Yogesh Kumar Goel & Anr. v. Saurabh Bhardwaj

1. The present Petition under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC, 1908”) has been filed on behalf of the Petitioners to challenge the Order dated 07.12.2023 vide which the Application under Order XXXVII Rule 3(5) of CPC, 1908 filed on behalf of the Respondent-Defendant seeking rejection of the Suit on the ground of Limitation has been dismissed and the Application of Leave to Defend has been allowed by the learned Additional District Judge, by observing that the Suit is barred by limitation. The Petitioners-Plaintiffs sought the reconsideration of this Order dated 07.12.2023 by moving the Review Application under Order XLVII Rule 1 read with Section 151 of CPC, 1908, but it was also dismissed vide Order dated 06.04.2024.

2. Aggrieved by the Orders dated 07.12.2023 and 06.04.2024, the present Revision Petition has been filed on behalf of the Petitioners (plaintiffs in the suit).

3. The Revisionists (Plaintiffs) had filed a Suit for Recovery of Rs. 3,50,000/- against the Respondent-Defendant on the basis of a Cheque, which on presentation, got dishonoured on 08.01.2018 with the remarks that “Payment Stopped by the Drawer”.

4. It was explained that the limitation for filing the Suit was till 07.01.2021, but this period came within the peak of COVID-19 Pandemic. Therefore, in the light of the Judgment of the Apex Court in Suo Moto Writ Petition No. 3/2020, since there was a period of 9 months and 24 days of limitation as on 15.01.2020, i.e. at the time of onset of COVID-19 Pandemic, the Revisionists-Plaintiffs had a period of 9 months and 24 days w.e.f. 01.03.2022 to file the Suit. By the said calculation, the Suit could have been filed till 24.12.2022. The Suit was filed on 12.09.2022 which was well within the limitation.

5. Therefore, the impugned Order dated 07.12.2023 vide which the Leave to Defend Application of the Respondent-Defendant has been allowed and the Suit of the Revisionists-Plaintiffs has been held to be barred by limitation, is bad in law and the impugned Orders dated 07.12.2023 and 06.04.2024, are liable to be set aside.

6. The Respondent-Defendant had been served, but failed to appear.

7. Submissions heard.

8. The Apex Court in Suo Moto Writ Petition No. 3/2020 had observed in Paragraph No. 5(iii) as under: - “In cases where the limitation would have expired during the period between 15-03-2020 till 28-02-2022, notwithstanding the actual balance period of the limitation remaining, all persons shall have a limitation of 90 days from 01-03-2022. In the event, the actual balance of limitation remaining w.e.f. 01- 03-2022 is greater than 90 days, the longer period shall apply.”

9. The learned Additional District Judge has also referred to the aforesaid Judgment of the Apex Court and has observed that if the period of limitation on 01.03.2020 was more than 90 days, then the party was entitled to the extension of limitation by the entire remaining period of limitation, to be calculated from 01.03.2022. However, the Additional District Judge despite having observed thus, failed to note that the remaining period of limitation was more than 90 days i.e., 9 months and 24 days. Consequently, the Suit could have been filed till December, 2022, as has been rightly asserted by the Revisionists-Plaintiffs. The Suit got filed on 12.11.2022 which was well within the period of limitation as held by the Apex Court in Suo Moto Writ Petition No. 3/2020.

10. In view of above, the present petition is allowed and the impugned Orders dated 07.12.2023 and 06.04.2024 are hereby set aside, as the same suffer from patent illegality.

11. The Suit of the Revisionists-Plaintiffs is restored and remanded back to the learned Additional District Judge, to decide the Leave to Defend Application/ Suit on merits, in accordance with Law.

12. Parties are directed to appear before the learned Additional District Judge on 11.11.2024.

13. Accordingly, the present petition is disposed of in the above terms.

NEENA BANSAL KRISHNA, J OCTOBER 22, 2024 S.Sharma