w w w . L a w y e r S e r v i c e s . i n



Perfect Synergy Advisory Pvt. Ltd. v/s Sagar Infra Rail International Limited & Others


Company & Directors' Information:- K N INTERNATIONAL LIMITED [Active] CIN = U45201UP2002PLC026841

Company & Directors' Information:- V AND S INTERNATIONAL PVT LTD [Active] CIN = U74899DL1992PTC049964

Company & Directors' Information:- S S A INTERNATIONAL LTD [Active] CIN = U15122DL1995PLC068186

Company & Directors' Information:- A T N INTERNATIONAL LIMITED [Active] CIN = L65993WB1983PLC080793

Company & Directors' Information:- D D INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909PB1995PTC016929

Company & Directors' Information:- T K INTERNATIONAL LIMITED [Active] CIN = U55101OR1982PLC001092

Company & Directors' Information:- N R INTERNATIONAL LIMITED [Active] CIN = L74999WB1991PLC051738

Company & Directors' Information:- K J INTERNATIONAL LIMITED [Active] CIN = L15142PB1993PLC011274

Company & Directors' Information:- A K S INTERNATIONAL LIMITED [Active] CIN = U74899DL1996PLC076327

Company & Directors' Information:- S P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U70100WB1994PTC063228

Company & Directors' Information:- H N COMPANY INFRA PRIVATE LIMITED [Active] CIN = U45201NL2005PTC007743

Company & Directors' Information:- B. K. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999DL2006PTC157013

Company & Directors' Information:- R S C INTERNATIONAL LIMITED [Active] CIN = L17124RJ1993PLC007136

Company & Directors' Information:- J C INTERNATIONAL LIMITED [Active] CIN = U51109WB1999PLC089037

Company & Directors' Information:- M T L INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U24219UP2001PTC025965

Company & Directors' Information:- T C N S INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U51311DL1996PTC080096

Company & Directors' Information:- K V S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18101DL2003PTC120770

Company & Directors' Information:- G N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL2001PTC110766

Company & Directors' Information:- SAGAR INTERNATIONAL LTD [Active] CIN = L51504WB1993PLC058881

Company & Directors' Information:- S H A M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U45200MH1994PTC079867

Company & Directors' Information:- M K INTERNATIONAL LIMITED [Active] CIN = U51909DL1996PLC083430

Company & Directors' Information:- V. G. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51101DL2007PTC162540

Company & Directors' Information:- D R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U24132DL1996PTC079867

Company & Directors' Information:- R H INTERNATIONAL LIMITED [Active] CIN = U72900DL2007PLC159452

Company & Directors' Information:- T AND T INFRA PRIVATE LIMITED [Active] CIN = U45200PN2012PTC144893

Company & Directors' Information:- S R C INFRA PRIVATE LIMITED [Active] CIN = U45200KA2014PTC073052

Company & Directors' Information:- G & G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U17120DL2012PTC234047

Company & Directors' Information:- A & D INTERNATIONAL PRIVATE LIMITED [Active] CIN = U36109RJ2007PTC024176

Company & Directors' Information:- K A I INTERNATIONAL PRIVATE LIMITED [Active] CIN = U13100OR2007PTC009647

Company & Directors' Information:- C G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U99999MH1996PTC097577

Company & Directors' Information:- SAGAR INTERNATIONAL PRIVATE LIMITED [Active] CIN = U29240MH2004PTC145024

Company & Directors' Information:- K C INTERNATIONAL LIMITED [Active] CIN = U74899DL1994PLC060402

Company & Directors' Information:- PERFECT CORPORATION LIMITED [Active] CIN = U74900PN2012PLC143769

Company & Directors' Information:- M P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U29130MH1997PTC107943

Company & Directors' Information:- A S INTERNATIONAL LIMITED [Strike Off] CIN = U74899DL1993PLC056158

Company & Directors' Information:- AMP INFRA PRIVATE LIMITED [Active] CIN = U45400DL2014PTC269040

Company & Directors' Information:- S. D. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74900UP2008PTC036047

Company & Directors' Information:- S AND I INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL1995PTC072210

Company & Directors' Information:- L T INTERNATIONAL LIMITED [Active] CIN = U74899DL1999PLC097892

Company & Directors' Information:- R E INFRA PRIVATE LIMITED [Active] CIN = U74999MH2007PTC175255

Company & Directors' Information:- A. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51102GJ2008PTC053840

Company & Directors' Information:- M Y C INFRA PRIVATE LIMITED [Active] CIN = U45400UP2013PTC055996

Company & Directors' Information:- S J M INTERNATIONAL LIMITED [Active] CIN = U52110DL1987PLC028571

Company & Directors' Information:- S B S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18101DL1997PTC085878

Company & Directors' Information:- R. A. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51225DL2008PTC177405

Company & Directors' Information:- B G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U50300PB2014PTC038889

Company & Directors' Information:- R K INFRA(INDIA) PRIVATE LIMITED [Active] CIN = U45201KA2010PTC054009

Company & Directors' Information:- S F INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999PB2000PTC023654

Company & Directors' Information:- I K INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1995PTC066267

Company & Directors' Information:- C K INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1991PTC045625

Company & Directors' Information:- L A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909PB2010PTC033683

Company & Directors' Information:- H R V INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U74899UP1993PTC057665

Company & Directors' Information:- SAGAR INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1978PTC009326

Company & Directors' Information:- K P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U24110GJ2007PTC050026

Company & Directors' Information:- V S INTERNATIONAL PRIVATE LIMITED [Active] CIN = U85100MH1997PTC109647

Company & Directors' Information:- N N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U01111DL1999PTC099094

Company & Directors' Information:- S R V INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74140DL2012PTC243060

Company & Directors' Information:- S N ADVISORY PRIVATE LIMITED [Amalgamated] CIN = U74140GJ2008PTC054554

Company & Directors' Information:- I V INFRA PRIVATE LIMITED [Active] CIN = U45309PB2008PTC031932

Company & Directors' Information:- A. R. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51900MH2010PTC228539

Company & Directors' Information:- M & B INFRA LIMITED [Active] CIN = U70109PB2012PLC036738

Company & Directors' Information:- B R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1993PTC055562

Company & Directors' Information:- M J INTERNATIONAL PRIVATE LIMITED [Amalgamated] CIN = U74899DL1982PTC013231

Company & Directors' Information:- D N INTERNATIONAL LIMITED [Active] CIN = U36911TN1996PLC034205

Company & Directors' Information:- M. H. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U70102DL2007PTC164267

Company & Directors' Information:- M G M INTERNATIONAL PVT LTD [Active] CIN = U74899DL1982PTC013580

Company & Directors' Information:- J J INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51109DL1992PTC047657

Company & Directors' Information:- H D INTERNATIONAL LIMITED [Active] CIN = U74899DL1994PLC060720

Company & Directors' Information:- K. A. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51101UP2012PTC049338

Company & Directors' Information:- J & G INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18109DL2012PTC238392

Company & Directors' Information:- K R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U17291DL2008PTC172188

Company & Directors' Information:- S P INTERNATIONAL PVT LTD [Strike Off] CIN = U99999UP1965PTC003091

Company & Directors' Information:- A H INFRA LIMITED [Active] CIN = U31501WB2010PLC155151

Company & Directors' Information:- B M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1992PTC048736

Company & Directors' Information:- S G INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51109WB1998PTC086547

Company & Directors' Information:- B N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U15412WB1999PTC089316

Company & Directors' Information:- V A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U01111DL2000PTC104712

Company & Directors' Information:- S. J. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U27310DL2007PTC169438

Company & Directors' Information:- G. S. C. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U29120MH1994PTC080380

Company & Directors' Information:- V & H INFRA PRIVATE LIMITED [Active] CIN = U45203MH2008PTC181787

Company & Directors' Information:- A J INTERNATIONAL PRIVATE LIMITED [Converted to LLP] CIN = U74899DL1994PTC060818

Company & Directors' Information:- J S M INTERNATIONAL LIMITED [Active] CIN = U85110KA1996PLC020046

Company & Directors' Information:- N M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74120MH2012PTC234492

Company & Directors' Information:- S S M INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909DL1997PTC089876

Company & Directors' Information:- A P J INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51909HR2010PTC040304

Company & Directors' Information:- T. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U72900DL1997PTC091049

Company & Directors' Information:- V R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51101UP2011PTC043952

Company & Directors' Information:- M E C INTERNATIONAL PRIVATE LIMITED [Active] CIN = U33111GJ1963PTC082423

Company & Directors' Information:- J K INTERNATIONAL PRIVATE LIMITED [Active] CIN = U01100MH2004PTC144492

Company & Directors' Information:- D. S. R. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999UP2010PTC039954

Company & Directors' Information:- R B INTERNATIONAL LTD [Strike Off] CIN = U18101WB1993PLC059515

Company & Directors' Information:- P Y INTERNATIONAL PRIVATE LIMITED [Converted to LLP] CIN = U51102RJ1995PTC010133

Company & Directors' Information:- R C INTERNATIONAL LIMITED [Strike Off] CIN = U51909TG1991PLC012477

Company & Directors' Information:- I AND A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U72200TG1995PTC019936

Company & Directors' Information:- P V INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1998PTC094598

Company & Directors' Information:- I B INTERNATIONAL PRIVATE LIMITED [Under Process of Striking Off] CIN = U72200DL2000PTC105735

Company & Directors' Information:- A M INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74899DL1995PTC066228

Company & Directors' Information:- Z. H. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U21098MH2010PTC210735

Company & Directors' Information:- J R INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51909TN2002PTC048744

Company & Directors' Information:- L S INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74999DL2009PTC193390

Company & Directors' Information:- M B INTERNATIONAL PVT LTD [Strike Off] CIN = U52190DL2001PTC110572

Company & Directors' Information:- O K R INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74900DL1996PTC077152

Company & Directors' Information:- B B C INTERNATIONAL PVT LTD [Strike Off] CIN = U25209WB1984PTC037383

Company & Directors' Information:- K S INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51909MH2001PTC134345

Company & Directors' Information:- A TO Z INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51101TN1992PTC022507

Company & Directors' Information:- SAGAR (INDIA) PVT LTD [Active] CIN = U74210AS1997PTC005100

Company & Directors' Information:- SYNERGY INDIA PRIVATE LIMITED [Active] CIN = U31100DL2011PTC223743

Company & Directors' Information:- S R U INFRA PRIVATE LIMITED [Active] CIN = U70102UP2014PTC065614

Company & Directors' Information:- S G U INFRA PRIVATE LIMITED [Active] CIN = U70102UP2015PTC071682

Company & Directors' Information:- C & A INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51900MH1982PTC026718

Company & Directors' Information:- J S INTERNATIONAL PVT LTD [Strike Off] CIN = U51900MH1982PTC027604

Company & Directors' Information:- A C INDIA INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74899DL1989PTC034784

Company & Directors' Information:- INDIA INTERNATIONAL COMPANY PRIVATE LIMITED [Active] CIN = U51228MH1955PTC009483

Company & Directors' Information:- Z INFRA LIMITED [Strike Off] CIN = U45201OR2009PLC010795

Company & Directors' Information:- S B M INFRA PRIVATE LIMITED [Strike Off] CIN = U45201TR2010PTC008299

Company & Directors' Information:- R K INTERNATIONAL PVT LTD [Strike Off] CIN = U63040PB1982PTC004926

Company & Directors' Information:- S INFRA PRIVATE LIMITED [Under Process of Striking Off] CIN = U45201OR2012PTC016064

Company & Directors' Information:- L & P INTERNATIONAL PRIVATE LIMITED [Active] CIN = U52100DL2016PTC292025

Company & Directors' Information:- S S P L INFRA PRIVATE LIMITED [Strike Off] CIN = U45201OR2011PTC013469

Company & Directors' Information:- V V INFRA PRIVATE LIMITED [Active] CIN = U45200TG2008PTC059111

Company & Directors' Information:- R V G INFRA PRIVATE LIMITED [Strike Off] CIN = U70200DL2011PTC219732

Company & Directors' Information:- R B N INTERNATIONAL PRIVATE LIMITED [Active] CIN = U52300DL2012PTC243998

Company & Directors' Information:- P AND P INTERNATIONAL PRIVATE LIMITED. [Strike Off] CIN = U24100OR1993PTC003244

Company & Directors' Information:- E C INTERNATIONAL PVT LTD [Strike Off] CIN = U99999DL1982PTC013146

Company & Directors' Information:- Y. C. INFRA PRIVATE LIMITED [Active] CIN = U45400WB2010PTC151352

Company & Directors' Information:- J K S INFRA (INDIA) LIMITED [Active] CIN = U45209PB2012PLC036363

Company & Directors' Information:- SAGAR AND SAGAR CO PRIVATE LIMITED [Active] CIN = U74899DL1987PTC029481

Company & Directors' Information:- A R INFRA (INDIA) PRIVATE LIMITED [Active] CIN = U70109MP2007PTC020049

Company & Directors' Information:- SYNERGY ADVISORY PRIVATE LIMITED [Active] CIN = U74140DL2008PTC182879

Company & Directors' Information:- R B SYNERGY PRIVATE LIMITED [Active] CIN = U74140DL2011PTC225746

Company & Directors' Information:- M M INTERNATIONAL PVT LTD [Converted to LLP] CIN = U51312DL1977PTC008583

Company & Directors' Information:- G K V INFRA PRIVATE LIMITED [Strike Off] CIN = U45200PN2011PTC141814

Company & Directors' Information:- L N ADVISORY PRIVATE LIMITED [Active] CIN = U67120MP2009PTC022693

Company & Directors' Information:- A K INDIA INTERNATIONAL PRIVATE LTD [Strike Off] CIN = U45201DL1981PTC012389

Company & Directors' Information:- A P ADVISORY PRIVATE LIMITED [Active] CIN = U74900DL2009PTC194626

Company & Directors' Information:- G A ADVISORY PRIVATE LIMITED [Active] CIN = U74140DL2012PTC241530

Company & Directors' Information:- R P M ADVISORY PRIVATE LIMITED [Strike Off] CIN = U70200DL2013PTC248132

Company & Directors' Information:- O P INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U55101PB2013PTC037499

Company & Directors' Information:- J & A INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51900PB2013PTC037302

Company & Directors' Information:- L G INFRA PRIVATE LIMITED [Strike Off] CIN = U45400TN2014PTC095310

Company & Directors' Information:- Y. A. INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74900RJ2012PTC040431

Company & Directors' Information:- INFRA SYNERGY PRIVATE LIMITED [Active] CIN = U45400MH2013PTC244728

Company & Directors' Information:- D & A INTERNATIONAL PRIVATE LIMITED [Active] CIN = U74999MH2015PTC262713

Company & Directors' Information:- SYNERGY INFRA PRIVATE LIMITED [Strike Off] CIN = U70100TN2012PTC084812

Company & Directors' Information:- R L INTERNATIONAL PRIVATE LIMITED [Active] CIN = U18204UP2016PTC076344

Company & Directors' Information:- V P S INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U93030UP2014PTC066242

Company & Directors' Information:- J G INFRA PRIVATE LIMITED [Active] CIN = U45209CH2012PTC034095

Company & Directors' Information:- T-INFRA INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74999DL2012PTC241026

Company & Directors' Information:- E & P INFRA PRIVATE LIMITED [Strike Off] CIN = U74999DL2014PTC271401

Company & Directors' Information:- J V INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51102DL2012PTC240197

Company & Directors' Information:- S R L INTERNATIONAL PRIVATE LIMITED [Under Process of Striking Off] CIN = U20296AP2013PTC085533

Company & Directors' Information:- K. SAGAR INDIA PRIVATE LIMITED [Under Process of Striking Off] CIN = U52110BR2016PTC032073

Company & Directors' Information:- M D INTERNATIONAL LIMITED [Active] CIN = U74140MH1981PTC025007

Company & Directors' Information:- D C M INTERNATIONAL LTD. [Strike Off] CIN = U99999DL2000PTC004208

    CS.(OS). No. 614 of 2016, IA. No. 15358 of 2016 (u/O XXXIX R-1&2 CPC) & CC. No. 25 of 2017

    Decided On, 27 February 2020

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE RAJIV SAHAI ENDLAW

    For the Plaintiff: J.P. Sengh, Sr. Advocate, R. Nikilesh, Dinesh Kumar, Navdeep Jain, R.L. Sinha, Zubin Sengh, Shashi Pratap Singh, Advocates. For the Defendants: Tarun Chandiok, Asfar Heyat Warsi, Advocates.



Judgment Text


IA No.2131/2017 (of the defendants u/O VII R-11 CPC).

1. The plaintiff has instituted this suit for recovery of Rs.6,22,56,850/- jointly and severally from Sagar Infra Rail International Ltd. and its Directors K. Udayananda Reddy and K. Surekha Udaya, pleading that (i) the plaintiff, on 19th May, 2011 advanced a loan of Rs.3,50,00,000/- to the defendant no.1 for a period of six months and bearing interest for the first three months @18% per annum and for the remaining three months @20% per annum and a Short Term Loan Agreement dated 19th May, 2011, Receipt dated 19th May, 2011, Demand Promissory Note dated 19th May, 2011 were executed by the defendant no.2 on behalf of defendant no.1 in favour of the plaintiff; (ii) two irrevocable and unconditional personal guarantees were also furnished in favour of the plaintiff by the defendant no.2 and the defendant no.3 inter alia guaranteeing due repayment of the loan as well as interest by the defendant no.1; (iii) the defendants also handed over to the plaintiff title deeds of five immovable properties towards their intent of mortgaging the said properties and providing the same as collateral for the loan and interest due thereon; (iv) the defendant no.2 pledged his 50,00,000/- shares held by him in defendant no.1 with the plaintiff, by physical delivery of the Share Certificates and signed Transfer Deeds; (v) the defendants failed to pay interest as well as principal amount by the stipulated dates; (vi) towards the end of January and February, 2015, the defendant no.2 acknowledged the amount due and promised the plaintiff that they would like to clear all dues under the Loan Agreement dated 19th May, 2011 and proposed that if the title deeds of their five properties were handed over by the plaintiff to the defendant no.2, the loan with interest due would be cleared by sale of the said properties; (vii) to assure the plaintiff, the defendants also offered post dated cheques in full and final settlement; (viii) the plaintiff, believing the representation of the defendant no.2, gave back the original title documents / Sale Deeds of one of the properties to defendant no.2 and the defendant no.2 simultaneously handed over two cheques, both dated 14th February, 2015 for Rs.3,50,00,000/- towards refund of principal and for Rs.2,72,56,850/- towards payment of interest; (ix) by handing over the aforesaid cheques to the plaintiff, the defendants acknowledged their liability to repay the principal as well as interest thereon under the Short Term Loan Agreement dated 19th May, 2011; and, (x) however both the cheques, on presentation were returned dishonoured and the plaintiff has initiated action against the defendants under the Negotiable Instruments Act, 1881.

2. The suit, filed on 30th November, 2016 and re-filed successively on 7th December, 2016, 8th December, 2016 and 10th December, 2016, came up before this Court first on 19th December, 2016 when it was enquired from the counsel for the plaintiff, how the suit claim for recovery of money loaned on 19th May, 2011 and repayable within six months therefrom i.e. by 18th November, 2011, filed on 30th November, 2016 was within time. It appeared that the suit claim was barred by time.

3. The counsel for the plaintiff however on 9th December, 2016 stated that the defendants, by issuing the cheques dated 14th February, 2015 and handing over the same to the plaintiff in January, 2015, had acknowledged their liability.

4. It was enquired from the counsel for the plaintiff whether not the acknowledgment of liability itself was beyond the prescribed period of limitation which lapsed on 18th November, 2014.

5. The senior counsel for the plaintiff appearing on 9th December, 2016 contended that the suit was not on the basis of loan transaction of the year 2011 but on the basis of cheques dated 14th February, 2015 which constitute acknowledgment of debt and a promise to pay. It was argued that acknowledgment of even time barred debt with a promise to pay was a valid acknowledgment. However on request of the senior counsel then appearing for the plaintiff, hearing was adjourned. On 15th December, 2016, the senior counsel for the plaintiff drew attention to Section 25 of the Contract Act, 1872.

6. The suit was entertained and summons thereof ordered to be issued and the defendants restrained from alienating, encumbering or parting with plot No.B-18/2-B ad-measuring 350 sq. yds. out of Khasra No.1026 situated in the Revenue Estate of Village Dindarpur, Delhi also known as Roshanpura, Najafgarh, New Delhi, and also known as Shyam Vihar, Phase-II, Najafgarh, New Delhi being the property of which documents had been taken away by the defendants from the plaintiff.

7. The defendants, on services of summons, besides filing their joint written statement, filed this application for rejection of the plaint on the ground of suit claim being barred by time and have also filed a counterclaim seeking direction to the plaintiff to handover all the documents of the defendants mentioned in the covering letter dated 19th May, 2011. However for the purpose of this application, the need to refer to the written statement or the counterclaim of the defendants is not felt.

8. It is the contention of the defendants in this application seeking rejection of the plaint, that (a) the two cheques, both claimed by the plaintiff to be dated 14th February, 2015, were issued by the defendants way back on 19th May, 2011, one as a security to the principal amount and the other for future interest and “apparently both the cheques did not mention any date”; (b) the plaintiff has subsequently filled in the blanks and thus tampered with the cheques issued by the defendants; (c) the cheques may be sent for forensic examination; (d) the cheques which are issued as security at the time of granting loan, cannot be claimed for recovery; (e) now that the loan transaction is time barred and thus not enforceable in law, the plaintiff has lost the right to recover the time-barred debt; (f) since non-CTS cheques are invalid from 2012, the cheques issued by the defendants now cannot be considered negotiable instruments; (g) the suit claim is barred by time; (h) there is no explanation why the plaintiff did not claim the loan amount within the limitation period; (i) even for applicability of Section 25(3) of the Contract Act, the plaintiff needs to satisfy three conditions, firstly it must refer to a debt with the creditor but the same must be in force in terms of limitation; secondly, there must be a distinct promise to pay wholly or in part such debt; and, thirdly, promise must be in writing by the person or his duly appointed agent; and, (j) admittedly there is no written promise by the defendants.

9. The plaintiff has filed reply to the application of the defendants for rejection of the plaint, but again the need to advert thereto is not felt.

10. I may record that a number of pleas in the application of the defendants for rejection of the plaint are beyond the scope of Order VII Rule 11 of the Code of Civil Procedure, 1908 for seeking rejection of plaint. All that is required to be seen is that the plaintiff on the averments in the plaint and documents filed therewith, even if believed, is not likely to succeed in the suit owing to the suit being barred by any law or for the other reasons enumerated in Order VII Rule 11 CPC. The defence of the defendants cannot be seen in adjudication of an application under Order VII Rule 11 of the CPC. Reference in this regard may be made to Saleem Bhai Vs. State of Maharashtra (2003) 1 SCC 557, C. Natarajan Vs. Ashim Bai (2007) 14 SCC 183, Mansa Ram Vs. Tilak 195 (2012) DLT 182 (DB), Utvair Aviation Vs. Jagson Airlines Ltd. 2012 (129) DRJ 630, Gopal Johari Vs. Anup Diwan 2012 (131) DRJ 98.

11. The counsel for the parties were heard on 3rd December, 2018 and thereafter again on 18th July, 2019. The counsel for the defendants on 3rd December, 2018 handed over copies of judgments in Chander Mohan Mehta Vs. William Rosario Fern Andes 2008 SCC OnLine Bom 1590, Unitel Technology (India) Pvt. Ltd. Vs. SMP International 2014 SCC OnLine Del 7118 and Ashwini Satish Bhat Vs. Jeevan Divakar Lolienkar 1999 SCC OnLine Bom 69 but was unable to show as to how the same applied to the facts of the case. The senior counsel for the plaintiff on 3rd December, 2018 relied on Suresh Kumar Joon Vs. Mool Chand Motors 2012 SCC OnLine Del 4303 holding that issuance of a cheque towards a time barred debt is a contract, containing a promise in writing to pay the debt, within the meaning of Section 25(3) of the Indian Contract Act, 1872.

12. The counsel for defendants, on 18th July, 2019 contended that the plaintiff cannot rely on the two cheques dated 14th February, 2015 for Rs.3,50,00,000/- and Rs.2,72,56,850/- respectively to extend the period of limitation because the said cheques themselves are, in any case, issued beyond 18th November, 2011, by which time the loan was repayable.

13. On enquiry, why Section 25(3) of the Contract Act on the basis whereof, vide order dated 15th December, 2016 summons of the suit were ordered to be issued, is not attracted, the counsel for the defendants has contended that for Section 25(3) to be attracted, there has to be a promise in writing, signed by the person to be charged therewith, to pay the debt of which the creditor might have enforced payment but for the law for limitation of suits. It was argued that a cheque is not a promise to pay. Reference in this regard was made to Sections 4 to 6 of the Negotiable Instruments Act, 1881. It was contended that while Section 4 defines a “promissory note” as an instrument in writing containing an unconditional undertaking, signed by the maker, to pay a certain sum of money and would constitute a promise within the meaning of Section 25(3) supra, but a cheque is not a promissory note. It is contended that Section 5 defines a “bill of exchange” as an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum of money only to, or to the order of, a certain person or to the bearer of the instrument and Section 6 defines a “cheque” as a bill of exchange drawn on a specified banker. It was argued that thus a cheque is not a promise but an order to the banker to pay.

14. I enquired from the counsel for the applicants/defendants that if a cheque is not a promise, how does Section 139 of the Negotiable Instruments Act provides for a rebuttable presumption that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability.

15. No specific answer had come to the aforesaid.

16. On enquiry as to why Suresh Kumar Joon supra relied upon by the senior counsel for the plaintiff during the hearing on 3rd December, 2018 did not apply on all fours, the counsel for the defendants contended that paras 7 to 13 of the said judgment, on which the senior counsel for the plaintiff relied, are not the ratio of the judgment but are only obiter. On enquiry, what the ratio of the said judgment was, attention was invited to paras 2 and 13 of the judgment to contend that the ratio of the said judgment is that a cheque accompanied with a promise to pay as made in the reconciliation statement would constitute a promise in writing within the meaning of Section 25(3) of the Act. It was argued that the defendants nowhere in the cheque have stated or admitted that they owe the amount thereof to the plaintiff. It is stated that even a currency note contains a promise to pay and which is not so qua the cheque.

17. The senior counsel for the plaintiff again took me through the Suresh Kumar Joon contending that the same applies on all fours. The senior counsel for the plaintiff also reiterated that the suit was for recovery of the cheque amounts.

18. In Suresh Kumar Joon supra, the question for adjudication was “whether a dishonoured cheque, which defendant no.2 issued to the plaintiff can be said to be a promise made to pay the amount of the cheque to the plaintiff”. The contention of the counsel for the defendants in that case was “that Section 25(3) envisages a contract whereby the debtor expressly promises to pay the whole or part of the debt and a cheque which is only a bill of exchange and does not contain any such promise, it is not a contract saved by the said provision”. A Co-ordinate Bench, of this Court relying on the judgments of the High Court of Kerala, Karnataka, Madras, held as under:-

“8. It is true that the cheque does not contain an express promise in writing, to pay the amount of the cheque to the payee or the cheque. However, Section 9 of the Indian Contract Act makes it very clear that the promise can be express as well as implied. In my view, when a debtor issues a cheque to his creditor, he makes an implied promise to him to pay the amount of the cheque being issued by him. It is only towards fulfillment of that such promise that a cheque is issued by the debtor to the creditor. Once it is alleged that the relationship between the parties was that of debtor and a creditor and it is further alleged that the cheque was issued by the debtor to the creditor, it would be difficult to dispute that a cheque contains an implied promise, in writing, to pay the amount of the cheque. Since, even a time- barred debt is saved by Section 25(3) of the Indian Contract Act, 1872, the issuance of a cheque towards repayment of a time-barred debt constitutes a contract within the meaning of Section 25(3) of the Indian Contract Act, 1872.”

19. I am unable to agree with the contention of the counsel for the defendants/applicants that the aforesaid does not constitute the ratio of the judgment.

20. I must however notice that in para 13, while reiterating that when considering the application under Order VII Rule 11 of the CPC, the Court has to consider only the averments in the plaint and not the written statement or the documents filed by the defendants, Suresh Kumar Joon supra also held as under:-

“It is true that there is no specific averment in the plaint that the cheque issued by defendant no.2 to the plaintiff amounts to a ‘contract? within the meaning of Section 25(3) of the Indian Contract Act. But, this, to my mind, would not be relevant if such a contract can otherwise be culled out from the averments made in the plaint. It has been specifically alleged in para 11 of the plaint that on 13.3.2007, the principal amount due on the defendants was Rs.47 lac along with Rs.4,29,000/- and the cost of the tanker which the defendants had taken on rent and on reconciliation of amount an acknowledgment of debts took place by intervention of the mediators, whereupon defendant no.2 issued cheque bearing number 352451 drawn on Union Bank of India for a sum of Rs.51,29,000/- towards repayment of debt to the plaintiff and the plaintiff accepted the cheque upon reconciliation of the account of tanker?s payment. These averments are sufficient, in my view, to constitute a contract under Section 25(3) of the Indian Contract Act, 1872.”

21. Merely because in that case there was a plea of reconciliation of amount, would not deflect from what is quoted hereinabove being the ratio of the judgment.

22. The counsel for the defendants then stated that his response to Section 139 of the Negotiable Instruments Act is that while it raises a presumption of debt and existence of which even Section 25(3) envisages; it is not a promise to pay. The counsel for the defendants/applicants further stated that in Suresh Kumar Joon itself the counsel for the defendants had referred to Tulsi Ram Vs. Same Singh 19 (1981) DLT 378, which though was distinguished, but in his submission, erroneously and the matter needs to be referred to the larger Bench.

23. I have gone through Tulsi Ram supra as well. In Tulsi Ram this Court, at the stage of second appeal, was concerned with an endorsement made on 10th July, 1966 on the back of a pronote dated 5th January, 1963, to the effect "Is pronote ko main manzoor karta hoon ki yeh agle teen saal ke liye theek hai". It was the contention of the plaintiff therein that the endorsement dated 10th July, 1966 at the back of the pronote was not a mere acknowledgment but a promise to pay in writing within the meaning of Section 25(3) of the Contract Act and thus the suit claim was within time. It was held that (i) Section 25(3) uses the word

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s “promise made in writing to pay”; (ii) thus there should be an express promise to pay a time barred debt, to constitute a contract which may be the basis of the suit; (iii) if no express promise to pay is spelt out by the writing, such writing cannot be the basis of the suit; (iv) reading of Section 9 and Section 25(3) of the Contract Act, makes it clear that though the word “express” is not used in Section 25(3), but it is essential that the promise to pay must be clear and express; (v) otherwise there will be no promise to pay in writing as is the requirement of Section 25(3); (vi) an implied promise is not sufficient to satisfy the condition of Section 25(3); and, (vii) what is required is a clear promise and the language of the document is to be studied to find out if there is a clear and fresh promise. It was held that the endorsement dated 10th July, 1966 at the back of the pronote did not constitute an express promise to pay within the meaning of Section 25(3) of the Contract. 24. I however do not find the present to be a fit case to be referred to the Division Bench, because (i) the defendants, by making a counterclaim for return of the documents, have also admitted having deposited the title documents of their property with the plaintiff; (ii) while Tulsi Ram supra was a case of endorsement at the back of the pronote, Suresh Kumar Joon supra was a case of a cheque and the facts of the present case match fully with the facts of Suresh Kumar Joon supra and once the two judgments are based on two different sets of documents, in a case having the same facts as one sets of documents, no need for reference to the Division Bench arises. 25. Resultantly, IA No.2131/2017 is dismissed. However, the dismissal of this application shall not come in the way of the defendants seeking an issue of limitation.
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