Sanjay Gupta & Ors vs Hariom Gupta

Rajiv Shakdher, J

CM No.6832/2021

Allowed, subject to just exceptions.

C.R.P. 20/2021 & CM APPL. Nos.6831, 6833/2021

At the outset, one, notices that there is a delay of 114 days, even according to the petitioners, in filing the instant revision petition. The order, which

is sought to be challenged, is dated 23.07.2019, passed by the learned Additional District Judge [in short “ADJâ€​].

2.1. The impugned order was passed on an application, filed by the petitioners i.e. the original defendants, under Order VII Rule 11 of the Code of

Civil Procedure, 1908 [in short “CPCâ€]. This application was pivoted on the ground that the underlying suit was barred by limitation, and

therefore, the plaint should be rejected.

2.2. The learned ADJ disagreed with the contention advanced on behalf of the petitioners/defendants. The petitioners/defendants claimed that the

case set up by the respondent/plaintiff is that he vacated the suit property for construction to be carried out by the builder pursuant to which Rs. 20

lakhs was deposited by the builder with the petitioners/defendants to secure his interest.

The petitioners/defendants, admittedly, are related with the respondent/plaintiff. The respondent/plaintiff, during the period, when the builder was

carrying on the construction on the suit property, had occupied a shop which, apparently, is owned by the petitioners/defendants.

Once the construction of the suit property was completed by the builder, the respondent/plaintiff sought return of Rs.20 lakhs, which was deposited

by the builder with the petitioners/defendants.

The construction on the suit property, it appears, was completed in April 2014.

Since the demand made by the respondent/plaintiff for return of money did not bear fruit, police complaints were lodged. As per the assertions

made in the plaint, the police complaints were lodged on 23.05.2014, 02.07.2014, 03.07.2014, 28.08.2014, 21.07.2014 & 28.05.2015. 6.1 It appears that

based on the complaints lodged by the respondent/plaintiff, ultimately, an FIR was registered on 21.02.2015 under Section 506 of the Indian Penal

Code [in short “IPCâ€​] against the petitioners/defendants.

6.2. In the interregnum, the respondent/plaintiff, it appears, had served a legal notice dated 06.01.2014 on the petitioners/defendants.

6.3. It is also the case of the respondent/plaintiff that, the fact, that the builder had deposited Rs. 20 lakhs with the petitioners/defendants, is borne out

from an affidavit handed over by the builder to the respondent/plaintiff in December 2016.

6.4. The respondent/plaintiff it appears became apprehensive, when he received a notice of eviction in 2016 from the petitioners/defendants, in respect

of the shop that he had occupied. Apparently, the notice was followed with lodgement of a suit for eviction against the respondent/plaintiff qua the

concerned shop, in respect of which, summons were received, by the respondent/plaintiff.

Given the aforesaid circumstances, the petitioners/defendants claimed that the suit is patently time barred as it was instituted in 2018 whereas the

cause of action, if any, arose in 2014 i.e. on 23.05.2014 when the respondent/plaintiff filed a complaint with the police for the first time.

The learned ADJ has considered these assertions, and rejected the application based on the assertions made in paragraph 7 of the plaint which

reads as follows:

“That the defendant no.1, 2 and 3 came to the plaintiff and influenced that plaintiff that till time of construction he can use the shop of

the defendant i.e. 245/26, Kalyan Marg, Mandawali, Delhi â€" 92 but in return the defendants will keep Rs.20,00,000/- as the security from

Rs.41,00,000/- and further assured that no rent will be charged for using the shop of defendants and thereafter builder paid the

Rs.20,00,000/- to the defendants and during that mutual/oral agreement it was agreed that when the plot got ready and plaintiff shift his

shop and defendants will return the security amount to the plaintiff.â€​

Learned ADJ, at present, as is evident, which is a correct approach, has taken into account only the assertions made in the plaint, in particular, the

assertions made in paragraph 7 of the plaint. Based on these assertions, learned ADJ has, as it appears, concluded that the assertions of the

respondent/plaintiff that there was a mutual/oral agreement between the parties which provided that once the construction on the suit property was

carried out, the respondent/plaintiff would shift out from the concerned shop and only thereafter, the petitioners/defendants would return the security

amount to him â€" did not merit rejection of the plaint without a trial. According to the learned ADJ, the refund of Rs. 20 lakhs was contingent upon

respondent/plaintiff shifting from the concerned shop. Therefore, the juncture at which limitation would commence, in his view, would require parties

to place evidence on record.

9.1 In my opinion, it is a plausible view having regard to the averments made in the plaint and the fact that the respondent/plaintiff, is yet, to prove his

case.

I am informed by Mr. Parth Awasthi, who appears for the petitioners/defendants, that the suit is at the stage of cross-examination. I am further

informed by Mr. Awasthi that an issue concerning limitation has been framed by the trial court.

Thus, having regard to the overall facts and circumstances obtaining in the case, I am not inclined to interfere with the impugned order.

11.1. On the aspect of delay, it is required to be noticed that there is a 114 days delay in approaching the Court. This delay occurred prior to the

pandemic kicking in. The record shows that the petition was filed in January 2020 and kept in defect to the detriment of the respondent/plaintiff.

Insofar as the reasons given for condonation of delay in filing the instant petition are concerned, such as procrastination by the previous advocate

engaged by the petitioners/defendants, and the illness of the wife of petitioner no. 1 - they don’t cut much ice.

i. Firstly, there is nothing on record to show that any complaint has been lodged with the concerned bar council qua the conduct of the advocate.

ii. Secondly, there is also nothing placed on record in support of the assertion that the wife of petitioner no. 1 was, in fact, ill during the relevant period.

Thus, for the foregoing reasons, as indicated above, I am not inclined to interfere with the impugned order dated 23.07.2019 passed by the learned

ADJ.

Accordingly, the captioned revision petition as well as the interlocutory applications are dismissed.