Sanjay Gupta & Ors. v. Hariom Gupta

1. Allowed, subject to just exceptions. C.R.P. 20/2021 & CM APPL. Nos.6831, 6833/2021

2. At the outset, one, notices that there is a delay of 114 days, even according to the petitioners, in filing the instant revision petition. The order, which is sought to be challenged, is dated 23.07.2019, passed by the learned Additional District Judge [in short “ADJ”].

2.1. The impugned order was passed on an application, filed by the petitioners i.e. the original defendants, under Order VII Rule 11 of the Code of Civil Procedure, 1908 [in short “CPC”]. This application was pivoted on the ground that the underlying suit was barred by limitation, and therefore, the plaint should be rejected. 2021:DHC:623

2.2. The learned ADJ disagreed with the contention advanced on behalf of the petitioners/defendants. The petitioners/defendants claimed that the case set up by the respondent/plaintiff is that he vacated the suit property for construction to be carried out by the builder pursuant to which Rs. 20 lakhs was deposited by the builder with the petitioners/defendants to secure his interest.

3. The petitioners/defendants, admittedly, are related with the respondent/plaintiff. The respondent/plaintiff, during the period, when the builder was carrying on the construction on the suit property, had occupied a shop which, apparently, is owned by the petitioners/defendants.

4. Once the construction of the suit property was completed by the builder, the respondent/plaintiff sought return of Rs.20 lakhs, which was deposited by the builder with the petitioners/defendants.

5. The construction on the suit property, it appears, was completed in April 2014.

6. Since the demand made by the respondent/plaintiff for return of money did not bear fruit, police complaints were lodged. As per the assertions made in the plaint, the police complaints were lodged on 23.05.2014, 02.07.2014, 03.07.2014, 28.08.2014, 21.07.2014 & 28.05.2015. 6.[1] It appears that based on the complaints lodged by the respondent/plaintiff, ultimately, an FIR was registered on 21.02.2015 under Section 506 of the Indian Penal Code [in short “IPC”] against the petitioners/defendants.

6.2. In the interregnum, the respondent/plaintiff, it appears, had served a legal notice dated 06.01.2014 on the petitioners/defendants.

6.3. It is also the case of the respondent/plaintiff that, the fact, that the builder had deposited Rs. 20 lakhs with the petitioners/defendants, is borne out from an affidavit handed over by the builder to the respondent/plaintiff in December 2016.

6.4. The respondent/plaintiff it appears became apprehensive, when he received a notice of eviction in 2016 from the petitioners/defendants, in respect of the shop that he had occupied. Apparently, the notice was followed with lodgement of a suit for eviction against the respondent/plaintiff qua the concerned shop, in respect of which, summons were received, by the respondent/plaintiff.

7. Given the aforesaid circumstances, the petitioners/defendants claimed that the suit is patently time barred as it was instituted in 2018 whereas the cause of action, if any, arose in 2014 i.e. on 23.05.2014 when the respondent/plaintiff filed a complaint with the police for the first time.

8. The learned ADJ has considered these assertions, and rejected the application based on the assertions made in paragraph 7 of the plaint which reads as follows: “That the defendant no.1, 2 and 3 came to the plaintiff and influenced that plaintiff that till time of construction he can use the shop of the defendant i.e. 245/26, Kalyan Marg, Mandawali, Delhi – 92 but in return the defendants will keep Rs.20,00,000/- as the security from Rs.41,00,000/- and further assured that no rent will be charged for using the shop of defendants and thereafter builder paid the Rs.20,00,000/- to the defendants and during that mutual/oral agreement it was agreed that when the plot got ready and plaintiff shift his shop and defendants will return the security amount to the plaintiff.”

9. Learned ADJ, at present, as is evident, which is a correct approach, has taken into account only the assertions made in the plaint, in particular, the assertions made in paragraph 7 of the plaint. Based on these assertions, learned ADJ has, as it appears, concluded that the assertions of the respondent/plaintiff that there was a mutual/oral agreement between the parties which provided that once the construction on the suit property was carried out, the respondent/plaintiff would shift out from the concerned shop and only thereafter, the petitioners/defendants would return the security amount to him – did not merit rejection of the plaint without a trial. According to the learned ADJ, the refund of Rs. 20 lakhs was contingent upon respondent/plaintiff shifting from the concerned shop. Therefore, the juncture at which limitation would commence, in his view, would require parties to place evidence on record. 9.[1] In my opinion, it is a plausible view having regard to the averments made in the plaint and the fact that the respondent/plaintiff, is yet, to prove his case.

10. I am informed by Mr. Parth Awasthi, who appears for the petitioners/defendants, that the suit is at the stage of cross-examination. I am further informed by Mr. Awasthi that an issue concerning limitation has been framed by the trial court.