Delhi High Court
Dcm Financial Services Ltd. vs Sunil Kala & Co. And Anr. on 16 January, 2002
Equivalent citations: 2002IVAD(DELHI)245, [2002]112COMPCAS457(DELHI), 97(2002)DLT700, 2002(64)DRJ267
Author: Sharda Aggarwal
Bench: Sharda Aggarwal
JUDGMENT Sharda Aggarwal, J.
1. This order shall dispose of an application moved by defendants under Order 7 Rule 11 CPC for rejection of plaint. Briefly the facts of the case are that plaintiffs have filed the present suit for recovery of Rs. 44,19,573/- Along with pendente lite and future interest at the rate of 27% per annum. Defendant No. 1 is a proprietorship concern of defendant No. 2. Plaintiffs on the asking of defendant No. 2 provided to defendant No. 1 Inter Corporate Deposit (hereinafter referred to as ICD) loan for a period of 90 days at different times and rates of interest. The first ICD of Rs. 10 lakhs was advanced on 2nd August, 1994 for a period of 90 days with interest at the rate of 24% per annum. This loan was paid back with interest on 1st November, 1994. Another ICD for Rs. 10 lakhs was advanced on 9th November, 1994 for 90 days with interest at the rate of 24% per annum. The third ICD for Rs. 15 lakhs was advanced on 16th November, 1994 for 90 days. On 17th January, 1995, post-dated cheques for Rs. 88,767/- and Rs. 59,175/- towards interest on third and second ICDs respectively were issued by defendants. Two cheques for principal amount were also issued. The cheques for interest were encashed whereas the cheques for the principal amount were dishonoured. At the request of defendants ICDs were rolled over and two demand promissory notes were executed on 7th February, 1995 and 15th February, 1995 for Rs. 15 lakhs and Rs. 10 lakhs respectively with interest at the rate of 24% per annum. The amount of rolled over ICD for Rs. 10 lakhs respectively wit interest at the rate of 24% per annum. The amount of rolled over ICD for Rs. 10 lakhs was paid back wit interest on 9th May, 1995. The other ICD of Rs. 15 lakhs was again rolled over for 90 days with interest at the rate of 25% per annum. A receipt and a demand promissory note in this respect was executed by defendants on 16th May, 1995. Another ICD for Rs. 10 lakhs was advanced to defendants for 90 days with interest at the rate of 25% per annum. A receipt and demand promissory note in this respect were executed on 20th May, 1995. The plaintiffs have averred that as on 17th August, 1995 a sum of Rs. 26,46,712/- was due and outstanding against the defendants. Out of this, a sum of Rs. 10,61,644/- was paid by cheque whereas another sum of Rs. 85,068/- towards interest up to 31st August, 1995 was received by transfer leaving a debit balance of Rs. 15 lakhs. Defendants executed demand promissory note with receipt dated 18th August, 1995 for the debit balance of Rs. 15 lakhs with interest at the rate of 27% per annum for 90 days. On 31st August, 1995, another sum of Rs. 5 lakhs was advanced as ICD to defendants wit interest at the rate of 27% per annum. Thus as on 31st August, 1995, principal amount due against defendants was Rs. 20 lakhs. On 31st August, 1995, defendants executed a receipt and demand promissory note for Rs. 20 lakhs wit interest at the rate of 27% per annum for 90 days i.e. from 31st August, 1995 to 30th November, 1995. The plaintiffs have alleged that when defendants were called upon to meet their liability, they under the cover of their letter dated 4th September, 1995 gave three post-dated cheques i.e. cheque dated 14th November, 1995 for Rs. 99,863/-, dated 4th December, 1995 for Rs. 33,287/- and another cheque dated 4th December, 1995 for Rs. 5 lakhs towards part payment of their liability. According to plaintiffs, defendants requested on or around 13th November, 1995 that cheque of Rs. 99,863/- dated 14th November, 1995 be not presented to the bank as they had not been able to make arrangements for the same. Similar request was received on 3/4th December, 1995 regarding two other cheques. The cheque dated 14th November, 1995 for Rs. 99,863/- was ultimately encashed on 12th December, 1995. The other two cheques, however, were not honoured. The plaintiffs' case is that payment of Rs. 99,863/- by an account payee cheque was a payment in the hands of defendants towards part payment of their admitted liability. As such, the said payment extended the period of limitation.
2. The suit was insituted on 11th December, 1998. Summons of suit were issued to the defendants. The defendants, however, instead of filing the written statement filed replies to the plaintiffs' application bearing IA.No. 99/99 (Order 38 Rules 1 & 2 CPC) and IA.No. 7084/99 (Order 26 Rules 9 CPC) respectively. The defendant also moved an application (IA.No. 11936/99) under Order 7 Rule 11 CPC read with Section 151 CPC and Section 3 of the Limitation Act for rejection of plaint. It is this application which is under consideration.
3. The defendants in their application alleged that on the averments made in the plaint, plaintiffs' suit is barred by law having not been filed within the stipulated period o limitation. It is contended that even in the case of a post-dated cheque, the date of payment would be the earliest date on which the cheque would have been payable i.e. the date of cheque. In the present case, cheque for Rs. 99,863/- was dated 14th November, 1995 and the suit was filed on 11th December, 1998. It is contended that to be within limitation the suit must have been filed by 13th November, 1998. The plaintiffs have contested this application.
4. Admittedly, the defendants have not filed the written statement. For deciding the application under Order 7 Rule 11 CPC for rejection of plaint, the averments made in the plaint are taken to be true. The plaintiffs have claimed that the post-dated cheque dated 14th November, 1995 for Rs. 99,863/- was handed over by defendants to plaintiffs on 4th September, 1995 towards part payment of their liability of Rs. 20 lakhs with interest for which the defendants had executed receipt and demand promissory note on 31st August, 1995. It is alleged that defendants requested on or around 13th November, 1995 that the cheque dated 14th November, 1995 be not presented to the bank as they had not made necessary arrangement for payment. The plaintiffs' case is that it was on the request of defendants that they did not send the cheque to their bankers for clearance and it was ultimately encashed on 12th December, 1995. Since the plaintiffs were stopped from presenting the cheque for encashment, they have claimed that fresh period of limitation accrued to them w.e.f. 12th December, 1995 and they filed the suit within three years from that date on 11th December, 1998. For the exact averments made by the plaintiffs in the plaint, para No. 16 of the amended plaint is reproduced below:
16. That the defendants were called upon to meet their liability. The defendants under the cover of their letter dated 4th September, 1995 gave three post dated cheques, bearing No. 769152 for a sum of Rs. 99,863/- dated 14th November, 1995, 4th December 1995 and 4th December 1995, bearing No. 769153 and 769154 for Rs. 33,287/- and 5,00,000/- respectively.
On or around 13th November, 1995 the defendant requested that the said cheques for Rs. 99,863/- be not presented as they had not been able to make arrangements for the same. Similar request was received around 3rd/4th December, 1995 when the next two cheques became due for encashment. The cheques for Rs 99,863/- received under the cover of letter dated 4th September, 1995 were ultimately encashed on 12th December, 1995 and credited to the account of the defendants on 12th December, 1998. Rest of the cheques was not honoured. The defendants when confronted with this position though admitted their liability and/or the debt due towards the plaintiff, sought indulgence for further time but failed to keep up their commitment despite various promises and undertakings. That the payment of Rs. 99,863/- by account payee cheque was a payment in the hands of the defendants towards part payment of their admitted liability. The said payment consequently extends the limitation.
5. Mr. Sanjeev Sindhwani, learned counsel for the defendants contended that the cheque for Rs. 99863/- was date 14th November, 1995 and that being the earliest date on which plaintiffs could have realised the cheque which they had received as conditional payment on 4th September, 1995, fresh period of limitation should have been counted from that date. Learned counsel has placed reliance on , Jiwan Lal Acharya v.
Rameshwar lal Aggarwal . In the said case, promissory note was executed on 4th February, 1954. On the same date, post-dated cheque dated 25th February, 1954 was given by the appellant to the respondent towards part payment. The cheque was realised some time after 25th February, 1954 and was credited towards part payment. The question for consideration was as to whether fresh period of limitation began on 4th February, 1954 or on 25th February, 1954 which was the date of the cheque. It being a post-dated cheque dated 25th February, 1954 but handed over on 4th February, 1954, it was held that the cheque could not be paid till 25th February, 1954, the date it bore. It was held that as the payment was conditional it would only be good when the cheque is presented on the date it bears. It was held that the earliest date on which the respondent could have realised the cheque, which he had received as conditional payment on 4th February, 1954, was 25th February, 1954 after he had presented it on that date and it had been honoured. It was observed that the fact that it was presented later and was then paid was immaterial. It was the earliest date on which payment could have been made. Under these circumstances, it was held that fresh period of limitation began on 25th February, 1954, the date of the post-dated cheque, which was eventually honoured. Another judgment relied upon by learned counsel for defendants is , Rajesh Kumar v. Prem Chand Jain . In the said case, payment was on account of the debt. Cheque was issued for payment of interest on the principal amount. The cheque was dishonoured. Plaintiff filed suit claiming fresh period of limitation from the date of the cheque, treating the same as acknowledgment under Section 19 of the Limitation Act, 1963. The Trial Court, in the said case, had held that since the cheque was dishonoured, it would not extend the limitation. The High Court in the revision reversed the order of Trial Court and held that whether the cheque was dishonoured or encashed would be immaterial as issuing a cheque itself is an acknowledgment of liability. It was held that even in the case where a cheque was dishonoured, fresh period of limitation would start from the date of cheque. Yet another judgment referred to by learned counsel for defendants is Ashok K. Khurana v.
Steelman Industries and Anr. In this case, the cheque was ante dated. According to plaintiff, the cheque was delivered on 18th March, 1995 though it was dated 11th March, 1995. Whereas according to defendant, the cheque dated 11th March, 1995 was delivered on that date itself. On facts of the said case, the question whether the cheque was delivered on 18th March, 1995 as claimed by plaintiff or on 11th March, 1995 as claimed by the defendant was a question of fact. The question of fact could not be decided without trial. The suit was, therefore, remanded back to the Trial Court as the plaintiff could not be non-suited without trial.
6. Learned counsel for the plaintiffs Mr. A.S. Chandhiok has vehemently contended that the application under Order 7 Rule 11 CPC is not maintainable as the defendants have not yet filed the written statement. It is also contended and rightly so that for the purpose of deciding an application under Order 7 Rule 11 CPC averments made in the plaint are to be taken as true and if that is so, the averment in para No. 16 of the plaint that the cheque dated 14th November, 1995 for Rs. 99863/- was not sent to the bank for clearance at the request of defendants themselves and could be encashed only on 12th December, 1995 has to be taken to be true. Sh. A.S. Chandhiok contends that none of the three judgments relied upon by the defendants is applicable to the facts of the present case. In Jiwan Lal Acharya's case (supra), the cheque was not presented for payment on the date of cheque but was presented subsequently. It was nobody's case that the creditor was prevented from presenting the cheque on the date it bore. In the case in hand the creditor/plaintiff was prevented at the request of the defendant from presenting the cheque on the date it bore, i.e., 14.11.1998. Similarly, the case of Rajesh Kumari (supra) is not applicable on facts to the present case as in the said case the question was as to whether a fresh period of limitation would start from the date of the cheque, even in the event of cheque having been dishonoured on presentation. The learned counsel for the plaintiff further contends that likewise the case of Ashok K. Khurana (supra) does not help the defendant as in that case the cheque was ante-dated when it was allegedly delivered to the creditor. The contention is that none of the cases relied upon by the defendants is applicable to the case in hand on facts. It is contended that the presentation of the cheque in the case in hand was postponed at the request of the defendants and, therefore, the cheque could only be encashed on 12.12.98.
7. I find force in the arguments of the learned counsel for the plaintiff. Though no judgment on such facts has been cited, but prima facie I am of the opinion that if the debtor himself requests the creditor to postpone the presentation of the cheque, which request is accepted by the creditor, it would amount to postponement of the date of payment itself. In my view, prima facie on such facts, a fresh period of limitation for filing the suit has to be counted from 12th December, 1995. Three cases relied upon by the defendants have no applicability to the facts of the present case as in neither of the said cases defendants had requested the plaintiff for not presenting the cheque to his bankers on the date of the cheque. The question as to whether defendants stopped plaintiffs from presenting the cheque to the bankers on the date of the cheque or on any other date prior to 12th December, 1995 is a question of fact and the plaintiffs, at this stage, cannot be non-suited without trial. In case the claim of the plaintiffs is believed to be true that they did not present the cheque to bank prior to 12th December, 1995, on account of the request of the defendants, prima facie in my view it would be the date of encashment of the cheque which would give a fresh period of limitation to the plaintiffs.
8. Learned counsel for the plaintiffs has also contended that the defendants has even acknowledged their liability in their reply to the plaintiffs' application bearing IA. No. 99/99 filed under Order 38 Rules 1 & 2 CPC where they have claimed set off and have contended that in fact nothing in due to plaintiffs. I have perused the application under Order 38 Rules 1 & 2 CPC and the reply of defendants. No doubt the defendants acknowledged the liability of plaintiffs in their reply but that acknowledgement cannot be taken as acknowledgement of their liability as the acknowledgement has to be within the stipulated period of limitation. Reference to AIR 1952 Travancore Cochin 522, Mohd. Lehu v. State of Travancore and Ors. is mis-conceived as in the said case, the alleged acknowledgment by the debtor of his liability was in the pleadings of a previous suit and within the stipulated period of limitation.
9. In any case, as discussed above, the plaintiff cannot be non-suited on the point of limitation at this stage as the question whether the cheque dated 14th November, 1995 was not presented on the same date and was presented on 12th December, 1995 at the request of the defendant is a question of fact which would be determined after the trial of the case. It would not be proper to reject the plaint at this stage. The application is accordingly dismissed.