MADHVI JAIN Vs. BSES YAMUNA POWER LTD

JUDGEMENT

(1.) THERE is a very limited issue in this appeal filed under Section 100 of Code of Civil Procedure, 1908 (CPC). The limited issue is that whereas the suit of the appellant/plaintiff for mandatory and permanent injunction was decreed, however the amount deposited by the appellant/plaintiff for enhancement of the sanctioned load from 30 kw to 55 kw amounting to Rs.49,140/ - was held to be not recoverable by the appellant/plaintiff as recovery was held to be time barred. Recovery was prayed because the sanctioned load has indubitably not been enhanced.

(2.) THE following substantial question of law arises in the present appeal: -

(3.) IN the present case suit/plaint has been filed on 11.9.2003 with respect to this amount of Rs.49,140/ - which was deposited on 21.3.1999, but since the amount is not a loan or any other amount which is repayable on a fixed date or the right to recover arises on a fixed date, limitation for claiming back this amount will not be from the date of payment but will be from the date of demand. In this case the demand for return of the amount was for the first time made in the suit only and therefore it cannot be said that the suit for return of this deposit is barred by time. It is also noted that there is no refusal of the respondent/defendant prior to the date of filing of the suit to pay this amount. It bears reiteration that the enhancement of load from 30 kw to 55 kw did not take place as held in favour of the appellant/plaintiff by the courts below and therefore there is no reason that the amount deposited only for such purpose should be allowed to be retained by the respondent/defendant.