JAI PARKASH GUPTA Vs. ORIENTAL BANK OF COMMERCE

JUDGEMENT

(1.) THE challenge by means of this Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 is to the impugned judgment of the Trial Court dated 14.2.2002. THE impugned judgment dismisses the suit of the appellant/plaintiff on account of being barred by time.

(2.) THE facts of the case as pleaded by the appellant/plaintiff in the plaint were that he sold certain property as a commission agent and broker for M/s. Skipper Sales Pvt. Ltd. being the property at 3rd Floor, 5, Bhagwan Dass Road, New Delhi. For this transaction M/s. Skipper Sales Pvt. Ltd. had to pay the plaintiff a commission of Rs.86,400/- towards brokerage. It was pleaded that only half of the amount being a sum of Rs.43,200/- was paid by M/s. Skipper Sales Pvt. Ltd. to the appellant/plaintiff, and, the balance 50% payment was not made. THE further case in the plaint was that M/s. Skipper Sales Pvt. Ltd. drew two cheques of Rs.43,200 and Rs.36,700/- in favour of Sh. M.K.Gupta, the brother of the appellant/plaintiff (who was also a commission agent), and which two cheques were credited in the account of Sh. M.K.Gupta. Since both Sh. M.K.Gupta and M/s. Skipper Sales Pvt. Ltd. had an account with the respondent/defendant/bank, therefore, by a transfer entry, the amount of the cheques was transferred from the account of M/s. Skipper Sales Pvt. Ltd. to the account of Sh. M.K.Gupta. THE further case in the plaint was that when the appellant/plaintiff demanded a sum of Rs.43,200/- from M/s. Skipper Sales Pvt. Ltd. it was allegedly found that the amount was deposited in the account of Sh. M.K.Gupta. It was further pleaded in the plaint that the plaintiff sent a legal notice dated 12.10.1981 to M/s. Skipper Sales Pvt. Ltd., with a copy to the respondent/defendant to pay the amount of Rs.43,200/-, but the same was not paid. It was further pleaded in the plaint that the respondent/defendant/bank had filed a suit in the Court of the Civil Judge at Ghaziabad against Mrs. Malti Gupta, widow of Sh. M.K.Gupta and Smt. Manti Devi, mother of Sh. M.K.Gupta for the recovery of Rs.3,32,063.47 and in which suit the appellant/plaintiff was made a party as a guarantor. That suit of the respondent/defendant against the appellant/plaintiff was dismissed vide judgment dated 19.7.2000. In this suit, the appellant/plaintiff alleges that one Mr. M.L.Sarin, Manager of the respondent/defendant/bank stated that there was a reverse entry made from the account of Mr. M.K.Gupta and which amount was lying in the sundry account. THE appellant/plaintiff therefore laid out a case that the appellant/plaintiff was entitled to this amount lying in the sundry account.

(3.) THE Trial Court has dismissed the suit as being barred by Limitation by holding that the Article 24 of the Schedule to the Limitation Act, 1963 applies in the following words:- 14. Plaintiff has filed a suit for recovery of Rupees 2,06,496/- on 29.1.2001. Admittedly the plaintiff stated that the cause of action for filing of the present suit accrued on the dates mentioned in the plaint which in the instant case when the defendant credited and transferred the sum of Rs.79,900/- which is inclusive of the amount claimed by the plaintiff and credited in the account of M.K.Gupta the brother of the plaintiff since deceased on 25.1.1980 by the defendant.