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DELHI HIGH COURT
V.K. Jain, J.
Hotel Diplomat —Petitioner
versus
Folio Holdings (India) Pvt. Ltd.
and Anr. —Respondents
CS(OS) No. 1012/2005
Decided on 27.08.2012
IMPORTANT POINT
A dishonoured cheque constitutes acknowledgement within meaning of Section 18 of Limitation Act.
Headnote:(A) Negotiable Instruments Act, 1881—Section 138—Civil Procedure Code, 1908—Order 37 Rule 1 read with Order 7 Rule 11—Money suit—Maintainability—Written statement does not indicate why plaint is liable to be rejected under Order 7 Rule 11 ref=act:10444>CPC—Plaint does disclose cause of action to file suit since case of plaintiff is that defendants who were occupying certain rooms in their hotels had not paid balance outstanding amount. (Para 6)
(ii) Civil Procedure Code, 1908—Order 37 Rule 1—Limitation Act, 1963—Section 18—Money suit—Maintainability—A dishonoured cheque constitutes acknowledgement within meaning of Section 18 of Limitation Act—Cheque constitutes acknowledgement and whether it was dishonoured or encased would be immaterial—A post dated cheque is not payable till the date which is shown thereon arrives and will become cheque on said date and prior to that date same remains a Bill of Exchange—Though cheque of Rs 45lakh as also other two cheques were undated when delivered to plaintiff, it was defendant who prevented plaintiff from presenting the same to bank—Suit was filed well within limitation—Suit dismissed. (Paras 14 to 20)
V.K. Jain, J.— This is a suit for recovery of Rs. 49,56,195/-. The case of the plaintiff is that defendant No.2 represented that defendant No. 1 was a company incorporated under Companies Act and she was its Chief Executive Officer in-charge and responsible for day-to-day conduct of its business. In January, 2000, defendant No.2 contacted the plaintiffs to seek some rooms for running her office. She also represented that US $200 million were being transferred as per the order of Folic holding Inc to Citibank, New York for credit to Citibank, N.A., New Delhi and the payment will be made on disbursements of this amount after receipt of payment by Citibank, New Delhi. Accordingly, rooms bearing No. 203, 101, 103, 104, 107, CS(OS) 1012/2005 Page 1 of 12 108, 114, 3 and 5 in Hotel Diplomat were occupied by defendant No.2 for staying there as also for running her office. The bills amounting to Rs. 54,83,521/- were raised by the plaintiff for occupation of the above-referred rooms. The defendant made payment of Rs.11,85,500/-, leaving a balance of
Rs. 42,98,521/-. Believing the representation made by the defendants that US$ 2 million were being transferred to Citibank, N.A., the plaintiff allowed them to vacate the premises without clearing the outstanding dues. Three undated cheques were then issued by defendant No. 2 to the plaintiff and she instructed the plaintiff to present the cheques only after receiving instructions from her. Since no instructions were forthcoming from the defendants, the plaintiff sent a letter to them asking them to make payment of the outstanding amount of Rs 42,98,521/- alongwith interest on that amount. Defendant No. 2 requested the plaintiff to calculate interest only up to 06.09.2001. This amount worked out to
Rs. 6,57,674/-. Out of this amount, Rs. 2,01,479 had been included in the cheque of Rs. 45 lakh and, therefore, the balance interest amount of Rs. 4,56,195/- was included in the remaining two cheques, one of Rs 1,48,851/- and the other of Rs. 3,07,344/- The plaintiff presented three cheques, one of Rs 45,00,000, the other of Rs.1,48,851/ and the last one of Rs 3,07,344/- to Central Bank of India, Parliament Street, New Delhi on 17.09.2002. The cheques, were, however, dishonoured with the remarks “account closed”. The plaintiff is, therefore, now claiming a sum of Rs. 49,56,195/- from the CS (OS) 1012/2005 Page 2 of 12 defendants being the amount of those three cheques.
2. The defendants filed written statement, contesting the suit. It was admitted in the reply that the defendants has acquired, on rent, accommodation in Hotel Diplomat for their business activities. It is alleged that nine rooms in the plaint were occupied by the defendants with effect from 09.02.2000 till November, 2000. It is alleged that the plaintiffs had assured the defendants that they would be giving special tariff, including huge discount and concessions. The payments mentioned in para 8 of the plaint have been admitted in the written statement. It has, however, been denied that the total outstanding for occupation of rooms in Hotel Diplomat was Rs. 54,83,521. It is further alleged that three blank cheques were forwarded to the plaintiff vide letter dated 30.04.2001 and those cheques were made for different purposes as is evident from the letter dated 30.04.2001. It is admitted that defendant No. 2 had instructed the bank to withhold payment of aforesaid three cheques.
3. The defendants have also taken certain preliminary objection. They have alleged that the suit is liable to be dismissed in view of Section 69(2) of Partnership Act as the suit in the name of the firm is not maintainable. The defendants have also denied the authority of Shri V.M. Mathew to file the present suit.
4. The following issues were framed on the pleadings of the parties on 19.01.2010:-
“a. Whether the suit is liable to be rejected under Order 7 Rule 11 CPC? OPD
b. Whether the suit is barred in view of Section 69 of the Indian Partnershi
