M/S Jindal Photo Ltd vs M/S Rays Medical Services (P) Ltd
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Judgment reserved on: 6 August, 2026
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Judgment pronounced on: 3 September, 2026
# CNR No. DLHC016755742015
+ RFA 36/2016
M/S JINDAL PHOTO LTD .....Appellant
Through: Mr. Nitin Soni and Mr. Deepjyot
Singh, Advocates.
versus
M/S RAYS MEDICAL SERVICES (P) LTD .....Respondent
Through: Mr. Madhu Sudan Bhayana, Mr.
Naveen and Ms. Ishita Bhayana,
Advocates.
CORAM:
HON’BLE MR. JUSTICE AMIT BANSAL
JUDGMENT
AMIT BANSAL, J.
1. The present appeal has been filed under Section 96 of the Code of Civil
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Procedure, 1908 (‘CPC’) against the judgment and decree dated 28
September, 2015 (‘impugned judgment’), passed by the Additional District
and Sessions (Central) 03, Tis Hazari Courts, (‘Trial Court’) in Suit No.
144/2007 titled ‘ M/s Rays Medical Services (P) Ltd. v. M/s Jindal Photo Film
Ltd. ’. Vide the impugned judgment, the Trial Court has decreed the suit for
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recovery in favour of the plaintiff company, and directed the defendant
company to pay a sum of Rs. 8,40,982, along with interest at 12% per annum.
2. The parties shall hereinafter be referred to by their original
nomenclature before the Trial Court.
3. Brief facts necessary for the adjudication of the present appeal are as
follows.
4. The defendant company is engaged in the manufacture of photo films,
including X-Ray films.
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5. In terms of the letter dated 22 May, 2003, the defendant company
appointed the plaintiff company as its agent for supplying X-Ray films to
government departments/institutions in Delhi on a commission basis.
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6. On 26 March, 2004, the agency of the plaintiff company was withheld
by the defendant company. The agency was subsequently restored vide letter
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dated 27 September, 2004.
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7. On 2 May, 2007, the plaintiff company issued a legal notice to the
defendant company seeking the recovery of Rs. 8,40,982 towards its
commission and refund of security deposit.
8. It is the plaintiff company’s case that pursuant to the receipt of the said
notice, a meeting was held between the officials of the parties, however, no
amicable settlement could be arrived at. Accordingly, the plaintiff company
instituted a suit seeking recovery to the tune of Rs. 12,20,000/- comprising of
the commission amount, security deposit, and interest at 18% per annum.
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9. The defendant company filed its written statement, raising preliminary
objections that the plaint was not properly signed and verified, and that the
suit was bad for non-joinder/misjoinder of parties. On merits, the plaintiff
company’s claim was denied on the ground that the plaintiff company had
committed fraud by procuring goods from the defendant company in the name
of government departments/institutions and disposing of the same in the open
market at higher rates for personal gain.
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10. Vide order dated 7 July, 2008, the Trial Court framed the following
issues:
i. Whether the plaint has been signed and verified by a duly competent
person? OPP.
ii. Whether the suit is bad for non-joinder of necessary/proper
parties? OPD.
iii. Whether the plaintiff is entitled to the suit amount? OPP.
iv. Whether the plaintiff is guilty of any malpractice that would disentitle
him to the suit amount? OPD.
v. Whether the plaintiff is entitled to any interest?
vi. Relief.
11. Evidence was led on behalf of the plaintiff company as well as the
defendant company.
12. In the original plaint, Sh. R.B. Paul, the ex-Managing Director of the
defendant company was arrayed as the sole defendant. At the stage of final
arguments, the plaintiff company moved an application under Order VI Rule
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17 CPC, seeking amendment of the memo of parties to substitute the
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defendant company in place of Sh. R.B. Paul. Vide order dated 4 January,
2014, the Trial Court allowed the said application holding that no prejudice
would be caused to the defendant company, as it was fully aware of the case
set up against it and had contested the suit on merits.
13. Vide the impugned judgment, the Trial Court decreed the suit of the
plaintiff company for a sum of Rs. 8,40,982 together with interest at 12% per
annum till realization.
14. Aggrieved by the impugned judgment, the defendant company
preferred the present appeal.
ROCEEDINGS BEFORE THIS OURT
P C
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15. Vide order dated 19 January, 2016, this Court admitted the appeal.
The impugned judgment was stayed subject to the defendant company
depositing the entire decretal amount together with interest till the date of
deposit.
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16. Vide order dated 18 April, 2016, this Court directed the Registry of
this Court to release of the amount deposited in Court along with interest
accrued thereon to the plaintiff company, subject to the plaintiff company
furnishing a security.
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17. Vide order dated 25 March, 2025, the matter was referred to the Delhi
High Court Mediation and Conciliation Centre. Upon the mediation proving
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unsuccessful, the parties were, vide order dated 14 July, 2025, directed to file
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their written submissions. Accordingly, written submissions on behalf of both
parties were filed and taken on record.
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18. Oral submissions on the defendant company were heard on 17 July,
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2026. Oral submissions on behalf of the plaintiff company were heard on 6
August, 2026, on which date additional written submissions filed by both
parties were taken on record and the judgment was reserved.
S UBMISSIONS ON BEHALF OF THE A PPELLANT (D EFENDANT C OMPANY )
19. The suit, insofar as it pertains to the sum of Rs. 4,06,229, is ex-facie
barred by limitation. The plaintiff company, in paragraph 9 of the plaint,
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admitted that the said amount was due as on 26 March, 2004, whereas the
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suit was filed only on 3 August, 2007, beyond the prescribed period of three
years under Article 113 of the Limitation Act, 1963. Being a pure question of
law, apparent on the face of the pleadings, the plea of limitation may be raised
in the appeal. Reliance in this regard is placed on Nikhila Divyang Mehta
1
and Anr. v . Hitesh P. Sanghvi and Ors.
20. The suit was liable to be dismissed for misjoinder of parties, inasmuch
as the suit was originally instituted against Sh. R.B. Paul, the earlier
Managing Director of the defendant company, in his individual capacity, and
not the defendant company itself. In fact, Sh. R.B. Paul was not even the
Managing Director of the defendant company on the date of filing the suit. It
is well settled that an officer of a company is not personally liable for the
1
2025 SCC OnLine 779.
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debts of the company unless statutory or contractual liability is established.
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Reliance in this regard is placed on Praveen Bethapudi v . Savithramma .
21. The application under Order VI Rule 17 CPC for amendment of the
memo of parties was filed belatedly, after the completion of trial, at the stage
of final arguments. As per the proviso to Order VI Rule 17 CPC, no
amendment can be allowed after commencement of trial unless the party
could not, despite due diligence, have raised the matter earlier. In the present
case, no such due diligence was undertaken despite the framing of a specific
preliminary issue with respect to misjoinder.
22. The costs of Rs. 5,000 imposed as a condition by the Trial Court for the
amendment of memo of parties to take effect were never paid by the plaintiff
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company. Hence, the order dated 4 January, 2014 is inoperative and
consequently the suit remains a suit against the individual and not against the
company.
23. Without prejudice to the above submission, in terms of Section 21 of
the Limitation Act, 1963, the suit against the newly substituted defendant
company would be deemed to be instituted against the defendant company on
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4 January, 2014. Accordingly, the suit, being founded on events of 2003-
2004, was barred by limitation. Reliance in this regard is placed on Golesh
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Kumar v . Ganesh Dass Chawla Charitable Trust (Regd.) .
24. The Trial Court erroneously placed reliance upon the statement of
account produced by the plaintiff company (Ex.PW1/D1), inasmuch as the
2
2010 SCC OnLine Kar 2294.
3
2006 (89) DRJ 417 (DB).
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said document was introduced only during cross-examination of the witness
of the defendant, DW-1, and not filed with the plaint as mandated by Order
VII Rule 14 CPC. The Trial Court erred in relying upon another statement of
account filed by the plaintiff company at the stage of final arguments, despite
there being no order allowing the filing of the same. However, the defendant’s
statement of account (Ex.DW1/4), filed along with the written statement, was
not considered by the Trial Court for want of certification under the Bankers'
Books Evidence Act and Section 65-B of the Indian Evidence Act, 1872.
25. The Trial Court erred in rejecting the defence of malpractice despite
clear admissions of the witness of the plaintiff, PW-1 in the cross-examination
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dated 1 December, 2009, that he had no proof of supply of goods to any
government department in respect of which commission was claimed, and
could not produce any document to substantiate that the material for which
commission was claimed was ever supplied. The said admissions establish
that the plaintiff company did not perform its obligations under the
appointment letters and was not entitled to any commission.
S UBMISSIONS ON BEHALF OF THE R ESPONDENT /P LAINTIFF C OMPANY
26. The issue of limitation was never raised before the Trial Court, and no
issue in that regard was framed. Accordingly, the defendant company cannot
this raise the new ground of limitation at this appellate stage. Reliance in this
regard is placed on Brakewel Automotive Components (India) Pvt. Ltd. v .
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P.R. Selvam Alagappan and Chitturi Subbanna v . Kudapa Subbanna and
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(2017) 5 SCC 371.
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5
Ors . In any event, the suit was well within limitation as the agency of the
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plaintiff company was restored on 27 September, 2004 upon deposit of a
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further security of Rs. 75,000, which was paid on 27 October, 2004. Further,
correspondence regarding release of commission continued through 2005-
2006, and DW-1, in cross-examination, admitted that no payment was made
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to the plaintiff company after 2 May, 2007, establishing that dealings
between the parties subsisted until shortly before institution of the suit.
27. On the issue of misjoinder, the Trial Court correctly held that the onus
lay on the defendant company, which failed to discharge the same. The
amendment allowed vide order dated 4th January, 2014 was a mere correction
of misdescription of parties. Further, the costs directed to be paid under the
said order have duly been paid by the defendant company. Without prejudice
to the above, no objection regarding non-payment of costs was raised by the
defendant company over the subsequent hearings, and any such objection
must be deemed to have been waived. Reliance in this regard is placed on
Chitturi Subbanna v . Kudapa Subbanna and Ors (supra).
28. The plea of fresh limitation consequent upon the amendment is
misconceived. The impleadment of the defendant company was a mere
correction of misdescription and not the institution of a fresh suit and no new
relief or cause of action was introduced against the defendant company.
5
1964 SCC OnLine SC 322.
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Reliance is placed on Pradeep Khanna v . Ashok Electric Company and
6 7
Ors . and Ashbee Systems P. Ltd. v . Agauta Sugar & Chemicals and Ors . .
29. The defendant company’s own statement of account (Ex.DW1/4) was
an unsigned, unstamped computer printout, unsupported by any certificate
under the Bankers' Books Evidence Act or Section 65-B of the Evidence Act,
1872, and was rightly ignored by the Trial Court. The plaintiff company’s
statement of account (Ex.PW1/D1) cannot be stated to belatedly produced as
the same was produced pursuant to a specific direction of the Trial Court
seeking clarification regarding the claim.
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30. The three letters dated 24 December, 2007 relied upon by the
defendant company to establish malpractice were procured over four months
after institution of the suit and after filing of the written statement, and
pertained to supplies of a period (2003-2004) prior to withholding of the
agency. Any such conduct stood condoned when the agency was restored on
an enhanced security deposit. In any event, the plaintiff company was
appointed as a liaisoning/collection agent, entitled to commission of 0.5%
upon realisation of payments (Ex.PW1/4), and was under no independent
obligation to itself supply goods, rendering the defence of malpractice
misconceived.
31. The defendant company never disputed that the business/supplies
referred to by the plaintiff company were, in fact, made, or that payments
6
2011 SCC OnLine Del 2038.
7
2013:DHC:5446.
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were received by it in that regard, which amounts to an implied admission in
support of the plaintiff company’s claim.
A NALYSIS AND F INDINGS
32. I have heard the counsel for the parties and examined the record of the
case.
33. Though various grounds of challenge have been taken in the appeal by
the defendant company, I propose to deal with the challenge with regard to
the merits of the case at first, i.e., challenge to the findings with regard to
Issues No. iii and iv. For ease of reference, Issues No. iii and iv are set out
below:
“iii. Whether the plaintiff is entitled to the suit amount? OPP.
iv. Whether the plaintiff is guilty of any malpractice that would disentitle him to
the suit amount? OPD.”
34. Both the aforesaid issues are connected and hence are being taken up
for adjudication together.
35. The plaintiff company filed a suit for recovery of Rs. 8,40,982/-.
Clearly, the onus to prove the same was on the plaintiff company. The plaint
makes reference to a statement of account maintained by the plaintiff
company in paragraph 9 of the plaint. However, inexplicably, the plaintiff
company did not file any statement of account along with the plaint or along
with its evidence by way of affidavit.
36. An application was filed on behalf of the plaintiff company for
producing documents, including a summary statement of account, which was
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allowed vide order dated 16 April, 2009. The witness of the defendant
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company, DW-1, was confronted with the summary statement of account
during cross examination and he denied having seen the said document.
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Nevertheless, the same was exhibited as Exhibit PW-1/D1 on 2 December,
2011.
37. At this stage, reference may be made to Order VII Rule 14 CPC, which
is set out below:
“14. Production of document on which plaintiff sues or relies.—(1) Where
a plaintiff sues upon a document or relies upon document in his possession
or power in support of his claim, he shall enter such documents in a list,
and shall produce it in Court when the plaint is presented by him and
shall, at the same time deliver the document and a copy thereof, to be filed
with the plaint.
(2) Where any such document is not in the possession or power of the
plaintiff, he shall, wherever possible, state in whose possession or power it
is.
(3) A document which ought to be produced in Court by the plaintiff
when the plaint is presented, or to be entered in the list to be added or
annexed to the plaint but is not produced or entered accordingly, shall
not, without the leave of the Court, be received in evidence on his behalf
at the hearing of the suit .
(4) Nothing in this rule shall apply to document produced for the cross-
examination of the plaintiffs witnesses, or handed over to a witness merely
to refresh his memory.”
(emphasis supplied)
38. With regard to proof of a document produced for the first time during
cross-examination, reference may be made to the observations made by a
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coordinate bench of this Court in Subash Chander v. Bhagwan Yadav set
out below:
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2009 SCC OnLine Del 3818.
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“10. The next question which arises is that if the document is so placed on
the court file, whether it becomes/is to be treated as the document of the
party producing the same and is that party entitled to prove the said
document notwithstanding having not filed the same earlier, as required
by law, or the use of the said document is to be confined only to confront
the witness to whom it was put and it cannot be permitted to be proved by
that party in its own evidence.
11. The legislative intent behind order 7 Rule 14(4) and Order 8 Rule
1A(4) and Order 13 Rule 1(3) appears to be to permit an element of
surprise, which is very important in the cross examination of witnesses. A
litigant may well be of the opinion that if the document on the basis
whereof he seeks to demolish the case of the adversary is filed on the court
record along with pleadings or before framing of issues, with resultant
knowledge to the adversary, the adversary may come prepared with his
replies thereto. On the contrary, if permitted to show/produce the
document owing to element of surprise, the adversary or witness, may
blurt out the truth. Once it is held that a litigant is entitled to such right, in
my view it would be too harsh to make the same subject to the condition
that the litigant would thereafter be deprived of the right to prove the said
documents himself. Thus, if the witness to whom the document is put in
cross examination fails to admit the document, the party so putting the
document, in its own evidence would be entitled to prove the same .
However, the same should not be understood as laying down that such
party for the said reason and to prove the said document would be entitled
to lead evidence which otherwise it is not entitled to as per scheme of CPC
and evidence law. For instance, if the document is shown by the defendant
to the plaintiffs witness and the plaintiffs witness denies the same, the
defendant can prove the document in his own evidence. Conversely, if the
plaintiff puts the document to the defendant's witness and the
defendant's witness denies the same, the plaintiff if entitled to lead
rebuttal evidence would in his rebuttal evidence be entitled to prove the
same. However, if the plaintiff has no right of rebuttal evidence in a
particular case, the plaintiff would not be entitled to another chance to
prove the document . In such a case, the plaintiff has to make a choice of
either relying upon the surprise element in showing the document or to file
the document along with its pleadings and/or before the settlement of
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issues and to prove the same. Similarly, if the defendant chooses to
confront the document to the plaintiff's witness in rebuttal, merely because
the witness denies the document would not entitle the defendant to a
chance to prove the document subsequently.
12. I may however put a line of caution over here. It is often found that a
party which has otherwise failed to file documents at the appropriate
stage, attempts to smuggle in the documents in the evidence of the
witness of the adversary by putting the documents to the witness whether
relevant to that witness or not. The court should be cautious in this
regard. Only those documents with which the witness is concerned
and/or expected to know or answer ought to be permitted to be put to the
witness in the cross examination. If other documents with which the
witness is not concerned are confronted only in an attempt to have the
same filed and to thereafter prove the same, the court would be justified
in clarifying that the document is taken on record only for the purpose
of cross examination and the producing party would not be entitled to
otherwise prove the same, having not filed it at the appropriate stage. ”
(emphasis supplied)
39. The aforesaid statement of account was an internal document of the
plaintiff company and if the plaintiff company was seeking to place reliance
on the same, the same should have been filed along with the plaint or at the
very least along with the evidence of the plaintiff company. Even if the
aforesaid statement of account was taken on record, the same had to be
proved in accordance with law, and the plaintiff company failed to prove the
same. It could not have been exhibited during the defendant company’s
evidence by confronting the witness of the defendant company with the same
during cross examination, as the said document was not relevant for the said
witness. Therefore, the Trial Court erred in exhibiting the aforesaid statement
of account and relying on the same.
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40. Yet another detailed statement of account was produced on behalf of
the plaintiff company at the stage of final hearing of the case. It has been
submitted on behalf of the plaintiff company that it was only on account of a
clarification sought from the Trial Court with regard to the amount due that
the plaintiff company brought on record the statement of account, which
detailed the amount of commission due to the plaintiff company. Even though
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the said statement of account was filed on 21 November, 2014, a perusal of
the record shows that there was no order passed by the Trial Court, seeking
such a clarification from the plaintiff company or permitting the plaintiff
company to file a statement of account, or taking the aforesaid statement of
account on record. In this regard, reference may be made to paragraph 31 of
the impugned judgment, which is set out below:
“31. Further, during the course of arguments, the, plaintiff has
produced a set of documents (run in 13 pages) i.e. the statement of
accounts maintained by the defendant in the name of the plaintiff at its
end in normal course of its business and such statement of accounts was
issued by the defendant to the plaintiff, that mentions the complete details
of the name of the customers, the account code, the invoices numbers with
date and amount, amount received and date of receipt of such amount to
establish the total quantity of supplies made by the plaintiff as the agent of
the defendant to do its business.”
(emphasis supplied)
41. In terms of Order VII Rule 14(3), any document to be produced with
the plaint as per Order VII Rule 14(1), but not filed along with the plaint, can
only be produced with the leave of the court. In the present case, the plaintiff
company did not file any application seeking the leave of the Trial Court to
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produce the said document. Therefore, the aforesaid detailed statement of
account could not have been received in evidence by the Trial Court.
42. Pertinently, the aforesaid statement of account has not even been
exhibited by the Trial Court. Clearly, the Trial Court could not have taken the
detailed statement of account on record at the stage of final hearing of the
case without giving any opportunity to the defendant company to respond to
the same. Therefore, the reliance on the aforesaid statement of account by the
Trial Court is completely erroneous.
43. The Trial Court did not accept the statement of account of the
defendant company (Exhibit DW-1/4), which was filed along with the written
statement. In terms of the said statement, a sum of Rs. 1,914/- was payable
towards commission. However, the Trial Court failed to appreciate, even if,
the defendant company could not prove its statement of account, the onus was
on the plaintiff company to prove that the amount claimed was due. The
plaintiff company could not have succeeded merely on account of the
inability of the defendant company to prove its statement of account.
44. The case of the defendant company was that, in terms of the
arrangement between the plaintiff company and the defendant company, the
plaintiff company was authorized to sell goods supplied by the defendant
company to government departments. However, instead of supplying the
goods to the government departments, the plaintiff company sold the goods in
the open market at higher prices. In this regard, the witness of the plaintiff,
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PW-1, in his cross-examination conducted on 1 December, 2009, clearly
admitted that:
i. He could not produce any document regarding payment made by any
government department to the defendant company pursuant to orders
procured by the plaintiff company.
ii. He could not produce the delivery proof of supply of the goods to any
government department.
iii. He had no proof of payment made to the plaintiff company towards
supply of goods to any government department.
45. The relevant extracts from the cross-examination are set out below:
“…It is correct that in Government departments, which I have referred in
my claims, all work is done in writing only. It is correct that the
Government department or Body will make payment only to that firm or
person on whom it has placed order for the supply or the work. I cannot
produce copy of any payment proof to the defendant by the parties/ Govt.
departments to whom the goods were supplied by the defendant . I cannot
produce either a covering letter with which the cheque/Draft/ Pay order
was sent to the defendant by the Receiver of goods or a copy thereof….
….I have not taken delivery of the goods ie x ray films from the defendant
against payment by me through my own cheques or drafts/pay orders
organized by me from my account, or otherwise.
… I do not have any proof of supply of any of the material/goods to any
of the Government's departments in respect to which I have claimed
commission nor I can produce the same in the court. It is wrong to
suggest that I used to take goods / X ray films from the Company or
documents relating thereto against payment from my own accounts and
then supplying the same to Government departments.
… I cannot say whether I can produce any document to substantiate that
the material in respect to which I am claiming commission has been
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supplied to any Government department. Further stated that I do not
have any such document...”
(emphasis supplied)
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46. A perusal of the appointment letter of the plaintiff company dated 22
May, 2003 (Exhibit PW-1/3) clearly shows that the plaintiff company was
appointed as an authorized agent of the defendant company for medical X-ray
films business to government/state institutions in Delhi. A perusal of the
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document dated 27 May, 2003 (Ex. PW1/5) also clearly suggests that the
appointment of the plaintiff was only in respect of supply government
departments. For ease of reference, the relevant extract from the document
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dated 27 May, 2003 is set out below:
“A. Our company will now be executing all govt. depts. Orders
received under our DGS&D Rate Contract dated 18.12.2002 on
prescribed from-131 i.e. Payment of which can be collected through pay
& accounts office, New Delhi on 98% and 2% basis.
B. All other govt. depts. Orders under DGS&D rate contract & direct
tender/quotation can also be executed provided we receive 100% advance
payments by D.D. from the Govt departments or agent concerned.
I. Our company will be paying dealer commission @5% on invoice
value for category B mentioned above.
II. For category A business our company will be allowing a total
commission of 3.5% on invoice value (instead of 3% earlier) as per
following details.
i) To the dealers concern on their procurement of order on form-131
under DGS&D Rate Contract and clearance of formalities for balance 2%
payment from the Pay & Accounts department. 2.25%.
ii) To our Mumbai liasoning agent for taking care of DGS&D
Inspection Formalities 0.75%
iii) To our Delhi liasoning agent for realisation of 98%/2% payment
From Pay & Accounts office Delhi 0.50%. ”
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47. In light of the above, the Trial Court has erroneously held that because
the defendant company had condoned the acts of the plaintiff company as its
agent and had restored its agency after enhancing the security amount, the
defendant company could not have withheld the commission due for the
business done by the plaintiff. The Trial Court has completely overlooked the
arrangement between the parties that the commission was only payable for
and in respect of goods supplied to the government bodies. Therefore, if the
plaintiff company did not supply goods to the government bodies, no
commission was payable to the plaintiff company.
48. Next, I shall consider the findings of the Trial Court with respect to
Issue No. 2, i.e., non-joinder of necessary/proper parties in the suit.
49. The aforesaid issue was framed on account of an objection raised by
the defendant company in its written statement that the plaintiff company had
filed the present suit against Shri R.B. Paul, who was the former Managing
Director of the defendant company. The proper party to be impleaded in the
suit was the defendant company, which was not done.
50. The plaintiff company filed an application under Order VI Rule 17
CPC to amend the plaint in order to implead the defendant company only at
the stage of final hearing. The said amendment application was allowed by
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the Trial Court vide order dated 14 January, 2014 subject to payment of costs
of Rs. 5,000/-.
51. It is contended on behalf of the defendant company that the costs of Rs.
5,000/- imposed by the Trial Court were never paid by the plaintiff company,
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hence, the amendment never came into effect. This has been countered by the
counsel for the plaintiff company, stating that the costs of Rs. 5,000/- were
duly paid.
52. Once the Trial Court had chosen to permit the amendment of the plaint
impleading the defendant company in place of the original defendant subject
to payment of costs, even though belatedly, I am not inclined to interfere with
the findings of the Trial Court on this account. It is a matter of record that the
defendant has not challenged the aforesaid order of the Trial Court.
53. It is further contended on behalf of the defendant company that since
th
the impleadment of the defendant company happened only on 4 January,
2014, the period of limitation has to be counted from the said date.
54. I am unable to agree with the aforesaid submission as the Trial Court in
th
its order dated 4 January, 2014, has held that there was only a misdescription
of parties and that the parties were aware of the case and had also gone to trial
with full knowledge. Mere correction of a misdescription of the parties, in my
opinion, cannot be construed as the addition of a new defendant. Therefore,
Section 21 of the Limitation Act would not apply.
55. As regards the issue of limitation, it is an admitted position that the
defendant company did not raise the issue of limitation in its written statement
and there was no issue framed with regard to limitation. In view thereof, this
Court is not inclined to get into the issue of limitation at this appellate stage.
56. Insofar as the judgment in Nikhila Divyang Mehta (supra), relied upon
by the defendant company, in the said case, the defendant had moved an
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Signing Date:03.09.2026
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application under Order VII Rule 11 of the CPC before the Trial Court therein
raising the issue of limitation. In the present case, the issue of limitation was
neither raised in the written statement nor in any application under Order VII
Rule 11.
57. In view of my findings in respect of Issues Nos. (iii) and (iv), the
impugned judgment passed by the Trial Court decreeing the suit in favour of
the plaintiff is erroneous and is accordingly set aside. The Registry of this
Court is directed to refund the decretal amount deposited by the
appellant/plaintiff company to the appellant/plaintiff company, together with
accrued interest.
AMIT BANSAL
(JUDGE)
SEPTEMBER 3, 2026
Rzu
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By:VIVEK MISHRA
Signing Date:03.09.2026
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