Full Text
HIGH COURT OF DELHI
Date of Decision: 13th November, 2019
ADITI WASAN..... Plaintiff
Through: Mr. Kotla Harshvardhan and Ms. Manu Sood, Advs.
Through: Mr. Arun Khosla and Mr. Shreeanka Kakkar, Advs.
JUDGMENT
1. By this order I shall dispose of this application filed by the defendant under Order 7 Rule 11 read with Section 151 CPC for rejection of the plaint.
2. It is the case of the defendant in the application that a bare reading of the plaint would show that the suit is barred by limitation. In this regard, it is stated in the application that the plaintiff herself contends having executed an agreement in October, 2017 between the company namely M/s. Wasan Overseas Pvt. Ltd. 2019:DHC:5898 (in short ‘WOPL’) and a partnership firm, namely M/s. Pahwa International (in short ‘PI’) of which the defendant is a partner. Under the said agreement WOPL was to pay PI a sum of `1.25 Crores in discharge of the contractual obligations arising out of the order placed by one COMO and routed through and facilitated by WOPL. It is stated that the plaintiff now seeks a declaration of no obligation arising qua WOPL under the said agreement and the said agreement was indeed an agreement of loan between the plaintiff personally and the defendant. This contention of the plaintiff would be hit by Section 92 of the Indian Evidence Act,
1872.
3. That apart, it is stated that one of the issues arising in the earlier instituted suit CS(COMM) No.1294/2018 in the Court of Sh. Sanjay Sharma, ADJ, Saket District Court, is as to whether the said payment of `1.25 Crore was made by the plaintiff herein to the defendant herein in discharge of WOPL’s liability qua PI. Hence, the proceedings cannot proceed.
4. A reply to the application has been filed by the counsel for the plaintiff, it is stated that the application under Order 7 Rule 11 CPC is a complete abuse of process, inasmuch as the application is lacking in material particulars and in fact, does not even mention as to which of the specific grounds under Order 7 Rule 11, CPC are allegedly attracted in the present case. That apart, it is stated that the personal loan in question herein was given by the plaintiff to the defendant and in fact, it is the defendant who has sought to maliciously set off an amount of `1.24 Crores (part of the personal loan) against dues allegedly owed by WOPL to PI. As such, this is nothing but an attempt by the defendant to delay the matter by making frivolous and baseless allegations and to avoid a decree against him.
5. That apart, it is also stated that neither the plaintiff nor the defendant are parties in CS (COMM) No.1294/2018 pending in the Court of Sh. Sanjay Sharma, ADJ, Saket District Court and that the pendency of the said suit cannot be a ground for rejection of the present suit under Order 7 Rule 11 CPC.
6. Mr. Arun Khosla, learned counsel appearing for the defendant has drawn my attention to para 1 of the plaint to contend that the claim of the plaintiff for seeking recovery of a sum of `2,06,50,000/- is based on three transactions as averred by the plaintiff in the plaint. The case of the defendant in this application is primarily with regard to the payment alleged to have been advanced by the plaintiff to the defendant of `22,50,000/- and `1.24 Crores. Insofar as the sum of `22,50,000/- is concerned, it is his submission that it is the case of the plaintiff, the said amount was advanced in March, 2016 as a personal loan. Article 19 of the Schedule to the Limitation Act, 1963 clearly stipulates that in such an eventuality, the limitation shall be three years. As the suit has been filed by the plaintiff in May, 2019 the same is barred by limitation
7. He also stated that it is not the case of the plaintiff that a statement of account was maintained wherein the receipts against the loan amount are being recorded and have been signed by the parties. In such an eventuality the limitation period would start from the date when the parties have signed the statement of accounts. In support of his submission he has relied upon the judgment of the Calcutta High Court in the case of Smt. Monorama Dasi, v. Anil Kumar Ghose, AIR 1960 Calcutta 212.
8. That apart, his plea with regard to the loan of `1.24 Crores alleged to have been advanced by the plaintiff to the respondent is concerned, he states that it is the case of the plaintiff herself that the said amount has been advanced on the basis of an agreement executed in October 2017. By drawing my attention to paragraphs 12 and 14 of the plaint he contended that when the case of the plaintiff herself is that the amount has been advanced on the basis of agreement executed between the parties, then in terms of Section 92 of the Indian Evidence Act, 1872 the plaintiff cannot resile from the said stand and the claim against the plaintiff shall be unsustainable. In this regard, he has relied upon a judgment of the Privy Council in the case of Tsang Chuen v. Li Po Kwai, AIR 1932 Privy Council
255.
9. On the other hand, learned counsel for the plaintiff / non applicant has drawn my attention to para 7 of the plaint to contend that it is the case of the plaintiff that the plaintiff had advanced a sum of `22,50,000/- in March, 2016 to the defendant as a personal loan to help him tide over his cash flow issues. He also stated that the said amount was made from the plaintiff’s personal account, and the defendant had assured its repayment upon resolving his issues with his bankers.
10. He stated that the said amount being payable by the defendant after he has settled his issues with the bankers, the same shall be a date after March, 2016. Hence, March, 2016 is not the date when the cause of action start running against the plaintiff. In this regard, he has drawn my attention to Article 22 of the Schedule to the Limitation Act to contend that cause of action shall accrue when a demand is made. Hence, according to him, the suit filed by the plaintiff is within limitation and cannot be rejected on that ground.
11. That apart, it is the case of the plaintiff that the plaintiff has advanced the personal loan to the defendant from her own account. That apart, it is also her case and the defendant is liable to pay the same. That apart, the agreement which has been executed, is between the partnership firm of the defendant namely PI and the company in which the plaintiff is a Director i.e WOPL. In this regard he has drawn my attention to the whatsapp messages exchange between the parties and pages 105 and 125 of the documents to contend that the proceedings pending before Sh. Sanjay Sharma, ADJ, Saket District Court, herein are between the company and the defendant firm. That apart, it is the case of the plaintiff that the agreement of October, 2017 has been got executed by the defendant under coercion and through blackmail and hence, the agreement being void, the plaintiff is entitled to the money paid thereof. According to him, the issues being contested, need to be decided, after a trial, wherein parties shall adduce evidence.
12. That apart, it is his submission that it is not the case of Mr. Arun Khosla, that there is also a dispute with regard to an amount of `60,00,000/- also alleged to have been advanced by the plaintiff to the defendant. When no issue of limitation or maintainability of such a claim (`60,00,000/-) has been raised by Mr. Arun Khosla in the application or his oral arguments, in view of the settled position of law of the Supreme Court in the case of Sejal Glass Limited v. Navilan Merchants Private Limited, (2018) 11 SCC 780, inasmuch as that it is only where plaint as a whole did not disclose cause of action under Order 7 Rule 11(a) that a plaint need to be rejected, the application is liable to be rejected. However, where it appears that plaint cannot be proceeded with some part but it can be proceeded in another part then Order 7 Rule 11 has no application.
13. Having heard the learned counsel for the parties, at the outset I may state here that Mr. Arun Khosla has primarily made submissions with regard to two loans alleged to have been advanced by the plaintiff i.e. for `22,50,000/- and `1.24 Crores, whereas in the application, Mr. Arun Khosla has only taken the ground with regard to advancement of `1.24 Crores alleged to have been made by the plaintiff to the defendant. In other words, there is no averment in the application with regard to the loan advanced for a sum of `22,50,000/- by the plaintiff to the defendant, in such eventuality, no oral submission could not have been made by Mr. Arun Khosla in that regard. So, the plea related to `22,50,000/need to be rejected. In any case, I find that there are averments made in para 7 of the plaint by the plaintiff that assurance was given by the defendant that the repayment shall be made upon resolving his issues with his bankers. If that be so, the plea of Mr. Arun Khosla is that the limitation would start running from March, 2016 when the amount was alleged to have been advanced by the plaintiff is unsustainable.
14. Surely, the plea of the learned counsel for the plaintiff that the cause of action has accrued to the plaintiff when the plaintiff came to know that a commercial suit has been filed by the Pahwa International acting through the defendant herein for setting off the amount of `1.25 Crores and it is only at that stage that the plaintiff learnt of the defendant’s malicious intent of not repaying the personal loan advanced by the plaintiff to him by drawing my attention to paras 15 to 17 of the plaint, is appealing.
15. Noting the same, this Court is of the view that the reliance placed by Mr. Arun Khosla on Article 19 of the Schedule to the Limitation Act is unsustainable. Insofar as the judgment relied upon by Mr. Arun Khosla in the case Smt. Monorama Dasi (supra) is concerned, the same is not applicable in the facts of this case.
16. That apart, the plea of Mr. Arun Khosla with regard to the loan alleged to have been advanced by the plaintiff of `1.24 Crores based on the agreement executed in the month of October 2017 to contend that such a plea would be hit by Section 92 of the Indian Evidence Act, 1872 is concerned, the same is also not appealing for the simple reason that it is the case of the plaintiff that the plaintiff had advanced personal loan to the defendant through her own personal account. That apart, it is the case of the plaintiff that such an agreement has been executed by her through coercion and blackmail. Such a plea of the plaintiff has to be proved by way of adducing evidence. Further, the effect of coercion and blackmail (if proved) need to be decided. In any case, when an application under Order 7 Rule 11 is preferred, the same has to be seen from the perspective of the plaint as filed by the plaintiff. I am of the view, the plea of limitation and the plea based on Section 92 of the Indian Evidence Act, 1872 cannot be accepted. The judgment relied upon by Mr. Arun Khosla in the case of Tsang Chuen (supra) has no applicability in the facts of this case.
17. Further, in the absence of any plea in the application with regard to the advancement of loan of `60,00,000/-, in view of the judgment of the Supreme Court in the case of Sejal Glass Limited (supra), wherein the Supreme Court has in para 8 stated as under, the application is liable to be rejected. “8. We are afraid that this is a misreading of the Madras High Court judgment. It was only on the peculiar facts of that case that want of Section 80 CPC against one defendant led to the rejection of the plaint as a whole, as no cause of action would remain against the other defendants. This cannot elevate itself into a rule of law, that once a part of a plaint cannot proceed, the other part also cannot proceed, and the plaint as a whole must be rejected under Order VII Rule 11. In all such cases, if the plaint survives against certain defendants and/or properties, Order VII Rule 11 will have no application at all, and the suit as a whole must then proceed to trial.”
18. In view of my above discussion, I do not see any merit in the application. The same is dismissed.
19. List IA 9099/2019 for hearing on January 06, 2020.
V. KAMESWAR RAO, J
NOVEMBER 13, 2019