Order 10

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: 25 CS SCJ 1443/23 UMESH GUPTA Vs. SACHIN MAJITHIA
10.11.2025
Present: Ms. Rajni Saini, Ld. Proxy Counsel for plaintiff.
Sh. Sunil Kumar, Ld. Counsel for defendants.
Matter is at the stage of orders on the application seeking leave to defend
filed on behalf of the defendant.
Vide this order, I shall dispose of the above said application.
Ld. Counsel for defendant submitted that there is no legally enforceable
debt as no formal loan agreement was executed between the parties. The alleged cause
of action arose in 2015 with last payment in 2019, making the suit time barred under
article 19 of the Limitation Act. The plaintiff misrepresented the nature of cheques
which were issued as security and not as acknowledgment of debt. The plaintiff’s
reliance on informal communication does not amount to an admission of liability or
debt. He further submitted that Smt. Anju Majithia has been improperly joined as a
party without any supporting allegations against her. The suit filed by the plaintiff
under order 37 is not maintainable as it fails to meet the statutory requirements of a
summoning suit. Hence, the present leave to defend application should be allowed.
Per contra Ld. Counsel for plaintiff submitted that defendant no 1 and 2 are
husband and wife and both had given assurance to the plaintiff to repay the loan
amount and defendant no. 2 had presented herself as proprietor of company prior to the
taking of the loan from the plaintiff. The defendant no. 1 executed promissory note and
also handed over cheques against the loan amount in the presence of defendant no. 2.
Therefore, no question of deletion of name of defendant no. 2 arises. The defendants
had been paying the interest amount in irregular manner and last interest paid by the
defendants was in March, 2023. Therefore, no issue of limitation arises. Plaintiff and
defendants executed a promissory note against loan and defendant also handed over
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cheques. The cheques with promissory note itself indicate agreement in respect of loan
amount. Therefore, the present application for leave to defend should not be allowed.
Heard. Record perused.
Article 19 of the Limitation Act provides a limitation period of three years
for money payable for money lent and the time from which period begins to run is
when the loan is made. Thus, the limitation period of three years will be computed from
the date when the loan was made and as per the plaint, the loan was made on
20.05.2015. Further, as per the entries in the passbook filed by the plaintiff, part
payment has been made by the defendant on 21.09.2015 and as per the provision
contained in section 19 of the Limitation Act, part payment, if done within the period of
limitation, will extend the period of limitation. Thus, the limitation period of three years
will start from 21.09.2015 and will end on 20.09.2018. Thus, the suit should have been
filed during that period. However, the suit has been filed on 25.10.2023. The plaintiff
has specifically pleaded in the plaint that the defendants have been irregularly paying
the amount till March, 2023 and further, passbook entries for the period 2022 and 2023
are also there on record. From the above discussion, it is still not clear whether the
defendant made part payment in the year 2018 or not, which could further extend the
period of limitation. Thus, the question of limitation has become a mixed question of
law and fact in the present case and requires parties to lead evidence.
The involvement of defendant no. 2 is also a triable issue as none of the
documents filed on record by the plaintiff are prima facie showing the involvement of
defendant no.2. Thus, the involvement of defendant no. 2 has to be proved by way of
evidence.
The other contentions raised by the defendant are also a matter of trial.
In view of the above discussion, it can safely be said that the defendants
have raised a triable issue which requires parties to lead evidence. Therefore, the
present application, seeking leave to defend is allowed and the matter will be proceeded
as an ordinary suit.
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List the matter for further proceedings/completion of pleadings/filing of
WS on 17.02.2026.
(Arjun Kirar)
Civil Judge-N/W District
Rohini Courts-10.11.2025
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