Order 19

Order Details: COPY OF ORDER
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In the Court of Sh. Ashwani Kumar Sarpal, Principal District &
Sessions Judge, East District, Karkardooma Courts, Delhi.
Debashish Shah
vs.
Har Bhagwan Wadhwa
(CS No. 275/2024)
(Order on application under Order 7 Rule 11 CPC)
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09.02.2026.
ORDER:
By this order, an application of the defendants under Order 7
Rule 11 CPC is being disposed off. Law is well settled that while
deciding this application, only the averments made in the plaint are to
be taken into consideration. Plaintiff filed the present suit for recovery
against defendants who are husband and wife and they were served
through Whatsapp on 09.08.2024 with the summons of the suit.
Counsel for the defendants appeared in the court on the date
fixed i.e. 28.08.2024 but instead of filing any written statement, they
filed an application under Order 7 Rule 11 CPC. In the summons sent
to defendants, they were specifically directed to file their written
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statements within 30 days but till today, no written statement has
come on record. The maximum period of 120 days to file the written
statement has already expired. Hence, the right of the defendants to
file the written statement is hereby closed.
In their application, under Order 7 Rule 11 CPC dated
17.08.2024, defendants alleged that the suit is not maintainable being
without cause of action, barred by limitation, beyond jurisdiction, bad
due to non joinder and misjoinder of the parties as well as without
any documentary evidence to prove the averments made in the plaint.
This application is opposed by the plaintiff by filing the reply.
Counsel for the plaintiff did not appear to argue but already placed on
record case laws P. Kumarakurubaran vs. P. Narayanan Civil
Appeal no. 5622/2025 decided by Hon’ble Supreme Court on 294
2025 and Gurmeet Singh Sachdeva vs. Skyways Air Services Pvt.
Ltd. CM (M) no. 147/2024 decided by Hon’ble Delhi High Court
on 852025.
In the present suit, plaintiff alleged that in January, 2016 both the
defendants approached him for a friendly loan for Rs. 15 Lakhs for a
period of 6 years. However, the plaintiff could arrange Rs. 11,20,000/
only which was paid through cash and online on different dates for a
period of 6 years from January, 2016 to 18.04.2017 as per details
given in para no. 3 of the plaint. Plaintiff further alleged that one Sh.
Surat Singh became guarantor of this loan transaction and he even
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once issued a cheque of Rs. 7,50,000/ dated 31.01.2019 drawn on
ICICI bank, Greater Kailash, Delhi towards part payment of the loan
amount. This cheque issued by Sh. Surat Singh was deposited by the
plaintiff with his banker Axis Bank, Swasthya Vihar, Delhi but it was
dishonoured on 15.02.2019 on “insufficient funds” ground. According
to the plaintiff, the time period of six years to return the loan amount
expired in January, 2022 but when no payment was made, then the
present suit was filed on 19.07.2024. Plaintiff also relied upon some
police complaints lodged against the defendants.
Sh. Surat Singh who had allegedly given guarantee and issued
the above mentioned cheque to discharge the part liability of the
defendants is not impleaded in the present matter. However, his non
impleadment is not a ground to reject the plaint on the ground of non
joinder of necessary party. Maximum it can be said that plaintiff is not
interested to proceed with the case against guarantor but is only
interested to proceed against the principal borrowers. The transaction
has taken place between the plaintiff and defendants and in case the
guarantor or any third person wanted to pay something to discharge
the liability of the defendants, then his impleadment in the suit was
not compulsory. The non joining of Sh. Surat Singh as guarantor in
the suit is not fatal to the case of the plaintiff.
In the plaint, there are specific averments that both the
defendants had approached the plaintiff for a friendly loan. The
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demand was also made to return the loan amount from defendants.
Even the plaintiff had deposited the part of the loan amount in the
account of the defendant no. 2 through RTGS on 15.02.2017. In such
circumstances, the request of the defendants to dismiss the suit against
defendant no. 2 on the ground of misjoinder of the parties is rejected.
She is the necessary party due to specific allegations against her and
cannot be dropped from the case.
The loan amount was given on different dates as described in
para no. 3 of the plaint in installments from January, 2016 to
18.04.2017. The loan was given for the period of 6 years as per
plaintiff which expired in January, 2022. The right to recover the suit
amount arises only after January, 2022. Thus, the limitation has to be
counted from the day when the cause of action for its recovery
accrued when after January, 2022 payment was demanded by plaintiff
but not paid by defendants and not from the date of giving the loan
amount. The suit on the face of record filed is thus within the period
of limitation. The ground taken by the defendants in their application
that suit is time barred as the loan amount was paid firstly in January,
2016 is liable to be rejected as limitation is to be counted from
January, 2022 and not from January, 2016.
The cheque in question issued by Mr. Surat Singh was deposited
by the plaintiff in his bank having branch at Swasthaya Vihar, whereas
the cheque belonged to the banker of Mr. Surat Singh situated at
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Greater Kailash. Both the bankers are situated outside the jurisdiction
of this court, but when plaintiff specifically is stating in para no. 16 of
the plaint that the loan amount was given at Pandav Nagar where the
defendants had approached, then it creates the jurisdiction of this court
also to try the present suit. Simple fact that the plaintiff made
complaints to the police in the area where the defendants were either
residing or running the business, then that itself do not oust the
jurisdiction of this court, when the part of cause of action has arisen
within the jurisdiction of East district.
After going through the averments of the plaint, it appears that
there was no written loan agreement executed and the loan transaction
was verbally agreed upon, though some payments were made online
and some in cash. Simple fact that the plaintiff has not got loan
agreement executed or has not issued legal notice before filing the
suit, itself is not a ground to reject the plaint as the plaintiff can prove
such loan transaction through his evidence and issuing of legal notice
before filing the recovery suit is not mandatory. Otherwise also, the
bank record produced by plaintiff somehow shows that some part
payment was made through RTGS/Online and that can corroborate the
oral testimony of the plaintiff. Defendants even have not filed any
written statement of their defence. Even in the present application, not
a single word is uttered that defendants have not taken any loan from
the plaintiff. Hence, at this stage, when the law says that while
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dealing with application under Order 7 Rule 11 CPC, only the
averments made in the plaint are to be taken into consideration, so
there exists no ground to reject the plaint as prayed for in this
application as the contents of the plaint shows that the suit is not bad
for nonjoinder/misjoinder of parties, it is not time barred and this
court has jurisdiction to try the suit as part of cause of action has
arisen here within the jurisdiction of this court. Accordingly, the
application under Order 7 Rule 11 CPC of the defendants is dismissed
with cost of Rs. 10,000/ payable by the defendants to the plaintiff on
next date of hearing.
Since, the rights of the defendants to file the written statement is
already closed above, so in absence of the written statement, there is
no requirement to frame any issues. Case is adjourned for plaintiff’s
evidence on next date. It is clarified that in absence of the written
statement, defendants now have limited rights to cross examine the
plaintiff and his witnesses only on legal points and not on facts.
Dated- 09-02-2026. (Ashwani Kumar Sarpal)
Principal District & Sessions Judge
East District, Karkardooma Courts, Delhi.
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