Jharkhand High Court
Pradeep Kumar Singh Son Of Late Fakir ... vs Ashok Kumar Choumal Son Of Late Deoki ... on 18 April, 2018
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
F.A.36 of 2007
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No.36 of 2007
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Pradeep Kumar Singh son of late Fakir Chand Singh, by faith Hindu, by occupation business, resident of Sadar Bazar, Police Station Chaibasa- Sadar, District Singhbhum West.
.... .... .... Appellant/Plaintiff Versus Ashok Kumar Choumal son of late Deoki Nandan Choumal, by faith Hindu, by occupation business, resident of Mohalla Amlatola, Chaibasa, P.O. + P.S. Chaibasa- Sadar, District Singhbhum West .... .... ... Respondent/Defendant
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For the Appellant : Mrs. J. Mazumdar, Advocate
For Respondent : Mr. Sheo Kumar Singh, Advocate
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:-
Heard the parties.
2. This appeal is directed against the judgment and decree dated 14.12.2006 passed by learned Subordinate Judge-I, Chaibasa in Money Suit No.01 of 2005 whereby and where under the learned court below has dismissed the suit.
3. The case of the plaintiff in brief is that the plaintiff and the defendant are the residents of Chaibasa and both were well acquainted with each other and were in friendly terms. The defendant approached the plaintiff for financial help for his hardware business and the plaintiff paid a sum of Rs.2,57,574/- on different occasions since the year 1992. Further, similar financial help was also extended to the defendant by other persons as well. Though the defendant assured the plaintiff to repay the same but the defendant did not honour his assurance and tried to avoid payment of loan taken from the plaintiff. To avoid the payment of the amount to the plaintiff, the defendant filed Insolvency Case No.01 of 1994 under Section 13 (1) of the Provincial Insolvency Act before the District Judge, Singhbhum West at Chaibasa and in the petition filed in 1 F.A.36 of 2007 the said case, he admitted his liability to the plaintiff to the tune of Rs.2,57,574/-. The defendant also lodged an F.I.R. on 10.03.1996 against the plaintiff basing upon which Sadar P.S. Case No.22 of 1996 was instituted. In the said case, the defendant was examined as P.W.4 on 24.11.1998 and in his said deposition the plaintiff further acknowledged that the said loan amount is due upon him and also stated that he will repay the same to the plaintiff. The defendant did not allow the said petition filed by him under the provisions of Provincial Insolvency Act to reach its finality and the said case was dismissed for default on 20.12.2003 by the First Additional District Judge, Chaibasa.
4. It is the further the case of the plaintiff/appellant that due to insolvency, the plaintiff could not file the suit earlier and according to the plaintiff the debt of the plaintiff was acknowledged by the defendant on several occasions and lastly on 20.12.2003.
5. In his written statement the defendant denied the fact that he ever approached the plaintiff for financial help with a view to flourish in his hardware business. The defendant also denied the fact that he approached various persons for financial assistance. The defendant also took the plea that the suit is barred by limitation.
6. It is the case of the defendant that the plaintiff with the help of defendant was running a Chit Fund in an unauthorized manner and the Chit Fund flopped due to misdeeds of plaintiff himself and other members and the alleged claim of the plaintiff relates to the Chit Fund scheme launched by the plaintiff himself. The defendant denied that he ever acknowledged any loan amount and the alleged acknowledgment was the result of undue pressure, threat and criminal intimidation by the plaintiff and his friends and also pleaded that the said alleged acknowledgement is not a valid acknowledgement nor the document is properly stamped. It is also the case of the defendant that the pendency of the insolvency proceeding did not prevent the plaintiff from making any demand or enforcing his alleged claim in a court of competent jurisdiction hence it was contended by the plaintiff that the suit is devoid of merit as the law does not provide any protection to the plaintiff on account of pendency of any insolvency petition.
2F.A.36 of 2007
7. On the basis of the rival pleadings of parties the learned court below framed the following nine issues:-
(1) Is the suit as framed maintainable?
(2) Is the plaint signed and verified according to law? (3) Is the suit barred under law of limitation? (4) Was there any friendly relation between the parties to the suit? (5) Did defendant approach plaintiff for financial help? (6) Did plaintiff advance any loan to defendant? (7) Was plaintiff engaged in Chit-Fund Scheme an illegal trade? (8) Is there any cause of action for the suit? (9) Is plaintiff entitled to any relief or reliefs?
8. In support of its case, the plaintiff examined two witnesses including himself and proved the following documents:-
(a) Ext-1 is the money receipt
(b) Ext-2 is the certified copy of the petition filed in Insolvency Case No.01/1994 by the defendant of this case.
(c) Ext-3 is the certified copy of the formal FIR.
(d) Ext-4 is the certified copy of deposition of Ashok Kumar Choumal, the defendant of this case, who deposed in G.R. Case No.113 of 1996.
(e) Ext-5 is the certified copy of the order passed on 20.12.2003 in Insolvency Case No.1/1994 by learned 1st Addl. District Judge, Chaibasa.
9. On the other hand, the defendant did not adduce any evidence but proved Ext. A which is the Chit-Fund list and Ext. B which is the deposition of the plaintiff in G.R. Case No.115 of 1996.
10. The learned court below after taking into consideration both oral and the documentary evidence on record, answered issue Nos.4 and 5 in affirmative and answered the issue No.6 by holding that the plaintiff had advanced the loan of Rs.2,00,000/- in cash to the defendant and deposited Rs.57,774/- in chit fund scheme. In respect of issue No.7, learned court below held that the plaintiff was engaged in chit fund scheme and deposited Rs.57,774/- in the chit fund scheme. The learned court below answered the issue No.2 in affirmative and decided the issue No.3 in 3 F.A.36 of 2007 affirmative by holding that the suit is barred by limitation. On the basis of the said findings that the suit is barred by limitation, learned court below answered issue Nos.1, 8 and 9 in negative and dismissed the suit.
11. Mrs. J. Mazumdar, Advocate, the learned counsel for the appellant relied upon the judgment of Hon'ble Madras High Court in the case of Velayudha Naicken Versus Annamalai Chetty and Others reported in A.I.R. (32) 1945 Madras 215 and submitted that since the defendant was prosecuting the insolvency petition under the Provincial Insolvency Act, 1920, so, in view of Section 14 of the Limitation Act the plaintiff is entitled to exclusion of the time period of the proceeding of the said insolvency petition that was from 17.11.1994- when the insolvency petition was filed to 20.12.2003- when the said insolvency petition was dismissed, from computation of the limitation. It is submitted that as the learned court below has held that the plaintiff has paid a sum of Rs.2,00,000/- to the defendant and he has deposited Rs.57,774/- in the chit fund scheme hence the learned court below ought to have decreed the suit of the plaintiff by holding that the suit is within time. It is further submitted that the impugned judgment and decree be set aside and the suit of the plaintiff be decreed for Rs.2,57,774/- and the defendant be directed to pay the said amount to the plaintiff.
12. Mr. Sheo Kumar Singh, the learned counsel for the respondent, on the other hand, defended the impugned judgment and submitted that the pendency of the proceeding under the Provincial Insolvency Act does not bar the plaintiff from filing the suit. Further, it is submitted by the learned counsel for the respondent that no order of adjudication under Section 27 of the Provincial Insolvency Act was passed by the court concerned in the said Insolvency Case No.01 of 1994 and this suit being no way concerned with the said Insolvency Petition under Section 14 of the Limitation Act, the plaintiff is not entitled for exclusion of the time period of the pendency of the said Insolvency petition, in calculation of the period of limitation. Hence, it is submitted that the appeal of the appellant being without any merit be dismissed and the impugned judgment passed by the learned court below be confirmed.
4F.A.36 of 2007
13. Having heard the rival submissions made at the bar and perusal of the record, the only point for determination in this appeal is whether the suit is barred by limitation?
14. At the hearing, it was fairly submitted by the learned counsel for the appellant that mere pendency of the petition for insolvency under the provision of Provincial Insolvency Act, 1920 does not bar the creditor to file a money suit for recovery of money against the debtor who has filed the petition for insolvency. The facts of the case of Velayudha Naicken Versus Annamalai Chetty and Others (supra) are different from the facts of this case, though the facts of the case are not discussed in detail in Velayudha Naicken (supra) but it is apparent that an order of adjudication was passed under Section 27 of the Provincial Insolvency Act, 1920 in that case and the same was annulled under Section 35 of the Provincial Insolvency Act, 1920 and under such facts and circumstances of that case, by applying Section 78 (2) of the Provincial Insolvency Act, 1920, which envisages that where an order of adjudication has been annulled under the said act, in computing the period of limitation prescribed for any suit, which might have been brought but for the order of adjudication, the period from the date of the order of adjudication to the date of the order of annulment shall be excluded, the court excluded the period from the date of the order of adjudication to the date of the order of annulment, in computing the period of limitation prescribed for the suit. But here admittedly by the plaintiff-appellant, no order of adjudication has been passed under Section 27 of the Provincial Insolvency Act by the court concerned. Under Article 19 of the Limitation Act, the time period for limitation for suit for money payable for money lent is three years, from the date when the loan is made and here in this case admittedly the Ext. 1 which is money receipt was executed on 10.04.1992 for a sum of Rs.2,00,000/- and by filing the petition in the insolvency case, by virtue of the contents of the schedule of the said insolvency petition, the defendant admitted his liability for a sum of Rs.2,57,774/- to the plaintiff on 17.11.1994. It will be profitable to refer Section 18 of the Limitation Act, 1963 which reads as under:-
18. Effect of acknowledgement in writing.- (1) Where, before the 5 F.A.36 of 2007 expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
(2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872, oral evidence of its contents shall not be received.
Explanation.- For the purpose of this section,-
(a) An acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set-off, or is addressed to a person other than a person entitled to the property or right;
(b) the word "signed" means signed either personally or by an agent duly authorised in this behalf; and
(c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right.
15. It is evident from Section 18 of the Limitation Act that an acknowledgment of liability made in writing signed by a party will give rise to a fresh period of limitation, computed from the time when the acknowledgement was signed but the rider is that the said acknowledgement has to be made before the expiration of the period of the suit or application in respect of the property or right in respect of which the acknowledgment is made.
16. So far as the Ext. 4- that is the deposition of the defendant in G.R. Case No.113 of 1996 is concerned, the same was recorded on 24.11.1998. As the three years period from 17.11.1994 i.e the date of admission of the debt by the defendant-respondent in the insolvency petition expired on 16.11.1997, hence assuming that Ext.4 is an acknowledgment of liability in 6 F.A.36 of 2007 respect of such property or right made in writing signed by the party against whom such property or right is claimed, the same cannot be a valid acknowledgment in terms of Section 18 of the Limitation Act and certainly the same cannot extend the period of limitation of Section 18 of the Limitation Act, as the period of limitation for the suit already expired on 16.11.1997, much before the date of Ext.4.
17. So far as the contention of the appellant regarding the Ext. 5 is concerned, even assuming for the sake of arguments that the same is an acknowledgment, though there is nothing mentioned therein to indicate that the same amounts to any acknowledgment, still in view of the rider that the period of limitation within which the acknowledgment is to make in writing in terms of Section 18 of the Limitation Act as indicated above, has already expired on 16.11.1997. So, certainly, the Ext. 5 dated 20.12.2003 cannot be treated as acknowledgment by the defendant to renew the period of limitation for a fresh period of three years..
18. In view of the discussions made above, I have no hesitation in holding that the suit of the plaintiff is barred by limitation. Accordingly the point for determination is answered in the affirmation against the plaintiff-appellants. Hence, the impugned judgment and decree dated 14.12.2006 passed by learned Subordinate Judge-I, Chaibasa in Money Suit No.01 of 2005 is confirmed and this appeal being without any merit is dismissed but under the circumstances, without any cost.
19. Let the lower court record be sent back to the learned court below with a copy of this judgment forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi.
Dated 18th of April, 2018.
AFR/Animesh 7