Jitender Kumar Gupta v. Sukhbir Singh Saini

KAILASH GAMBHIR, J July 05, 2012

* IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS) 17/2011 & IA No.3262/2011 Judgment delivered on: 5.7.2012 JITENDER KUMAR GUPTA ..... Plaintiff Through Mr. A.K. Singla, Sr. Adv Mr. S.K. Chaudhary with Mr. S.N. Choudhri and Ms. Shruti Choudhri, Advs. versus SUKHBIR SINGH SAINI ..... Defendant Through Mr. Praveen Mahajan, Adv. CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR 1. By this application filed under section 14 of the Limitation Act, 1963, the plaintiff seeks the deduction of period from 3.11.2006 to 8.11.2010 & 29.9.2006 till 22.1.2010 in computation of period of limitation for the purpose of filing the present suit. 2. A brief conspectus of facts which has led the plaintiff to file the present application is that the plaintiff has filed the present suit for recovery of Rs.65,83,590 against the defendant on the basis of the acknowledgment of the defendant of the dues payable by him towards the plaintiff in the balance sheet of the proprietorship business of the defendant in the name and style of M/s Victoria Creations. There are three suits which lurk in the background and as per the plaintiff give him the edge to be entitled to the relief in the present application. The first suit is the suit filed by the plaintiff herein against one Shri Bal Krishan Saini, brother in law of the defendant and M/s Devred India Pvt.Ltd, for rendition of accounts on 30.5.2006. The plaintiff in the said suit filed an application under Order 1 rule 10 and order 6 rule 17 for the impleadment of the present defendant, Shri SS Saini on 3.11.2006 which was dismissed on 8.11.2010. The second suit was filed by the present defendant on 19.8.2006 against the plaintiff and his brother in law, Shri B.K Saini alleging them both to be tenants in his property and thus claiming recovery of rent. The third suit was filed by the present defendant on 29.9.2006 for declaration that he is not the proprietor of M/s Victoria Creations and instead the plaintiff and Shri BK Saini are the proprietors of the said firm. The said suit was dismissed in default on 22.1.2010. Thereafter the present suit for recovery is filed by the plaintiff herein against the defendant on 3.1.2011 and the plaintiff claims in the application under consideration that the time spent in pursuing the application for impleadment of the defendant in the suit filed by him for rendition of accounts i.e. 3.11.2006 to 8.11.2010 be excluded for computing the period of limitation. The plaintiff has also claimed his entitlement for the exclusion of the period from 29.9.2006 till 22.1.2010, the time spent in the suit for declaration filed by the defendant and once either of the above period is excluded, the present suit would fall within the period of limitation. 3. Mr. Singla, learned Senior Advocate representing the plaintiff submitted that the plaintiff is entitled to exclusion of the period from 29.9.2006 till 22.01.2010 on account of the suit for declaration filed by the defendant against the present plaintiff being Suit No. 1353/2006 before the Civil Judge, Delhi. Counsel further submitted that in the said suit, the present defendant, who was the plaintiff therein claimed that he was the dummy proprietor and the brother-in-law of the defendant, Shri Bal Kishan Saini, was the actual proprietor of the said firm M/s Victoria Creations. Counsel also submitted that the amount sought to be recovered in the present suit against the defendant is based on the acknowledgement of the amount made by the defendant in his balance sheet of the years ending on 31st March, 2004, 31st March, 2005 and finally vide reply dated 19th July, 2005 to the legal notice sent by the plaintiff. Mr. Singla also submitted that the plaintiff had filed a separate suit for rendition of accounts i.e. vide suit No. 55/2006 and the said suit was filed by the plaintiff against Shri Bal Kishan Saini. Counsel further submitted that in the said suit Shri Bal Kishan Saini in his written statement and reply took a stand that it is Shri Sukh