Delhi District Court
Vikas Gupta S/O Late Satya Prakash Gupta vs Satish Kumar S/O Shri Trilok Chand on 19 September, 2019
IN THE COURT OF SH. M. P. SINGH, ADDITIONAL DISTRICT JUDGE03
(EAST DISTRICT), KARKARDOOM COURTS, DELHI
CS No. 3421/16
In the matter of:
Vikas Gupta s/o Late Satya Prakash Gupta
R/o 281, Second Floor,
Bank Enclave, Delhi - 110092 ......Plaintiff
Versus
Satish Kumar s/o Shri Trilok Chand
R/o G1/A, East Vinod Nagar, Delhi91 ......Defendant
SUIT FOR RECOVERY OF Rs. 10,00,000/ WITH PENDENTE LITE AND
FUTURE INTEREST AND COSTS
Suit instituted on - 28.11.2016
Arguments heard on - 18.09.2019
Judgment pronounced on - 19.09.2019
JUDGMENT
1. Plaintiff's case is as follows. Late Satya Prakash Gupta (plaintiff's father) was the owner of property no. 372, measuring 150 sq. yards in khasra no. 424/283284 situated in New Ashok Nagar, village Chilla, Ilaqa Shahdara, Delhi - 91. Plaintiff's father agreed to sell this property to the defendant. Defendant handed over a cheque of Rs. 10 lacs (Ex. PW1/1) to plaintiff's father as 'part payment for the purchase transaction'. This cheque is dt. 09.09.2013 bearing no. 016945 drawn on Axis Bank, Mayur Vihar Phase - II, Delhi - 110091. This cheque returned dishonoured due to insufficient funds vide bank return memo dt. 12.09.2013. Plaintiff's father then approached the defendant to express his inability to make the payment and requested for some time. He CS No. 3421/16 Vikas Gupta vs. Satish Kumar Page No. 1 of 4 asked plaintiff's father to represent the cheque. The cheque on representation was again dishonoured vide bank return memo dt. 03.12.2013 (Ex. PW1/3). Legal notice dt. 08.12.2013 of plaintiff's father to the defendant was of no avail. Plaintiff's father passed away on 08.03.2014. Plaintiff thereafter filed a criminal complaint under section 138, NI Act on the basis of the aforesaid cheque. Plaintiff avers that defendant owes him Rs. 10 lacs with pendente lite and future interest thereon. On these averments, plaintiff filed the present suit.
2. It is pertinent to mention here that on 27.09.2017 plaintiff had moved an application under Order VI Rule 17 read with section 151, CPC for amendment of the plaint and to add one Satpal Nagar as a codefendant. However, this application was disposed of as withdrawn on 28.04.2018.
3. Defendant Satish Kumar was served by the mode of publication in the daily The Statesman dt. 27.03.2019. The defendant did not appear. He neither filed his written statement. He suffered the proceedings ex parte vide order dt. 22.07.2019.
4. In ex parte plaintiff's evidence, plaintiff (PW1) was the sole witness.
5. I have heard the arguments of Ld. Counsel Sh. Santosh Sarma for the plaintiff. Record perused.
6. Having heard the submissions and perused the record, this Court is of the view that the present suit cannot succeed. Plaintiff's case is that his late father had agreed to sell his property to the defendant and the latter had given the cheque of Rs. 10 lacs (Ex. PW1/1) as 'part payment for the purchase transaction' and which cheque returned dishonoured. The fact of the matter is that it is none of the plaintiff's case that notwithstanding dishonour of the aforesaid cheque, the defendant took the property in question from his father or CS No. 3421/16 Vikas Gupta vs. Satish Kumar Page No. 2 of 4 from him. Thus, it is the view of this Court that there is no legal liability made out qua the cheque in question as against the defendant. There is no doubt a presumption as regards consideration attached to a negotiable instrument in terms of section 118, Negotiable Instruments Act, 1881. However, this presumption is a rebuttable one. Section 118, Negotiable Instruments Act, 1881 itself starts with 'unless the contrary is proved'. In the case at hand, from plaintiff's own case, it is clear that there was no legal liability qua the cheque Ex. PW1/1. Accordingly, the assertions that defendant owes Rs. 10 lacs to the plaintiff is not correct. This aspect can be looked at from another angle. It would be an absurd situation if the plaintiff, who continues to retain the immovable property in question, is also allowed to recover Rs. 10 lacs from the defendant without him parting with ownership/possession of the same. This would in fact amount to unjust enrichment. Besides this, the plaintiff has not averred in his plaint or proved that his father had suffered any loss/damage. Further, this suit, to my mind, is time barred. The suit, filed on 28.11.2016, on the basis of cheque dt. 09.09.2013 (Ex. PW1/1) is clearly time barred. The fact that the cheque on presentation for the second time had returned dishonoured vide cheque return memo dt. 03.12.2013 (Ex. PW1/3) will not suffice to extend the period of limitation. The cheque return memo dt. 03.12.2013 (Ex. PW1/3) is not defendant's 'acknowledgment in writing' that can fall under section 18, Limitation Act. According to section 6 of Negotiable Instruments Act, 1881 a cheque is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand. Article 35 of the Schedule to the Limitation Act stipulates a period of three years to institute a suit on the basis of a bill of exchange and time for the same begins to run from the date on the bill. In the case at hand, the date mentioned on the cheque Ex. PW1/1 is 09.09.2013. In terms of section 12 (1), Limitation Act the limitation to file the suit begun to CS No. 3421/16 Vikas Gupta vs. Satish Kumar Page No. 3 of 4 run on 10.09.2013 and it expired on 09.09.2016. The present suit filed on 28.11.2016 is clearly time barred.
7. Relief : For the aforesaid multiple reasons, this suit cannot succeed. This suit stands dismissed. No order as to costs. Decree sheet be drawn up. File be consigned to record room.
Digitally signed by MURARI PRASAD SINGH MURARI Location: Court No.7, PRASAD Karkardooma ANNOUNCED IN THE OPEN SINGH Courts, Delhi Date: 2019.09.19 COURT ON 19.09.2019 12:52:13 +0530 (MURARI PRASAD SINGH) ADJ03 (EAST) KARKARDOOMA COURTS DELHI/19.09.2019 CS No. 3421/16 Vikas Gupta vs. Satish Kumar Page No. 4 of 4