Delhi District Court
Manisha Kaushal vs Dr. Rajnish Bharti on 15 December, 2023
Suit No. 17604/16 Page 1 of 19
IN THE COURT OF SH. DIVYANG THAKUR
ADDL. DISTRICT JUDGE-03:
SOUTH WEST DISTRICT: DWARKA COURTS:NEW DELHI
Civil Suit No. 17604/16
CNR No. DLSW01-007411-2016
In the matter of :
Ms. Manisha Kaushal
D/o Sh. Mannala Kaushal
R/o B-1/533, Chitrakoot Scheme
Vaishali Nagar, Jaipur,
Rajasthan - 302021
Through Attorney Holder
Sh. M.S.Kaushal
S/o Sh. Mannala Kaushal
R/o House no.A-101, Manbhawan Apartment,
Plot no.26, Sector-10, Dwarka,
New Delhi - 110075 ....Plaintiff
Versus
Dr. Rajnish Bharti
R/o House no.C-33,
Mother Apartment, Sector-5,
Plot no.6, Dwarka,
New Delhi - 110075
Also At:
Dr. Rajnish Bharti
The Physician's Clinique
Manish Global Mall,
Manisha Kaushal vs Dr. Rajnish Bharti
Suit No. 17604/16 Page 2 of 19
Shop No.75, Sector-22,
Dwarka, New Delhi - 110077
Dr. Rajnish Bharti
Physician and Consultant Dialectologist, Managing Director
Clifton Springs Hospital
Plot Road, BDO Office,
Gali no.3, Block G, Roshanpura,
Najafgarh, Delhi - 110043 ....Defendant
Date of institution of the suit : 04.10.2016
Final Arguments Heard on : 01.06.2023
Date of Judgment : 15.12.2023
Decision : Dismissed
SUIT FOR RECOVERY OF MONEY
JUDGMENT :
1. Present suit has been filed by the plaintiff against the defendants for recovery of Rs.13,25,000/- along with pendente lite and future interest at the rate of 24% per annum under the provisions of Order XXXVII CPC.
2. The brief facts of the case as mentioned in the plaint originally instituted are reproduced here as under:
(i) The plaintiff came in contact with the defendant through a common person in the month of February, 2013 as the plaintiff was in search of a residential property in NCR Delhi and the defendant represented himself as owner of a property bearing Flat no. KM 63-
Manisha Kaushal vs Dr. Rajnish Bharti Suit No. 17604/16 Page 3 of 19 801, J.P.Greens, Sector 128, NOIDA, Uttar Pradesh and wished to sell the same and therefore, offered the same to the plaintiff.
(ii) The defendant represented himself as the rightful owner of the above said flat and further assured that the said property is free from all kinds of dues and encumbrances and all dues and payments related to Builder Company, J.P. Associates Ltd. also stands settled and paid in respect of the abovesaid property and the defendant insisted the plaintiff to purchase the abovesaid property to which the plaintiff agreed.
(iii) The said deal after negotiation with the defendant was struck for a total consideration of Rs.26,50,000/-. The plaintiff and defendant entered into Agreement to Sell and Purchase dated 25.02.2013 and at the time of execution of the said Agreement to Sell and Purchase, plaintiff paid a sum of Rs.26,25,421/- to the defendant as the total sale consideration amount and the balance amount was agreed to be paid to the builder. Out of total sale consideration amount of Rs. 26,25,421/- plaintiff paid a sum of Rs.10,50,000/- vide cheque bearing no.345736 drawn on ICICI Bank and further paid Rs.13,00,000/- in cash against the receipt issued by the defendant in favour of the plaintiff and further paid Rs.2,75,421/- to JayPee Infratech Ltd. vide cheque Manisha Kaushal vs Dr. Rajnish Bharti Suit No. 17604/16 Page 4 of 19 bearing no.345738 dated 13.03.2013 drawn on ICICI Bank as agreed between the parties.
(iv) After executing Agreement to Sell and Purchase and receiving total sale consideration of Rs.26,25,421 from the plaintiff, the defendant assured the plaintiff that he would transfer the above said flat in her name after completion of formalities with the builder. In the meanwhile, the plaintiff also applied for a home loan with HDFC Housing Development Finance Corporation Ltd. which was approved. After the approval of loan, when plaintiff approached the defendant and requested to complete the formalities in regard of transfer of the abovesaid flat, the defendant tried to buy time by making one or the other excuses and further started ignoring and not attending the phone calls of the plaintiff and also avoided meeting the plaintiff on one pretext or the other.
(v) The plaintiff approached the builder company to inquire about the status of the property and came to know that allotment of the said flat have been cancelled / terminated by the builder company due to non-payment of demands made by the builder company to the defendant which he has failed to pay. Thereafter, the plaintiff approached the defendant and demanded refund of the amount of Manisha Kaushal vs Dr. Rajnish Bharti Suit No. 17604/16 Page 5 of 19 Rs.26,25,321/- paid by the plaintiff to the defendant against the property in question. The defendant in discharge of his legal liability, issued two cheques in favour of the plaintiff dated 30.05.2013 for a sum of Rs.2,75,421 bearing no.912444 from account bearing no.09291140108208 drawn on HDFC Bank and other dated 09.07.2013 for a sum of Rs.13,25,000/- bearing no.738478 from account bearing no.09291140108208 drawn on HDFC Bank and requested the plaintiff and her brother to deposit the first cheque for encashment in the month of July, 2013 and second cheque in the month of August, 2013 as having some financial problems.
(vi) As requested by the defendant, plaintiff deposited the abovesaid first cheque of Rs.2,75,421/- bearing no.921444 for encashment but the same was returned dishonoured with the remarks 'Insufficient Funds' vide cheque returning memo dated 31.07.2013 issued by HDFC Bank, Dwarka, New Delhi - 110075. Thereafter, the plaintiff filed a criminal complaint against the defendant.
(vii) The plaintiff deposited the second cheque of Rs.13,25,000/- bearing no.738478 for encashment but the same was also returned dishonoured with the remarks 'Insufficient Funds' vide cheque returning memo dated 08.10.2013. After the return of the second Manisha Kaushal vs Dr. Rajnish Bharti Suit No. 17604/16 Page 6 of 19 cheque, the plaintiff approached the defendant and requested him to pay the cheque amount of Rs.13,25,000/- but the defendant showed his inability to arrange the funds and requested the plaintiff to give him some more time of 2-3 months to arrange the funds but even after waiting for 2-3 months, the defendant failed to pay the amount.
(viii) On 20.07.2013, the defendant filed a complaint against the brother of the plaintiff, Attorney Holder in the present case, before the Additional Commissioner of Police, South West, District, Dwarka, New Delhi. In the said complaint, the defendant has specifically admitted the execution of Agreement to Sell and Purchase dated 25.02.2013 in respect of Flat bearing no.KM-63, 801, J.P.Greens, Sector 128, NOIDA, Uttar Pradesh and the defendant also admitted his liability that he has to refund the amount of Rs.2,75,000/- and amount of Rs.13,25,000/- to the plaintiff in lieu of the above said transaction. In his complaint, the defendant also admitted that the amount paid to him by the plaintiff has been used by him to purchase of a mall shop. Hence, the plaintiff filed the present suit.
3. The present suit was instituted on 04.10.2016 and summons for appearance in prescribed proforma u/o XXXVII CPC were issued to the defendant which were received back unserved. Thereafter, Manisha Kaushal vs Dr. Rajnish Bharti Suit No. 17604/16 Page 7 of 19 amended memo of parties was filed by ld. counsel for plaintiff wherein fresh address of the defendant was mentioned. Thereafter, on 24.12.2016, the defendant entered his appearance. Thereafter, application for leave to defend was filed on 28.10.2017. On 13.09.2018, arguments were heard on the application for leave to defend. On 25.10.2018, ld. counsel for the plaintiff submitted that agreement to sell was entered with Dr. Rajnish Bharti as Attorney Holder / brother of Sh. Anand Bharti (owner) and cheque no.738478 dated 09.07.2013 for a sum of Rs.13,25,000/- was issued by Dr. Rajnish Bharti who had received Rs.13,00,000/- in cash on 23.02.2013. Ld. counsel for defendant had assailed the plaintiff's suit on the point of jurisdiction and limitation which was controverted by ld. counsel for the plaintiff by referring to defendant's address at Dwarka and return memo dated 08.10.2013. Thereafter, the matter was adjourned for filing certified copy of receipt dated 23.02.2013. On 14.12.2018, copy of receipt was filed alongwith copy of cheques bearing nos. 345738 and 912444 as well as cheque returning memos. On 22.04.2019, the defendant's application u/o XXXVIII R 3(5) CPC was allowed and Written Statement was directed to be filed within 30 days.
Manisha Kaushal vs Dr. Rajnish Bharti Suit No. 17604/16 Page 8 of 19
4. On 06.06.2019, Written Statement was filed by the defendant. In the Written Statement, the defendant has averred that the suit of the plaintiff is liable to be dismissed as the plaintiff has concealed and fabricated true facts to harass and blackmail the defendant and the same is not maintainable on the point of jurisdiction, limitation, non- joinder / mis-joinder of necessary parties and without any cause of action. He has further averred that the suit of the plaintiff is barred by limitation. As per paras 13 and 17 of the suit, the limitation starts on 09.07.2013, 31.07.2013, however the present suit has been filed in the month of October, 2016 after expiry of three years period. He has further averred that the present suit is liable to the returned to the plaintiff u/o VII R 10 CPC as this Court has no territorial jurisdiction to entertain the present suit in view of Clause 10 of Agreement of plaintiff dated 25.02.2013 wherein it is clearly mentioned in Column no.10 that any dispute will be subject to the court and jurisdiction of NOIDA / Uttar Pradesh. Moreover, the property in question is situtated in U.P. and the alleged Agreement was executed between the parties in NOIDA, U.P. He has further averred that the owner of the flat in question i.e. KM 63-801, J.P.Greens, Sector 128, NOIDA, Uttar Pradesh is Anand Bharti who received part payment of Rs.10,50,000/- Manisha Kaushal vs Dr. Rajnish Bharti Suit No. 17604/16 Page 9 of 19 vide cheque no.342736 drawn on ICICI Bank from plaintiff and plaintiff further paid a sum of Rs.2,75,421/- to J.P.Infrastructure vide cheque bearing no.345736 dated 13.03.2013 but the plaintiff deliberately and malafidely wrongly mentioned in para no.4 of the suit that the entire consideration payment was given to the defendant. He has further averred that the plaintiff had received only a sum of Rs.13,00,000/- in cash from the plaintiff on behalf of Anand Bharti and plaintiff intentionally and deliberately did not join him as necessary party. He further averred that the suit is not maintainable as the agreement dated 25.02.2013 reveals that the same is between Anand Verma and plaintiff, therefore the plaintiff gave a cheque of Rs.10,50,000/- to him and same was encashed in the account of Anand Verma but the plaintiff had deliberately and malafidely mentioned in paras 2 and 3 of her suit that defendant was the owner of the flat in question. It is further averred that plaintiff made the payment of Rs.2,75,421/- to J.P.Infrastructure vide cheque no.345738 dated 13.03.2013 after expiry of stipulated time, therefore J.P.Infrastructure cancelled the ownership of Anand Bharti due to delay in making the payment. Therefore, the plaintiff became dishonest and filed the present suit by concealing the facts. He had further averred that the Manisha Kaushal vs Dr. Rajnish Bharti Suit No. 17604/16 Page 10 of 19 suit of the plaintiff is not maintainable as admittedly the payment for a sum of Rs.10,00,000/- was made to the plaintiff against Rs.13,00,000/- which was received on 23.02.2015 against receipt prior to agreement dated 25.02.2013 and the plaintiff misused the two security cheques of the defendant which were taken by plaintiff on 23 .02.2013 with clear understanding that both will be returned to defendant at the time of making entire payment of Rs.13,00,000/- and now only Rs.3,00,000/- is balance upon the defendant. He has further averred that no legal notice was ever received by the defendant.
5. On 05.09.2019, following issues were framed on the basis of pleadings :
(i) Whether plaintiff is entitled to recover Rs.13,25,000/- against cheque no.738478 dated 09.07.2013 issued by defendant for refunding the consideration amount? OPP.
(ii) Whether plaintiff is entitled to interest, if so, at what rate and for which period? OPP.
(iii) Whether plaintiff's suit is barred by limitation? OPD.
(iv) Relief.
No other issue arises or pressed for by the parties. Thereafter, the matter was fixed for PE.
Manisha Kaushal vs Dr. Rajnish Bharti Suit No. 17604/16 Page 11 of 19
6. On 22.09.2022, Sh. Milendra Sen Kaushal, Attorney Holder of plaintiff was examined as PW-1. He tendered his examination in chief Ex.PW-1/A and also relied upon the following documents :
a. Ex.PW-1/1 (OSR) i.e. General Power of Attorney dated 13.04.2013.
b. Ex.PW-1/2 (OSR) i.e. Agreement to Sell dated 25.02.2013. c. Mark A i.e. Cheque deposited before J.P.Infratech Ltd. for a sum of Rs.2,75,421/- dated 13.03.2013.
d. Ex.PW-1/5 (OSR) i.e. Bank Statement for the period 01.02.2013 to 30.03.2013.
e. Ex.PW-1/5 (OSR) i.e. original receipt dated 24.02.2013. f. Ex.PW-1/6 (OSR) (colly) i.e. cheque dated 30.05.2012 for an amount of Rs.2,75,421/- in favour of Manisha Kaushal alongwith cheque returning memo.
g. Ex.PW-1/7 i.e. certified copy of the complaint u/s 138 NI Act filed by the plaintiff against the defendant.
h. Ex.PW-1/8 (colly) i.e. cheque dated 09.07.2013 for an amount of Rs.13,25,000/- in favour of Manishal Kaushal issued by the defendant alongwith returning memo.
i. Ex.PW-1/9 i.e. certified copy of the reply received by the office Manisha Kaushal vs Dr. Rajnish Bharti Suit No. 17604/16 Page 12 of 19 of Deputy Commissioner of Police, Sector - 19, Dwarka, seeking information regarding the complaint against Rajnish Bharti and his statement before the DCP dated 20.07.2013.
7. His cross examination was deferred as none had appeared for defendants. On 08.12.2022, none had appeared for the defendant, hence, he was proceeded ex parte and his right to cross examine PW-1 was closed. Thereafter, the matter was fixed for final arguments.
8. On 01.06.2023, final arguments were heard.
9. I have heard the final arguments and perused the record. In the evidence led by the plaintiff, the averments in the plaint have been reiterated. I find that the unchallenged testimony of the sole plaintiff's witness as well as the documents i.e. the original cheque Ex. PW1/8 prove the averments of the plaintiff on the preponderance of probabilities as the Defendants remained ex-parte and did not cross examine the sole Plaintiff's witness PW-1, as no evidence was produced by the Defendant, the pleadings in their WS have remained unproven and it has been proved that the Defendant issued the cheque for Rs. 13,25,000/- dated 09.07.2013 which is Ex. PW1/8 in favour of the Plaintiff.
10. However, due to the mandate of Section 3 of the Limitation Act, Manisha Kaushal vs Dr. Rajnish Bharti Suit No. 17604/16 Page 13 of 19 the Court is duty bound to consider whether the suit has been filed within the limitation period. During the course of final arguments, clarifications were also sought from the Ld. Counsel for the Plaintiff. It was argued that the cheque in question for the sum of Rs. 13,25,000/- was dishonored vide return memo dated 08.10.2013 which was also proved by the Plaintiff. Therefore, it was argued that as the cheque was dishonored on 08.10.2013 and the suit has been filed on 04.10.2016, therefore, the suit is within the limitation period.
11. The averments of the Plaintiff are that the Defendant had received the certain amount of money for purchase of a flat vide an agreement to sell dated 25.02.2013 as the sale deed could not be executed, the Plaintiff demanded the refund of the money and thereafter, few cheques were issued out of which was the cheque for Rs. 13,25,000/-. In the plaint of the present suit, it has been averred that the present suit is being filed for the recovery of Rs. 13,25,000/- on the basis of the cheque dated 09.07.2013. Therefore, the present suit is based on the issuance of the cheque by the Defendant in favour of the Plaintiff. As per the averments of the Plaintiff, the Defendant after much persuasion agreed to refund the sale consideration paid by the Plaintiff and issued two cheques, one cheque was for the sum of Manisha Kaushal vs Dr. Rajnish Bharti Suit No. 17604/16 Page 14 of 19 Rs. 2,75,421/- dated 30.05.2013 and the other was the cheque in question dated 09.07.2013 for the sum of Rs. 13,25,000/-. It was also averred that the Defendant requested the Plaintiff to deposit the cheque dated 30.05.2013 in the month of July 2013 and the second cheque in the month of August 2013 on the pretext of financial problems. Therefore, though it has not been stated so explicitly, it appears that the cheque in question Ex. PW1/8 was a post dated cheque. On a consideration of the aforesaid facts, I am of the opinion that the provision applicable to the present suit for deciding the period of limitation and the date of the cause of action would be Article 35 of the Limitation Act which is extracted herein:
Description of suit Period of limitation Time for which period begins to run
35. On a bill of Three years The date of the bill or exchange or note.
promissory note payable on demand and not accompanied by any writing restraining or postponing the right to sue.
12. In BPL Limited Versus Hindustan Traders Co. & Ors. (2008) SCC OnLine DEL 1336, Hon'ble High Court of Delhi has observed as Manisha Kaushal vs Dr. Rajnish Bharti Suit No. 17604/16 Page 15 of 19 under:
"The next question which arises is as to from which day three years to be counted with respect to the cheques which have been dishonoured. It has been held in Ashok K. Khurana v. Steelman Industries, AIR 2000 Delhi 336 DB :
2000 (56) DRJ (Suppl) 818 (DB) and Technofab Engineering Ltd. v. Nuchem Weir India Ltd., 136 (2007) DLT 223 that the limitation commences from the date of the cheque and not from the date of presentation or dishonor thereof. The relevant Article of Schedule 1 to the Limitation Act is Article 35."
13. In Empire Home Appliances Pvt. Ltd. Vs. M/s Suraj Enterprises, (2016) SCC OnLine DEL 3954, Hon'ble High Court of Delhi has observed as under:
"17. I had in BPL Ltd. supra relied upon Ashok K. Khurana v. Steelman Industries AIR 2000 Delhi 336 and on Technofab Engineering Ltd. v. Nuchem Weir India Ltd. 136 (2007) DLT 223.
18. The Division Bench of this Court in Ashok K. Khurana supra was concerned with a suit instituted on Manisha Kaushal vs Dr. Rajnish Bharti Suit No. 17604/16 Page 16 of 19 16th March, 1998 for recovery of price of goods and in part payment whereof the plaintiff pleaded that the defendant had on 18th March, 1995 delivered a cheque dated 11th March, 1995 which was encashed. The Trial Court dismissed the suit as barred by time on a preliminary issue of limitation. Setting aside the said decree, it was held i) that the trial court misread the judgment of the Supreme Court in Jiwanlal Achariya v. Rameshwarlal Agarwalla AIR 1967 SC 1118 which was a case of post dated cheque and applying the same to a case of ante-dated cheque had dismissed the suit; ii) supreme court in Jiwanlal Achariya supra was concerned with the suit instituted on 22nd February, 1957 for recovery of money lent against promissory note dated 4th February, 1954; iii) the plaintiff relied on payment by cheque on 25th February, 1954 to bring the suit within time; iv) the defendant's case was that the post dated cheque was handed over on 4th February, 1954 and therefore three years period of limitation ran from that date and the suit was out of time; v) supreme court held that where a bill or note is given by way of payment, the Manisha Kaushal vs Dr. Rajnish Bharti Suit No. 17604/16 Page 17 of 19 payment may be absolute or conditional with the strong presumption being in favour of conditional payment; vi) in the facts of that case, the payment vide post dated cheque dated 25th February, 1954 was found to be conditional i.e. that the payment will be credited to the person giving the cheque in case the cheque is honoured; vii) it was held that since the cheque was realized, the date of payment for the purpose of Section 20 of the Limitation Act would be the date of unconditional payment i.e. the date when the cheque would be actually payable at the earliest if honoured i.e. the date which the cheque bore; viii) it was further held that though the cheque was handed over on 4th February, 1954 but could not be presented till 25th February, 1954, the date of payment for the purpose of Section 20 of the Limitation Act would be 25th February, 1954; ix) it was yet further observed that the fact that the cheque was presented later and was paid would be immaterial for it is the earliest date on which the payment could be made that would be the date where the conditional acceptance to a post dated cheque becomes actual payment Manisha Kaushal vs Dr. Rajnish Bharti Suit No. 17604/16 Page 18 of 19 when honoured; x) reliance in this regard was placed on an earlier decision of the Supreme Court in Commissioner of Income Tax v. Messrs. Ogale Glass Works Ltd. AIR 1954 SC 429 and on a host of other case law; and xi) that since the earliest date when the plaintiff in Ashok K. Khurana could have presented the cheque was the date when according to him the ante-dated cheque was delivered to the plaintiff, the date of payment would be said date of delivery if proved and not the date of the cheque and the issue of limitation could not have been decided without evidence."
14. Therefore, in the present case, since it is a post dated cheque, it became payable for the first time on 09.07.2013 which is the date of the cheque. The cause of action would, therefore, accrue on the said date i.e. 09.07.2013 in accordance with Article 35 and not from the date of dishonor of the cheque on 08.10.2013. The period of limitation being three years, would end on 09.07.2016 and the suit having been filed subsequently, would be time barred. The fact that there was an oral request by the Defendant to the Plaintiff to not present the cheque for payment would be of no consequence whatsoever. In the alternative, even if the present suit is considered as a suit for recovery Manisha Kaushal vs Dr. Rajnish Bharti Suit No. 17604/16 Page 19 of 19 of consideration money paid under the agreement to sell dated 25.02.2013 and the cheque dated 09.07.2013 is considered to be an acknowledgement of liability under Section 18 of the Limitation Act, even then, the present suit would be time barred.
15. Issue no. (iii) is therefore, decided against the Plaintiff and in favour of the Defendant. Consequently, due to the bar of limitation, the suit cannot be decreed even though, I find that the Plaintiff has been able to prove the facts as stated in the plaint and that otherwise, but for the bar of limitation, the suit would be liable to be decreed. Consequently, issues no. (i) and (ii) are also decided against the Plaintiff and in favour of the Defendant.
16. Therefore, the suit of the plaintiff has to be dismissed.
17. Relief: In view of the aforesaid discussion, suit of the Plaintiff is dismissed. Parties to bear their own costs.
18. Decree sheet be prepared accordingly.
19. File be consigned to Record Room after due compliance. Digitally signed by DIVYANG
DIVYANG THAKUR
THAKUR Date:
2023.12.15
16:08:04 +0530
Announced in the open court (Sh. Divyang Thakur)
On 15.12.2023 ADJ-03/South West
Dwarka / New Delhi
Manisha Kaushal vs Dr. Rajnish Bharti