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Mr. Rajeev Kumar Setia & Others v/s M/s. Skipper Construction Limited & Another

    IA No.10277 of 2005 in CS (OS) No.441 of 2004

    Decided On, 16 February 2006

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE SWATANTER KUMAR

    For the Plaintiffs: A.K. Thakur, Advocate. For the Defendants: Kuljeet Rawal, Manjeet Kirpal, Advocates.



Judgment Text

Swatanter Kumar, J.


1. The plaintiffs filed a suit for recovery of Rs. 23,88,870/- against the defendants under the provisions of Order XXXVII read with Section 151 of the Code of Civil Procedure (for short ‘CPC’). According to the plaintiffs, plaintiff no.1 had booked flats no. 313 and 338-A on the third floor, consisting 770 sq. feet approximately in the building proposed to be constructed at Jhandenwalan, New Delhi, by the defendant no.1 namely M/s. Skipper Construction Pvt. Ltd. for plaintiff no.2, who is the daughter of plaintiff no.1. The plaintiff no.1 paid a total sum of Rs. 05,48,400/- to the defendant no.1 during the period 24th January, 1991 to 24th December, 1991. Plaintiff no.1 had also booked flats no. 339 and 339A and 339B on the third floor consisting about 450 square meters in the same building in the name of his sister's son, plaintiff no.3. The father of plaintiff no.3 had also made payments to defendant no.1 on behalf of plaintiff no.3, during the period from 25th February, 1991 to 9th April, 1992 amounting to Rs. 2,04,000/-. Thus, the plaintiffs had paid a total sum of Rs. 7,52,400/- for and on behalf of plaintiffs no.2 and 3. Plaintiffs were completely unaware about the fact that any litigation was pending between the DDA and the defendant no.1. The matter was subjudice in Supreme Court in SLP No. 21000 of 1993 against the defendant no.1. Successive Commissioners were appointed to look into the claims of the depositors who had invested the money in the company. This, however, escaped the notice of plaintiff no.1 for the reason that he was hospitalised. Thereafter, the plaintiffs filed writ petitions on 27th September, 2003 which came up for hearing on 30th January, 2004 The Supreme Court while dismissing both the writ petitions passed the following order:-


“At this length of time, we are not inclined to entertain this petition. Accordingly, the Writ Petition is dismissed, leaving it open to the Writ petitioners to approach remedies otherwise available in law.”


2. The plaintiffs paid the amounts to the defendants and as the defendants were neither able to complete their obligations in terms of the booking order, nor returned the money of the plaintiffs, the plaintiffs filed the present suit for recovery of Rs. 7,52,400/- with interest @ 18% per annum till recovery of the amount. The plaintiffs have sued on the basis of the receipts given by defendant no.1 acknowledging the amounts received, and therefore, the suit is filed under the provisions of Order XXXVII of the CPC. According to the plaintiffs, no claim raised in the plaint is beyond the purview and scope of the said provisions. The defendants were granted leave to defend and they filed the written statement to which the plaintiffs filed replication. In the written statement the defendants have taken up preliminary objections with regard to the maintainability of the suit and also contested the suit on merits. One of the main preliminary objection taken by the defendants was that the suit filed by the plaintiffs is hopelessly barred by time. The plaintiffs had concealed material facts and the present suit besides being barred by time, was not maintainable and was a abuse of the process of law. Thus, they pray for dismissal of the suit on this very ground.


3. Once this objection was raised by the defendants, the plaintiffs filed an application for condonation of delay under Section 5 read with Section 14 of the Limitation Act being IA No. 10277/2005. In this application the plaintiffs prayed that the delay of 4716 days in filing the suit be condoned and the suit be treated as within time.


4. Thus, by this order I would dispose of the preliminary objection of limitation taken by the defendants with regard to the very maintainability of the suit along with IA No. 10277/2005 (U/s. 5 of the Limitation Act).


5. There cannot be any dispute to the fact that the suit is barred by time. In fact, the plaintiff no.1 had admittedly paid the amounts to the defendants, during the period 24.1.1991 to 09.04.1992 for and on behalf of the other plaintiffs. These amounts were paid to the defendant no.1 against receipts executed by them during that period. After receipt of the amount, admittedly the amounts have not been returned to the plaintiffs nor any property has been conveyed in terms of the booking. The short question is whether on 6th April, 2004 when the plaintiffs filed the present suit for recovery of money, limitation for which is three years, was barred by time. Admittedly, there is no confirmation of the debt by defendant no.1, after execution of the original receipts in the year 1991-1992. The suit apparently is beyond the prescribed period of limitation. Even the provisions of Order VII Rule 11 of the CPC would be attracted in the present case for rejection of the plaint and consequential dismissal of the suit as the suit of the plaintiffs is barred by law of limitation. In this regard, nothing needs to be discussed in view of the paragraph 12 of the plaint, the paragraph relating to cause of action which reads as under:-


“That the cause of action arose on in the case of the plaintiff no.2 with effect from 24.01.1991 to 24.12.1991 and in the case of plaintiff no.3 from 25.02.1991 to 09.04.1992 when the monies were given to the defendant no.1. The cause of action again arose when the Plaintiff no.1 approached the Defendant no.1 from January 1993 to December 1996 for the refund of money so given along with interest @ 18% thereon till serious illness prevented him. But the Defendant avoided to pay. The efforts on behalf of the Plaintiffs were made by their well-wishers at Delhi to get the monies paid to them giving rise to the cause of action on each and every date. The cause of action arose further when the Plaintiff nos 2 and 3 approached Hon'ble Supreme Court of India by moving Writ petitions under Article 32 of the Constitution of India on 27.09.2003 and thereafter on 30.01.2004 when the Hon'ble Supreme Court of India disposed off the Writ Petitions with observations as aforesaid. The cause of action is continuing.”


6. The plaintiffs are bound by their own pleadings and on the bare reading of the above paragraph it is clear that the suit of the plaintiffs is barred by time. Money was given in the year 1991-1992 while the present suit has been filed in the year 2004.


7. Coming to the application filed by the plaintiffs for condonation of delay under Sections 5 and 14 of the Limitation Act, Section 5 of the Limitation Act has no application to the suits. Section 14 of the said act provides for exclusion of time where the plaintiff had been pursuing a legal remedy under a mistaken impression. The learned counsel appearing for the defendants contended that the provisions of Section 14 of the Limitation Act are not attracted at all in the facts and circumstances of the case and even if it is assumed for the sake of arguments that the said provisions are attracted still the plaintiffs have no case and cause in as much as it is even admitted in the plaint and in the application for condonation of delay that for the first time, the plaintiffs moved the Supreme Court by filing a writ petition in the year 2003, which was not even entertained, keeping in view the long delay in filing the writ petition. It is not even disputed during the course of arguments that the plaintiffs had taken no legal steps, right from the year 1992 till 2003 for recovery

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of their dues. On the contrary, the plaintiffs have slept over their rights and remained unperturbed for all this period as if they were not interested in recovering the suit money. Once claim of a party becomes barred by time, a definite right accrues to the other side. The said right cannot be taken away except for the exceptions stated out in law. There is no admission or acknowledgment of the debt during this long period of 11 years. Thus, the Court has no difficulty in holding that the suit of the plaintiffs is barred by time and the application for condonation of delay is not maintainable and in any case, the plaintiffs were not prosecuting any appropriate legal remedy under a mistaken impression during this period. Accordingly, the suit and the application both are dismissed, while leaving the parties to bear their own costs.
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