Delhi District Court
Rca No. 13/06 vs Mr. Sanjeev Gambhir on 12 April, 2007
IN THE COURT OF SH. A.K. PATHAK :ADDITIONAL
DISTRICT AND SESSIONS JUDGE: DELHI
RCA No. 13/06
Canara Bank, a body corporate
incorporated under the banking companies
(acquisition & transfer of undertakings) Act, 1970
having Head Office at J.C. Road, Banglore and
amongst others a branch at Shankar Nagar, Delhi-51.
..... Appellant
Versus
1.Mr. Sanjeev Gambhir
E-8A/16, Krishan Nagar,
Delhi.
2. Mr. Rakesh Kumar Satija
E-8A/16,Krishna Nagar
Delhi.
...Respondents
ORDER
1. Appellant/plaintiff has filed this appeal against the judgment and decree dated 22/4/06 passed by the learned Civil Judge, Delhi whereby an application under Section 11, Order 7 Rule 11 and Order 11 Rule 2 read with Section 151 CPC for rejection/dismissal of the plaint has been allowed and the preliminary issue to the effect that "whether the present suit is barred by Res Juidicata" has also been decided against the appellant and in favour of the 1 respondent/defendant.
2. Briefly stated facts of the case for the disposal of the present appeal are that appellant/plaintiff filed a suit for recovery of Rs.1,19,566/- against the defendant/respondent being suit no. 281/02 which was dismissed by Ms. Sunena Sharma, learned Civil Judge Delhi, vide judgment and decree dated 27/7/04. In the said plaint ( Ex. PW-1/PX) appellant prayed that a decree in the sum of Rs. 1,19,566/- be passed in favour of the plaintiff together with pendente lite and future interest @ 15% per annum compounded quarterely w.e.f. 1/10/02 till the realization of the decreetal amount. In the said suit appellant alleged that the respondent no. 1 on 19/11/97 approached the plaintiff for a loan of Rs. 3,28,000/-. Appellant sanctioned the loan in the name of respondent no. 1. Respondent no. 1 executed various documents including hypothecation deed, letter of undertaking etc., in the year 1997. Respondent no. 2 executed guarantee agreement. Respondents agreed to repay the loan in monthly installments of Rs.9500/- starting w.e.f. December 1997. Installments were not paid regularly. Respondent no. 1 also did not sign acknowledgment of debt before expiry of three year period. Legal notice dated 03/11/2000 was served by the appellant 2 on the defendants but it did not bring any fruitful results. As on 10/11/2000 a sum of Rs.1,19,566/- was payable thus it was prayed that a decree be passed for the aforesaid amount.
3. In the said suit respondent entered appearance and filed written statement. They contested the suit. Following issues were framed by the learned Civil Judge in the said case:-
1. Whether the plaintiff is entitled to the decree of the suit amount as prayed ? OPP
2. Whether the suit of the plaintiff is barred by limitation ? OPD
3. Whether the plaintiff has got no cause of action for filing the present suit ? OPD
4. Whether the suit of the plaintiff is bad for misjoinder and non-joinder of parties ? OPD
5. Whether the present suit has not been filed by duly authorised person ? OPD
6. Whether the plaintiff is entitled to any interest, if so, at what rate ? OPP
7. Relief.
4. Appellant examined Sh. Harsharan, its officer as PW-1. Respondents also led evidence. After hearing the parties learned Civil Judge vide judgment and decree dated 27/7/04 dismissed the suit on the ground that the suit was without any cause of action. No appeal appears to have 3 been filed against the said judgment. Instead appellant filed present suit bearing no. 20/05 on the same grounds and seeking similar relief. In the present suit also it was alleged that appellant had sanctioned loan of Rs.3,28,000/- to the respondents on 19/11/97. Respondent no. 1 executed security documents like hypothecation deed, letter of undertaking etc. Respondent no. 2 executed guarantee agreement. Loan was to be paid in monthly installments of Rs.9500/- w.e.f December 1997, installments were to be deposited in Saving Bank account no. 3141. Respondents failed to make the installments. It was further mentioned that plaintiff had earlier filed a suit for recovery of amount of Rs.1,19,566/- which was due and payable as on 30/9/2000 since respondent no. 1 refused to sign the acknowledgment letter which was dismissed vide judgment and decree dated 27/7/04 for want of cause of action. After dismissal of the suit defendant did not pay any any amount despite notice dated 12/10/04 and 23/10/04 hence the suit. It was alleged that as on 06/3/05 a sum of Rs. 2,69,786.70 P was due and payable.
5. Written statement was filed by the respondents no. 1 and 2 whereby various preliminary objections are taken. It was alleged that loan agreement was dated 4 19/11/97 and the last installment was received by the appellant in the month of December, 2000, thus the suit was barred by time. It was further alleged that since the earlier suit on the same facts was dismissed, the second suit was barred by the principles of Res Juidicata. It was further alleged that suit was barred under the provision of Order II Rule 2 CPC. It was denied that appellant had granted loan of Rs.3,28,000/- to the respondents. It was denied that respondents had executed documents. It was stated that appellant had taken signatures on certain blank documents. It was denied that the suit amount was payable.
6. Learned Civil Judge was of view that the second suit in the same facts and for similar relief was not maintainable. He was also of the view that the present suit was barred by the Res Juidicata.
7. I have heard Mr. V.K. Monga, learned counsel for the appellant, Ms. Gyan Mitra, learned counsel for the respondent and have perused the entire record including trial Court record. It has not been disputed by the learned counsel for the appellant during the course of the arguments that the earlier suit was filed by them which was 5 dismissed by the learned Civil Judge on 27/7/04, however, he has contended that the earlier suit was filed by the appellant since respondent no. 1 had declined to sign the acknowledgment letter. He has further contended that the earlier suit was dismissed for want of cause of action, therefore, the second suit for recovery was very much maintainable. He has further contended that the present suit would not be barred by limitation since the plaintiff was bona fidely pursuing his remedies by filing the earlier suit. He has contended that under Section 14 of the Limitation Act the period during which the earlier suit remained pending has to be excluded for the purpose of limitation for filing the present suit. Accordingly, the present suit is very much within the limitation. He has placed reliance on a judgement rendered by the Hon'ble Apex Court titled as Deputy Collector, Northern Sub-Division Panaji V/s Comunidade Bambolim reported in AIR 1996 SC 148. As against this learned counsel for the respondent has vehemently contended that earlier suit was also sent for recovery and since it was dismissed second suit in same facts and for same relief was not maintainable. Besides that suit was also barred by time as loan was allegedly granted in the year 1997, the last installments was payable in the year 2000 and this present suit was filed in the month 6 of March 2005.
8. I have considered the rival contentions of both the parties in the light of the trial Court record and I do not find any force in the contentions of the learned counsel for the appellant. Admittedly, the present suit was filed beyond the period of limitation. Provision of Section 14 of the Limitation Act would not apply in the peculiar facts of this case. It cannot be said that appellant had been pursing the remedies before a Court which was not having jurisdiction over this matter. Earlier suit was not dismissed on the ground that learned Civil Judge had no jurisdiction to entertain and try the earlier suit for recovery. Earlier suit was maintainable in the Court of learned Civil Judge. Earlier suit was dismissed since the learned Civil Judge was of the view that the suit was filed without any cause of action. Accordingly, I am of the view that provision of Section 14 of the Limitation Act would not be attracted in the present case. Facts involved in Deputy Collector's case judgment cited Supra, are totally different. In the said case counsel appearing for the State was wrongly pursuing the remedy under the Portuguese Code despite the fact that provision of Code of Civil procedure were applicable to the proceedings involved in the said case. In these facts 7 Hon'ble Apex Court came to conclusion that State was bona fidely pursue the remedy in the wrong Court and the benefit of Section 14 of Limitation Act would be available. Besides this, I find that the second suit was filed in the same facts and on same allegations which were the subject matter of the earlier suit. Once the earlier suit was dismissed the subsequent suit in the same set of facts and on same allegations would not maintainable. Accordingly, I am of the view that impugned order does not suffer from any material illegality and irregularity. No other argument advanced nor any other point pressed. In the light of the above discussions, appeal is dismissed. No order as to cost. TCR be sent back along with the copy of this order.
File be consigned to Record Room.
Announced in the open Court on 12/4/07 (A.K. Pathak) Additional District & Sessions Judge:Delhi 8