Deepak Kumar @ Kaka v. Yash Pal

Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE JUDGMENT

1. This petition under Article 227 of the Constitution of India has been filed by the petitioner for quashing the order dated 26.06.2024 passed in the summary suit titled “Yashpal versus Deepak Kumar”, whereby the court of learned Additional District Judge, Jammu (for short, “the trial court”) has rejected the application filed by the petitioner under Order 7 Rule 11 CPC for rejection of the plaint.

2. Brief facts necessary for disposal of the present petition are that the respondent/plaintiff filed a suit under Order 37 of the Code of Civil Procedure, for recovery of an amount of ₹1,00,000/- along with interest @ 2% per month on the ground that on 01.12.2018, the petitioner had approached the respondent for grant of loan of ₹1,00,000/- and the respondent paid an amount of ₹1,00,000/- and interest was to be paid @ 2% per month by the petitioner to the respondent. In lieu of that, the petitioner also executed a promissory note of ₹1,00,000/- in favour of the respondent. 2 CM(M) No. 229/2024

3. The petitioner caused appearance before the learned trial court and filed an application under Order 7 Rule 11 CPC for rejection of the plaint on the ground that the respondent in his plaint has stated that he had advanced loan of ₹1,00,000/- to the petitioner on 01.12.2018, with the promise to pay back on demand and the respondent claims that cause of action has accrued to him to file the instant suit initially in the year 2019 and thereafter on 30.10.2023, when the petitioner did not pay the amount alongwith interest to the respondent despite expiry of the stipulated period in the notice issued to the petitioner by the respondent. It was stated by the petitioner that in terms of the Limitation Act, 1963 (for short „the Central Act), the limitation period for filing the suit for recovery of money lent under an agreement, which is payable on demand, is three years. In this case, as the loan was made on 01.12.2018 and the period of limitation had already expired when the suit was filed, therefore, the suit was hopelessly time barred. The respondent objected to the application on the ground that Hundi was executed on 01.12.2018, therefore, the J&K Limitation Act Svt. 1995 (for short „the J&K Act‟) would be applicable, which prescribed the limitation period of 6 years for filing the suit for recovery. The learned trial court after hearing the parties rejected the application, vide its order dated 26.06.2024.

4. The petitioner has assailed the order dated 26.06.2024 through the medium of this petition on the ground that the learned trial court has wrongly determined the issue that when the money was lent, it was the J&K Act, which was inforce and the right had accrued to the respondent 3 CM(M) No. 229/2024 to recover the same through the medium of suit and the J&K Act would be applicable.

5. Mr. Rakesh Chargotra, learned counsel for the petitioner has argued that the learned trial court has not rightly decided the application filed by the petitioner for rejection of the plaint and the same has been dismissed by returning contradictory findings.

6. Per contra, Mr. Karan Sharma, learned counsel for the respondent has submitted that that even if, the Central Act is applied, still the suit will be within the period of limitation, as in view of the directions issued by the Hon‟ble Supreme Court of India in RE: Cognizance for Extension of Limitation Suo Motu Writ Petition (C) No. 03/2020, the COVID- 19 period between 15.03.2020 to 28.02 2022 has been excluded for the

8. purpose of calculating the limitation period. Heard learned counsel for the parties and perused the record. It is evident that the learned trial court has decided the application without taking note of Section 30A of the Central Act, which specifically deals with the Union Territory of Jammu & Kashmir and Ladakh. Section 30A is extracted as under. "30A. Provision for suits, etc., for which the prescribed period is shorter than the period prescribed by the Limitation Act, Samvat 1995 – Notwithstanding anything contained in this Act, - a) Any suit for which the period of limitation is shorter than the period of limitation prescribed by the Limitation Act, Samvat 1995, may be instituted within a period of one year next after the commencement of the Jammu and Kashmir Reorganisation Act, 2019 or within the period prescribed for such suit by the Limitation Act, Samvat 1995, whichever period expires earlier: Provided that if in respect of any such suit, the said period of one year expires earlier than the period of limitation prescribed therefor under the Limitation Act, Samvat 1995 (now repealed) and the said period of one year together with so much of the period of limitation in 4 CM(M) No. 229/2024 respect of such suit under the said Act, as has already expired before the commencement of the Jammu and Kashmir Reorganisation Act, 2019 is shorter than the period prescribed for such suit under the Limitation Act, 1963, then, the suit may be instituted within the period of limitation prescribed therefor under the Limitation Act, 1963; (b) Any appeal or application for which the period of limitation is shorter than the period of limitation prescribed by the Limitation Act, Samvat 1995, may be preferred or made within a period of ninety days next after the commencement of the Jammu and Kashmir the period Reorganisation Act, 2019 or within prescribed for such appeal or application by the Limitation Act, Samvat 1995, whichever period expires earlier.

9. Section 30A provides that where for any suit, the limitation prescribed under the J&K Act is shorter than the period of limitation provided under the Central Act, then the suit can be filed within a period of one year after the commencement of Jammu and Kashmir Reorganisation Act 2019, or within the period prescribed for such suit by the J&K Act, which ever period expires earlier.

10. The proviso further provides that where the said period of one year expires earlier than the period of limitation prescribed under the J&K Act and the said period of one year together with so much of the period of limitation in respect of such suit as already expired before the commencement of Jammu and Kashmir Reorganisation Act 2019, is shorter than the period prescribed for such suit under the Central Act, then the suit may be instituted within the period of limitation prescribed under the Central Act.

11. So far as the present suit is concerned, the limitation period provided under the J&K Act and the Central Act, is six years and three years respectively. The expired period of limitation in the suit under the J&K Act is 11 months and if the expired period of 11 months, is taken 5 CM(M) No. 229/2024 together with period of one year from 31.10.2019 in terms of the proviso, the total period comes around to be less than the period of three years provided under the Central Act for filing the suit. Thus, in view of the proviso appended to section 30A(a) of the Central Act, the respondent could have filed the suit by or before 30.11.2021 but there was COVID-19 pandemic during that period and as such, the period from 15.03.2020 to 28.02.2022 is to be excluded for the purpose of calculating the limitation period in terms of the directions issued by the Hon‟ble Supreme Court in RE: Cognizance for Extension of Limitation Suo MotuWrit Petition (C)No. 03/2020 (supra). The respondent filed suit on 06.12.2023 and as such, the suit filed by the respondent is well within the period of limitation.

12. The learned trial court has reached at the right conclusion but in a wrong manner as the learned trial court has not taken note of Section 30A of the Central Act, therefore, while endorsing the conclusion arrived at by the learned trial court but not the reasons assigned thereto, this Court finds that the petition lacks merit.

13. In view of the above, the petition deserves to be dismissed and the same dismissed accordingly. (RAJNESH OSWAL) JUDGE Whether the order is speaking: Whether the order is reportable: Yes/no Yes/no Jammu: 22.11.2024 Karam Chand/Secy. KARAM CHAND 2024.11.22 14:06 I attest to the accuracy and integrity of this document