Delhi High Court
Rajinder Valecha & Anr. vs Satpal & Anr on 2 February, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 05.12.2017
Judgment Pronounced on:02.02.2018
+ RFA 590/2016
RAJINDER VALECHA & ANR. ..... Appellants/plaintiffs.
Through: Ms. Sonali Malhotra & Mr. Amit
Sanduja, Advocates.
versus
SATPAL & ANR ...... Respondents/defendants.
Through: None.
CORAM:
HON'BLE MR. JUSTICE VINOD GOEL
VINOD GOEL, J.
1. Challenge in this appeal is the impugned judgment and decree
dated 16.05.2016 passed by the Court of learned Additional
District Judge (North-East)-01, Karkardooma Courts, Delhi (in
short 'learned ADJ') by which the civil suit No.114/2016 of the
appellants/plaintiffs was dismissed against both the
respondents/defendants.
2. The brief facts for disposal of this appeal are that the appellants,
who are husband and wife filed a civil suit for recovery of
Rs.33,35,000/- against the respondents, who are also husband
and wife. It is alleged by the appellants in their plaint that on the
request of the respondents they had advanced them a friendly
loan of more than Rs.20,00,000/- on interest @ 24% p.a. The
loan was disbursed by the appellants to the respondents from
time to time. The appellants have not disclosed any date of
disbursement of the amount of loan to the respondents. It is also
alleged that the respondents were making the part payment of
the loan amount to the appellants from time to time and at one
point of time the outstanding amount was Rs.22,50,000/- and
lastly the principal sum of Rs.15,00,000/- was outstanding
against the respondents.
3. It is further alleged by the appellants that on 06.02.2009,
06.04.2010 and 13.12.2015, the respondents had paid them cash
amount of Rs.45,000/-, Rs.1 lacs and Rs.3 lacs respectively. It is
further alleged that the respondents have also handed over them
a cheque of Rs.3 lacs dated 25.12.2015 from the account of
respondent No.2 which was encashed by them. The appellants
further alleged that total sum of Rs.33,35,000/- which includes
the principal sum of Rs.15,00,000/- and interest Rs.18,35,000/-,
is outstanding against the respondents.
4. The appellants further alleged that the respondents have
acknowledged the loan amount under the signature of
respondent No.1 and by issuing the cheque from the account of
respondent No.2. The appellants had issued a notice dated
16.01.2016 to the respondents asking them to make the payment
of outstanding amount of Rs.33,35,000/- but of no avail.
5. In their written statements, the respondents have denied the
alleged loan transactions. They have also denied handwritten
receipts-cum -details of the payment. The respondents have also
taken the objections regarding lack of jurisdiction of the court.
They have pleaded that the suit was barred by law of limitation.
6. On merits, it is pleaded by the respondents that there was a
business relationship between the appellant No.1 and
respondent No.1 which was settled finally and they made the
payment of Rs.3 lacs by cash on 13.12.2015 and further Rs.3
lacs by cheque dated 25.12.2015 in full and final settlement
pertaining to the business transactions.
7. Learned ADJ found that admittedly the receipts filed by the
appellants mentioned the date of transactions of loan from time
to time starts from 06.11.2003 till 25.02.2009. As per these
receipts, the last payment of Rs.1 lac was made on 25.02.2009
leaving a balance outstanding amount of Rs.15,00,000/-. The
respondents have allegedly signed the balance confirmation of
Rs.15,00,000/- on 25.02.2009 but the respondents have denied
having executed these receipts and documents. The learned ADJ
observed even if for the sake of arguments, it is presumed that
respondent No.1 has acknowledged outstanding balance amount
of Rs.15 lacs, this being the last acknowledgment allegedly
executed on 25.02.2009 and the suit having been filed on
16.02.2016 is barred by time.
8. Here it would be profitable to refer Section 18 of the Limitation
Act, 1973 which reads as under:-
"Section 18 Effect of acknowledgment in
writing.--
(1) Where, before the expiration of the prescribed
period for a suit or application in respect of any
property or right, an acknowledgment of liability
in respect of such property or right has been made in
writing signed by the party against whom such
property or right is claimed, or by any person
through whom he derives his title or liability, a fresh
period of limitation shall be computed from the time
when the acknowledgment was so signed.
.............................................................
9. A bare perusal of the aforesaid provision reflect that the
acknowledgment should be executed before the expiry of
prescribed period for a suit in respect of any property or right
and such acknowledgment of liability in respect of such
property or right should be in writing signed by the party
against whom such property or right is claimed. If both these
requirements are met then a fresh period of limitation shall be
computed from time when the acknowledgment was so signed.
The Hon'ble Supreme Court in J.C. Budh Raja Vs.
Chairman Orissa Mining Corporation Ltd. 2008 (2) SCC
444 has held that acknowledgment of liability under Section 18
of the Limitation Act must be made prior to the expiry of the
period of limitation of suit.
10. Here it would also be relevant to refer Section 19 of the
Limitation Act, 1963 as the appellants have claimed to have
received payment by cash on 06.04.2010 and 13.12.2015 from
the respondents. Section 19 of the Limitation Act, 1963 reads as
under:-
"Section 19 Effect of payment on account of debt or
of interest on legacy.--
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, 1928, an
acknowledgment of the payment appears in the
handwriting of, or in a writing signed by, the person
making the payment."
11. As per this provision where payment is made on account of
interest or debt before the expiry of prescribed period of
limitation, a fresh period of limitation shall be computed from
time to time when the payment was so made. The proviso
provides that there should be an acknowledgment of payment in
the handwriting of the person making the payment.
12. Having considered the facts of the present appeal in the light of
the statutory provisions and judgment of the Hon'ble Supreme
Court in J.C. Budh Raj case (supra), it is to be noted that
after acknowledgment dated 25.02.2009, the alleged payment of
Rs.1 lacs and Rs.3 lacs of 06.04.2010 and 13.02.2015 were
made by cash by the respondents to the appellants and Rs.3 lacs
by cheque dated 25.12.2015. Admittedly, the limitation of three
years for filing the suit for recovery from the last
acknowledgment dated 25.02.2009 had expired on 25.02.2012.
There is no written acknowledgment of the cash payment of
Rs.1 lacs on 06.04.2010 before expiry of limitation i.e.
25.02.2012. Therefore, benefit of Section 19 cannot be extended
to the appellants on account of alleged payment made on
06.04.2010. The admitted payment of Rs. 3 lacs made on
13.12.2015 is after expiry of 3 years from acknowledgement
dated 25.02.2009 and therefore it is of no help to the appellant
in getting period of limitation extended. The payment of Rs.3
lacs by cheque dated 25.12.2015 is also after expiry of three
years from 25.02.2009. Therefore, these payments do not fulfil
the requirement of Section 18 and 19 of the Limitation Act,
1963.
13. In the circumstances, the learned ADJ has come to the right
conclusion of dismissal of the suit being barred by time. I do not
find any merits in the appeal. Same is dismissed with costs.
14. Trial Court record be sent back forthwith.
(VINOD GOEL)
JUDGE
FEBRUARY 2nd, 2018
