Interim Order 6

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: 34 CS DJ 749/24 Sh Jaipal Vs. PANKAJ YADAV
13.08.2025.
Present: Sh. Kuldeep Sharma, Ld. Counsel for plaintiff.
None for defendants.
1. Arguments on maintainability of the suit in terms of the
preliminary objections raised by the defendents in their written
statement, are heard and Record is perused carefully.
2. It is stated on behalf of the defendants that plaintiff has concealed
the factum of death of Late Sh. Ram Dulare which took place on
01.03.2020 and the present suit is barred by the period of
limitation. It is explained that cause of action as per plaintiff arose
in the month of October 2019 against Late Sh. Ram Dulare but the
suit is filed in September 2024, so it is hit by the principle of
limitation. Not only this, it was for the plaintiff to show financial
ingress and egress and there must exist shifting of balance from
one account to become an open to other and once account is not
open from a mutual and current account limitation will run from
date of documents and in the instant suit, the plaintiff has not
shown any document by which an amount was given to Late Sh.
Ram Dulare and any document showing the liability admitted by
Late Sh. Ram Dulare at any point of time, thus, suit is even
otherwise not maintainable.
3. On the other hand, it is submitted on behalf of the plaintiff that the
suit is well maintainable since the plaintiff had no knowledge
about the date of death of defendant before the receipt of the
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reports of service of summons issued in complaint case bearing
No 4141 of 2020 titled as “Jaipur Vs. Ram Dulare”, on the basis of
which it finally stood abated vide order dated 20.09.2022 passed
by Ld. MM, NI Act, North District, Rohini, Delhi.
4. This Court has given thoughtful consideration to contentions
made. Sufficiency of the documents imputing liability to the
defendant and entitling the plaintiff for decree, cannot be assessed
at this stage and Court also cannot hold a mini trial to assess if
the suit might not result into a degree favoring plaintiff. So, the
objection of the defendant on the ground that there is no document
admiting the liability of Late Sh. Ram Dulare, is not the
sustainable and the suit cannot be held not maintainable on this
ground.
5. The plaintiff’s case is that Late Sh. Ram Dulare was given a
financial assistance of Rs. 5 Lacs by the plaintiff when he
approached him in October 2019 and in the month of Feb-March
2020, he issued cheque dated 10.09.2020 in favor of the plaintiff
which turned dishonoured on presentation. It is not the case of
plaintiff at all that the very cheque was also delivered by Late Sh.
Ram Dulare in October 2020. As per Article 20 of Schedule of
Limitation Act, a suit for money when lender has given a cheque
for the money, the period of limitation of 3 years begins to run
when cheque is paid. So the period of limitation for filing the
present suit ought to begin to run from 10.09.2020. Now, the
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question arises, if the period of limitation would begin to run from
10.09.2020 (i.e. date of dishonour of the cheque) when the
defendant had expired before that day. The answer to this question
lies in Section 16 of the Limitation Act, 1963. A quick reading of
the same is of extreme assistance, hence the same is being
reproduced as under :-
16. Effect of death on or before the
accrual of the right to sue.—(1) Where a
person who would, if he were living,
have a right to institute a suit or make an
application dies before the right accrues,
or where a right to institute a suit or
make an application accrues only on the
death of a person, the period of limitation
shall be computed from the time when
there is a legal representative of the
deceased capable of instituting such suit
or making such application.
(2) Where a person against whom, if he
were living, a right to institute a suit or
make an application would have accrued
dies before the right accrues, or where a
right to institute a suit or make an
application against any person accrues on
the death of such person, the period of
limitation shall be computed from the
time when there is a legal representative
of the deceased against whom the
plaintiff may institute such suit or make
such application.
6. It explains that if a person against whom a right to institute a suit
would have accrued, dies before the accrual of such right, the
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period of limitation shall be computed from the time when there is
a legal representative of deceased against whom the plaintiff may
institute such suit. So upon the death of Late Sh. Ram Dulare on
01.03.2020, the period of limitation ought to have started to run
from 01.03.2020 and the suit ought to have been filed within 3
years from 01.03.2020. But in case in hand, it is the pleaded by the
plaintiff that during the service of the summons upon Late Sh.
Ram Dulare Yadav, it came on record that he expired and the
complaint case is filed by the plaintiff abated vide order dated
20.09.2022. It implies that plaintiff's case is that the knowledge of
the accrual of right of recovery remain concealed from him, so it is
being pleaded that period of limitation should begin to run from
2024 only when plaintiff could discover this fact as per section 17
of Limitation Act. Suit filed on 23.09.2024 after discovery of the
factum of death of Late Sh. Ram Dulare in 2022, cannot be said
as barred by the period of limitation at this stage. But this Court is
also of the view that since the question of acquisition of
knowledge of death of Late Sh. Ram Dulare is a subject matter of
evidence and an appropriate issue in this regard is required to be
framed, hence not holding the present as not maintainable at this
stage, following issues as arising from the pleadings and hearing
of the parties are framed :-
1. Whether the plaintiff had no knowledge regarding the death of
defendant on 01.03.2020, before report on summons received in
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CC No. 4141/2020 titled as Jaipal Vs Ramdulare, u/s 138 NI act?
OPP.
2. Whether plaintiff had advanced Rs. 5 lacs in cash to Late Sh.
Ram Dulare in October 2019 ? OPP.
3. Whether the cheque bearing No 071657 dated 10.09.2020 is
bearing forged signature of Late Sh. Ram Dulare Yadav? OPD.
4. Whether plaintiff is entitled for recovery of sum of Rs 5 Lacs ?
OPP.
5. Whether plaintiff is entitled for the recovery of Rs. 4,27,500/-
above the rupees 5 lakhs as interest? OPP ?
6. Whether plaintiff is entitled for Permanent injunction as prayed in
para of (b) of prayer clause? OPP.
7. Relief if any.
No other issues are arising or prayed for.
List of witnesses be filed within 15 days after supplying advance
copy to the opposite party. Affidavit of evidence of all the PWs be also
filed in same manner.
Now, put up for PE for 18.12.2025.
(Aanchal)
District Judge-03, Rohini Courts
North District, Delhi
13.08.2025(amt)
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