Delhi High Court
M/S Arora H/W & Paint Store vs M/S Jawahar Chits (P) Ltd. on 25 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.812/2018
% 25th September, 2018
M/S ARORA H/W & PAINT STORE
..... Appellant
Through: Mr. Sami Ur Rehman,
Advocate (Mobile No.
9990765845).
versus
M/S JAWAHAR CHITS (P) LTD.
..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
CM No. 39318/2018 (delay in re-filing)
For the reason stated in the application, delay in re-filing is
condoned, subject to just exceptions.
CM stands disposed of.
RFA No.812/2018 & CM No.39317/2018 (stay)
1. This Regular First Appeal under Section 96 of the Code
of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit
impugning the Judgment of the Trial Court dated 29.05.2018 by which
the trial court has decreed the suit filed by the respondent/plaintiff for
an amount of Rs. 4,46,140/- alongwith pendente lite interest at 12%
per annum and future interest at 6% per annum till realization.
2. The facts of the case are that the appellant/defendant
approached the respondent/plaintiff company to become a member of
the Chit Group and the appellant/defendant was allotted Ticket No. 22
with respect to Chit Group No. JCP-08. The appellant/defendant took
the prize money of Rs. 3,50,000/- in February 2012. However, the
appellant/defendant failed to pay the installments which were
originally fixed at twenty five in number. As on January 2016, there
were 17 installments due against the appellant/defendant with
outstanding liability of Rs. 3,43,140/- as principal and Rs. 1,62,526/-
towards interest. Since the appellant/defendant failed to pay the
amount due, therefore, the respondent/plaintiff served upon the
appellant/defendant a Legal Notice dated 24.11.2015. The same failed
to yield any result, and therefore, the subject suit was filed.
3. The appellant/defendant contested the suit by filing a
written statement. It was pleaded that the suit was time barred as the
Chit Agreement is dated 17.10.2011, and therefore, limitation expired
in October, 2014 whereas the suit was filed on 19.02.2016. It was also
contended by the appellant/defendant that all the payments due have
already been made by the appellant/defendant to the
respondent/plaintiff. The appellant/defendant however did not deny
that he had become member of the Chit Group and that he had in fact
taken the prize money of Rs. 3,50,000/-.
4. After the pleadings were complete, issues were framed
and the parties led evidence. These aspects are recorded in paras 4 to 6
of the impugned judgment and these paras read as under:-
"4. On 06.3.2017, on the pleadings of the parties following issues
were framed, namely :-
1. Whether on the date of the institution of the present suit, the
defendant owed Rs. 3,43,140/- to the plaintiff on the account of
principal amount? OPP.
2. Whether on the date of the institution of the present suit, the
defendant also owed Rs. 1,62,526/- to the plaintiff on the account
of interest? OPP.
3. Whether the suit is barred by limitation? OPD.
4. Whether the plaintiff is entitled to any relief, if so, what relief?
5. In support of its claim, the plaintiff got examined its
director Bhanwar Singh Tanwar as PW1, who during his
examination in chief tendered his affidavit Ex. PW1/A alongwith
documents Ex.PW1/1 to Ex. PW1/5. PW1 Bhanwar Singh
Tanwar was cross examined by counsel for the defendant and
thereafter, evidence on behalf of the plaintiff was closed.
6. In support of its defence, the defendant got examined DW1
Atul Arora, who during his examination in chief tendered his
affidavit Ex DW1/A. He was cross examined by counsel
for the plaintiff and thereafter, evidence on behalf of the
defendant was closed."
5. The first issue is as to whether the suit was within
limitation. This issue was issue no. 3 in the impugned judgment.. The
trial court has held this issue against the appellant/defendant by
observing that the last installment was payable in September, 2013,
and the suit which was filed on 19.02.2016 i.e. within a period of three
years from September, 2013 is therefore, within limitation. I do not
find any illegality in the aforesaid reasoning and conclusions of the
trial court because the liability and the cause of action against the
appellant does not arise from the date of the Chit Agreement dated
17.10.2011/Ex.PW1/2 but three years from when the payment became
due. The last installment with respect to the Chit
Agreement/Ex.PW1/2 was to be paid in September, 2013 and
therefore, in my opinion, the trial court has rightly held that the suit
filed on 19.02.2016 is within limitation by observing as under:-
"Re: Issue no. 3.
8. Before taking up other issues, it will be in the interest
of justice to take up the issue no. 3 for discussion. Onus of proof
qua this issue has been on the defendant. It is submitted by counsel
for the defendant that since chit agreement Ex. PW1/2
was entered into between the parties on 17.10.2011, therefore,
the amount in respect of the said agreement became barred by
limitation on 17.10.2014. It is further submitted by counsel for the
defendant that since the claim of the plaintiff is barred by
limitation, therefore, the suit be dismissed under section 3 of
the Limitation Act, 1963. In the light of the evidence
adduced by the parties I do not see any force in this
contention of counsel for the defendant, for as per agreement
Ex.PW1/2, not disputed by the defendant and proved during the
testimony of PW1 Bhanwar Singh Tanwar, last installment of Rs.
20,000/- in respect of Ex. PW1/2 was to be paid in September,
2013. Since, as per agreement Ex. PW1/2 the liability was
to be discharged by the defendant by the month of
September, 2013, therefore, cause of action first time accrued in
September, 2013 and not prior to that. The suit was instituted on
19.02.2016, within three years since September, 2013 and
hence, the suit is within limitation. Issue no. 3 is decided in favour
of the plaintiff and against the defendant."
6. Learned counsel for the appellant/defendant argues
that the suit was barred under Section 64 of the Chit Funds Act
because the parties were to be referred to arbitration, however,
this argument is without any merit because no such defence was
taken in the written statement and no such issue was framed.
Resultantly, there is no such issue which has been decided by the
trial court. Entitlement to arbitration is a waiveable right, and
once no such claim was raised by the appellant/defendant in
written statement or during the pendency of the suit, the suit could
not have been dismissed on account of there existing an arbitration
clause in the Chit Agreement/Ex.PW1/2.
7. I may otherwise note that respondent/plaintiff has proved
its case by examining its witnesses. PW-1 has proved all the relevant
documents as Ex.PW1/1 to Ex.PW1/5. As already stated above,
appellant/defendant did not deny becoming a member of the Chit
Group and also taking the prize money of Rs. 3,50,000/- in February,
2012.
8. Though the learned counsel for the appellant/defendant
finally argued that the appellant/defendant had paid all the amounts
due, however, when asked to show any proof of payment, counsel for
the appellant/defendant conceded that no documentary proof was
available with him. However, it was argued that the
appellant/defendant wanted to summon a witness from the
respondent/plaintiff company who had received the installments but
the prayer was wrongly declined. However, in my opinion, even this
latter argument is without any merit because payment to a Chit Fund
Company will necessarily have to be evidenced by means of relevant
receipts or other documents and mere self-serving oral statements
cannot be believed as proof of payments having been made. Further,
the fact that an employee of the respondent/plaintiff colludes with the
appellant/defendant to state assumingly that the amounts have been
paid, such statements of an employee of alleged payment would
obviously not have been believed, even if the alleged employee would
have stated so.
8. There is no merit in the appeal. Dismissed.
SEPTEMBER 25, 2018/ib VALMIKI J. MEHTA, J
