Delhi District Court
Ram Asra Bhagi vs Indu Mehra on 2 September, 2015
IN THE COURT OF MS. SAVITA RAO, ADDITIONAL DISTRICT
JUDGE01, (WEST), TIS HAZARI COURTS, DELHI
RCA No. : 41/14
Suit No. : 611/10
In the Matter of :
Ram Asra Bhagi
Prop. M/s Aloka Grafika
R/o 149, New Surya Kiran Apartment
65 Patpar Ganj, I.P. Extension, Delhi 92
.........Appellant
Vs.
1. Indu Mehra
W/o Late Sh. Brij Kishore Mehra
And Prop. M/s A.S. Trading Co.
R/o G1, Parwana Vihar, Plot no. 52
Sector - 9, Rohini, Delhi - 85
2. Amit Mehra
S/o Late Sh. Brij Kishore Mehra
And Prop. M/s A.S. Trading Co.
R/o G1, Parwana Vihar, Plot no. 52
Sector - 9, Rohini, Delhi - 85
3. M/s A.S. Trading Company
At 414, Chirla Gate (1st Floor)
Chawri Bazar, Delhi - 110006
RCA No. : 41/2014 1/5
Present address of Amit mehra
JAI MAA Associates
No. 8, A1/61, Club Road
TDI City, Kundli C, Near Sonepat, Haryana
.........Respondent
Date of Institution : 15.10.2012
Date of taking over the charge
in this court : 24.01.2015
Date of Arguments : 26.08.2015
Date of Judgment : 02.09.2015
JUDGMENT
1. This is an appeal filed on behalf of appellant aggrieved by the judgment of Ld. trial court dated 21.08.2012 whereby the suit for recovery filed by the plaintiff/appellant was dismissed.
2. The appellant/plaintiff had based his claim before Ld. trial court on the facts that he during the course of business transactions had advanced a sum of Rs. 30,000/ as security against surety of sales tax number to defendant no.3 through late Sh. Brij Kishore Mehra who was husband of defendant no.1 and Manager of defendant no.3. The said amount was paid vide cheque of Rs. 10,000/ and four Indra Vikas Patra in sum of Rs. 5000/ each. In addition to that, plaintiff also advanced sum of Rs. 10,000/ to late Sh. Brij Kishore Mehra for defendant no.3 and towards repayment of the loan amount, late Sh. Brij Kishore Mehra had issued to plaintiff cheque for Rs. 10,000/ dated 7.7.2004 which on presentation was dishonoured. Said Late RCA No. : 41/2014 2/5 Sh. Brij Kishore Mehra expired on 2.7.2004 and thereafter the demands made by plaintiff from defendants did not yield any result. Hence, plaintiff was constrained to file suit for recovery before Ld. trial court.
3. In written statement filed, it was stated that defendant no.3 was not in existence w.e.f. 29.3.2005 and the sales tax number had already been surrendered by defendant no.1 with sales tax authorities on 29.3.2005. It was also submitted that plaintiff had separate dealings with husband of defendant no.1 and had no dealings with defendants. Issuance of cheque dated 7.7.2004 was also disputed on the ground that said Brij Kishore Mehra expired on 2.7.2004 itself, therefore could not have issued the said cheque.
4. Replication was filed and from the pleadings of parties, Ld. trial court framed seven issues including issue pertaining to limitation. Thereafter defendants did not appear and vide order dated 12.01.2011, defendants were proceeded exparte, whereas plaintiff examined himself as PW1.
5. Sum of Rs. 30,000/ was advanced by plaintiff in the year 1997 and Ld. trial court therefore opined that the plaintiff could not recover the loan granted in the year 1997 by filing suit in the year 2006 i.e. after 9 years of grant of loan. The cheque issued by late Sh. Brij Kishore Mehra dated 7.7.2004 even if considered the due acknowledgment did not extend the period of limitation having not been issued within the period of limitation and accordingly Ld. trial court returned its finding on issue pertaining to limitation against the plaintiff. Ld. trial court did not return any findings on RCA No. : 41/2014 3/5 other issues and for issue no.4 i.e. pertaining to limitation having been decided against the plaintiff, suit of plaintiff being time barred was dismissed.
6. In terms of record, plaintiff had specifically averred the advancement of said amount of Rs. 30,000/ in the year 1997 against the surety/security claim. In terms of Ex. PW1/1, amount of Rs. 30,000/ was given as security refundable against surety of sales tax number. There being no mention of time by which the security amount was refundable , same became refundable as soon as purpose to give the surety was over and in the instant matter as per the evidence brought on record by plaintiff, the said amount was refundable at the time of termination of the business transaction that came to an end at the time of filing sales tax form1 in the year 2005, besides the surrender of sales tax number by defendant no.1 with the sales tax authority on 29.3.2005 and therefore the security amount became refundable to the plaintiff in the year 2005 from which date, the limitation period would be counted and therefore the suit filed in the year 2006 cannot be termed as barred by limitation for the recovery of refundable surety amount of Rs. 30,000/.
7. With respect to the advancement of loan of Rs. 10,000/, the said loan amount was repaid to plaintiff vide cheque dated 7.7.2004 which was dishonoured, though at the same time, it is also on record that said late Sh. Brij Kishore Mehra expired on 2.7.2004 itself. The said cheque if was issued as post dated cheque by late Sh. Brij Kishore Mehra and deposit of the same after his demise whether would entail the liability against his legal heirs for RCA No. : 41/2014 4/5 payment of the same or the said cheque was fraudulently filled up by the plaintiff as alleged by defendants, of course is issue to be discussed separately but as far as the limitation period is concerned, with the dishonour of cheque on 8.7.2004, the suit having been filed in year 2006 is again not barred by limitation. Findings of Ld. trial court on issue of limitation are accordingly set aside and the suit is held to be within the period of limitation. Ld. trial court shall return findings on other issues. Appeal accordingly is allowed and the impugned judgment passed by Ld. trial court is set aside. Appellant is directed to appear before ld. trial court on 9.9.2015. TCR alongwith copy of this order be sent back to the trial court. Appeal file be consigned to record room.
Announced in Open Court
on 02.09.2015 ( SAVITA RAO )
Additional District Judge01(West)/Delhi
RCA No. : 41/2014 5/5