1 2025:CGHC:53696 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 373 of 2016 1 - Smt. Anita Yadav W/o Shri Vasudeo Yadav, Aged About 45 Years R/o Quarter No. C-6 S.E.C.L. Colony, Domnara, Post Farkanara, Tehsil Kharsiya, District Raigarh, Chhattisgarh ...............Plaintiff, Chhattisgarh ...Appellant(s) versus 1 - Vinod Agrawal Battimaar S/o Satyanarayan Agrawal Battimaar Occupation Trirupati Road Carrier, Opposite Dimrapur Chowk, R/o Krishna Vihar Colony, Tehsil And District Raigarh, Chhattisgarh ................Defendant, Chhattisgarh ... Respondent(s) For Appellant (s) : Mr. Roop Naik, Advocate For Respondent(s) : Mr. Shobhit Kosta, Advocate Hon’ble Shri Justice Ravindra Kumar Agrawal, J Order on Board 03.11.2025 1. The instant first appeal has been filed under Section 96 of Code of Civil Procedure, 1908 by the appellant/ plaintiff against the impugned judgment and decree dated 29.08.2016 passed by learned 3rd Additional District Judge, Raigarh, in Civil Suit No. 114 B of 2010, whereby the Civil Suit filed by the plaintiff for refund of her amount of Rs. 3 Lakhs has been dismissed. 2. The plaintiff has filed a civil suit for refund of her amount of Rs. 3 Lakhs SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2026.01.03 15:23:50 +0530 2 which was paid to the defendant pursuant to the agreement with respect to the sale of the truck/ dumper of the defendant. It is pleaded in plaint that the husband of the plaintiff is an employee in Domnara SECL and he is well acquainted with the defendant. The defendant is running his transport business at Raigarh in the name of Tirupati Road Carrier. On the instance of the defendant, the husband of the plaintiff was ready to purchase the truck and on the assurance given by the defendant that he will provide an old truck in good condition for the total consideration of Rs. 3 Lakhs and as per their mutual settlement, Rs. 2 Lakhs was paid to the defendant on 17.10.2004 and the defendant has issued an acknowledgment on the letterhead of Tirupati Road Carrier and accepted that the remaining amount of Rs. 1 Lakh would be paid to him at the time of delivery of truck/ dumper. The defendant evading to provide the truck/ dumper to the plaintiff, however, he assured that he will deliver the truck very soon. On 15.02.2005, the defendant informed the plaintiff that she may take delivery of the truck and paid the remaining amount of Rs. 1 Lakh and as per their communication, the husband of the plaintiff paid Rs. 1 Lakh to the defendant. However, the delivery of the truck was not given to them by saying that the said truck was taken back by its owner and it could be only provided after 3-4 months. Considering the suspicious conduct of the defendant, the plaintiffs demanded their money back from him but the defendant assured that he will provided truck within 3- 4 months. When the truck was not provided to the plaintiff even after about 4 months, they again demanded in the month of June, 2005, their money back or delivery of the vehicle but the defendant again evading from delivery of the truck as well as refund of their amount. 3 The defendant also pressurized her husband to work with him by alluring that he will work with him and he will refund his money of Rs. 3 Lakhs. However, the defendant neither refunded their money back nor delivered the truck. On 13.03.2008, they served a legal notice to the defendant but he neither replied the notice nor paid the amount of the plaintiff. The plaintiff also filed an application under the Consumer Protection Act before the Consumer Dispute Redressal Forum, Raigarh which was registered as Consumer Case No. 41/2008 in which it was found proved that the defendant has taken Rs. 3 Lakhs from the plaintiff, pursuant to the sale of truck and passed the order on 04.10.2008 for refund of his amount of Rs. 3 Lakh along with the interest @ 12% per annum. The damages have also been awarded by the District Consumer Forum, Raigarh. The order dated 04.10.2008 was challenged by the defendant before the State Consumer Dispute Redressal Commission, Raipur by filing his appeal No. 758/2008 which was allowed on 04.12.2009 and the order dated 04.10.2008 was set aside and liberty was given to the plaintiff to file civil suit before the competent court for redressal of his grievances and the present suit has been filed by the plaintiff for recovery of her 3 Lakhs rupees from the defendant. 3. The defendant contested the claim of the plaintiff, filed the written statement and has denied the plaint averment and denied the receiving Rs. 3 Lakhs from the plaintiff and her husband in two installments of Rs. 2 Lakhs and Rs. 1 lakh and also denied the execution of any acknowledgment in favour of the plaintiff. He specifically denied that there was no sale agreement of truck with the defendant and he has not obtained any amount from the plaintiff under any agreement of 4 sale. He would also pleaded that one of the relative of the plaintiff was working with the defendant and the husband of the plaintiff was also come with him in his office. The defendant was engaged in transport business of coal and in the normal course of his business, he left the signed letterhead in his office for necessary proceeding as he could not appeared in every place at the same time in coal transport business and the said signed letterhead was taken by the relative of the plaintiff and prepared the forged acknowledgment of receiving of the amount, therefore, the plaintiff is not entitled for refund of any amount from him. The defendant has also raised objection that the suit has been filed by the plaintiff beyond limitation period of three years and there is defect of non joinder of necessary party to the suit and the suit of the plaintiff is not maintainable. 4. On the basis of the pleadings made by the respective parties, the learned trial Court has framed the following issues:- 01- D;k izfroknh dz0&1 us oknh dks :i;s 3]00]000 @&esa fVªi&Vsªyj [kjhnok nsus dk vk’oklu nsdj fnukad 17-10- 22004 dks oknh ds izfr ls :i;s 2]00]000@&dh vfxze izkfIr djus gsrq fyf[kr ikorh fn;k Fkk ,oa fnukad 15-02-2005 dks ’ks"k :i;s 1]00]000@&dh jkf’k oknh dh vksj ls mlds ifr ls izkIr dj fyf[kr ikorh fn;k Fkk \ 02- D;k izfroknh }kjk oknh dks dksbZ okgu ugha fnyk;k x;k ,oa jde dh Hkh Okkilh dh vnk;xh ugha dh xbZ\ 03- D;k izfroknh ds }kjk jde okilh gsrq oknh ds le{k vuqefr ‘’krZ j[kk x;k vkSj oknh ds izfr dks vius laLFkku esa fcuk esgrkuk dke djus gsrq foo’k fd;k x;k\ 04- D;k oknh ] izfroknh ls 3]00]000@&dh olwyh dj ikus rFkk izfroknh ds }kjk fd;s x;s d`R;ksa ds ,ot esa ,d yk[k :i;s dh {kfriwfrZ izkIr djus dh vf/kdkjh gS\ 05- D;k ;g okn le;kof/k ls ckf/kr gS\ 06- D;k bl okn es i{kdkjksa ds vla;kstu dk nks"k gS \ 07- D;k oknh ds ifr ds }kjk dwV jfpr nLrkost rS;kj djrs gq, mlds vk/kkj ij ;g nkok is’k fd;k x;k gS\ 5 08- lgk;rk ,oa ckn O;;\ 5. During the course of trial, issue No. 2 and 3 have been deleted by the learned trial Court. 6. In support of her case, the plaintiff has examined herself as PW/1 and witness Sudev Yadav has been examined as PW/2 and he upon the document, the acknowledgment dated 17.09.2004 (Ex-P/1), acknowledgment dated 15.02.2005 (Ex-P/2), order dated 04.10.2008 passed by District Consumer Forum (Ex-P/3), order dated 04.12.2009 passed by Chhattisgarh State Consumer Dispute Redressal Commission, Raipur (Ex-P/4), legal notice (Ex-P/6) and the postal receipt and acknowledgment (Ex-P/7 and P/8). The defendant, though, has filed his affidavit under order 18 Rule 4 of CPC, however, when he could not produce himself for cross-examination, his right to lead evidence has been forfeited and thereafter, the learned trial Court has passed the judgment and decree on 29.08.2016 and dismissed the suit of the plaintiff. Hence, this appeal. 7. Learned counsel for the appellant would submit that the judgment and decree passed by learned trial Court is erroneous in the facts and law both. The learned trial Court has erred in holding that the suit is barred by limitation ignoring the provisions of Section 14 of Limitation Act and the time spend in the proceeding before the Consumer Forum shall be excluded in counting the limitation period of the suit. The plaintiff has produced the envelope (Ex-P/5) by which she received the copy of the order from the State Consumer Dispute Redressal Commission, Raipur and thereafter, she filed the civil suit which is within limitation. Learned trial Court has also erred in holding that the suit is barred by non- joinder of necessary parties, for the reasons that the husband of the 6 plaintiff has not been made as a party in the suit because he is not the necessary party for the reason that transaction was made with the plaintiff and therefore, the suit does not suffer from non-joinder of necessary party. Learned counsel for the appellant would also submit that the defendant has taken the amount of Rs. 3 lakhs from the plaintiff in two installments and issued acknowledgment (Ex-P/1 & P/2). The defendant has not challenged the said 2 documents by filing his counter claim and in the proceeding before the consumer forum, the payment of Rs. 3 Lakhs have been found proved by the consumer courts, therefore, the impugned judgment passed by learned trial Court is erroneous and the same is liable to be set aside. He would also submit that the defendant himself has not appeared for his cross examination to prove the contents of his written statement which gives presumption in favour of the plaintiff and therefore, the impugned judgment and decree may be set aside and decree may be granted in favour of the plaintiff. 8. On the other hand, learned counsel appearing for the respondent opposes the submissions made by learned counsel for the appellant and has submitted that it is primary burden of the plaintiff to prove her case and it is only when the plaintiff discharged her burden to prove, the burden shifts on defendant to prove his defence. In the present case, the plaintiff has failed to prove the fact that the defendant has obtained the amount of Rs. 3 Lakhs from her towards any sale agreement of truck. The orders passed by the consumer court is based on the document, however, when the document was denied, it has to be proved for which the consumer court has granted liberty to the plaintiff to prove her case before the competent civil court. The plaintiff 7 has failed to prove the execution of two documents (Ex-P/1 & P/2) that after obtaining amount of Rs. 3 Lakhs from the plaintiff, the defendant has executed these two deeds (Ex-P/1 and P/2). There is no agreement between the parties and the plaintiff could not be able to prove that on which account the amount has been paid to the defendant. He would further submit that when the defendant has specifically denied the receiving of the amount from the plaintiff and execution of acknowledgment, the plaintiff is required to prove that the said two acknowledgments have been issued by the defendant. Except the plaintiff and her husband, no other witnesses have been examined to prove the transaction between the plaintiff and defendant. The judgment and decree passed by learned trial Court is absolutely justified. He would also submit that the alleged transaction of the amount was made in the year 2004 whereas the suit for recovery of the amount has been filed on 18.01.2010 which is apparently beyond the period of three years as provided under Article 13 of the Limitation Act, 1963. Once the suit itself was found to be barred by limitation, no decree can be passed in favour of the plaintiff, therefore, the appeal filed by the appellant does not have any merit and the same is liable to be dismissed. 9. I have heard learned counsel for the parties and perused the records. 10. The learned trial Court while deciding the issue No. 5 which is related to the limitation to file the suit, have considered the provisions of Article 13 of the Limitation Act and Section 14 of the Limitation Act. 11. The present suit is not for the balance of money advanced in payment of goods to be delivered. It is a suit for recovery of the money paid 8 under the consideration of the sale of the truck. Article 13 of the Limitation Act would be applicable where the vendor has filed the suit for the balance money payable by the purchaser of the truck under the transaction. It is not the case here, but the purchaser of the truck filed the suit for recovery of the money which has already been paid to the vendor against such truck, but the vendor has failed to deliver such truck in the present case, the plaintiff has flied the suit for recovery of his amount paid to the defendant to purchase a truck, but the defendant has failed to deliver the truck, therefore, the plaintiff wants his money back from the defendant. Therefore, Article 47 of the Limitation Act, 1963 would be applicable in the case for the computation of the limitation to file the suit. 12. Article 47 of the Limitation Act provides the following limitation to file the suit for money paid upon an existing consideration which afterwards fails, which reads as under :- Description of suit Period of limitation Time from which period begins to run For money paid upon an existing consideration which afterwards fails. Three years The date of the failure. 13. When the defendant failed to deliver the truck to the plaintiff, she approached the District Consumer Dispute Redressal Forum, and ultimately the matter went to the Chhattisgarh State Consumer Dispute Redressal Commission, Raipur, from where an order was passed on 24-12-2009, and liberty was given to the plaintiff to file an appropriate Civil Suit before the Competent Court, if so advised. Therefore, the learned Trial Court also considered the provisions of Section 14 of the Limitation Act, 1963, for exclusion of time of proceeding bona fide in 9 court without jurisdiction. 14. Section 14 of the Limitation Act, provided the exclusion of time of proceeding bonafide in Court without jurisdiction which reads as under:- 14. Exclusion of time of proceeding bona fide in court without jurisdiction. — (1)In computing the period of limitation for any suit the time 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 shall be excluded, 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. (2)In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding 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. (3)Notwithstanding anything contained in rule 2 of Order XXXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. 15. The plaintiff has pleaded in para 25 of her plaint that the cause of action arose on 17-10-2004, 15-02-2005, 13-03-2008, 04-10-2008 and 04-02-2009. The date of 17-10-2004 is the date when the plaintiff allegedly entered into the contract to purchase of truck and paid Rs. 2,00,000/- to the defendant as an advance amount. The date of 15-02- 10 2005 is the date on which she again paid Rs. 1,00,000/- to the defendant towards the total sale consideration of the truck. The date of 13-03-2008 is the date on which the plaintiff served a legal notice to the defendant for the refund of her amount of Rs. 3,00,000/- The date of 04-10-2008 is the date on which the District Consumer Dispute Redressal Forum passed the order, Bilaspur and the date of 04-02- 2009 is the date on which the Chhattisgarh State Consumer Dispute Redressal Commission, Raipur, passed the order. In paragraph 11 of the plaint, the plaintiff has pleaded that in June 2005, when the plaintiff went to the defendant and asked for delivery of the truck or a refund of her amount, he denied the same. In the legal notice dated 13-03-2008, the same is mentioned that in June 2005, the defendant refused to deliver the truck and to refund her amount. Thereafter, the plaintiff filed the application before the District Consumer Dispute Redressal Forum, Bilaspur, on 27-03-2008, which was decided on 04-10-2008, and the appeal was decided by the State Consumer Commission on 04-02- 2009, and thereafter, the present suit is filed on 18-01-2010. Thus, the plaintiff is entitled to exclusion of time under Section 14 of the Limitation Act, 1963, from 27-03-2008 to 04-02-2009, which is the time spent in the proceeding before the Consumer Court. 16. When the plaintiff specifically pleaded in her plaint that in June 2005, she asked for a refund of her amount, but the defendant refused the same, the refusal amounts to failure of the existing consideration of the sale of the truck. The period of limitation began to run from June 2005, which continued up to 27-03-2008 when the plaintiff filed her application before the District Consumer Forum, Bilaspur. As soon as 11 the appeal is decided by the State Consumer Commission, Raipur, i.e. on 04-02-2009, the limitation again starts to run from 05-02-2009, and the plaintiff has to file the suit within three years from the refusal, i.e. from June 2005 till filing of the suit, i.e. on 18-01-2010, excluding the period from 27-03-2008 to 04-02-2009. 17. Section 9 of the Limitation Act, 1963 provides the continuous running of time, which reads as under: Section 9. Continuous running of time:- Where once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it:Provided that where letters of administration to the estate of a creditor have been granted to his debtor, the running of the period of limitation for a suit to recover the debt shall be suspended while the administration continues. 18. Thus, in view of Section 9 of the Limitation Act and in the computation of the limitation period, the period of limitation to file the suit for refund of the amount starts from June 2005, which continued till the filing of the suit, i.e. 18-01-2010; however, the period spent in the proceeding before the District Consumer Forum, Bilaspur, and State Consumer Commission, Raipur, i.e. from 27-03-2008 to 04-02-2009 shall be excluded as per Section 14 of the Limitation Act. From the aforesaid consideration, it is quite vivid that the suit of the plaintiff is filed beyond the period of three years and barred by limitation. Though the learned trial court erroneously considered the case of the plaintiff under Article 13 of the Limitation Act, however, while invoking the powers under Order 41 Rule 33 of the C.P.C., this Court can pass the order which is required under the facts and circumstances of the case without changing the outcome of the consideration that the suit of the plaintiff is barred by limitation. 12 19. While deciding the issue No. 6 with respect to the non-joinder of the necessary party, the learned trial Court has considered that the plaintiff has pleaded and given evidence that the amount has been paid by her husband. Her husband has handed over the acknowledgment executed by the defendant and since the transaction was allegedly made by the plaintiff and her husband with the defendant, the suit filed by the plaintiff alone suffers from non-joinder of the necessary party. From the pleading made by the plaintiff in the plaint it is quite vivid that the transaction made by the plaintiff through her husband but for the reason best known to her, he has not been made as a plaintiff in the suit or defendant in the suit. He would have the best person to claim the refund of the amount if he actually paid the amount to the defendant. The finding recorded by the learned trial Court also does not appears to be suffer from any perversity. 20. The next submission made by the learned counsel for the appellant that the defendant has executed two acknowledgments of receiving the amount of Rs. 2,00,000/- and 1,00,000/- respectively, the execution of these said two acknowledgments have been specifically denied by the defendant in his written statement. The burden of proof was upon the plaintiff to prove her case and the onus to prove can shift only when the plaintiff discharged her burden to prove the fact. 21. From perusal of the documents Ex.P/1 and Ex.P/2, it does not reveal that the amount was paid pursuant to any sale transaction of truck. It is only mentioned that in lieu of the truck, the amount of Rs. 2,00,000/- was given to the person whose signature in there in the said document Ex.P/1 and Ex.P/2. As per the pleading and evidence of the plaintiff the 13 husband of the plaintiff was employee in the SECL and the amount of Rs. 2,00,000/- was said to have been paid from the savings of her husband, however, there is no document of any bank account of the husband of the plaintiff which discloses the withdrawal of the amount for payment of Rs. 2,00,000/- to the defendant. The defendant No. 2 husband of the plaintiff has admitted in his cross-examination that he received the salary of Rs. 75,000/- per month and he is income-tax payee, however, he has not produced his income tax return to show that he paid Rs. 2,00,000/- to defendant from his saving. In his cross- examination he stated that he paid the amount to the defendant after borrowing the amount from her relatives and known persons. The source of fund could not be properly explained by the plaintiff and neither her husband nor any person have been examined on their behalf who provided the fund to them. The learned trial Court has also considered the document Ex.P/2 in which it has been mentioned that Rs. 41,000/- was paid towards the transportation charges and Rs. 59,000/- cash. The plaintiff has admitted in her evidence that the document Ex.P/2 it has not been mentioned that the amount of Rs. 1,00,000/- has been paid against the sale consideration of the truck. 22. As per the cross-examination of these witnesses, it transpires that it was the amount towards business dealings of transport business and not towards the sale of truck. Further the learned trial Court has also considered that the plaintiff has not get the said two deeds examined by the hand-writing expert to prove that it was executed by the defendant and his signatures are there in the two deeds, particularly when the defendant have specifically denied the signature over these two deeds Ex.P/1 and Ex.P/2. 14 23. Considering the entire aspects of the case and evidence available on record the learned trial Court comes into conclusion that the plaintiff has failed to prove his case and therefore he is not entitled for any relief in the suit. 24. After having examined the entire facts and evidence available on records and pleadings of the parties, this Court does not find any perversity in the judgment and decree passed by learned trial Court which is based on proper appreciation of evidence available on record. 25. Consequently, the appeal filed by the appellant is dismissed. 26. The parties shall bear their own cost. 27. The appellate decree withdrawal accordingly. Sd/- (Ravindra Kumar Agrawal) Judge sagrika