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ANIL VASHISTH ..... Appellant
Through : Mr.Amit Swami, Advocate.
Through : None.
CM APPL No.49721/2019 For the reasons mentioned in the application, the delay of 08 days in refiling the appeal stands condoned.
The application stands disposed of.
CM APPL No.49720/2019 Exemption allowed, subject to all just exceptions.
The application stands disposed of.
JUDGMENT
1. This appeal is preferred by the appellant/plaintiff against the ex parte judgment and decree dated 19.07.2018 passed by the learned Additional District Judge-10/Central District, Tis Hazari Courts, Delhi (hereinafter referred as the learned ‘Trial Court’) in CS No.11/2018 whereby the suit of the appellant for recovery of Rs.4.00 lac was 2019:DHC:6107 dismissed. Though, initially, the suit was filed under Order XXXVII CPC, but subsequently per order dated 20.02.2018 passed by learned Trial Court, the suit was treated as ordinary money recovery suit.
2. The brief facts are:a) the respondent No.1 company is a duly incorporated company under the Companies Act and respondents No.2 & 3 are its director. The respondents No.2 & 3 had friendly relations with the appellant herein since the year 2006; b) in the year 2010 the respondents No.2 & 3 being in dire need of finances for their company came to the appellant and seeks assistance of Rs.5.00 lac for a period of five years. The appellant advanced a sum of Rs.4.00 lac by way of account transfer to the account of respondent No.1 company and respondents No.2 & 3 promised to return the money in installments; c) in discharge of their liability the respondents issued four cheques of Rs.50,000/- each thus totaling Rs.2.00 lac towards satisfaction of their partial liability. All the cheques were dishonoured with remarks ‘funds insufficient’ vide returning memos dated 01.02.2017; d) despite demand, the respondents failed to repay the loan amount and legal notices dated 08.02.2017 and 25.02.2017 were sent to respondents, but of no avail, hence this suit was filed.
3. The summons were issued to the respondents, but despite their service they did not file any written statement and were proceeded ex parte vide order dated 18.07.2018.
4. The appellant examined himself as PW[1] and proved certified copy of the bank account statement as Ex.PW1/1; copy of four cheques as Ex.PW1/2 (colly); the copies of bank memos dated 01.02.2017 as Ex.PW1/3 (colly); certified copies of legal notices as Ex.PW1/4 (colly); and certified copies of postal receipts and AD Cards as Ex.PW1/5 (colly).
5. Though the respondents were ex parte, yet the learned Trial Court dismissed the suit of the appellant being barred by limitation observing, interalia, the loan was granted on 23.12.2010 hence the period of limitation for filing the suit, in case of failure of the respondents to repay the loan amount ended on 22.12.2013. Admittedly, the four cheques towards part discharge of liability were issued in the year 2017, hence were not considered as acknowledgment which could extend the period of limitation, per Sections 18 & 19 of the Limitation Act. The learned Trial Court observed as under:-