Delhi District Court
Upender Kumar vs Bakoli on 22 February, 2024
IN THE COURT OF ANURAG THAKUR
JSCC-ASCJ-GUARDIAN JUDGE, NORTH-EAST,
KARKARDOOMA COURTS, DELHI.
SUIT No.:-243/2018
CNR No.:-DLNE03-000401-2018
IN THE MATTER OF:-
Upender Kumar s/o Sh. Rampal Singh,
R/o D-563, Gokalpur Village, Delhi-110094. .....Plaintiff
Versus
Bakoli s/o Late Ram Lal,
R/o H. No. B-174,
Ambedker Vihar Johripur,
Delhi-110094.
Also at:- Delhi Development Authority,
C.A.U (East Zone) DDA,
ElD-1 Branch, Vikas Minar,
Indraprastha Estate, New Delhi. ...Defendant
SUMMARY SUIT FOR RECOVERY OF Rs.1,40,000/-
Date of Institution: 10.05.2018
Date on which Judgment was reserved: 24.01.2024
Date of judgment: 22.02.2024
JUDGMENT
By way of present judgment, this court shall adjudicate upon summary suit under Order XXXVII the Code of Civil Procedure, 1908 (in short 'CPC') filed by the plaintiff against the defendant for recovery of Rs.1,40,000/- (Rupees One Lakh Forty Thousand Only) alongwith pendente-lite and future interest till the date of payment.
CASE OF THE PLAINTIFF AS PER PLAINT Succinctly, the necessary facts for adjudication of the suit CS No:243/18 Upender Kumar v. Bakoli 1 of 9 as stated in the plaint are as under:-
(i) Plaintiff is a Doctor by profession and the defendant works with DDA. Defendant was known to the plaintiff for a number of years and they had friendly relations. In January 2014, defendant requested the plaintiff for monetary help and considering the old relations with the defendant, the plaintiff gave a friendly loan of Rs.1,40,000/- to the defendant which the defendant promised to repay timely. In June, 2014, plaintiff demanded back the money advanced. The defendant issued cheque bearing no. 050053 dated 18.08.2014 for a sum of Rs.1,40,000/- drawn on State Bank of India, in favour of the plaintiff.
(ii) Plaintiff presented the cheque through his banker Oriental Bank of Commerce for encashment. The cheuqe was returned unpaid alongwith a cheque return memo dated 03.09.2014 for reason 'Funds Insufficient'. The defendant was informed about the dishonour of cheque but the defendant sought time to clear his liability. Eventually, the defendant refused to pay the amount of Rs.1,40,000/-.
(iii) Finding no other recourse, the plaintiff issued a demand notice dated 16.09.2014 through his counsel to the defendant asking him to make payment of the cheque amount within a period of 15 days from the receipt of notice. Despite service of notice, the same remained unheeded. Plaintiff averred that the intention of the defendant turned dishonest and he does not wish to repay the friendly loan availed from the plaintiff. Hence, this suit for recovery.
SUMMARY SUIT PROCEEDINGS The summons of the suit were sent to the defendant in CS No:243/18 Upender Kumar v. Bakoli 2 of 9 Form No. 4 in Appendix B as prescribed in Rule 2(2) of Order XXXVII CPC. The defendant entered appearance in terms of O XXXVII rule 3 CPC. Application in terms of O XXXVII rule 3(4) CPC was moved by plaintiff for issuance of summons for judgment to be served upon the defendant. The application was allowed and the summons for judgment in Form No. 4A in Appendix B were issued. The defendant filed an application O XXXVII rule 3(5) CPC seeking leave to defend the suit. Vide an order dated 30.03.2019 conditional leave to defend was granted to the defendant wherein he was directed to pay Rs.20,000/- to the plaintiff on the next date of hearing i.e. 06.05.2019. But the condition was not fulfilled and payment was not made, therefore, the defendant was not allowed to defend the suit. Thereafter, submissions of the plaintiff were heard on 24.01.2024 and the case was listed for judgment in terms of rule 3(6) of O XXXVII CPC.
FINDING & CONCLUSION This suit for recovery of money was filed on 10.05.2018. The friendly loan advanced by the plaintiff was payable on demand and a demand for repayment was made in June, 2014. Accordingly, the defendant issued cheque dated 18.08.2014 for repayment which upon presentation by plaintiff was dishonoured. The cheque return memo was received by the plaintiff who thereafter sent a legal notice dated 16.09.2014 to the defendant through registered post asking the defendant to make payment within 15 days of the receipt of the notice. Assuming that the notice was served within 3 days ( See Rail India Technical and Economic Service v. I.M.Puri, 2000 III AD (Delhi) 645) still the CS No:243/18 Upender Kumar v. Bakoli 3 of 9 defendant ought to have made payment by 04.10.2014. The prescribed period of limitation for recovery of frinedly loan is three years from the date of advancing such loan. Even if the cheque given by the defendant is treated as acknowledgement of debt in terms of section 18 of the Limitation Act, 1963 (in short 'Limitation Act'), still the suit is hopelessly time barred. Even computing the period of limitation from the end of time allowed in the demand notice i.e. from 06.10.2014 (excluding the first day of limitation i.e. 05.10.2014) the complaint ought to have been filed by 05.10.2017. Hence, there is at least a delay of 7 months and 5 days in filing the suit. The delay is even more, if counted from earlier dates.
An application seeking condonation of delay was filed by the plaintiff under order IX Rule 4 CPC read with section 5 of the Limitation Act. No notice of this application was given to the defendant. Even the order dated 11.05.2018 whereby summons of the summary suit in prescribed manner were ordered to be issued to the defendant makes no mention of this application at all. In the case of Balraj Taneja & Anr. v. Sunil Madan & Anr (1999) 8 SCC 396; the apex court held that a court, at no stage, can act blindly or mechanically.
Neither Order IX Rule 4 CPC nor Section 5 of the Limitation Act contains any provision to condone the delay in filing a suit. At this juncture, it is apposite to refer to the judgment of Gujarat High Court in the case of Jamnagar Municipal Corporation v. Vijay And Co. (1994) 2 GLR 1773; wherein it observed as follows:
4. Section 3 of the Limitation Act, 1963 clearly provides that subject to the provisions contained in Sections 4 to 24 (inclusive) every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although CS No:243/18 Upender Kumar v. Bakoli 4 of 9 limitation has not been set up as a defence. In this case, the last and final bill was made on 22-1-1981 by the plaintiff contractor and admittedly the suit was filed on 14-11-1986. It was a money suit and, therefore, the period of limitation was three years and admittedly the day on which the suit was filed, the period of limitation had expired long back. Thus, the suit was admittedly filed beyond the period of limitation. It is surprising to note that in this case Application No. 100 of 1985 (Ex. 20) was submitted on behalf of the contractor after filing of the suit for condoning the delay in filing the suit, which was granted by the learned trial Judge on 30-11-1986 by an order Ex. 25. Relying upon this fact, Mr. Kakkad vehemently submitted that though the appellant-
Corporation was given notice before condoning the delay in filing the suit, the Corporation did not object to it and allowed that application to be granted against it. Not only that the Corporation accepted that order of condoning the delay in filing the suit as it was not challenged before this Court or any other higher forum. He, therefore, submitted that now it is not open to the Corporation to urge in this appeal that the suit of the plaintiff was time-barred and therefore, it should have been dismissed by the trial Court. There is no substance in this submission. If, the suit was time- barred, it remained time-barred. There is no provision at all in the Limitation Act for condoning delay in filing the suit. Under Section 3 of the Limitation Act, any suit which is filed after the period of limitation has to be dismissed irrespective of the fact whether the plea of limitation is taken as a defence or not. If the suit was time-barred then there is no question of condoning any delay, No Court would have jurisdiction to entertain such a suit on merits and decree the same. If such a suit is decreed, then the judgment and decree passed by the Court is required to be set aside.
The court is duty bound under section 3 of the Limitation Act to dismiss a suit filed beyond the prescribed period of limitation and it can not condone the delay in filing the suit. In the case of Popat and Kotecha Property v. State Bank of India Staff Association AIRONLINE 2005 SC 1032; the apex court explained the principle(s) behind framing the Limitation Act in following words:-
The period of limitation is founded on public policy, its aim being to secure the quiet of the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. The statute i.e. Limitation Act is founded on the most salutary principle of general and public policy and incorporates a principle of great benefit to the community. It has, with great propriety, been termed a statute of repose, peace and justice. The statute discourages litigation by burying in one common receptacle all the accumulations of past times which are unexplained and have not from lapse of time become inexplicable. It has been said by John Voet, with singular felicity, that controversies are limited to a fixed period of time, lest CS No:243/18 Upender Kumar v. Bakoli 5 of 9 they should be immortal while men are mortal. ( Also See France B. Martins v. Mafalda Maria (1996 (6) SCC 627).
Bar of limitation does not obstruct the execution. It bars the remedy. (See V. Subba Rao and Ors. v. Secretary to Govt. Panchayat Raj and Rural Development, Govt. of A.P. and Ors. (1996 (7) SCC 626.) Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So, a life- span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae ut sit finis litium (it is for the general welfare that a period be put to litigation). The idea is that every legal remedy must be kept alive for legislatively fixed period of time. (See N. Balakrishanan v. M. Krishna Murthy (1998 (7) SCC 123).
Order VII Rule 6 CPC is the only provision under which the plaintiff could have made a prayer for entertaining a time barred suit. As regards Order VII Rule 6 CPC the Punjab Haryana High Court in case of Surinder Pal v. Surinder Pal MANU/PH/1076/2015; held as under:
The judicial statement on the law attaching to Order 7 Rule 6 is found succinctly stated in a Full Bench decision of 5 Hon'ble Judges of the Allahabad High Court in re: B.Udeypal Singh v. Lakshmi Chand; AIR 1935 Allahabad 946 and it would suffice to reproduce para. 5 and 31 without any superfluous comment, which in the reported text read as under: -
"5. And then following Ram Prasad's case held that the suit was barred by time. I can only interpret this observation of the learned Judge as meaning that he accepts the fact that ` 50/- were paid, but he rejects the case put forward by the plaintiff, viz., that the amount was paid towards interest as such and that being so, the question arises as to the nature of this payment. I have said already that it cannot be payment of interest as such. A debt consists of two portions, namely, interest and principal,and this amount must therefore be taken as part payment of principal. It might be contended that such a finding would be opposed to the case put forward by the plaintiff, because the exemption from limitation was sought on the ground that a portion of interest was paid as such and the plaintiff should not be permitted to say that the suit is saved from limitation by reason of a part payment of principal. Under Order 7, Rule 6 where a suit is instituted after the CS No:243/18 Upender Kumar v. Bakoli 6 of 9 expiration of the period prescribed by the law of limitation the plaint shall show the ground upon which exemption from such law is claimed. Upon a liberal construction of the plaint it must be deemed that the exemption was sought generally under Section 20, Limitation Act. Courts are bound to apply the law of limitation in suits whether it is pleaded or not and to dismiss a suit which is apparently beyond time. Conversely they are bound not, to dismiss, as barred, a suit which, on the face of it, is not barred. In Hindu Miah v. Heramba Chandra (1911) 13 C.L.J 139, at p. 147, Mukerji, J., went further and said : If the plaint shows the ground of exemption, the requirement of the Code is satisfied, but this does not preclude the plaintiff from taking another and an inconsistent ground to get over the bar of limitation if he believes that the latter is the true ground. Consequently in the case before us the plaintiff-
respondent is entitled to urge that the suit is not barred by limitation for a reason different from the on assigned in the plaint.
31. The reason for the constitution of a large Bench is that there has been some conflict of opinion in this Court on the proper interpretation of Section 20, Limitation Act. In the plaint there was no mention as required by Order 7, Rule 6, that exemption from limitation was claimed on account of any acknowledgement in writing of the liability to pay, but exemption was sought fin the ground that the amount had been paid towards interest. Other subsidiary questions have also been argued before us, but we think that this Bench should dispose of only the main question of law on which there is a conflict of opinion, leaving other matters to be decided by the Bench concerned. Under Section 3, Limitation Act, it is the duty of the Court to dismiss a claim as time-barred if it is brought beyond the period prescribed in the schedule; but limitation may be saved if the plaintiff can bring himself within one of the exceptions. The burden therefore lies on the plaintiff to show that his case falls strictly within the scope of any such exception." (emphasis supplied) Thus, Order 7 Rule 6 provides that where a suit is instituted after the expiration of limitation, then the prescriptions in the Limitation law stand extended by operation of the proviso to Order 7 Rule 6 where Court may permit the plaintiff to claim exemption provided the plaint makes out a ground, upon which, exemption of law is claimed but these exemptions are not of the kind as explained in Mst. Katiji (supra) dealing with appeals but these exemptions are the ptotective exemptions in the Limitation Act, 1963 alone, disability to sue by reason of delay as are available, say, where a remedy is pursued in the wrong forum and in the meantime limitation prescribed expires then exemption would follow to relax the period misspent in litigation provided departure was b ona fide and not for collateral purpose or oblique motive. Nor is there an acknowledgement in writing by defendant of plaintiff's continuing right to sue say by extending the cause of CS No:243/18 Upender Kumar v. Bakoli 7 of 9 action by a written acknowledgent of debt though the original cause of action became time barred against which the suit may not lie for want of limitation etc., then Order 7 Rule 6 can be of help provided exemption claimed is duly pleaded in the plaint and explained by such means as are guaranteed by the provisions Sections 14 and 20 in the Limitation Act, 1963.
There is no cogent and legally acceptable pleading in the suit to justify extension of the period of limitation. Reliance is placed on Kalyan Mal Vs. Ahmad Uddin Khan AIR 1934 Privy Council 208 and on Shiv Shiv Tewari Vs. Ganesh Prasad Misra AIR 1978 Allahabad 117 to contend that if the plaintiff's right or cause of action is apparently barred under the statute of limitation, it is his duty under Order 7 Rule 6 of the CPC to plead specifically in the plaint the grounds of exemption allowed by the Limitation Act upon which he relies to exclude its operation. The provisions of Order 7 Rule 6 of the CPC are mandatory as held by the Madras High Court inS warna Paper Cutting Works vs. M/s Indian Express (Madurai), 1999 (3) CTC 167, observing that the plaintiff has to show the grounds in the plaint itself on the question of limitation, which is a stringent requirement of pleading the saving grounds allowed by the law of limitation. The stringency of the original Order 7 Rule 6 of the CPC was mellowed down by adding a proviso to the provision by the amending Act 104 of 1976. Thereafter, by virtue of the proviso, a plaintiff is permitted to claim exemption from the law of limitation on any ground, not set out in the plaint so long as it is not inconsistent with the ground set out in the plaint, and this is the change in law recognized by the proviso. Resultantly, an amendment in pleading is not necessary to bring in a defence not pleaded, but which defence is not inconsistent with the frame of the suit, as filed originally and evidence can still be led by the plaintiff to maintain the suit as filed within limitation. But this is not the position in the present case where the ground upon which exemption is claimed does not fall in any of the provisions from Sections 4 to 24 of the Limitation Act but on grounds of health.
It is not the case of the appellant that the cause of action was not final on 25th August, 2006 and continued alive. Therefore, the right to sue had expired on the date when the suit was presented. The pleadings in para. 12 do not constitute grounds for exemption under Order 7 Rule 6 CPC which are meant, as explained, for an entirely different purpose. Hence, there is no error of jurisdiction inthe judgments and decrees of the Courts below which are upheld. The suit is dismissed as time barred.
Even if the application moved for condonation of dealy is taken to be one filed under Order VII rule 6 CPC, still the same can not be allowed as the reason stated therein (non-availability of financial resources to pay the court fees) is not such a ground which falls in any of the provisions of section 4 to 24 of the CS No:243/18 Upender Kumar v. Bakoli 8 of 9 Limitation Act. Moreover, the applicant/plaintiff is a doctor by profession who has a private practice. It is unfathomable that in this country facing dearth of good health professionals, a doctor who had money to advance friendly loans of lakhs of rupees was not possessed of sufficient means or was not able to arrange money to pay court fees of about Rs.4,000/- resulting in delay of various months in filing the case. It is not out of place to mention that during the same period when the plaintiff purportedly did not have sufficient money to pay court fees, he was engaging advocates and filing complaints against the defendant alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The reason cited in the condonation application does not find favour with this court. The reason of financial crunch faced by the plaintiff is also not covered in any of the provisions (Section 4 to 24) of Limitation Act, therefore, no time period whatsoever can be excluded while computing the prescribed period of limitation. A decree passed in a suit filed beyond the prescribed period of limitation is a nullity. The suit of the plaintiff is found to be time barred and the same is accordingly dismissed.
Announced in open court on this 22nd February, 2024.
Anurag Thakur JSCC/ASCJ/G. Judge(N/E) Karkardooma Courts, Delhi This judgment consists of 9 pages and each and every page of this judgment is signed by me.
CS No:243/18 Upender Kumar v. Bakoli 9 of 9