Omji Dawai Wala, Partnership Firm vs Shri Deeraj Kumar S/O Shri Ashok ...
2022 Latest Caselaw 3235 Raj/2

     HIGH COURT OF JUDICATURE FOR RAJASTHAN
                 BENCH AT JAIPUR

          S.B. Civil Revision Petition No. 154/2021

1.   Omji Dawai Wala, Partnership Firm, Through Partner And
     Authorized Representative Serial No. 2 To 4, Address
     Purani Halwai Gali Pali Bazar Beawar, District Ajmer (Raj)
2.   Shri Rajesh Jain S/o Late Shri Omprakash Jain, Aged
     About 60 Years, Partner And Authorized Representative,
     Partnership Business-Omji Dawai-Wala, Address Purani
     Halwai Gali, Pali Bazar, Beawar, District Ajmer (Raj.)
3.   Shri Kamal Jain S/o Late Shri Omprakash Jain, Aged
     About 58 Years, Partner And Authorized Representative,
     Partnership Business-Omji Dawai-Wala, Address Purani
     Halwai Gali, Pali Bazar, Beawar, District Ajmer (Raj.)
4.   Smt Rajkumari Alias Rajul W/o Shri Rajesh Jain, Aged
     About 58 Years, Partner And Authorized Representative,
     Partnership Business-Omji Dawai-Wala, Address Purani
     Halwai Gali, Pali Bazar, Beawar, District Ajmer (Raj.)
                                                               ----Petitioners
                                Versus
1.   Shri Deeraj Kumar S/o Shri Ashok Kumar Borundiya,
     Aged About 25 Years, 16, Munot Nagar Barhamanand
     Marg, Beawar, District Ajmer (Raj.)
2.   Shri Rajat Kumar S/o Ashok Kumar Borundiya, Aged
     About 21 Years, 16, Munot Nagar Barhamanand Marg,
     Beawar, District Ajmer (Raj.)
3.   State Of Rajasthan Through District Collector, Ajmer
4.   Sub Registrar, Beawar, Tehsil Parisar, Beawar.
                                                             ----Respondents

Connected With S.B. Civil Revision Petition No. 153/2021

1. Omji Dawai Wala, Partnership Firm, Through Partner And Authorized Representative Serial No. 2 To 4, Address Purani Halwai Gali Pali Bazar Beawar, District Ajmer (Raj)

2. Shri Rajesh Jain S/o Late Shri Omprakash Jain, Aged About 60 Years, Partner And Authorized Representative, Partnership Business-Omji Dawai-Wala, Address Purani Halwai Gali, Pali Bazar, Beawar, District Ajmer (Raj.)

(2 of 8) [CR-154/2021]

3. Shri Kamal Jain S/o Late Shri Omprakash Jain, Aged About 58 Years, Partner And Authorized Representative, Partnership Business-Omji Dawai-Wala, Address Purani Halwai Gali, Pali Bazar, Beawar, District Ajmer (Raj.)

4. Smt Rajkumari Alias Rajul W/o Shri Rajesh Jain, Aged About 58 Years, Partner And Authorized Representative, Partnership Business-Omji Dawai-Wala, Address Purani Halwai Gali, Pali Bazar, Beawar, District Ajmer (Raj.)

----Petitioners Versus

1. Smt. Meena Mehta W/o Shri Rikhab Chand Mehta, Aged About 43 Years, R/o 4-1-6/b/4, Bogal Kunta, Ramkoti, Navata Transport, Nampali, Hyderabad G.p.o Hyderabad, (Andhra Pradesh)- 500001

2. Shri Ashok Kumar Borundiya S/o Shri Prem Chand Borundiya, R/o In Front Of Gurjar Gaur Chhatrawas, Munot Nagar Barhamanand Marg, Out Of Mewari Gate, Beawar, District Ajmer (Raj.)

3. State Of Rajasthan Through District Collector, Ajmer

4. Sub Registrar, Beawar, Tehsil Parisar, Beawar.

                                                                 ----Respondents


For Petitioner(s)         :     Mr. Mod. Ashfaq Khan
                                Ms. Rekha Jain
For Respondent(s)         :     Mr. Manoj Bhardwaj
                                Mr. Anil Kumar Upman
                                Mr. Dinesh Kumar Garg



            HON'BLE MR. JUSTICE SUDESH BANSAL

                                     Order

22/04/2022

In both the revision petitions, the petitioners are same and

have raised a common issue that the civil suits for recovery of

money filed by the respondent-plaintiffs are barred by law of

limitation, hence, both petitions heard together and being decided

by this common order. The petitioners moved separate

(3 of 8) [CR-154/2021]

applications under Order 7 Rule 11 (d) of CPC before the trial

court in both suits and the trial court has dismissed their

application vide order dated 25.06.2021 passed separately in both

suits. Hence, petitioners have filed these two revision petitions,

assailing the order dated 25.06.2021 invoking of scope of Section

115 of the Code of Civil Procedure.

Petitioners have placed on record copy of the amended plaint

and receipts acknowledging the deposition of amount by the

plaintiffs in the petitioner-firm, which are referred in the plaint.

On perusal of plaint, it transpires that plaintiffs have instituted

civil suit for recovery of money of Rs. 16,43,050/- and 8,87,167/-

as also claiming interest thereupon from the defendants jointly

and severely. Defendant No. 1 is a partnership firm and

defendant Nos 2 to 4 have been alleged to be its partners, who

are petitioners here in these revision petitions. Respondent-

plaintiffs have averred in their plaint that partner of firm, Mr.

Rajesh Jain, Defendant No. 2 offered and assured the plaintiff that

if they will deposit money in defendant-firm, amount would remain

safe and interest would be paid on the deposited amount. On

such assurance, plaintiffs deposited money before the defendant-

firm, for which, written receipts acknowledging the deposited

amount were issued by and on before the firm to the plaintiffs.

Time to time interest was also paid by the defendant and entry of

of such payments were made on the flip side of the receipts.

According to the pleadings of plaint, the plaintiffs deposited money

and defendants paid interest, during the period 2013 to 2015, the

specific dates are maintained in plaint. It is averred in the plaint

that plaintiffs demanded their deposited money and due interest,

vide notice dated 10.08.2020 but defendants despite demand, did

(4 of 8) [CR-154/2021]

not repaid their deposit money and interest, hence the civil suits

for recovery of money have been instituted on 15.04.2021,

amended plaint filed on 14.06.2021. It has been specifically

averred that the plaintiff had deposited their money with the

defendants as a deposit and defendant-firm had issued receipts,

acknowledging the deposition of money. The plaintiff put demand

from the defendants to refund their deposited money, first time

vide notice dated 10.08.2020, hence the civil suits for recovery of

their deposited money with interest, filed on 15.04.2021 is well

within limitation. No reference of any specific provision of

Limitation Act has been made in the plaint.

Learned counsel for the petitioners have made a submission

that by perusal of the pleadings of plaint as a whole, it stands

clear that the respondent-plaintiffs have pleaded that they

deposited money in different installments time to time before the

petitioner-defendants-firm and deposit receipts were issued in

their favour by the petitioner-firm. In the plaint, deposition have

been alleged for the period 2013 to 2015 on various dates. It has

also been pleaded that some interest was also paid by the

petitioner-firm to the plaintiffs on their deposited amount, which

has also been alleged in year 2015 but the civil suits for recovery

of deposited money, have been instituted after expiry of three

years on 15.04.2021, amended suits filed on 14.06.2021.

Learned counsel for the petitioners submit that in the plaint,

plaintiffs have alleged that they demand to refund their deposited

amount with interest by way of issuing a legal notice dated

10.08.2020. The legal notice was served on the defendants on

next date 11.08.2020, hence, the plaintiffs alleged to accrue the

(5 of 8) [CR-154/2021]

cause of action from the date of demand and alleged to file the

present civil suit within limitation of three years.

Learned counsel for the petitioners have drawn attention of

this court to the relevant provisions of the Limitation Act, 1963,

relating to the suits for recovery of money. Learned counsel for

the petitioners has placed reliance on Article 22 and Article 23, in

first schedule of the Limitation Act, 1963 which reads as under:-

Description of suit Period of limitation Time from which period begins to run

22.For money deposited under Three years When the demand is made an agreement that it shall be payable on demand, including money of a customer in the hands of his banker so payable.

23. For money payable to the Three years When the money is paid plaintiff for money paid for the defendant.

Learned counsel for the petitioners have argued that

although plaintiffs have pleaded in the plaint to deposit the

amount and issuance of receipt by the petitioner-defendants-firm

but nowhere have pleaded that they deposited the money under

an agreement that the deposited money shall be payable on

demand, therefore, on bare perusal of the pleadings of plaint, the

recovery suit filed by the respondents attracts Article 23 and do

not fall within scope of Article 22. As per Article 23, the limitation

of three years starts from the date when the money is paid. He

submits that since the plaintiffs have neither pleaded nor referred

about any agreement, hence, they are not entitled to take resort

to the Article 22 which provides that the limitation would begin to

run from the date when the demand is made.

(6 of 8) [CR-154/2021]

Learned counsel for the petitioners have placed reliance on

the judgment of the Hon'ble Supreme Court in the case of

Raghwendra Sharan Singh Vs. Ram Prasanna Singh (dead)

by Lrs. [AIR 2019 SC 1430].

Per contra, counsel appearing for the respondent-plaintiffs

have argued that as per the pleadings of plaint, their civil suits for

recovery of money is well within limitation and are not liable to be

rejected under Order 7 Rule 11 (d) of CPC treating their civil suits

as barred by law of limitation.

Learned counsel for respondent-plaintiffs have contended

that the trial court rightly dismissed the application of petitioners

and the impugned order dated 25.06.2021 does not call for

interference within scope of Section 115 of CPC.

Heard learned counsel for both parties, perused the

impugned orders as well as the plaint and the deposition receipts

referred in the plaint.

At the outset, it may be noted that the trial court while

dismissing the application under Order 7 rule 11 (d) of CPC filed

by the petitioners has observed that in the present civil suit, the

issue of limitation is a mixed question of fact and law, hence,

same can be considered and decided after framing of an issue and

recording of evidence of both parties. The trial court has granted

liberty to the petitioners to raise the objections of limitation in

their written statements.

On perusal of the order impugned, it appears that the

defendant raised an arguments before the trial court that the

money paid by the plaintiffs was in the form of loan and not a

deposited money, so limitation begins from the date when interest

amount becomes outstanding. The trial court observed that by

(7 of 8) [CR-154/2021]

the pleadings of plaint, at this stage it cannot be determined that

amount paid by the plaintiff was either as loan or as deposits.

Firstly, this court does not find any material illegality/irregularity

or jurisdictional error on the part of the trial court in deciding the

application of the petitioners in the manner mentioned

hereinabove. Secondly, this court on careful and meaningful

reading of the pleadings of plaint and the contents of deposition

receipts as a whole, prima facie of the view that at this stage it is

difficult to infer and record findings that the plaintiffs case do not

attract the provision of Article 22 of the Limitation Act mentioned

hereinabove.

In the schedule, appended within Limitation Act, 1963, part-

II deals with the suits relating to contracts. In this Part-II, there

are several Articles which prescribes a period of limitation of three

years for civil suits for recovery of money but it depends on the

description and nature of suit that since which date, the period of

limitation of three years would begin.

On perusal of the pleadings of plaint at hand, at the pre-trial

stage, it would be unjust to categorize the civil suits for recovery

of money filed by respondent-plaintiffs to fall specifically within

scope of Article 23 only. Moreso when there is no such reference

in the pleading of plaint. The petitioners too have taken different

stand before the trial court and this court. The points raised by

the counsel for the defendants, before the trial court and before

this court, can properly be examined during the course of trial

after recording evidence of both the parties. Thus, in the opinion

of this court, it would be in the interest of justice, that the issue of

limitation be considered and decided by the trial court after

framing of an issue and recording of evidence of the parties. It is

(8 of 8) [CR-154/2021]

made clear that the dismissal of revision petitions would not be

treated as rejection of the objection of defendants regarding the

civil suits for recovery of money being barred by limitation.

No other arguments except discussed hereinabove have been

raised before this court.

As far as the principle of law expounded by the Hon'ble

Supreme Court in the case of Raghwendra Sharan Singh (supra)

there is no disagreement to preposition of law, however, the facts

of that case was entirely different.

In that case, a registered instrument of gift deed was put to

challenge after the statutory limitation prescribed under Article 59

of the Limitation Act which was an undisputed fact from the

pleadings of plaint, hence, the plaint was rejected being barred by

law of limitation. Such facts are not available in the present case

as much as the nature of civil suits is also different. Hence, the

preposition of law expounded in the case of Raghwendra Sharan

Singh (supra) do not apply to the present case.

With the aforesaid observations, this court is not inclined to

interfere with the impugned order dated 25.06.2021 and

accordingly, both revision petitions are dismissed. All pending

applications also stand dismissed.

A copy of this order be placed in each of the file.

(SUDESH BANSAL),J

Pooja /58-59

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