India Yamaha Motor Pvt Ltd v. Seema Bhatia

RAJIV SAHAI ENDLAW, J. JULY 03, 2019 "gsr".. (corrected & released on 8th August, 2019)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 3rd July, 2019 + CS(COMM) 725/2017 INDIA YAMAHA MOTOR PVT LTD ..... Plaintiff Through: Mr. Sachin Dutta, Sr. Adv. with Mr. Rahul Malhotra, Ms. Rijuta Mohanty & Mr. Manmeet Singh Nagpal, Advs. Versus SEEMA BHATIA ..... Defendant Through: Ms. Zubeda Begum, Ms. Sana Ansari & Mr. Zubin Sengh, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW IA No.8753/2013 (of the plaintiff under Section 14 of the Limitation Act, 1963 for condonation of delay of 2095 days in institution of the suit). 1. The plaintiff has instituted this suit for recovery of Rs.1,46,59,899/- from the defendant. The suit was accompanied with the application aforesaid under Section 14 of the Limitation Act, 1963 for condonation of delay in filing thereof. 2. The suit came up first before the Joint Registrar on 24th May, 2013, when summons thereof were ordered to be issued. 3. The pleadings in the suit and the application were completed. 4. The suit came up before this Court on 22nd November, 2018, when the same was ordered to be listed for arguments, presumably on this application under Section 14 of the Limitation Act. 5. The matter came up before the undersigned on 16th May, 2019, when it was straightaway enquired from the counsels, how a plea of Section 14 of the Limitation Act could be decided without evidence. Section 14 of the Limitation Act permits exclusion of time, in computing the period of limitation for filing a suit, during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature, is unable to entertain it. The findings of due diligence and good faith are factual findings and ordinarily cannot be returned without evidence. Reference in this regard may be made to State of Bombay Vs. Ram Krishna Govind Bhanu AIR 1958 SC 767 and State Farms Corporation of India Ltd. Vs. Mahendra Singh (2013) 205 DLT 326. 6. However, on the counsel for the defendant contending that even after excluding the period of limitation for which the other proceeding was going on, there is a delay in institution of the suit, hearing of arguments on the said aspect was commenced. 7. The senior counsel for the plaintiff contended, that (i) the suit is for recovery of money and Article of the Schedule to the Limitation Act applicable thereto is Article 1 and the closing of the accounting year of the parties was according to the Gregorian Calendar i.e. from 1st January to 31st December of the year and according to the plaintiff, the claim in the suit is within time on the basis of transactions in the account at the close of the year 2004 i.e. 1st December, 2004 to 31st December, 2004 and the limitation will commence running from 1st January, 2005; it was further contended that the suit was thus required to be filed by 31st December, 2008 but was instituted on 21st May, 2013; (ii) the plaintiff / its predecessor in interest, had earlier referred the disputes with the defendant to arbitration; (iii) the defendant, on 18th October, 2006 filed CS(OS) No.1996/2006 challenging the existence of any arbitration agreement and vide order dated 19th October, 2006 therein, the arbitration proceedings were stayed; the said suit was decreed in favour of the defendant on 13th September, 2007; (iv) the plaintiff filed RFA(OS) No.71/2008 on 22nd January, 2008, delay in filing of which was condoned; (v) the appeal was dismissed on 19th April, 2012; and, (vi) if the period from 18th July, 2006, when arbitration was invoked, to 19th April, 2012, when the appeal was dismissed, is subtracted, the suit would be within time. 8. Per contra, the counsel for the defendant, on 16th May, 2019 contended that the arguments on behalf of the plaintiff were contrary to the pleadings