RSA 44/2010 Page 1 of 5 * IN THE HIGH COURT OF DELHI AT NEW DELHI + RSA No.44/2010 & CM Nos.3882/2010 & 3883/2010 Date of Decision: March 02, 2010 M/S MAHALAXMI TOYS & ANR. ….. Appellants Through: Mr.Javed Khan, Advocate. Versus SHRI JAWAHAR LAL GOEL & ORS. ….. Respondents Through: None. % CORAM: HON’BLE MS. JUSTICE ARUNA SURESH (3) Whether reporters of local paper may be allowed to see the judgment? (2) To be referred to the reporter or not? (3) Whether the judgment should be reported in the Digest ? J U D G M E N T ARUNA SURESH, J. (Oral) 1. Respondents filed a suit under the provisions of Order 37 CPC for recovery of Rs.2,50,000/- on the basis of two cheques bearing No.514252 dated 6th September 2000, for a sum of Rs.1,75,000/- and another cheque bearing No.514251 dated 30th September 2000, for a sum of Rs.75,000/- respectively. These two cheques, on presentation, were RSA 44/2010 Page 2 of 5 dishonoured by the concerned bankers vide memo dated 27th March, 2001 on the ground „funds insufficient‟. However, appellants failed to pay the said amount despite service of legal notice dated 12th April 2001. 2. Appellants were granted leave to defend the suit. Trial Court vide its order dated 20th October 2005, passed a decree for Rs.2,50,000/- along with pendentelite and future interest at the rate of 12% per annum from the date of filing of the suit till realization. Challenge to the said judgment and decree by the appellants in the First Appellate Court also failed. 3. This appeal has been filed by the appellants raising substantial questions of law, as detailed in sub-paras I to L of Grounds for Appeal. 4. Learned counsel for the appellants has argued that the suit was barred by period of limitation and therefore, judgment and decree of the Trial Court is void ab initio. While awarding decree in favour of the respondents, Trial Court did not properly appreciate evidence of the parties. 5. I find no force in the submission of learned counsel for the appellants. It is not in dispute that appellants did not plead in their written statement that the suit was barred by period of limitation. It is also admitted by learned counsel for the appellants that question of limitation was never raised before the Trial Court or before the Appellate Court. Learned counsel has emphasised on the cross-examination of PW-1 Bhagat Swaroop RSA 44/2010 Page 3 of 5 to say that loan of Rs.4,00,000/- was taken in 1992 by one of the partners of respondent No.1 and therefore, apparently, the impugned cheques, which were issued by the appellants in favour of the respondents in the year 2000, in no manner, extend the period of limitation and the suit is barred under law of limitation and therefore a substantial question of law needs formulation and adjudication if the suit of respondent is barred by period of limitation. 5. It has come in cross-examination of Bhagat Swaroop that at the time of taking loan appellants had issued four cheques, however, all the four cheques were taken away by the appellants and in lieu of the cheques they had issued three cheques for a sum of Rs.3,50,000/-. On 3rd December 1995, appellants took away the said three cheques. Bhagat Swaroop has deposed that appellants used to take back the earlier cheques and issue fresh cheques in lieu of that on personal request and they used to issue cheques only for the principal amount and interest was being paid in cash. It seems that appellants had been issuing cheques from time to time and finally two impugned cheques, one dated 6th November, 2000 for Rs.1,75,000/- and other dated 30th September, 2000 for Rs.75,000/- were issued by appellants to pay off the loan of Rs.2,50,000/-. 6. Trial Court, while deciding issue No.1, made following observations:- RSA 44/2010 Page 4 of 5 “7. …..The present suit is under order 37 of CPC based on cheques which are within the period of limitation, therefore, in the considered opinion of this court the suit of the plaintiff is maintainable in the present form.”. 7. Thus, it is clear that even though the issue of limitation was not raised before the Trial Court, however, being a question of law, Trial Court did consider this aspect of the matter and gave its findings. Findings of the Trial Court, as above, were never under challenge before the Appellate Court. 8. Defence which was raised by the appellants before the Trial Court was that the amount as against the said two cheques stood duly paid for which they also submitted a statement of accounts in para 1 (reply on merits) on the written statement. Since appellants failed to substantiate these payments as claimed and failed to prove the cash book in evidence, Trial Court passed the impugned judgment and decree and upheld by the Appellate Court. 9. Under these circumstances, no substantial question of law, as suggested, needs formulation as no such question arises on the facts and circumstances of this case. Not only that, appellants have to show that a question of law needs adjudication, they have also to show that such question of law is a substantial question of law and needs determination. 10. Since no substantial question of law arises in the appeal, I find RSA 44/2010 Page 5 of 5 no merits in the same. It is dismissed accordingly. CM Nos.3882/2010 (for stay) & 3883/2010 (for exemption) 11. With dismissal of the appeal, both these applications have become infructuous. Hence, the same stand dismissed accordingly. (ARUNA SURESH) JUDGE MARCH 02, 2010 sb