Delhi High Court
Parmod Chuni vs M/S Excel Pack Pvt. Ltd. on 23 August, 2019
$~63
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 23.08.2019
+ C.R.P. 189/2019
PARMOD CHUNI ..... Petitioner
versus
M/S EXCEL PACK PVT. LTD. ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr. Uday Bedi with Mr. Jaitegan Singh, Advocates.
For the Respondent : None.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
CM APPL.37774/2019 (exemption)
Exemption is allowed subject to all just exceptions.
C.R.P. 189/2019 & CM APPL.37772/2019 (stay), CM
APPL.37773/2019 (for condonation of delay)
1. Petitioner impugns order dated 03.04.2019, whereby, the
application of the petitioner under Order VII Rule 11 CPC seeking
rejection of the plaint has been dismissed on the ground that the
question of limitation is a mixed question of facts and law and as such
the plaint cannot be rejected at the threshold.
2. Petitioner was an employee of the respondent and admittedly
had taken an advance. As per the Plaint filed by the respondent, said
amount was to be repaid in instalments of Rs.10,000/- each.
3. In paragraph 7 of the plaint, it is stated that out of the amount of
Rs.3 lakhs, which was advanced, Rs.40,000/- was recovered from the
petitioner in four equal monthly instalments of Rs.10,000/- from July
2012 to October 2012. The balance amount of Rs.2,60,000/- was to
be paid back in 26 instalments of Rs.10,000/- each ending in June
2014.
4. The Suit has been filed in October 2016 within a period of three
years from the date when the last instalment was alleged to be
payable.
5. Learned counsel for the petitioner submits that paragraph 8
contradicts paragraph 7 of the plaint. He submits that in paragraph 8 it
is stated that petitioner left his job on 23.10.2012 and at that time
assured that the entire amount would be paid back in one go by
November-December 2012.
6. Learned counsel for the petitioner submits that there was no
agreement for repayment of the amount in instalments and even
otherwise if it is assumed to be there, the statement made in paragraph
8 negates paragraph 7.
7. Paragraph 7 of the plaint suggests that there was an advance
given to the petitioner, which remained unpaid when he left his job.
As per paragraph 7, the petitioner repaid part of the amount in
instalments of Rs.10,000/- each. Further averment is that the balance
amount was to be paid in 26 instalments ending in June 2014. If these
averments are to be taken as correct then the Suit is clearly within
limitation.
8. The statement of the learned counsel for the petitioner that
paragraph 8 negates paragraph 7 as there is a reference to a
handwritten note of the petitioner stating that the amount would be
paid back by November-December is a disputed question of fact,
which would require evidence to be led by both the parties.
9. The Trial Court, in my view, has correctly held that the plea of
the petitioner with regard to the limitation, in the facts of the present
case, is a mixed question of facts and law and as such, the plaint
cannot be rejected at the threshold and the parties have to be given an
opportunity to lead evidence. By the impugned order, the Trial Court
has permitted the petitioner to take his defence on limitation in the
written statement and has held that the same would be decided at the
stage of final hearing.
10. For deciding an application under Order 7 Rule 11, the plaint
has to be read with a demur. The plea as to whether there was any
agreement to repay the amount in instalments and if so was it novated
by a subsequent agreements are disputed questions of fact requiring
trial.
11. I find no infirmity in the view taken by the Trial Court in the
impugned order dated 03.04.2019. There is no merit in the petition.
12. Petition is, accordingly, dismissed.
AUGUST 23, 2019 SANJEEV SACHDEVA, J
st
