Millennium Deluxe Motors P.Ltd v. Arun Jain

RAJIV SAHAI ENDLAW, J. AUGUST 30, 2018/bs

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 30th August, 2018. + MILLENNIUM DELUXE MOTORS P.LTD. ..... Appellant Through: Mr. D.J. Khera, Adv. Versus ARUN JAIN ..... Respondent Through: Mr. Saurabh Dev Karan and Mr. Uchit Bhandari, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 9th August, 2017 in Suit No.217/2006 of the Court of Additional District Judge, Delhi] of dismissal as barred by time of the suit filed by the appellant/plaintiff for recovery of Rs.4,12,250/- from the respondent/defendant. 2. The appeal came up first before this Court on 18th January, 2008 and vide order dated 19th November, 2008 notice thereof ordered to be issued. The respondent/defendant however was not served for several dates and finally appeared before this Court on 28th January, 2010. Vide order dated 17th March, 2010, the appeal was admitted for hearing and ordered to be listed in due course. On the appellant/plaintiff applying for early hearing, notice was issued to the respondent/defendant and vide order dated 20th September, 2011, the parties referred to mediation. Mediation remained unsuccessful and the appeal was again ordered to be listed in due course. The appellant/plaintiff filed application for urging additional grounds and which was allowed on 25th May, 2012 albeit in the absence of the counsel for the respondent/defendant. The appeal thereafter came up for hearing on 17th April, 2013 but none appeared for the respondent/defendant and in the interest of justice, the appeal was adjourned from time to time. Vide order dated 21st May, 2018, the counsel for the appellant/plaintiff was directed to inform the counsel for the respondent/defendant of the next date and a copy of the order was ordered to be sent to the respondent/defendant. In response to the aforesaid, Mr. Saurabh Dev Karan, Advocate appears but only with the Vakalatnama and without any paper book and without any instructions and seeks adjournment. Adjournment has been refused, since notice was ordered to be issued to the respondent/defendant, though not required, as the respondent/defendant had defaulted in appearing and the respondent/defendant, after appearing in response to the notice, cannot again start the process of adjournments. 3. The counsel for the appellant/plaintiff has been heard and the Suit Court record requisitioned in this Court perused. 4. Since the suit of the appellant/plaintiff, even though the respondent/defendant had been proceeded ex-parte after filing the written statement, has been dismissed as barred by time, I will hereinafter enumerate the averments in the plaint from the aspect of limitation. 5. The appellant/plaintiff instituted the suit, from which this appeal arises, pleading (i) that the appellant/plaintiff approached the respondent/defendant for giving to the appellant/plaintiff on lease the ground floor of property No.13/4, Mathura Road, Faridabad, Haryana which included a showroom and office measuring approximately 3000 sq. ft. in the shape of a hall and a workshop measuring 9000 sq. ft.; (ii) that rent of Rs.1,25,000/- per month exclusive of electricity and water charges was agreed to be paid by the appellant/plaintiff to the respondent/defendant; (iii) that a Lease Agreement dated 9th June, 2000 was executed between the parties and wherein the respondent/defendant agreed to carry out certain works as desired by the appellant/plaintiff in the premises and to make the premises ready for use within 7 to 8 days; (iv) that the respondent/defendant was not having any money for carrying out the said works which he had undertaken in Clause 3 of the Agreement dated 9th June, 2000 and requested the appellant/plaintiff to pay Rs.2,50,000/- as advance money for completing the said jobs; (v) that since the appellant/plaintiff was interested in starting the work, the appellant/plaintiff, in good faith,