Delhi District Court
Ritesh Jain vs Himanshu on 1 October, 2022
IN THE COURT OF SH SACHIN JAIN, ADDL. DISTRICT
JUDGE - 02, SOUTH WEST DISTRICT, DWARKA COURTS,
NEW DELHI
CS DJ ADJ No.15424/16
CNR No. DLSW010002852016
IN THE MATTER OF:
Ritesh Jain
R/o A-22, Mount Kailash
New Delhi - 110065 ... Plaintiff
v.
1. M/s NR Resources
B-28, Sector 8,
Dwarka, New Delhi - 110077
2. Mr Neeraj Srivastava
Proprietor
M/s NR Resources
B-28, Sector-8
Dwarka, New Delhi - 110077 ... Defendants
Date of institution of suit: 25.02.2014
Date of judgment reserved: 08.09.2022
Date of pronouncement of judgment: 01.10.2022
JUDGMENT
1. The plaintiff filed the present suit for recovery of ₹ 2,716,110/- against the defendants along with interest @ 24% w.e.f. 01.02.2014 CS DJ ADJ No. 15424/2016 Page No. 1/11 till actual realization Briefly stated it is the case of the plaintiff that defendant No. 2 is the proprietor of defendant No. 1 firm engaged in the business of import, sale and purchase of iron ore and HMS etc. it is further the case of the plaintiff that he entered into a partnership agreement dated 18/08/2010 with defendant No. 2, however, no business was carried by them through the said partnership. It is further the case of the plaintiff that defendant No. 2 wrote an email to the plaintiff on 13/09/2010 requesting him for a short-term friendly loan of ₹ 15 lakh with the assurance to refund the same along with 10% interest within 30 days. A few more emails were exchanged between them and the defendant No. 2 represented and assured the plaintiff that the loan amount shall be repaid preferably within one month or latest by 5 months from 15/09/2010 and on the basis of the representation and assurances of the defendant No. 2, the plaintiff lent a friendly loan of ₹ 15 lakh vide cheque No. 607828 drawn on bank of Baroda, New Delhi which was duly encashed in the HSBC bank current account No. 166175802001 of the defendants on 17/09/2010. It is further the case of the plaintiff that as per the terms of the friendly loan was reduced in writing and an agreement for short-term loan was executed on 07/01/2011 and the defendants also handed over to the plaintiff two post dated cheques, one for ₹ 15 lakh bearing No. 730103 towards the return of principal amount and another cheque of ₹1,50,000/- (Rupees One lakh fifty thousand only) bearing No. 7301042 towards the payment of interest. Both the cheques were dated 31/01/2011 and drawn on HDFC bank Sector 5 Dwarka New Delhi.
CS DJ ADJ No. 15424/2016 Page No. 2/11The factum of handing over the cheques to the plaintiff is also duly mentioned in the agreement apart from the acknowledgement of receipt of ₹ 15 lakh through account payee cheque from the plaintiff.
2. It is further the case of the plaintiff that as the cheques were issued and handed over to the plaintiff by the defendants in discharge of their lawful liability, accordingly the plaintiff presented above the cheques for encashment on 12/02/2011, however both the cheques were returned from the bank for the reason of "Payment stopped by drawer " vide return memo dated 14/02/2011.
3. Thereafter the plaintiff through his counsel issued legal notice dated 24/02/2011 calling upon the defendants to pay the amount of the 2 cheques within 15 days from the receipt of the legal notice. The plaintiff through counsel again issued a revised legal notice dated 16/03/2011 again directing the defendants to repay ₹ 1,650,000/-, both the notices were duly served upon the defendants however the defendants have deliberately with malafide and dishonest intention did not made the payment. It is further the case of the plaintiff that he has already filed a criminal complaint under section 138 of the negotiable instrument act, 1881 against the defendants and the same is pending adjudication before the Ld. MM south-east Delhi. It is further the case of the plaintiff that as per the short-term loan agreement dated 07/01/2011, the defendants have to return the friendly loan within one month but in no case beyond 5 months from 15/09/2010 along with interest at the rate of 24% per annum, therefore as on 31/01/2014 the defendants are liable to pay ₹ 12,16,110/- as interest upon the CS DJ ADJ No. 15424/2016 Page No. 3/11 principal amount of ₹ 15 lakh . On the basis of above the pleadings, the plaintiff is seeking the decree of ₹ 27,16,110/- along with interest at the rate 24% with effect from 01/02/2014 till the date of actual payment against the defendants along with cost of the suit.
4. Summons for settlement of issues were issued to the defendants and they filed the written statement. It is the case of the defendants that the plaintiff and defendant No. 2 were business partners in a firm titled as M/s. Subhav Implex International since 18/04/2010 and as a business partner they decided to lend ₹ 15 lakhs to Mr. Venu Madhu for local transportation of iron ores at Vizag port, however Mr. Madhu never performed his services nor he returned the amount lent to him. It is further the case of the defendants that the proposal has been shown to the plaintiff in September 2010 with the understanding of risk and return on the said ventures. It is further the case of the defendants that defendant No. 2 had assured the plaintiff that the said Mr. Madhu shall return the money in time. It is further the case of the defendants that defendant No. 2 negotiated the matter with Mr. Madhu but the same did not yield results and he has lodged an FIR vide crime No. 0015/2011 under section 420 IPC dated 08/03/2011 PS Ashok Vihar, Hubli ( Karnatka). It is further the case of the defendants that Mr. Venu Madhu assured the defendant No. 2 to make the payment by 28/02/2012 till date no payment has been made by Mr. Madhu.
5. On the basis of the pleadings of the parties, the following issues were framed:
Issue No. 1:- Whether the plaintiff is entitled for the recovery of CS DJ ADJ No. 15424/2016 Page No. 4/11 suit amount as prayed for? ...OPP Issue No. 2:- Whether the plaintiff is entitled for interest? If so, at what rate and for which period? OPP Issue No. 3:- Relief.
6. The plaintiff examine himself as the sole witness and entered the witness box as PW1 on 20/07/2018 and tendered his evidence by way of affidavit as Ex. PW1/1. In his evidence by way of affidavit the plaintiff reiterated the averments made by him in the plaint and therefore, the same are not reproduced herein for the sake of repetition and brevity. The plaintiff relied upon the following documents.
(i) Copy of partnership agreement dated 18.08.2010 Mark A1 (referred in the affidavit as Ex PW1/1)
(ii) Email exchanges between the plaintiff and defendants are Ex PW1/2 (Colly),
(iii) Agreement for short term loan dated 07.01.2011 is Ex PW1/3,
(iv) Certified copy of cheque bearing No. 730103 and 730104 both of dated 31.01.2011 are Ex PW1/4 (Colly),
(v) Certified copy of Bank memo dated 14.02.2011 is Ex PW1/5,
(vi) Certified copy of lagal notice dated 24.02.2011 is Ex PW1/6,
(vii) Certified copy of postal receipts are Ex PW1/7 (Colly)
(viii) Statement of account of the plaintiff in Bank of Baroda dated 15.03.2011 is Ex PW1/8,
(ix) Certificate from Bank of Baroda is Ex PW1/9,
(x) Certified copy of revised legal notice dated 16.03.2011 is Ex PW1/10, CS DJ ADJ No. 15424/2016 Page No. 5/11
(xi) Certified copy of postal receipts dated 16.03.2011 is Ex PW1/11,
(xii) Certified copy of postal acknowledgment are Ex PW1/12 ( Colly), and
(xiii) Certified copy of complaint under Section 138 is Ex PW1/13.
7. Several opportunities were granted to the defendants to cross examine the plaintiff and as the defendants failed to cross examine the plaintiff, as a result the right was closed vide order dated 15/01/2019 and on the same day plaintiff closed evidence and thereafter the matter was fixed for defendants evidence.
8. In order to prove its case, defendant examined two witnesses i.e. Mr Vinay K Singh (DW-1) and Mr Neeraj Singh (DW-2).
9. Mr Vinay K Singh tendered his evidence by way of affidavit as Ex. DW1/A. He was cross examined and discharged.
10. Mr Neeraj Singh, SO from Axis Bank has entered the witness box as DW-2 and deposed that he has brought the summoned record i.e. the account report of account bearing No. 910020041466522 is in the name of Ubhav Impex International maintained with them since 01.11.2020.
11. It is pertinent to mention herein that the chief examination of DW-2 was deferred as the witness has not brought the relevant record. Despite several opportunities granted to the defendant to lead evidence but the defendants have not complied with the same and vide order dated 07.06.2022 right of the defendant to lead DE stands closed.
12. The arguments were addressed by the counsel for the respective parties and the Ld. Counsel for the plaintiff argued that the CS DJ ADJ No. 15424/2016 Page No. 6/11 plaintiff has successfully proved his case by leading cogent and affirmative evidence. He further argued that the defendants in their written statement admitted the short term agreement Ex PW1/3 and the cheques both dated 31.01.2011 issued by them and on the other hand the defendants miserably failed to prove that the agreement was executed and the cheques were issued under pressure as the onus lies upon them to prove the undue pressure. The Ld. Counsel further argued that the defendants have not denied the exchange of emails Ex PW1/2 and therefore, the emails are deemed to be admitted by the defendants which is the basis of entering into the short term loan agreement and issuance of cheques thereof and therefore, he prays for the decree of the suit in favour of the plaintiff.
13. Per contra, the Ld. Counsel for the defendant argued that the loan was advanced to Mr Venu Madhu under the partnership firm formed by the defendant No. 2 with the plaintiff and all the profits and losses have to be shared equally by them. Ld.counsel further argued that the defendant No.2 has already lodged an FIR against the Mr Venu Madhu for committing fraud and therefore, there is no individual liability of defendant No.2 or the proprietorship concerned of the defendant No.2 i.e. defendant No.1 and he prays for the dismissal of the suit.
14. I have heard the rival contentions of the parties and have gone through the pleadings, evidence led and documents annexed.
15. My issue-wise findings are as under:-
16. Issue Nos. 1 and 2 are taken up together being inter connected.
CS DJ ADJ No. 15424/2016 Page No. 7/11Issue No. 1:- Whether the plaintiff is entitled for the recovery of suit amount as prayed for? ...OPP & Issue No. 2:- Whether the plaintiff is entitled for interest? If so, at what rate and for which period? OPP
17. It is the case of the plaintiff that he has advanced the loan to the defendants after the exchange of emails Ex PW1/2. On perusal of the email, it is observed that vide email dated 13.09.2010, the defendant sought an investment of Rs 20 lakhs with the assurance of 10% return on investment within 30 days on the ground that he has an investment opportunity in iron ore local supply at Vizag port through his associate M/s Vadiraj Impex. The offer was made by the defendant through his email id [email protected] to the plaintiff on his email id [email protected]. After series of exchange of mails between them the deal was finalized on 14.09.2010, wherein it is specifically written by the defendant in following words " please prepare the agreement with commodity as iron ore fines 10,000 mts per local sale with Rs 15pmt as net profit to you on investment of Rs 15 lakhs guaranteed by my firm NR Resources. I will come in evening. Thanks and Regards, Neeraj Srivastava".
18. The defendants in the written statement admitted the execution of short term loan agreement dated 07/01/2011 and also the issuance of two cheques, one of Rs. 15 lakh and another of Rs. 15 lakh, both dated 31/01/2011. However it is the case of the defendant No. 2 that the short-term loan agreement was executed and the cheques were given to the plaintiff under undue pressure of the plaintiff. It is further CS DJ ADJ No. 15424/2016 Page No. 8/11 the case of the defendants that the defendant No. 2 had already paid ₹ 3.5 lakh to the plaintiff that is ₹ 1.5 lakh through RTGS and ₹ 2 lakhs through cash. It is the case of the defendants that the business loss and occur had to be shared jointly and separately by the plaintiff and the defendant No. 2 and defendant No. 2 is not solely responsible for the entire business loss. The defendants also admitted the receipt of legal notice alongwith revised notice. On the basis of above contentions the defendants are seeking dismissal of the suit.
19. However, on perusal of the agreement for short term loan Ex PW1/3, it is no where mentioned that the loan was advanced by the plaintiff and the defendant under their partnership business of M/s Subhav Implex International to Mr Veenu Madhu as claimed by the defendant. Further, the plea of undue pressure taken by the defendant in defense of execution of short term agreement and issuance of the cheques of Rs 15 lakhs and Rs 1.5 lakh is not sustainable in absence of any evidence led by the defendant.
20. On the other hand the plaintiff in his evidence duly proved the exchange of emails, agreement for short term loan. The cheque issued by the defendant in the name of the plaintiff, account statement of bank of Baroda and the certificate issued by the Bank of Baroda to the effect that an amount of Rs 15 lakhs was debited from the account of the plaintiff into the account of the defendant vide cheque bearing No. 607828.
21. Therefore, this court is of the view that the plaintiff has succeed in proving his case in the affirmative by preponderance of CS DJ ADJ No. 15424/2016 Page No. 9/11 probabilities.
22. However, it is settled position of law that by virtue of Section 3 of the Limitation Act, 1963, it is the duty of the Court to see whether the case of the plaintiff is within the prescribed period of limitation or not even if the issue of limitation is not raised by the defendant in his defense.
23. In the present case as per the averments in the plaint, the plaintiff presented the cheque bearing No. 730103 of Rs 15 lakhs and cheque bearing No. 730104 of Rs 1.5 lakh both dated 30.10.2011 on 12.02.2011 through his banker i.e. bank of Baroda for encashment and both the cheques were returned for the reasons " payment stopped by the drawer" vide memo dated 14.02.2011.
24. As per Article 35 of the Limitation Act 1963, the period of limitation is 3 years from the date mentioned in the bill of exchange (cheque) and in the present case the date of both the cheques was 31.01.2011 and therefore the suit is maintainable only if the same is filed on or before 31.01.2014. further, the Hon'ble High Court of Delhi in the matter of Ajanta Raj Proteins Pvt Ltd vs. Himanshu Foods Pvt Ltd, RFA 2/2016 decided on 31.01.2018, has extended the scope of Article of 35 of the Limitation Act 1963 and it was held that for the purpose of Article 35 of the Limitation Act 1963, the cause of action arises not on the date mentioned in the cheque but on the date of dishonor of the cheque.
25. By applying the ratio of the above cited judgment, in the present case the cheques were returned vide memo dated 14.02.2011, CS DJ ADJ No. 15424/2016 Page No. 10/11 therefore, the suit is maintainable in case the same is filed within three years from the date of return of the cheques i.e. on or before 14.02.2014, whereas, admittedly, the present suit was filed by the plaintiff before the Hon'ble High Court on original side only on 25.02.2014. Resultantly, the suit is filed with a delay of 11 days from the date of the expiry of period of limitation.
26. It is settled position of law that the delay in filing the suit cannot be condoned by invoking the provisions of Section 5 of the Limitation Act, 1963. Thus, the suit of the plaintiff is barred by the law of Limitation.
Relief:
27. Even though the plaintiff has succeed in proving the issue Nos. 1 and 2 in his favour, however, the suit fails as the same is filed beyond the period of limitation for the reasons discussed above. Accordingly, the suit is hereby dismissed.
28. Decree sheet be drawn up accordingly.
29. File be consigned to record room only after all necessary and due compliance.
SACHIN Digitally signed by
SACHIN JAIN
JAIN Date: 2022.10.01
15:43:51 +0530
Pronounced in the open Court (Sachin Jain )
on 01.10.2022 Addl. District Judge-02
South West District
Dwarka Courts Complex, Delhi
CS DJ ADJ No. 15424/2016 Page No. 11/11