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2018 Supreme(Del) 1125
IN THE HIGH COURT OF DELHI AT NEW DELHI
PRATHIBA M. SINGH, J.
Raj Kamal Misra – Appellant
Versus
Anil Khanna – Respondent
RFA 119 of 2017 & CM No. 4008 of 2017
Decided On : 23-05-2018
For the Appellant : Mr. Nidhesh Gupta, Mr. Raunak Singh
For the Respondents: Mr. Arun Khosla
The date on a post-dated cheque is relevant for determining the commencement of the limitation period.
Headnote:
Limitation - Civil Procedure - CPC - Sections 18, 19 - Summary
Fact of the Case:
The Plaintiff filed a suit for recovery of a loan given to the Defendant, who claimed the transaction was for the purchase of a watch. The Trial Court rejected the suit as barred by limitation.
Finding of the Court:
The Court analyzed the averments in the plaint and the email correspondence, concluding that the suit was not barred by limitation. The Trial Court's order was set aside, and the suit was remanded for further proceedings and trial.
Issues: Whether the suit was barred by limitation.
Ratio Decidendi: The date of the post-dated cheques and the email correspondence constituted acknowledgment and extended the limitation period. The Court emphasized that the date on a post-dated cheque is relevant for limitation purposes.
Final Decision: The appeal was allowed, and the Trial Court's order was set aside. The suit was remanded for further proceedings and trial.
Prathiba M. Singh, J.
1. The present appeal arises out of the impugned order dated 6th June, 2016, by which the application under Order VII Rule 11 Code of Civil Procedure, 1908 (hereinafter ‘CPC’) has been allowed and the suit filed by the Appellant/Plaintiff (hereinafter ‘Plaintiff’) has been rejected as being barred by limitation.
2. Briefly the case of the Plaintiff is that the Plaintiff and the Respondent/Defendant (hereinafter ‘Defendant’) were on friendly terms for a long time. The Defendant approached the Plaintiff in 2007 for a friendly loan and the following sums were advanced by the Plaintiff to the Defendant.
“i. Rs 2,85,000/- on 4.08.2007
ii. Rs 5,00,000/- on 16.4.2008
iii Rs 5,00,000/- on 14.5.2008
iv. Rs 8,00,000/-on 1.05.2009”
The Defendant sought the loan on the ground that he needed financial assistance for his daughters studies. The interest payable as agreed, was 12% compounded quarterly. The Defendant then executed a promissory note for a sum of Rs.21,62,137/- which was the amount due as on 29th December, 2009. The said amount included the principal and the interest payable till the said date. According to the Plaintiff, since a huge sum was outstanding, an agreement was entered into by the Defendant for deposit of title deeds of a property belonging to the Defendant i.e. farm land at Dadri and a gold wrist watch. The title documents of the farm land were, however, not given to the Plaintiff. At the same time, the Defendant also handed over two post-dated cheques dated 30th September, 2010 and 30th December, 2010 for Rs.10 Lakhs each. The Plaintiff pleads that the Defendant had verbally requested him not to encash the said cheques. Thereafter, the Plaintiff made a demand for repayment of the loan on 27th February, 2013 and email correspondence took place between February, 2013 and April, 2013. The Plaintiff then states that the Defendant, despite repeated demands, failed to repay the loan and suggested to the Plaintiff to accept Rs.10 Lakhs as the total settlement. Under these circumstances, the suit for recovery came to be filed on 21st November, 2015.
3. The case of the Defendant is that the transaction was in relation to the purchase of a watch, which was given by the Defendant to the Plaintiff. It was an expensive Rolex Gold Date-Just President Watch, which was sold by the Defendant to the Plaintiff for Rs. 8 Lakhs. It is thereafter pleaded that the Plaintiff obtained signatures on blank papers on which the mortgage deed and promissory note have been typed out. Insofar as the two cheques are concerned, the Defendant claims that the same were given to the Plaintiff towards purchase of leather jackets. The Defendant then pleads that since the transaction was ‘foggy’ he admitted in an email “in a noble and ethical manner that he would pay Rs.10 Lakhs.” Thus, the Defendant contended that the suit is liable to be dismissed. In fact, it was claimed that the Defendant is liable to recover Rs. 8 Lakhs from the Plaintiff.
4. An application under Order VII Rule 11 CPC was filed by the Defendant, which was heard by the Trial Court and the plaint was rejected on the ground that it is barred by limitation.
5. In the present appeal, learned Senior Counsel for the Plaintiff, Sh.Nidesh Gupta submits that the Trial Court has failed to consider Sections 18 and 19 of the Limitation Act. It is further submitted that the promissory note and the cheque dated 30th December, 2010 would extend the limitation period in favour of the Plaintiff. It is further contended that the cheque dated 30th December, 2010 was a clear admission of debt and the email dated 1st April, 2013 further admits to the payment which is to be made. Since, there is a clear admission even as of April, 2013, by the Defendant, the limitation gets extended to 2016, and the suit was filed within time. He relies on the following judgments:
Sant Lal Mahton v. Kamala Prasad and Ors. AIR (38) 1951 SC 477
Jiwanlal Achariya v. Rameshwarlal Agarwalla AIR 1967 SC 1118
