Delhi District Court
Naresh vs Sanjay Kumar on 28 February, 2025
CS SCJ 168/23
SH. NARESH VS. SANJAY KUMAR
IN THE COURT OF SH. ANUBHAV SHARMA, CIVIL
JUDGE-01 (SOUTH) SAKET COURT, NEW DELHI
Civil Suit No :- 168/23
CNR No :- DLST03-000466-2023
SH. NARESH
S/o Sh. Ram Swaroop
R/o 178/84B, Ward No. 2,
Mehrauli,
New Delhi-110030 ......PLAINTIFF
VERSUS
SANJAY KUMAR
S/o Mijaji Lal
R/o H.No. 103, Gali No. 8,
Churiya Mohalla,
Tugalkabad Village,
New Delhi-110044 ......DEFENDANT
SUIT FOR RECOVERY OF RS. 1,35,000/- ALONGWITH
INTEREST
EX-PARTE JUDGMENT:
1.This is a suit for recovery of Rs. 1,35,000/- along with interest @ 12% p.a.
2. It is worthwhile to mention herewith that on 28.02.2025, the Learned Counsel for the plaintiff recorded before this court that the plaintiff is no longer seeking the recovery of Rs. 1.35 lacs. The plaintiff is now only seeking interest on the recovery amount of Rs. 1.35 lacs. He further submitted that the defendant has agreed to pay the recovery amount to the plaintiff, as per the undertaking given by the defendant before the Learned Digitally signed ANUBHAV by ANUBHAV SHARMA Page no. 1 of 10 SHARMA Date: 2025.02.28 16:19:22 +0530 (Anubhav Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 168/23 SH. NARESH VS. SANJAY KUMAR Metropolitan Magistrate (Ld. MM) in the complaint cases bearing CC No. 5794/22 and CC No. 7285/22, dated 28.10.2024.
3. Briefly, the case of plaintiff is that defendant is a family friend of the plaintiff, and their relationship has been ongoing for over 25 years. In June 2017, the defendant approached the plaintiff for a friendly loan of Rs. 1,90,000/- to invest in his business for purchasing machinery and equipment. The defendant assured the plaintiff that the loan would be repaid within six months. After receiving the loan, the defendant began avoiding the plaintiff's calls and failed to make any repayment. Despite repeated requests, the defendant issued a cheque (No. 770519, dated 06.05.2021) for Rs. 1,90,000/- in favour of plaintiff. Upon presentment, the cheque was dishonoured with the remark "Funds Insufficient". The plaintiff contacted the defendant regarding the dishonour, and the defendant requested additional time to make the payment. On 20.07.2021, the plaintiff again presented the same cheque (No. 770519) for payment, but it was returned dishonoured again due to insufficient funds. In September 2021, the defendant came to plaintiff with an affidavit dated 14.09.2021, admitting his liability and agreeing to pay Rs. 2,00,000/- as a final settlement. The defendant issued four post- dated cheques (Nos. 000027, 000028, 000029, and 000030) for Rs. 50,000/- each, dated 25.10.2021, 25.11.2021, 25.12.2021, and 25.01.2022. However, all of these cheques were dishonoured due to insufficient funds. Consequently, the plaintiff sent a legal notice on 04.01.2022. The defendant responded, agreeing to pay Rs. 2.10 lacs through cheques. A Memorandum of Understanding Digitally signed by ANUBHAV ANUBHAV SHARMA SHARMA Date:
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(Anubhav Sharma)
CJ-01/(South) Saket Court/New Delhi CS SCJ 168/23 SH. NARESH VS. SANJAY KUMAR (MOU) was executed between the parties on 28.01.2022, agreeing to the terms of repayment. On 01.03.2022, the defendant made the first payment as per the MOU, but thereafter, failed to make any further payments. The plaintiff presented cheques No. 000082 and 000083 for Rs. 25,000/- each, but these were also dishonoured due to "Funds Insufficient". Despite several requests for payment, the defendant failed to settle the loan. As a result, the plaintiff issued another legal notice on 05.07.2022, but the defendant neither replied nor made the required payment. Subsequently, the plaintiff filed a complaint case (No. CC NI Act 5794/2022). As per the terms of the MOU dated 28.01.2022, the plaintiff again presented cheques Nos. 000084 and 000085 for Rs. 25,000/- each. These cheques were returned dishonoured with the remark "Funds Insufficient". The plaintiff sent a legal notice dated 26.09.2022, but the defendant failed to respond or make any payment. Additionally, the plaintiff presented cheque No. 000086 for Rs. 35,000/- as per the MOU, but it was also dishonoured for "Funds Insufficient". The plaintiff sent a legal notice on 10.10.2022, but there was no response or payment from the defendant. Consequently, the plaintiff filed another complaint case (No. CC NI Act 7285/2022). The complaint case No. CC NI Act 5794/2022 and CC NI Act 7285/22 were settled through mediation. The parties recorded their statements before Ld. MM on 08.02.2023, confirming the settlement. However, the defendant has failed to make any payment as agreed in the settlement and has breached the mediation settlement order dated 20.12.2022. Having left Digitally signed ANUBHAV by ANUBHAV SHARMA Page no. 3 of 10 SHARMA Date: 2025.02.28 16:19:43 +0530 (Anubhav Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 168/23 SH. NARESH VS. SANJAY KUMAR with no other option, present suit was filed seeking following reliefs: -
(i) Pass a decree for an amount of Rs. 1,35,000/- in favour of plaintiff;
(ii) Pass pendente-lite and future interest @ 12% per annum on the amount of Rs. 1,35,000/- in favour of plaintiff;
(iii) Cost of the suit; and
(iv) Any other relief.
4. Defendant was duly served upon the service of summons on 30.03.2023 and through whats app on 17.03.2023 and Ld. Counsel for defendant had appeared on behalf of defendant on 26.04.2023. However, he failed to file his written statement within the statutory time period. Consequently, he was proceeded ex-parte vide order dated 24.05.2023 passed by the Ld. Predecessor of this court.
5. Further, the following issues were framed by Ld. Predecessor of this court vide order dated 17.07.2023: -
1. Whether the plaintiff is entitled for recovery of amount of Rs. 1.35 lacs against the defendant? OPP
2. Whether the plaintiff is entitled to pendente lite and future interest @ 12% p.a. on the above said amount? If yes, at what rate? OPP
3. Relief.
6. In the ex-parte plaintiff evidence, the plaintiff examined himself as PW-1 who tendered his affidavit as Ex. PW1/1 reiterating the contents of the plaint in toto and has relied Digitally signed ANUBHAV by ANUBHAV SHARMA Page no. 4 of 10 SHARMA Date: 2025.02.28 16:19:49 +0530 (Anubhav Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 168/23 SH. NARESH VS. SANJAY KUMAR upon the following documents: -
(i) Ex. PW1/A (OSR) i.e. Copy of aadhar card;
(ii) Mark A (colly) i.e. Copy of CC NI Act/7285/2022;
(iii) Mark B i.e. Copy of order dated 15.12.2022 passed in CC NI Act/5794/2022;
(iv) Ex. PW1/B (OSR) i.e. Copy of Mediation settlement order dated 20.12.2022; and
(v) Mark C i.e. Copy of order dated 08.02.2023 passed in CC NI Act/5794/2022.
7. Further, Mohd. Istikhar, JJA/ Asst. Ahlmad from the court of Ld. MM NI, Act, Digital Court-01, (S) Saket, New Delhi was examined as PW2. He has brought the summoned record i.e. order dated 15.12.2022 and 08.02.2023 passed in Case no. CC NI Act 5794/2022 as Ex. PW2/1 (OSR) and Ex. PW2/2 (OSR). He has also brought the mediation referral order in case no. 5794/2022 as Ex. PW2/3 (OSR).
8. Despite giving opportunity for cross-examination of PW-1 & PW-2, the same was not availed as the defendant remained ex-parte. Thereafter, PE was closed on 01.06.2024 and matter was fixed for final arguments.
9. Final ex-parte arguments were heard on 23.01.2025. This court has meticulously perused the record of the present suit.
10. The burden of prove is upon the plaintiff to establish that plaintiff is now entitled for recovery of Rs. 1.35 lacs along with interest @ 12% p.a. Digitally signed by ANUBHAV ANUBHAV SHARMA SHARMA Date:
2025.02.28 Page no. 5 of 10 16:19:58 +0530 (Anubhav Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 168/23 SH. NARESH VS. SANJAY KUMAR
11. A perusal of all the documents i.e. Copy of CC NI Act/7285/2022 Mark A (colly); Copies of order dated 15.12.2022 and 08.02.2023 passed in Case no. CC NI Act 5794/2022 as Ex. PW2/1 (OSR) and Ex. PW2/2 (OSR) and the mediation referral order in case no. 5794/2022 as Ex. PW2/3 (OSR),
12. It has been clearly established that the defendant borrowed Rs. 1,90,000/- in 2017 and failed to repay. The defendant issued a cheque dated 06.05.2021, which was dishonoured. Subsequently, the defendant admitted his liability and executed MOU by which he expressed his willingness to pay a total of Rs. 2,00,000/- as a final settlement. The defendant issued four cheques of Rs. 50,000/- each, dated 25.10.2021, 25.11.2021, 25.12.2021, and 25.01.2022, but all were returned dishonored for "Funds Insufficient." The plaintiff sent legal notices, and eventually, another Memorandum of Understanding (MOU) was signed on 28.01.2022, wherein the defendant agreed to repay Rs. 2,10,000/- in installments through cheques.
13. However, the defendant paid the first installment but did not honor others terms of the MOU, and after further dishonored cheques, the plaintiff filed a complaint in CC NI Act 5794/2022, which was settled in mediation on 08.02.2023. Despite this, the defendant failed to make the payments in accordance with the mediation settlement order. The plaintiff now claims Rs. 1,35,000/- as the remaining balance.
14. All these documents clearly shows that plaintiff has advanced a friendly loan to the defendant. All the documents are Digitally signed by ANUBHAV ANUBHAV SHARMA SHARMA Date:
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(Anubhav Sharma)
CJ-01/(South) Saket Court/New Delhi CS SCJ 168/23 SH. NARESH VS. SANJAY KUMAR duly proved on the case file which have not been denied or disputed by the defendant and on the contrary defendant has preferred to be proceeded ex-parte. Moreover, defendant also admit his liability upon the plaintiff through mediation settlement. The plaintiff has sufficiently proved his case by way of leading oral as well as documentary evidence and the defendant has failed to rebut the evidence led by the plaintiff. Rather, the defendant did not appear before the Court to deny or challenge the version of the plaintiff which makes it clear that the defendant has nothing to say and they are admitting the claim of the plaintiff as true. There is no iota of evidence on behalf of the defendant and in this scenario the evidence led by the plaintiff goes unrebutted and unchallenged. Moreover, the defendant has not led any evidence when opportunity was given to them.
15. Moving further, the initial loan was advanced in June 2017. The standard limitation period for debt recovery is typically three years, meaning the limitation period likely expired around June 2020. The cheque issued on 06.05.2021, the affidavit dated 14.09.2021, and the MOU dated 28.01.2022 were all executed after the presumed expiration of the limitation period.
16. Section 18 of the Limitation Act, 1963 requires the acknowledgment to be made before the expiration of the limitation period to create a fresh period. Therefore, the acknowledgments provided by the defendant, being made after the expiry of the limitation period, do not create a fresh period of limitation under section 18. Consequently, the Plaintiff's claim is barred as per Section 18 of the Limitation Act, 1963.
Digitally signed by ANUBHAVANUBHAV SHARMA SHARMA Date:
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(Anubhav Sharma)
CJ-01/(South) Saket Court/New Delhi CS SCJ 168/23 SH. NARESH VS. SANJAY KUMAR
17. However, Section 25(3) of the Indian Contract Act, 1872 provides an alternative legal basis for enforcing the debt. This section validates agreements without consideration to pay a time-barred debt, provided the promise is in writing and signed. The defendant's affidavit dated 14.09.2021; MOU dated 28.01.2022 and Mediation settlement Ex. PW2/3 constitute clear written promises to pay a debt that would have been enforceable. These documents satisfy the requirements of Section 25(3), providing an independent legal basis for enforcing the debt, regardless of the limitation issue under Section 18.
18. Further, Ld. Counsel for plaintiff has relied upon the judgment of Hon'ble High Court of Delhi titled as Rajeev Kumar Vs. The State NCT of Delhi & Anr. CRL.LP 212/2021 wherein it has been held that:-
"32. Therefore, a priori the cheque itself becomes a promise made in writing signed by the person to pay wholly or in part debt, which otherwise. may not be payable due to law of limitation. Per section 25(3) of the ICA, this would be an agreement in itself. Section 139 presumption under the NI Act which presumes that the cheque is in discharge in whole or part liability of any debt or liability would therefore, actually come into play. The contrary position of the accused that no debt or liability subsists having extinguished by the law of limitation, would be then unmerited and untenable, since a fresh agreement comes into operation by the tendering of the cheque. By issuing the cheque, the drawer is acknowledging a legally Digitally signed ANUBHAV by ANUBHAV SHARMA SHARMA Date: 2025.02.28 Page no. 8 of 10 16:20:23 +0530 (Anubhav Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 168/23 SH. NARESH VS. SANJAY KUMAR enforceable liability and he ought not be entitled to claim that the debt had become barred by limitation."
19. Therefore, even if the original debt was beyond the limitation period, these written promises revive the debt under Section 25(3) of Indian Contract Act 1872. While the plaintiff's case may be weak under Section 18 of the Limitation Act, 1963 due to the timing of the acknowledgments, however, it is strong under Section 25(3) of the Indian Contract Act, 1872. The defendant's written promises to pay the debt, despite it being potentially time-barred, create a valid and enforceable agreement. Therefore, present suit has been filed by plaintiff within period of limitation.
20. Also, this court has the territorial jurisdiction as the loan was advanced within the jurisdiction of this court as has been established from the admitted contents of the plaint.
21. Thus, considering the entire facts and circumstances of the case, the documents/evidence relied upon by the plaintiff are duly proved through its sole witness, whose testimony is unassailable and there are no reasons to disbelieve the same. The plaintiff has been successful in establishing its case by way of the law of the land under which, the plaintiff has duly discharged its onus to prove its case by way of the standard of proof required in Civil cases i.e. proving its case by way of by preponderance of probabilities. Accordingly, plaintiff has discharged the onus placed upon it by law to prove its case in its favour, as per law.
22. In light of the above discussions, the plaintiff has successfully established his claim. While the limitation period Digitally signed ANUBHAV by ANUBHAV SHARMA SHARMA Date: 2025.02.28 Page no. 9 of 10 16:20:30 +0530 (Anubhav Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 168/23 SH. NARESH VS. SANJAY KUMAR under Section 18 of the Limitation Act presents a challenge, the defendant's written promises to pay a time-barred debt, as per Section 25(2) of the Indian Contract Act, provide a valid and enforceable basis for the decree.
23. Accordingly, the suit of the plaintiff is decreed, and the plaintiff is entitled to recover Rs. 1,35,000/- from the defendant, along with interest at the rate of 7% per annum, as per Section 34 of the Civil Procedure Code (CPC). It is further clarified that the plaintiff, through his counsel, has already stated that he is seeking interest on the amount of Rs. 1,35,000/- by way of present suit and not the recovery of the principal amount i.e Rs.1,35,000/- itself. Therefore, the plaintiff is entitled only to recover the interest amount at the rate of 7% per annum on Rs. 1,35,000/-. This interest will be calculated from the date of filing the present suit until the amount is fully realized.
24. Parties shall bear the cost.
25. Let decree sheet be drawn up accordingly.
26. File be consigned to record room after due compliance.
Digitally signed
Pronounced in open court: ANUBHAV by ANUBHAV
SHARMA
SHARMA Date: 2025.02.28
Dated: 28.02.2025 16:20:36 +0530
(Anubhav Sharma)
CJ-01(South)Saket/ND/28.02.2025
Note:- This Judgment contains ten pages and all the pages have been checked and signed by me.
Digitally signedANUBHAV by ANUBHAV SHARMA SHARMA Date: 2025.02.28 16:20:43 +0530 (Anubhav Sharma) CJ-01(South)Saket/ND/28.02.2025 Digitally signed by ANUBHAV ANUBHAV SHARMA SHARMA Date:
Page no. 10 of 10 2025.02.28
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(Anubhav Sharma)
CJ-01/(South) Saket Court/New Delhi