Delhi District Court
Ramesh Chandra Gola vs Mahendra Singhal on 15 December, 2023
THE COURT OF MS SHUBHI GUPTA
CIVIL JUDGE ( EAST), KARKARDOOMA COURTS,
DELHI
Civ Suit 1197/2018
Date of Institution of suit : 10.12.2018
Date of Reservation of Judgment : 28.11.2023
Date of Passing of Judgment : 15.12.2023
Sh. Ramesh Chandra Gola
S/o Late Sh. Gopal
R/o House no. C-410/A,
New Ashok Nagar,
Delhi-110096
.................Plaintiff
Versus
Shri Mahendra Singhal
S/o Shri Sant Ram Singhal
E/o House no. ED-24,
New Ashok Nagar,
Delhi-110096 ...............Defendant
SUIT FOR RECOVERY OF RS. 2,71,729/-
JUDGMENT
1. Vide this judgment, I shall decide a suit for recovery of Rs. 2,71,729/- alongwith pendente lite and future interest.
BRIEF FACTS OF THE PLAINT:
Civ Suit 1197/18 Ramesh Chandra Gola Vs. Mahender Singh 1/10
2. Brief facts of the present case as per plaint are that the plaintiff runs a business of Stones/Marble. He sells marbles to the customers on order business. The defendant runs a business of construction of building in collaboration, so the defendant required the plaintiff to purchase the marble stones for construction of his own building situated at ED-24, New Ashok Nagar, Delhi-96. Having received the order from the defendant on 10.06.2015, the plaintiff went to purchase the marble as per order of the defendant at Rajasmand (Rajasthan). The plaintiff had purchased the marble from Shree Ambaji Suppliers situated at NH-8, Piparda, Rajasmand, Rajasthan by VAT invoice number 14 dated 12.07.2015 for an amount of Rs. 1,21,729/- for which a bill vide number TIN-09751262401 dated 12.07.2015 was also issued in the name of the defendant. It is stated that the plaintiff has earlier supplied the marble stones to defendant for a sum of Rs. 1,50,000/- to the defendant for the construction of his house. It is stated that the defendant is liable to pay a sum of Rs. 2,71,729/- to the plaintiff. It is further stated that the defendant had promised the plaintiff to pay the said amount within six months, however, at the request of the defendant, the plaintiff again granted six months time period to the defendant which was again extended. However, on expiry of one and a half year, no amount was given by the defendant. Therefore, the plaintiff sent a legal notice dated 10.07.2017 by way of registered AD. Despite the delivery of legal notice, no amount has been paid by the defendant to the plaintiff till date. Hence, the present suit.
WRITTEN STATEMENT OF DEFENDANT:
3. On the other hand, defendant filed written statement Civ Suit 1197/18 Ramesh Chandra Gola Vs. Mahender Singh 2/10 controverting the claim of the plaintiff stating that the plaintiff had not approached the Court with clean hands. It is stated that the present suit is filed by the plaintiff to extort money from the defendant as the documents present by the plaintiff nowhere mentions the name of the defendant showing that the marbles were ordered by the defendant or the defendant is liable to pay any amount to the plaintiff. It is stated that the defendant had not purchased any marble from the plaintiff. He further denied about the factum of construction at his property bearing no. ED-24, New Ashok Nagar, Delhi-91. It is stated that he had not made any construction in the year 2015. It is stated that the tenants are living in the said property. Other averments of the plaintiff are vehemently denied by the defendant. Prayer is made for the dismissal of the present suit.
Replication
4. Plaintiff filed replication to the written statement of the defendants, wherein, he has reaffirmed and reiterated the contents of the plaint and has denied the contents of the written statement.
ISSUES
5. From the pleadings of the parties, following issues were framed for trial vide order dated 14.08.2020 by the Ld. Predecessor of this Court.
1. Whether the plaintiff is entitled to decree of recovery of sum of Rs. 2,71,729/- as prayed for in prayer clause(a)? OPP
2. Whether the plaintiff is entitled to interest, if any, at what rate and for what period? OPP Civ Suit 1197/18 Ramesh Chandra Gola Vs. Mahender Singh 3/10
3. Relief.
PLAINTIFF'S EVIDENCE
6. In order to prove its case plaintiff has examined himself as PW-1 and has tendered in evidence duly sworn in affidavit of himself. Same is Ex. PW 1/A and has relied upon the following documents :
1. Ex. PW-1/1 : Copy of Aadhaar Card.
2. Ex. PW-1/2 : Original Invoice dated 12.07.2015.
3. Ex. PW-1/3 : Legal notice dated 10.07.2017.
4. Ex. PW-1/4 : Postal receipt.
5. Ex. PW-1/5 : Legal notice dated 10.07.2017.
6. Ex. PW-1/6 : Postal receipt.
7. Ex. PW-1/7 : Tracking report.
DEFENDANT'S EVIDENCE
7. In order to prove its case defendant has examined himself as DW-1 and has tendered in evidence duly sworn in affidavit of himself. Same is Ex. DW-1/A and has relied upon the following documents :
1. Ex. DW-1(colly) (OSR) : Police verification of the tenants.
2. Ex. DW-2(colly) (OSR): Electricity bills.
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8. In order to prove its case defendant has examined DW-2 namely Sh. Jagbir Singh, ASI and has tendered in evidence duly sworn in affidavit of DW-2. He had brought the summoned record i.e. list of records of tenant verification forms along with the order by Deputy Commissioner of Police that the said verification files/registers got destroyed w.e.f year 2004 till 2015 which is Ex. DW-2/1.
9. I have heard Ld. Counsel for the plaintiff, Ld. Counsel for the defendant and have carefully gone through the records.
10. My observations on the above issues are as under:-
Issue no. 1 and 2 are taken up together Whether the plaintiff is entitled to decree of recovery of sum of Rs. 2,71,729/- as prayed for in prayer clause(a)? OPP Whether the plaintiff is entitled to interest, if any, at what rate and for what period? OPP
11. The plaintiff has filed the present suit stating that he purchased marble/stones at the request of the defendant from the firm Shree Ambaji for which VAT invoice dated 12.07.2015 was raised in the name of the defendant by the firm Shree Ambaji for a sum of Rs. 1,21,729/-. He further stated that before this transaction, he also supplied the marble stones worth of Rs.
1,50,000/- to the defendant. Therefore, it is averred that the defendant is liable to pay an amount of Rs. 2,71,729/- in total.
12. The defendant in his WS has completely denied the factum of receiving any marble from the firm Shree Ambaji. He further denied any relationship with the plaintiff.
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13. Ld. Counsel for the defendant during the course of final arguments has also raised the question of limitation. He averred that the present suit is barred by limitation as even for the sake of arguments, the case of the plaintiff is believed then the Ex. PW-1/2 on which the whole case of the plaintiff is based upon show that it was raised on 12.07.2015 whereas the present suit is filed on 10.12.2018 i.e. after the expiry of stipulated period of three years which is evidently time barred.
14. Per contra, Ld.Counsel for the plaintiff has stated that the cause of action to file the present suit arose on different occasions when the defendant from time to time requested for extension of time due to financial crunch. He further stated that the marble stone to the defendant were delivered on 16.07.2015 and the defendant promised the plaintiff to pay the said amount of Rs. 2,71,729/- within a period of six months but the defendant did not pay the said amount to the plaintiff and sought further six months time. It is averred that the cause of action arose on expiry of further six months time period, the plaintiff then demanded the said amount from the defendant. However, the defendant again sought time of six months from the plaintiff which was given by the plaintiff to the defendant. It is averred that the cause of action arose from time to time when the plaintiff asked the due amount from the defendant and when time was sought on behalf of the defendant for the payment. It is further stated that in the cause of action paragraph of the plaint that the cause of action again arose when the legal notice dated 10.07.2017 was sent by the plaintiff to the defendant.
15. It is held in catena of judgments that limitation is a Civ Suit 1197/18 Ramesh Chandra Gola Vs. Mahender Singh 6/10 mixed question of law and fact. The suit for recovery can be filed within 3 years from the date when the amount of payment has become due upon the defendant. The premise for filing the present suit is based upon the invoice which is exhibited as Ex. PW-1/2 dated 12.07.2015 whereas the present suit is filed on 10.12.2018 which is clearly beyond the stipulated time period of three years.
16. The Ld. counsel for the plaintiff has orally argued that the limitation got extended from time to time when the defendant requested for extension of time period.
17. Before proceeding further, it is necessary to advert to the below mentioned provision of the Limitation Act, 1963:
Section 3: Bar of Limitation (1) Subject to the provisions contained in sections 4 to 24(respectively), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.
18. Section 18 of the Limitation Act provides the extension of period of limitation where the acknowledgement in writing qua any property or right is given by the defendant to the plaintiff before the expiry of the limitation period. Similarly, Section 19 of the Limitation Act provides extension of limitation period where the payment on account of a debt or of interest on a legacy is made by the defendant before the expiration of the limitation period to the plaintiff.
19. The Hon'ble Himanchal Pradesh High Court in the case titled as "H.P. State Civil Supply Corporation V. Nanak Chand" 2011(102) A/C 695 (H.P., H.C.) while discussing the Civ Suit 1197/18 Ramesh Chandra Gola Vs. Mahender Singh 7/10 provision of Section 18 and 19 of the Limitation Act observed that an acknowledgement under Section 18 should also be in writing as in the case of payment under Section 19. But while under Section 18, the writing must carry an admission of a subsisting liability, all that that Section 19 requires is that the writing should record the fact of payment.
20. Applying the aforesaid provision of law to the facts of the present matter, this court does not find any merit in the submissions of the Ld. Counsel for the plaintiff as the plaintiff herein has not provided any proof to show that defendant has given any written acknowledgement qua the amount in question or paid any part payment in respect to the due amount to be covered by these exceptions.
21. Furthermore, the plaintiff has not stated when the goods/marbles for an amount of Rs. 1,50,000/- were delivered to the defendant, however, he stated that these marbles were delivered before the delivery of the goods/marbles mentioned in Ex. PW-1/2, meaning thereby the claim of Rs. 1,50,000/- is also time barred. Hence, the suit of the plaintiff is liable to be dismissed as it is filed beyond the period of limitation.
22. This court has also examined the merits of the matter in view of various submissions made by the counsels. The court is of the considered opinion that the plaintiff has failed to establish case in his favour. There is no legal right in favour of the plaintiff as it is the case of the plaintiff that he had purchased the marbles/stones from the firm Shree Ambaji at the request of the defendant. Ex. PW-1/2 shows the name of the defendant, however, no name of the plaintiff is mentioned in the said Civ Suit 1197/18 Ramesh Chandra Gola Vs. Mahender Singh 8/10 invoice. The plaintiff has failed to prove that he has made the payment of Rs. 1,21,729/- on behalf of the defendant to the said firm. The plaintiff during his cross examination has himself stated that he does not have any acknowledgement or receiving of goods delivered to the defendant. He has further stated that he has not annexed any bill for an amount of Rs. 1,50,000/- as sought by him in his plaint. The plaintiff has not examined any witness from Shree Ambaji firm to show that the marbles were delivered to the defendant and the payment was made by the plaintiff. He mentioned the number of the truck i.e RJ-52-GA- 0522 in which the goods were allegedly delivered to the defendant, however, he failed to examine the transporter to prove the factum of delivery. The defendant in his WS has denied the factum of any relationship with the plaintiff. He has further denied the factum of delivery of the marbles or any amount of Rs. 2,71,729/- due upon him. He has denied the invoice Ex. PW- 1/2 completely.
23. In view of the aforesaid discussion, this court is of the considered opinion that the plaintiff has completely failed to prove his case on the Principle of Preponderance of Probabilities. He has failed to prove the invoice Ex. PW-1/2 completely. He failed to prove that the marbles in question were purchased by him at the request of the defendant. He failed to prove that the marbles were ever delivered to the defendant at his address and the payment of Rs. 2,71,729/- was made by him on behalf of the plaintiff to the firm namely Shree Ambaji.
24. In view of the above, issue no. 1 and 2 are decided against the plaintiff and in favour of the defendant.
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25. In view of the discussion herein above, the suit of the plaintiff is dismissed.
26. No order as to costs.
27. Decree sheet be prepared accordingly.
28. File be consigned to Record Room after due compliance.
(this order contains 10 pages and each page has been signed by me.) Pronounced in the open court (Shubhi Gupta) today i.e. on 15.12.2023 Civil Judge(East)/Delhi Civ Suit 1197/18 Ramesh Chandra Gola Vs. Mahender Singh 10/10