SANJAY MAHAJAN Vs. SUNIL SHARMA & ANR

JUDGEMENT

(1.) C.M. Appl. No. 35930/2016 (for exemption)

(2.) The facts of the case are that the appellant/plaintiff claims that he gave a loan of Rs.40,000/- to the defendant no.1 (originally sole defendant) by cheque and which was not re-paid and hence the subject suit was filed for Rs.68,800/- being the principal amount of Rs.40,000/- along with interest totaling to Rs.68,000/-. When the suit was filed there was only one defendant, i.e, respondent no. 1 herein, and this defendant filed a written statement stating that the cheque which was issued by the appellant/plaintiff was not in the name of defendant no. 1, but was in the name of defendant no.2/company. The appellant/plaintiff thereafter added respondent no.2/defendant no. 2/company as the defendant in the suit. In the written statement of defendant no. 2 as also of the defendant no. 1 it was stated that the appellant/plaintiff was appointed as a distributor of defendant no. 2/company with respect to supply of phones for the states of Karnataka and Maharashtra and therefore he had given the subject cheque of Rs.40,000/- to the defendant no. 2. The appellant/plaintiff has received various phones from defendant no. 2 and had even used six out of ten mobile phones, but has had not settled the accounts of defendant no. 2 and has instead falsely filed the subject suit.

(3.) The courts below have dismissed the suit as against respondent no.1/defendant no. 1 because it was found that the cheque on the basis of which the suit was filed was issued in the name of respondent no.2/defendant no.2 and therefore there was no loan granted to the respondent no.1/defendant no.1 as was the case of the appellant/plaintiff. As regards respondent no.2/defendant no.2, it was held that the suit was barred by limitation because defendant no. 2 was added as a defendant vide Order dated 6.12.2010 and which would be the date of filing of the suit against respondent no.2/defendant no.2 as per Section 21 of the Limitation Act, 1963, and since the subject cheque was dated 5.7.2004, Article 20 of the Limitation Act, came in and thereby the suit having been filed against respondent no.2/defendant no.2 beyond three years of the grant of loan on 5.7.2004, the same was barred by limitation.