Delhi District Court
Sh. Kishan Chand Behl vs Smt. Praveen Sharma on 16 October, 2021
: IN THE COURT OF :
DR. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS
NEW DELHI
CS no. 448/2019 (506 / 2019)
In the matter of:
Sh. Kishan Chand Behl
S/o Sh. Sohan Lal Bahl,
R/o Flat no. 128, Rashi Apartments,
Plot no. 3, Sector 7, Dwarka,
New Delhi - 110 075
.....Plaintiff
Versus
Smt. Praveen Sharma,
W/o Sh. Jai Dev Kishore Sharma,
R/o RZ F2, Gali no. 4, Mahavir Enclave,
PartI, Sector1, Dwarka,
New Delhi 110 045
Second Address :
RZ D1/191A, First Floor,
Gali no. 5, Mahavir Enclave,
PartI, Sector1, Dwarka
New Delhi 110 045
....Defendant
Appearance:
1. Sh. N.K. Dalal, Advocate Ld counsel for Plaintiff.
2. Sh. N.K. Kaushik, Advocate ld. Counsel for the defendant
CS no. 448/2019 (506/2019)
Kishan Chand Behl v. Praveen Sharma
Page Nos.1 of 16
JUDGMENT
1. Vide this judgment I shall dispose off the application moved by the defendantapplicant under Order VII Rule 11 CPC seeking rejection of plaint.
2. The brief facts relevant for disposal of this application are like this:
i) It is averred that plaintiff was friend of husband of defendant as both of them were working in the Indian Airlines / Air India and in the month of August 2013, the defendant and her husband approached plaintiff and requested for a loan of ₹ 6 lakhs for a period of three years, on the pretext, that the husband of the defendant is carrying on some construction business in her name as well as in the name of her daughter Ms. Himani Sharma which business has good prospect.
ii) It was further averred that plaintiff was persuaded that he will get huge profit as there is a huge benefit in the said construction business, and if plaintiff will handover the said loan amount to defendant then defendant will return the said amount with high returns equivalent to 40% of the said amount, which admittedly is more than the bank interest.
iii) It is averred that plaintiff believing the words of defendant has given an amount of ₹ 6 lakhs to defendant for a period of three CS no. 448/2019 (506/2019) Kishan Chand Behl v. Praveen Sharma Page Nos.2 of 16 years vide cheque no. 233957 dated 21.08.2016 drawn on State Bank of India, Palam colony branch, New Delhi at his residence in the presence of his elder brother Ram Lal and one neighbour Rajneesh Gupta for a period of three years.
iv) It is further averred that after the expiry of the aforesaid three years, the defendant did not come forward to return the said loan amount of ₹6 lakhs to plaintiff and plaintiff repeatedly requested defendant to pay the above said amount along with profits as promised by defendant, however, defendant always avoided plaintiff on one reason or the other.
v) It is further averred that on the persistent demand and request of plaintiff, defendant has only made a party payment of ₹ 1.75 lakhs in cash on 23.11.2016 at the residence of the plaintiff in the presence of said Ram Lal Bahl and defendant further promised to pay the balance amount of 4.25 lakhs shortly.
vi) The plaintiff by adding an amount of ₹ 6500 to the amount of ₹ 1.75 lakhs so returned by the defendant, totalling to an amount of ₹ 1,81,500, deposited in the account of his wife Neelam Bahl with Corporation bank, Palam Branch New Delhi on 24.11.2016. The plaintiff, thereafter, requested and demanded from defendant, the balance amount. However, defendant deliberately did not return the said amount. Therefore, from the above said dishonest act and CS no. 448/2019 (506/2019) Kishan Chand Behl v. Praveen Sharma Page Nos.3 of 16 conduct of the defendant, it is clear that defendant, right from the beginning, had intention to commit a fraud and cheating upon plaintiff and as such defendant firstly deceived plaintiff by dishonestly inducing plaintiff to deliver his hard earned money to her and, thereafter, dishonestly misappropriated the said amount by not returning the same and converting it to her own use.
vii) Thereafter, plaintiff issued a legal notice dated 15.05.2019 to the defendant to return the amount of ₹ 4.25 lakhs along with interest, however, despite service of the said legal notice, defendant failed to comply with the same. The plaintiff has given an amount of ₹ 6 lakhs for a period of three years and, therefore, defendant was liable to return the said amount along with profit immediately after expiry of the said period, but defendant failed to pay the balance payment of 4.5 lakhs, therefore, defendant is liable to pay an amount of ₹ 4.5 lakhs along with interest @ 15% per annum. The defendant is liable to pay an amount of ₹ 4.25 lakhs on account of the balance principal amount and an amount of ₹ 1,61,677 towards interest on balance principal amount calculated at the rate of 15% per annum w.e.f. 24.11.2016 and ₹5,500 towards the legal expenses of the issuance of legal notice and defendant is accordingly liable to pay an amount of ₹ 5,92,177.
3. Defendant was served with summons for settlement of issues and after service defendant has filed the written statement and inter alia contended that plaintiff has pleaded in the plaint that he has CS no. 448/2019 (506/2019) Kishan Chand Behl v. Praveen Sharma Page Nos.4 of 16 given an amount of ₹ 6 lakhs to the defendant for a period of three years through cheque dated 21.08.2013, therefore, the suit filed on 06.06.2019 is barred by limitation.
4. It is further submitted that the plaintiff in para no. 5 of the plaint has averred that after expiry of the aforesaid period of three years, defendant did not come forward to return the amount of ₹ 6 lakhs to plaintiff and defendant has made part payment of ₹ 1.75 lakhs in cash on 23.11.2016 to the plaintiff at his residence. This averment in para no. 5 and 7 of the plaint, regarding payment of Rs. 1.75 lakhs made by defendant to plaintiff cannot be held as an acknowledgment on the part of defendant in as much as the prescribed period of limitation for filing the suit can be extended by way of acknowledgment in view of the provisions of Section 18 of Limitation Act, however, none of the ingredient of the acknowledgment is available to the plaintiff in terms of the alleged cash payment of Rs. 1.75 lakhs by defendant to plaintiff. The mandate of Section 18 of Limitation Act (in short, the Act) is that the acknowledgment must be made before the expiry of the prescribed period of limitation for a suit acknowledging the liability in respect of such property / right and such acknowledgment be made in writing signed by the defendant against whom such property/right is claimed, and only thereafter, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed.
5. It is further submitted that as per sub clause 2 of section 18 of the Act when the writing containing the acknowledgement is CS no. 448/2019 (506/2019) Kishan Chand Behl v. Praveen Sharma Page Nos.5 of 16 undated the oral evidence may be given of the time when it was signed but subject to the provision of The Evidence Act, and oral evidence of its content shall not be received, therefore, there is no acknowledgment, as alleged has been made by defendant so as to save the suit of the plaintiff from being barred by time.
6. It is further submitted that in view of the mandate of Section 18 of the Act the alleged payment of ₹ 1.75 lakhs in cash allegedly made on 23.11.2016 cannot, in any manner, be taken into consideration as acknowledgement of the defendant to pay the balance principal amount in as much as the acknowledgement must be in writing and signed by the debtor. It is further submitted that as per the averment of the plaint the loan was granted through cheque dated 21.08.2013, therefore, the prescribed period of limitation for filing the suit for recovery of the said amount would expire on 20.08.2016, as such, the payment, if any, though not admitted, made by defendant to plaintiff on 23.11.2016 cannot be said to have been made before expiry of the prescribed period of limitation for filing the suit for recovery of suit amount.
7. It is further submitted that neither the alleged payment of ₹1.75 lakhs in cash on 23.11.2016 is made within the prescribed period of limitation for filing the suit for recovery nor there exist any written acknowledgement duly signed by the defendant which may extend the period of limitation for filing the present suit, therefore, the suit is barred by limitation. It is further submitted that plaintiff has CS no. 448/2019 (506/2019) Kishan Chand Behl v. Praveen Sharma Page Nos.6 of 16 averred that there was written agreement between the plaintiff i.e. the agreement dated 21.08.2013 and agreement should have been duly signed by the plaintiff and defendant.
8. The plaintiff has knowingly and deliberately concealed this fact from this court in as much as in the written agreement dated 21.08.2013 as detailed in para no. 2 of the plaint the loan transaction was for a period of three years and plaintiff has failed to disclose the existence of agreement dated 21.08.2013. The malafide intention of the plaintiff is very much clear from the fact that plaintiff has claimed interest for the loan amount whereas the said loan agreement depicts that it was interest free loan only for a period of one year.
9. It is further submitted that plaintiff alongwith his money lender partner has been trying to convert their black money into the white money and for which the modus operandi of plaintiff and his moneylender partner was that they used to keep the account payee cheques for deposit of the same in the account of people and used to take their black money in cash so that their black money may be shown as white money. It is further submitted that the modus operandi of plaintiff and his moneylender partner was that they used to execute an agreement with a person showing the said money as a loan without interest either for one year or two year and innocent people, under the trust and bonafide intention, and under the impression that without paying the interest they has received the amount from plaintiff, were duped by plaintiff and her money lender partner in as much as after CS no. 448/2019 (506/2019) Kishan Chand Behl v. Praveen Sharma Page Nos.7 of 16 execution of the agreement they started exploiting the people and used to charge the high interest from such innocent persons.
10. It is denied that any cheque has been issued by plaintiff in favour of defendant at the residence of plaintiff in the presence of his elder brother Ram Lal Bahl. The above said cheque was handed over to the husband of defendant for converting his black money into white money that is why the agreement dated 21.08.2013 has been executed showing the loan amount as interest free loan. It is submitted that the suit filed by the plaintiff is hopelessly barred by limitation. It is denied that any part payment of ₹ 1.75 lakhs was made in cash by the defendant at the residence of the plaintiff. It is denied that any amount is payable by the plaintiff to the defendant.
11. The plaintiff filed replication to the written statement wherein the contents of the written statement have been denied and the contents of the plaint has been reaffirmed
12. Thereafter the defendant moved the present application under order 7 rule 11 CPC seeking rejection of the plaint reiterating the contents of the written statement, which are not reproduced for the sake of brevity, and interalia it is submitted that the suit filed by the plaintiff is barred by limitation in as much as plaintiff in para No. 2 of the plaint has stated that in August 2013 he has given a sum of ₹ 6 lakhs to the defendant for a period of three years. The suit has been filed on 06.06.2019, therefore, the suit is barred by limitation.
CS no. 448/2019 (506/2019) Kishan Chand Behl v. Praveen Sharma Page Nos.8 of 16
13. It is submitted that the suit is liable to be dismissed and plaint is to be rejected as time barred in as much as the suit amount cannot be recovered by the plaintiff by filing of the present suit for recovery of money. The suit filed by the plaintiff is not covered by Clause (1) and (2) of Section 18 of the Act so as to extend the period of limitation by way of an acknowledgement allegedly made by the defendant. The cheque is dated 21.08.2013 and the period of limitation to file the suit expired on 20.08.2016, therefore, the payment of amount of ₹ 1.75 lakhs allegedly made by defendant on 23.11.2016, though not admitted by defendant, cannot be said to have been made before the expiration of the prescribed period to file a suit for recovery. Therefore, the alleged acknowledgement, which is not in writing is being hit by clause (1) of Section 18 of the Act, therefore, the suit is liable to be dismissed being barred by limitation.
14. Reply to this application has been filed by the plaintiff wherein the contents of the plaint has been reiterated which are not reproduced for the sake of brevity. However, it is submitted that the loan was granted to the defendant in August 2013 for a period of three years and defendant made part payment of ₹ 1.75 lakhs on 30.11.2016 and from the said date, the suit of the plaintiff is well within the period of limitation. The loan of ₹ 6 lakhs was availed by defendant for a period of three years, therefore, there was no cause of action for the plaintiff to demand the said amount from the defendant in between by filing the suit, however, after the expiry of the period of three years, the plaintiff made a request to defendant to pay the suit amount and CS no. 448/2019 (506/2019) Kishan Chand Behl v. Praveen Sharma Page Nos.9 of 16 defendant made a part payment of ₹ 1.75 lakhs on 23.11.2016 and further promised to return the remaining amount. The defendant failed to pay the balance amount and plaintiff served a legal notice within three years to file the present suit for recovery against the defendant.
15. The defendant availed a loan of ₹ 6 lakhs on 21.08.2013 for a period of three years and, thereafter, the defendant made a payment of ₹ 1.75 lakhs on 23.11.2016 to the plaintiff and from the date of last payment so made by the defendant, the benefit of extension of time for filing the suit is available to the plaintiff by virtue of the provisions of Section 18 of the Act. The suit is filed within the prescribed period of limitation and, therefore, this application deserves to be dismissed.
16. Law with regard to rejection of plaint under Order VII Rule 11 CPC is well settled on the grounds disclosed in that provision a plaint can be rejected, and it may be noted that if plaint did not disclose the cause of action or it is barred by any law, it can be rejected under Order VII rule 11 CPC.
17. Before proceeding further this court would like to reproduce settled principles with regard to the consideration of the scope and ambit of the provision under order 7 rule 11 CPC and in case law 'Raghwendra Sharan Singh Vs Ram Prasanna Singh' arising out of SLP (C) no. 20068 of 2013 passed by Hon'ble Supreme Court, it has been held as under :
CS no. 448/2019 (506/2019) Kishan Chand Behl v. Praveen Sharma Page Nos.10 of 16 "XXXXX..........
7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint.
Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage."
18. With the above said principles of law in mind, I would like to advert to the facts of the present case. The case pleaded in the CS no. 448/2019 (506/2019) Kishan Chand Behl v. Praveen Sharma Page Nos.11 of 16 plaint is that plaintiff advanced a loan of Rs. 6 lakhs in August 2013, (in reply to the application for rejection of plaint the date is mentioned as 13.08.2013) for a period of three years to defendant and defendant paid Rs. 1.75 lakhs on 23.11.2016 in cash within the prescribed period of limitation, therefore, the payment of Rs. 1.75 lakhs is an acknowledgment of defendant admitting his liability and counted from that date the suit filed by the plaintiff is within the prescribed period of limitation.
19. It may be relevant to mention here that as per Section 18 of the Act, the acknowledgement must be in writing and it must be unconditional in nature admitting the liability. Though not quoted, reliance is placed upon Michael Hart v. M/s Ninestars Information judgment passed by Hon'ble High Court of Madras in OSA No. 11 of 2013, wherein in para no. 26,27 & 28, it has been observed as under :
"26. In K.Ganapathy Vs. Vidyalingam, AIR 1971 Madras 425, it had been held that a mere acknowledgment of the execution of the promissory note, without anything more, cannot amount to an admission of a subsisting liability so as to give a fresh period of limitation for a suit on a pronote. The acknowledgment of execution of the document in itself will not throw the burden on the executant.
27. In Sampuram Singh Vs. Niranjan Kumar, AIR 1999 SCC 1047, it had been stated that the acknowledgment, if any, has to be made prior to the expiration of the prescribed period for the filing of the suit. If the limitation had already expired the acknowledgment made thereafter would not revive the claim, as it would be hit by the law of limitation.
CS no. 448/2019 (506/2019) Kishan Chand Behl v. Praveen Sharma Page Nos.12 of 16
28. In Raja of Vizianagaram Vs. Official Liquidator, AIR 1952 Madras 136it had been held that an acknowledgment of the liability made after the expiration of the period of limitation cannot give a cause of action for making a claim of a time barred debt.
Acknowledgment can be only of a subsisting liability."
20. Furthermore, though not quoted reliance is placed on Asset Reconstruction Company v. Bishal Jaiswal, judgment passed by Hon'ble Supreme Court in Civil Appeal no. 323 / 2021, where in para no. 8, it has been observed as under :
"8..
XXXX
66. Similarly under Section 18 of the Limitation Act, an acknowledgement of present subsisting liability, made in writing in respect of any right claimed by the opposite party and signed by the party against whom the right is claimed, has the effect of commencing of a fresh period of limitation, from the date on which the acknowledgement is signed. However, the acknowledgement must be made before the period of limitation expires."
12. In an illuminating discussion on the reach of Section 18 of the Limitation Act, including the reach of the Explanation to the said Section, this Court, in Khan Bahadur Shapoor Fredoom Mazda v. Durga Prasad, (1962) 1 SCR 140 ["Shapoor Fredoom Mazda"], after referring to Section 19 of the Limitation Act, 1908, which corresponds to Section 18 of the 1963 Act, held:
"It is thus clear that acknowledgement as prescribed by Section 19 merely renews debt; it does not create a new right of action."
CS no. 448/2019 (506/2019) Kishan Chand Behl v. Praveen Sharma Page Nos.13 of 16
21. It may be relevant to mention here that Hon'ble High Court of Delhi while interpreting the provisions of acknowledgment under Section 18 of the Act in Netrapal Singh v. Ravinder Kumar Kalyanai & Ors., 2019, SCC Online Del 7677, in para no. 9 & 10 has observed as under :
"9. The loan was allegedly advanced by the petitioner to respondent no.1 for Rs.10,00,000/ in cash on 01.08.2013, which was to be paid back by 01.11.2013. The limitation to recover the loan amount in cases where a date for repayment of the loan amount has been stipulated isn't explicitly provided for in the Limitation Act, 1963. In such a case, it would be relevant to refer to Article 113 of the Limitation Act, which is the residuary clause and provides for limitation in cases where no period of limitation has been provided for in the schedule of the Limitation Act. As per Article 113, period of limitation is three years from the date when the right to sue accrues. In the case at hand, the limitation period, therefore, would run from 01.11.2013, the date on which the loan amount became recoverable and the right to sue accrued.
10. The respondents have allegedly agreed to repay the loan on 08.10.2017, which is not in writing. Additionally, the alleged oral assurance is after the expiry of the period of limitation of three years from the date of repayment of loan i.e. 01.11.2013. Therefore, the alleged promise dated 08.10.2017 to make the payment does not fulfill the requirement of Section 18 of the Limitation Act as neither the alleged promise is in writing nor was it made within the period of limitation i.e. 3 years from the date the loan amount became recoverable."
22. It may be noted that as per the plaint, plaintiff has claimed that plaintiff advanced a loan of ₹ 6 lakhs through cheque bearing no. 233957 dated 21.08.2013 for three years, however, there is no written agreement in this regard and cheque is itself a written agreement through which loan of Rs. 6 lakhs is advanced by plaintiff to defendant CS no. 448/2019 (506/2019) Kishan Chand Behl v. Praveen Sharma Page Nos.14 of 16 and as per Article 20 of Schedule 1 of the Act which is reproduced as under :
Description of Period of limitation Time from which suit period begins to run Like suit when the Three years When the cheque is lender has given a paid.
cheque for the money.
The period of limitation for recovery of a loan amount advances through cheque accrues from the date of advancing of the loan by cheque, therefore, the period for filing the suit for recovery is three years as per the above said Article and the three years period for recovery of the said loan expired on 20.08.2016. The plaintiff has further claim that defendant has made part payment of ₹ 1.75 lakhs on 21.11.2016, in cash, which not only satisfies any of the condition of the acknowledgment but also is admittedly beyond the prescribed period of filing of the suit in respect of the loan amount of ₹ 6 lakhs advanced through cheque.
23. Therefore, this alleged acknowledgement on behalf of the defendant is neither falling under the provisions of Section 18 nor under the provisions of section 19 of the Act in as much as there is no acknowledgement in writing admitting the subsisting liability of the defendant to pay the suit amount to the plaintiff. The pleadings of the plaintiff not only lead to conclude that the alleged acknowledgement by CS no. 448/2019 (506/2019) Kishan Chand Behl v. Praveen Sharma Page Nos.15 of 16 way of cash payment of ₹1.5 lakhs by the defendant to plaintiff is neither the acknowledgement of the liability of the suit amount nor the same was made during the prescribed period of limitation.
24. From the above discussion it can be safely concluded that the suit of the plaintiff is hopelessly barred by limitation and the plaint, prima facie appears to be filed beyond the prescribed period of limitation, is liable to be rejected as per the law laid down by the superior courts.
25. In view of the same, the present application under Order VII Rule 11 r/w Section 151 CPC filed on behalf of defendant deserves to be allowed and is accordingly allowed. The plaint stands rejected under Order VII rule 11 CPC.
Decree sheet be prepared accordingly.
File be consigned to record room.
DR Digitally signed
by DR VIJAY
Announced and dictated on
VIJAY KUMAR
DAHIYA
16th Day of October 2021 KUMAR Date:
2021.11.15
DAHIYA 11:46:36 +0530
(V.K. DAHIYA)
ADDL. DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS, NEW DELHI.
CS no. 448/2019 (506/2019)
Kishan Chand Behl v. Praveen Sharma
Page Nos.16 of 16