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Rajasthan High Court · body

2022 DIGILAW 1265 (RAJ)

Omji Dawai Wala v. Shri Deeraj Kumar

2022-04-22

SUDESH BANSAL

body2022
ORDER 1. In both the revision petitions, the petitioners are same and have raised a common issue that the civil suits for recovery of money filed by the respondent-plaintiffs are barred by law of limitation, hence, both petitions heard together and being decided by this common order. The petitioners moved separate applications under Order 7 Rule 11 (d) of CPC before the trial court in both suits and the trial court has dismissed their application vide order dated 25.06.2021 passed separately in both suits. Hence, petitioners have filed these two revision petitions, assailing the order dated 25.06.2021 invoking of scope of Section 115 of the Code of Civil Procedure. 2. Petitioners have placed on record copy of the amended plaint and receipts acknowledging the deposition of amount by the plaintiffs in the petitioner-firm, which are referred in the plaint. On perusal of plaint, it transpires that plaintiffs have instituted civil suit for recovery of money of Rs. 16,43,050/- and 8,87,167/-as also claiming interest thereupon from the defendants jointly and severely. Defendant No. 1 is a partnership firm and defendant Nos 2 to 4 have been alleged to be its partners, who are petitioners here in these revision petitions. Respondentplaintiffs have averred in their plaint that partner of firm, Mr. Rajesh Jain, Defendant No. 2 offered and assured the plaintiff that if they will deposit money in defendant-firm, amount would remain safe and interest would be paid on the deposited amount. On such assurance, plaintiffs deposited money before the defendantfirm, for which, written receipts acknowledging the deposited amount were issued by and on before the firm to the plaintiffs. Time to time interest was also paid by the defendant and entry of of such payments were made on the flip side of the receipts. According to the pleadings of plaint, the plaintiffs deposited money and defendants paid interest, during the period 2013 to 2015, the specific dates are maintained in plaint. It is averred in the plaint that plaintiffs demanded their deposited money and due interest, vide notice dated 10.08.2020 but defendants despite demand, did not repaid their deposit money and interest, hence the civil suits for recovery of money have been instituted on 15.04.2021, amended plaint filed on 14.06.2021. It has been specifically averred that the plaintiff had deposited their money with the defendants as a deposit and defendant-firm had issued receipts, acknowledging the deposition of money. It has been specifically averred that the plaintiff had deposited their money with the defendants as a deposit and defendant-firm had issued receipts, acknowledging the deposition of money. The plaintiff put demand from the defendants to refund their deposited money, first time vide notice dated 10.08.2020, hence the civil suits for recovery of their deposited money with interest, filed on 15.04.2021 is well within limitation. No reference of any specific provision of Limitation Act has been made in the plaint. 3. Learned counsel for the petitioners have made a submission that by perusal of the pleadings of plaint as a whole, it stands clear that the respondent-plaintiffs have pleaded that they deposited money in different installments time to time before the petitioner-defendants-firm and deposit receipts were issued in their favour by the petitioner-firm. In the plaint, deposition have been alleged for the period 2013 to 2015 on various dates. It has also been pleaded that some interest was also paid by the petitioner-firm to the plaintiffs on their deposited amount, which has also been alleged in year 2015 but the civil suits for recovery of deposited money, have been instituted after expiry of three years on 15.04.2021, amended suits filed on 14.06.2021. Learned counsel for the petitioners submit that in the plaint, plaintiffs have alleged that they demand to refund their deposited amount with interest by way of issuing a legal notice dated 10.08.2020. The legal notice was served on the defendants on next date 11.08.2020, hence, the plaintiffs alleged to accrue the cause of action from the date of demand and alleged to file the present civil suit within limitation of three years. 4. Learned counsel for the petitioners have drawn attention of this court to the relevant provisions of the Limitation Act, 1963, relating to the suits for recovery of money. Learned counsel for the petitioners has placed reliance on Article 22 and Article 23, in first schedule of the Limitation Act, 1963 which reads as under:- Description of suit Period of limitation Time from which period begins to run 22.For money deposited under an agreement that it shall be payable on demand, including money of a customer in the hands of his banker so payable. Three years When the demand is made 23. For money payable to the plaintiff for money paid for the defendant. Three years When the money is paid 5. Three years When the demand is made 23. For money payable to the plaintiff for money paid for the defendant. Three years When the money is paid 5. Learned counsel for the petitioners have argued that although plaintiffs have pleaded in the plaint to deposit the amount and issuance of receipt by the petitioner-defendants-firm but nowhere have pleaded that they deposited the money under an agreement that the deposited money shall be payable on demand, therefore, on bare perusal of the pleadings of plaint, the recovery suit filed by the respondents attracts Article 23 and do not fall within scope of Article 22. As per Article 23, the limitation of three years starts from the date when the money is paid. He submits that since the plaintiffs have neither pleaded nor referred about any agreement, hence, they are not entitled to take resort to the Article 22 which provides that the limitation would begin to run from the date when the demand is made. 6. Learned counsel for the petitioners have placed reliance on the judgment of the Hon’ble Supreme Court in the case of Raghwendra Sharan Singh Vs. Ram Prasanna Singh (dead) by Lrs. [ AIR 2019 SC 1430 ]. 7. Per contra, counsel appearing for the respondent-plaintiffs have argued that as per the pleadings of plaint, their civil suits for recovery of money is well within limitation and are not liable to be rejected under Order 7 Rule 11 (d) of CPC treating their civil suits as barred by law of limitation. 8. Learned counsel for respondent-plaintiffs have contended that the trial court rightly dismissed the application of petitioners and the impugned order dated 25.06.2021 does not call for interference within scope of Section 115 of CPC. 9. Heard learned counsel for both parties, perused the impugned orders as well as the plaint and the deposition receipts referred in the plaint. 10. At the outset, it may be noted that the trial court while dismissing the application under Order 7 rule 11 (d) of CPC filed by the petitioners has observed that in the present civil suit, the issue of limitation is a mixed question of fact and law, hence, same can be considered and decided after framing of an issue and recording of evidence of both parties. The trial court has granted liberty to the petitioners to raise the objections of limitation in their written statements. 11. The trial court has granted liberty to the petitioners to raise the objections of limitation in their written statements. 11. On perusal of the order impugned, it appears that the defendant raised an arguments before the trial court that the money paid by the plaintiffs was in the form of loan and not a deposited money, so limitation begins from the date when interest amount becomes outstanding. The trial court observed that by the pleadings of plaint, at this stage it cannot be determined that amount paid by the plaintiff was either as loan or as deposits. Firstly, this court does not find any material illegality/irregularity or jurisdictional error on the part of the trial court in deciding the application of the petitioners in the manner mentioned hereinabove. Secondly, this court on careful and meaningful reading of the pleadings of plaint and the contents of deposition receipts as a whole, prima facie of the view that at this stage it is difficult to infer and record findings that the plaintiffs case do not attract the provision of Article 22 of the Limitation Act mentioned hereinabove. 12. In the schedule, appended within Limitation Act, 1963, part-II deals with the suits relating to contracts. In this Part-II, there are several Articles which prescribes a period of limitation of three years for civil suits for recovery of money but it depends on the description and nature of suit that since which date, the period of limitation of three years would begin. 13. On perusal of the pleadings of plaint at hand, at the pre-trial stage, it would be unjust to categorize the civil suits for recovery of money filed by respondent-plaintiffs to fall specifically within scope of Article 23 only. Moreso when there is no such reference in the pleading of plaint. The petitioners too have taken different stand before the trial court and this court. The points raised by the counsel for the defendants, before the trial court and before this court, can properly be examined during the course of trial after recording evidence of both the parties. Thus, in the opinion of this court, it would be in the interest of justice, that the issue of limitation be considered and decided by the trial court after framing of an issue and recording of evidence of the parties. Thus, in the opinion of this court, it would be in the interest of justice, that the issue of limitation be considered and decided by the trial court after framing of an issue and recording of evidence of the parties. It is made clear that the dismissal of revision petitions would not be treated as rejection of the objection of defendants regarding the civil suits for recovery of money being barred by limitation. 14. No other arguments except discussed hereinabove have been raised before this court. 15. As far as the principle of law expounded by the Hon’ble Supreme Court in the case of Raghwendra Sharan Singh (supra) there is no disagreement to preposition of law, however, the facts of that case was entirely different. 16. In that case, a registered instrument of gift deed was put to challenge after the statutory limitation prescribed under Article 59 of the Limitation Act which was an undisputed fact from the pleadings of plaint, hence, the plaint was rejected being barred by law of limitation. Such facts are not available in the present case as much as the nature of civil suits is also different. Hence, the preposition of law expounded in the case of Raghwendra Sharan Singh (supra) do not apply to the present case. 17. With the aforesaid observations, this court is not inclined to interfere with the impugned order dated 25.06.2021 and accordingly, both revision petitions are dismissed. All pending applications also stand dismissed. 18. A copy of this order be placed in each of the file.