75,704/- which was only decreed for Rs.54,000/- along

with interest. Appellant/plaintiff therefore filed the first appeal seeking

the higher amount as claimed in the suit. Respondent/defendant filed

his first appeal against the judgment and decree decreeing the suit for

Rs.54,000/- along with interest.

2. The judgment in RSA No. 362/2016 challenges the

impugned judgment dated 19.9.2016 passed in the first appeal filed by

the respondent/defendant in the suit, and who is the husband of the

appellant/plaintiff. By the impugned judgment the first appeal of the

respondent/husband/defendant was allowed and the suit was dismissed

on the ground that suit had sought recovery of the amounts paid by

appellant/wife/plaintiff to the respondent/husband/defendant as rent for

being paid to the landlord of the premises and which the

respondent/husband/defendant had promised to refund this rent paid by

the appellant/plaintiff with respect to the tenanted premises, but it was

found that the appellant/plaintiff had already received and been

reimbursed the self same amount as HRA from her employer being the

government. In effect, the first appellate court by the impugned

judgment dated 19.9.2016, which is the subject matter of RSA No.

362/2016, has held that the suit which was decreed for Rs.54,000/-

along with interest had to be dismissed because the amount claimed by

the appellant/plaintiff stood already reimbursed to her from her

employer and thus appellant/plaintiff cannot seek reimbursement once

again from the respondent/husband/defendant.

3. RSA No. 382/2016 is filed by the appellant/wife/plaintiff

against the judgment of the first appellate court dated 19.9.2016

dismissing the first appeal as time-barred. The appellant/plaintiff had

filed the first appeal seeking decree of the higher amount of Rs.

75,704/- instead of the lesser amount decreed of Rs. 54,000/-.

4. Section 41 of the Indian Contract Act, 1872 reads as

under:-

"41. Effect of accepting performance from third person.--When a promisee accepts performance of the promise from a third person, he cannot afterwards enforce it against the promisor."

5. As per the provision of Section 41 of the Indian Contract

Act, if the liability of a person is discharged by another person, the

person to whom the amount is paid and towards whom liability is to be

discharged, can no longer claim the amount from the original person.

Putting it in other words, a promisor cannot seek discharge of promise

from the promisee in case what was to be performed by the promisor to

the promisee had already been performed in favour of the promisee by

some other person. In this case, promisee being the appellant/plaintiff

sought performance of promise of the respondent/husband/defendant

with respect to payment of rent of the tenanted premises where the

parties were living. Appellant/plaintiff admittedly is a government

servant and she has received the rental payment from her employer

being the government. The first appellate court noticed that this aspect

was concealed by the appellant/plaintiff at the time of filing of the suit.

Irrespective of the aspect of concealment, the first appellate court has

held that the liability of the respondent/defendant towards the

appellant/plaintiff stood discharged on account of appellant/plaintiff

already having received the HRA from her employer being the

government. Though the first appellate court has not taken aid of

Section 41 of the Indian Contract Act, the principle applied by the first

appellate court is in terms of Section 41 of the Indian Contract Act, and

I do not find therefore any illegality in the judgment of the first

appellate court setting aside the judgment of the trial court decreeing

the suit for an amount of Rs.54,000/- along with interest.

6. Once the suit itself as a whole had been dismissed, then

the appellant/plaintiff was not entitled to higher amount or the costs or

the interest, and therefore, the appeal filed by the appellant/plaintiff

against the judgment of the trial court dated 10.12.2015 was also bound

to be dismissed, irrespective of the issue of limitation.

7. In view of the above, no substantial question of law arises.

Both the Regular Second Appeals are dismissed.

8. At the request made on behalf of the counsel for the

appellant/plaintiff it is clarified that no observations in the impugned

judgment of the first appellate court as regards any alleged offence

committed by the appellant/plaintiff, will in any manner prejudice the

appellant/plaintiff, and which aspect if is in issue in an independent

proceeding, whether civil or criminal, the same will be decided in those

proceedings.

APRIL 21, 2017/ib                            VALMIKI J. MEHTA, J