Rajiv Khanna v. M/S Sunrise Freight Forwarders Pvt Ltd & Anr

RAJIV SAHAI ENDLAW, J. MAY 24, 2016 "pp/bs"

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 24th May, 2016. + RAJIV KHANNA ..... Appellant Through: Mr. Apar Gupta and Ms. Garima Jain, Advs. Versus M/S SUNRISE FREIGHT FORWARDERS PVT LTD & ANR ..... Respondents Through: Mr. Manish Kohli and Mr. Pradeep Shukla, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This first appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugns the judgement and decree dated 4th June, 2015 of the Court of the Additional District Judge (ADJ)-01, Patiala House Courts, New Delhi District, New Delhi of dismissal of Suit No.424/2013 filed by the appellant for recovery of Rs.12,78,470/- along with pendente lite and future interest consequent to rejection under Order 7 Rule 11 of the CPC of the plaint on the ground of the relief claimed, from the averments contained therein, being barred by time. 2. Notice of the appeal was issued and the Trial Court record requisitioned. Considering that in the event of the appeal being allowed the suit will have to be remanded, after admitting the appeal on 10th February, 2016 it was posted for hearing for today. The counsels have been heard and the Trial Court record to the extent required perused. 3. The appellant/plaintiff on 10th December, 2013 instituted the suit from which this appeal arises, for recovery of the emoluments due to him for the period of his employment with the respondent/defendant no.1 Company and of which the respondent/defendant no.2 is the Chairman-cum-Managing Director and which employment admittedly came to an end on 20th September, 2008. Though the plaint is long-winded but the appellant/plaintiff in para 22 of the plaint has given the break-up of the amount claimed in the suit as under:- S. No. Particulars Outstanding Amount (In Rs.) 1. Incentives for the period of 2006-2007 1,41,680/- 2. Balance Gross salary for the period of April, 2007 – March, 2008 8,57, 790/- 3. Balance reimbursement for the month of July, 2008 (for services provided in June, 2008) 65,000/- 4. Gross salary for the month of August, 2008 (for services provided in July, 2008) 1,28,500/- 5. Gross salary for the month of September, 2008 (for services provided in August, 2008) 81,000/- TOTAL 12,78,470/- 4. The appellant/plaintiff prior to the institution of the suit from which this appeal arises filed Company Petition No.369/2009 for winding up of the respondent/defendant no.1 Company and which winding up petition was vide order dated 10th October, 2011 permitted to be withdrawn with liberty to file appropriate proceedings and though ordinarily the time taken in pursuing a winding up proceeding is not to be excluded from the limitation for the purposes of a suit for recovery of money (See Yeswant Deorao Deshmukh Vs. Walchand Ramchand Kothari AIR 1951 SC 16; Anil Pratap Chauhan Vs. Onida Savak Ltd. AIR 2003 Delhi 252; Diwan Chand Kapoor Vs. The New Rialto Cinema Pvt. Ltd. 28 (1985) DLT 310 (overruled by Division Bench on another aspect in Diwan Chand Kapoor Vs. New Rialto Cinema (P) Ltd. (1986) 60 CompCas 276); Ajab Enterprises Vs. Jayant Vegoiles & Chemicals Pvt. Ltd. AIR 1991 Bom. 35) but the learned Company Judge vide order dated 10th October, 2011 clarified that the time spent in prosecuting the winding up petition shall stand excluded while determining the period of limitation for recovery proceedings to be initiated by the appellant/plaintiff and which order has attained finality. 5. The appellant/plaintiff after waiting for more than two years, on 10th December, 2013 instituted the suit from which this appeal arises. 6. The learned ADJ has rejected the plaint on the ground of the relief claimed therein being barred by time (i) applying Article 7 of the Schedule to the Limitation Act, 1963; (ii) computing the period of three years under Article 7 from 20th September, 2008, being the date of cessation of employment of the appellant/plaintiff with the respondent/defendant no.1 Company; and, (iii) finding that even after excluding