Uttarakhand High Court
Smt. Govindi Devi & Others ... vs Nainital Almora Kshetriya Gramin Bank on 3 May, 2021
Equivalent citations: AIRONLINE 2021 UTR 225
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
Judgment Reserved On: 09.03.2021
Judgment Delivered On: 03.05.2021
HIGH COURT OF UTTARAKHAND
AT NAINITAL
First Appeal No.62 of 2005
Smt. Govindi Devi & others ....Appellant/Defendants
Vs.
Nainital Almora Kshetriya Gramin Bank ...Respondent/Plaintiff
Advocate : Mr. M.C. Kandpal, Senior Advocate assisted by Mr. Chitrarth Kandpal, Advocate
for the appellants.
Mr. Siddhartha Sah, Advocate for the respondent.
Hon'ble Sharad Kumar Sharma, J.
This is a defendant's first appeal, which has been preferred, by them being aggrieved against the judgment dated 18.12.2004, and the consequential decree, which was rendered on 26.12.2004, by the court of learned District Judge, Bageshwar; in Civil Suit No.02 of 2004, Nainital Almora Kshetriya Gramin Bank vs. Smt. Gobindi Devi and others. The consequential effect of the judgment and decree, which was rendered by the District Judge, Bageshwar, was that it has resulted into decreeing of a suit for recovery of money due to be paid by the defendants to the bank to the tune of Rs.2,56,230/- alongwith the interest at the rate of 5%, per annum, which was levied to be made payable on the said amount which was adjudicated to be due to be paid, as a consequence of the decree under challenge.
2. The brief facts, as it involves consideration in the present first appeal are that the late husband of the present appellant no.1, i.e. Late Mr. Sunder Ram, had filed an application for grant of loan for motor vehicle, before the plaintiff/respondent, herein. For the purposes of sanction of a loan for the purchase of a Tempo Taxi, the said application thus preferred by the applicant Late Mr. Sunder Ram, on 20.03.1998, was processed by the plaintiff/respondent bank and after taking an undertaking from him by 2 way of an affidavit of Late Mr. Sunder Ram, on 30.03.1998, the loan was thus sanctioned in favour of Late Mr. Sunder Ram for the purchase of the aforesaid tempo taxi, to the tune of Rs.2,07,000/-
3. The contention of plaintiff/bank as per pleading with suit, was that Late Mr. Sunder Ram had committed a default in the payment of monthly instalments, which was settled and due to be paid by him in slieu of the loan advances taken by him for the purchase of the aforesaid vehicle and as a consequence thereto the bank had no option, and had issued several notices, raising a demand for the remittance of the outstanding loan but since the defendant had not deposited the rent as demanded by the notices issued by the bank, the necessity arose for the plaintiff/bank, to institute the suit which is said to have been filed by them on 21.03.2004; before the court of District Judge, Bageshwar. By the time when the suit was instituted, Late Mr. Sunder Ram, the principal borrower had met with the sad demise and it was contended by the defendants, in the written statement, which they have filed on 03.05.2004, which was numbered as Paper No.14 Ka; that the loan amount could not be remitted in time on account of the fact that the tempo taxi, which was purchased against the said car loan by Late Mr. Sunder Ram, under the aforesaid loan, which was sanctioned on 20.03.1998; had met with an accident on 02.04.2000 and as a consequence thereto the vehicle was completely damaged and hence there had been a default in the remittance of the monthly instalments due to be paid towards the loan sanctioned for the reasons beyond the control of defendant no.1.
4. It was contended in the written statement, by the defendant no.1, that during his life time, the principal borrower of the loan late Mr. Sunder Ram, had submitted an affidavit on 31.03.2001, which was placed on record as Paper No.8 Ga/43, which was also duly signed by the 3 guarantors of the loan, namely, Mr. Trilok Ram @ Til Ram and Govind Singh. In fact, if the said document dated 31.03.2021 itself is taken into consideration and is scrutinized, in fact the said evidence which was placed on record dated 31.03.2021; it would amount to be an admission of liability of the amount due to be paid by the defendants/appellants herein towards the loan advances taken by Late Mr. Sunder Ram. In the written statement thus filed by the defendants/appellants, they have primarily raised the following grounds:-
(i) Firstly the suit in itself was not maintainable, in view of the provisions contained under the Recovery of Debt and Dues to the Bank and Financial Institutions Act, 1993.
(ii) Secondly, the defendants in the written statement had submitted that the loan amount sought to be recovered by institution of the suit on 23.03.2004; would be barred by the provision of the Article 37 of the Limitation Act, as no suit could have been instituted by the plaintiffs/defendants after the three years from the date of sanction of the loan i.e. according to the defendants' interpretation it would be three years from 20.03.1998, when the loan was sanctioned, wherein the bar of Article 37, has been sought to be attracted by the defendants in order to oppose the plaint averments.
(iii) Thirdly, it was further submitted by the defendants in the written statement, that the proceedings would be barred by Section 18 of the Limitation Act, for the reason being that the aforesaid period of Limitation as construed under Section 18, would create the bar in institution of the suit itself.
(iv) Lastly, defendants in the written statement had further taken a plea that late husband Mr. Sunder Ram of defendant no.1; has already paid a substantial amount of Rs.1,24,991/- upto 26.02.2021 and in fact no amount was left due to be paid by him toward the 4 vehicle bearing Registration No.UP 28 0049, for which the loan was taken.
5. The plaintiff/respondent in the proceedings before the court below has taken a stand that the aforesaid application which was submitted by the predecessor of the defendants/appellants herein on 20.03.1998, raising a demand of loan, in fact the bank has entered into an agreement, which was placed on record as Paper No.8 Ga 1/43 and as per the terms of the said agreement of 31.03.2001, the loan amount was determined to be made payable in sixty monthly instalments of Rs.6,5,50/- each per month. The bank contended that at the time when the loan was sanctioned in fact, no formal loan agreement was executed but at that point of time, as per the laid down procedure, the terms of the loan was governed by the hypothecation deed, which was executed by the borrower in favour of the bank, which found place on record as an evidence before the court below i.e. Paper No.8 Ga 1/12. It was the bank's case before trial court, that all the inter-se relationship of the amount due to be paid under the terms of loan were governed by the provisions contained in the hypothecation deed itself and hence as per Clause 15, it had provided that in an event if a borrower commits a default in payment of instalments, as agreed to be paid the process of recovery was reserved and contemplated under Clause 15 of the said hypothecation deed and it was under the strength of said Clause 15; that the present suit was instituted. For the purposes of brevity the Clause 15 of the hypothecation deed is referred to hereunder:-
"15. If the Borrower makes any default in payment of any instalment of the said loan on the respective due dates for payment thereof as mentioned above for a period of one week after the same shall have become due whether demanded or not or if any event or circumstances shall occur which is all in the opinion of the Bank be prejudicial to or endanger or be likely to endanger this security or if any event or circumstance mentioned in clause 14 above happens or occurs the Bank if it thinks it shall be entitled at the risk and expense of the Borrower without any notice at any time or times after such default or event or circumstances occurs or happens to enter (and for that purpose to do any necessary act deed or thing) 5 any place where the hypothecated article may be and to inspect value insure and take charge or possession."
6. In the counter affidavit the plaintiff has carved out a very peculiar case that in fact the rate of interest, which was being sought to be levied by the plaintiff/respondent-bank at the rate of Rs.18%, in fact was not an interest which was actually agreed to be paid and rather it was a subsequent agreement, which was executed by the bank by anti-dating it and as a consequence thereto, the bank has levied the interest at the rate of 18% per annum, which has been faulted. At this stage itself this Court is of the view that the aforesaid contention raised by the defendants/appellants that 18% per annum was not rate of interest, which was agreed to be paid, is not acceptable for the reason being that in terms of hypothecation deed particularly that the conditions as contained in its Clause 3, which was duly signed by the principal borrower, the agreed rate of interest which was levied to be paid against the loan was at the rate of 18% per annum, and hence, the plea developed by the plaintiff/respondent, that it was a subsequent fraudulent agreement which was executed cannot be accepted by this Court. During the course of the proceedings of the suit after the exchange of pleadings, the learned trial court has framed the following issues:-
^^1- D;k izfroknh ua01 Jherh xksfcUnh nsoh ds ifr Lo- lqUnj jke iq= f=yksd jke us oknh cSad 'kk[kk gjflyk ls VSEiks V~SDl thi dz; djus gsrq _.k lqfo/kk iznku djus gsrq fuosnu fd;k rFkk okgu d~; djus gsrq eqcfyd nks yk[k lkr gTkkj :i;k _.k lqfo/kk fnukad&20&03&98 dks 18 izfr'kr ij tks =Sekl :i ls fu/kkZfjr fd;k x;k Fkk] rFkk lqUnj jke dk xkj.Vj izfroknh ua0 2 o 3 Fks rFkk oknh cSad dks fu;ekuqlkj nks yk[k NIiu gtkj nks lkS rhl :i;k izfroknhx.k ls vnk ugha fd;k] tks vnk djuk 'ks"k gS\ 2- D;k oknh us nkok of.kZr /kujkf'k nks yk[k ikap gtkj nks lkS rhl :i;k izfroknhx.k 1] 2] o 3 ls la;qDr :i ls ;k i`Fkd&i`Fkd :i ls izkIr djus dk vf/kdkjh gS\ ;fn gka rks okn ij izHkko\ 3- D;k oknh dk nkok Hkkjrh; ifjlhek vf/kfu;e 1963 dh f}rh; vuqlwph ds vuqPNsn 37 }kjk oftZr gS\ ;fn gka rks izHkko\ 4- D;k oknh dk okn vLi"V gS\ ;fn gka rks izHkko\ 5- D;k oknh dk nkok dky ckf/kr gS\ ;fn gka rks izHkko\ 6- D;k oknh fdlh vU; vuqrks"k dks ikus dk vf/kdkjh gS\^^ 6
7. Primarily the concern for decision, before the court below was on the pretext of the issue no.3 and 5, which was an interpretation given to the provisions contained under Article 37 under the Limitation Act, and the facts, which were required to be considered at that juncture by the learned trial court, it was called upon to decide the question of limitation, as to be one of the prime questions, as to whether the suit itself could be instituted or not.
8. The second contention raised by the plaintiff/respondent before the court below, was as to whether the actual amount due to be paid as per the notices issued by the bank, was actually payable or not, to the tune of Rs.2,56,230/-, which was sought to be recovered from the defendants/appellants. The parties to the proceedings led their respective evidence. The plaintiff/respondent had placed before the trial court apart from oral testimony of P.W.1, which was recorded by one Mr. Tilak Ram Tamta, who was the Manager of the bank and the defendants/appellants, too also produced their witnesses as D.W.1 i.e. Trilok Ram and D.W.2 i.e. defendant no.1 herself, appeared in the witness box and defendant no.3, Govind Singh appeared as D.W.3, to support the case of the defendants/appellants with regards to the alleged theory of amount due to be paid. Accordingly after considering the rival contentions and evidences both oral and documentary the learned trial court by virtue of the impugned judgment dated 18.12.2004 had decreed the suit, by rendering the following judgment:-
^^vkns'k oknh dk okn izfroknhx.k ds fo:) 2]56]230@& :0 dh olwyh gsrq Lohd`r fd;k tkrk gSA izfroknhx.k dks funsZf'kr fd;k tkrk gS fd] vkns'k dh frfFk ls 3 ekg ds Hkhrj os leLr /kujkf'k dk Hkqxrku oknh cSad dks djs] vU;Fkk okn izLrqr djus dh frfFk ls vfUre Hkqxrku dh frfFk rd oknh cSad ml /kujkf'k ij 5 izfr'kr okf"kZd C;kt dk Hkh vf/kdkjh gksxkA ifjfLFkr;ksa dks n`f"Vxr j[krs gq, okn O;; i{kdkj viuk&viuk ogu djsaxsaA^^
9. Being aggrieved against the said judgment, the defendants/appellants had preferred this first appeal on 28.04.2005 and 7 primarily if the grounds which are taken in the memo of appeal, taking it into consideration the contentions as raised by defendants/appellants, could be summed up from the following major prospective and that would be constituting as to be the point of determination, which is to be considered and decided by this Court in the light of the provisions contained under Order 41 Rule 31 of the C.P.C. The point of determination, which entails consideration are:-
(i) What would be the impact of Section 18 of Limitation act with regards to the acknowledgment of liability and its co-related effect of limitation?
(ii) Whether the controversy of sustainability of the suit would be barred by the provisions contained under Article 37 of the Limitation Act?
(iii) As to whether the suit was barred under the provision of the Recovery Debts and Dues to the Bank and Financial Institutions Act of 1993.
10. Before answering the aforesaid questions and on an over all scrutiny of the grounds which had been taken in appeal, it could be summarized, in the following manner, that the fact of having applied for the loan; its sanction of the loan; the defendant no.1 being the nominee having executed Form No. 29; the acceptance of the loan on 31.03.2001 and the acknowledgment of the liability towards the outstanding amount due to be paid on the said date by the principal borrower are the facts, which are not disputed in the pleadings by the plaintiff/respondent. In order to answer the aforesaid questions the first and foremost question for consideration by this Court, would be the acknowledgment of the loan itself by the principal borrower on 31.03.2001, which was admittedly duly signed by the guarantors of the loan; where the aspect of acknowledgment and acceptance of the liability was admitted by the principal borrower on 31.03.2001; which was placed on record as an 8 exhibit, being Paper on record as Paper No.8 Ga/43. In order to answer the impact of Section 18 of Limitation Act itself a reference of Section 18 of the Act become inevitable, Section 18 of the Act, the word used are extracted as under:-
"18. Effect of acknowledgment in writing.--(1) Where, before the expiration of the prescribed period for a suit of 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 (1 of 1872), oral evidence of its contents shall not be received.
Explanation.--For the purposes 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."
11. The principle provision of Section 18 of the Limitation Act, deals with the aspect of determination of the cut of limitation provided as a consequence of effect of acknowledgment of a liability due, by way of a correspondence made in writing and duly signed by the person concerned, in the instant case, as per the scrutiny of Paper No.8Ga/43 i.e. Paper No.8 Ga/43, the execution of which is not in dispute, that in the said correspondence which was made by the principal borrower himself duly signed by its guarantors, rather they had acknowledged his liability of balance amount due to be paid to the 9 plaintiff/respondent/bank. Hence, as soon as the acknowledgment has been made by way of writing in the correspondence of 31.03.2001, the expiration of the prescribed period to institute a suit or an application in respect of the liability due under hypothecation deed would start running from the date when the acknowledgment is executed i.e. 31.03.2001, in the instance case, by the person liable to pay the loan amount, the relief sought in the suit.
12. In the present case, and even as per the opinion of this Court and also as per the findings, which has been recorded by the learned trial court while recording its finding on issue nos.3 and 5, the aspect pertaining to consideration made with regards to the impact of Section 18 of the Act, in the light of an acknowledgment of 31.03.2001 i.e. Paper No.8 Ga/43, the liability of acknowledgment would be construed to be with effect from 31.03.2001 and in that eventuality the cut of period of limitation for institution of the suit for recovery would be determined from the date of the acknowledgment of dues to be paid i.e. 31.03.2001, herein that means in accordance with Article 37 of the Limitation Act, which is referred to hereunder:-
"37. On a promissory 3 years When the default note or bond payable is made, unless the by instalments, which payee or obligee provides that, if default waives the benefit be made in payment of of the provision one or more and then when instalments, the whole fresh default is shall be due." made in respect of which there is no such waiver.
13. The period for the purposes of limitation for institution for the suit for an amount payable under a bond by way of instalments, in an event of commission of a default, would be three years as provided in column 2 of the Schedule of the Limitation Act, which here 10 would be the date of admission of liability, which is the acknowledgment of 31.03.2001, which would be treated to be default admitted by the defendants/appellants. Since the suit was filed on 21.03.2004, the bar of Section 18 to be read with Article 37 of the Schedule to the Limitation Act will not be attracted, hence I hold the suit for recovery as filed on 21.03.2004, was well within 3 years from the date of acknowledgment of liability i.e. 31.03.2001.
14. In such an eventuality, if Section 18; is read with Article 37; in that eventuality the acknowledgment of the liability of dues in writing once it falls to be with effect from 31.03.2001 and the suit itself since having been instituted on 21.03.2004, it will fall to be well within the prescribed period of three years of limitation as provided under Article 37 of the schedule contained to the Limitation Act and hence the inference drawn by the court below with regards to the aforesaid provision, that the suit was not barred by limitation is decided against the defendants/appellants holding thereof that the suit was filed well within time. Thus, the findings recorded on issue numbers 3 and 5 suffers from no apparent judicial error.
15. There is yet another prospective for scrutinising the controversy, that is once the plea is taken by the defendants/appellants, who admittedly was the nominee of the loan, which was advanced to the principal borrower, it would amount to that the liability of the amount due to be paid as referred to in the correspondence of 31.03.2001, would amount to be an admitted liability and would be an acknowledgment of liability, and would amount to be that there was a default made by the principal borrower in the remittance of the loan and hence the aforesaid fact, about the liability due to be paid by the nominee of the principal borrower stands established by the evidence on record and also even as per the statement recorded by P.W.1 i.e. Tilak Ram Tamta, who in his statement had submitted that after furnishing of 11 the last instalment on 26.02.2001; the remaining EMI was not paid by the principal borrower and of hence there was an admitted default, of an amount due to be recovered, as sought to be recovered in the suit to the tune of Rs. Rs.2,56,230/- along with the interest agreed to be payable as per the hypothecation deed.
16. The fact of admission of a liability by the correspondence of 31.03.2001 i.e. Paper No.8 Ga/43; since it was a fact, which was already an admitted fact even by the witnesses to the hypothecation deed i.e. by virtue of the statement recorded by D.W.1 i.e. Paper No.32 Ka and D.W.2 i.e. defendant/respondent no.1, herein Paper No.33 Ka. In fact it also goes to show that their endorsements made in the correspondence of 31.03.2001 was an admission of a liability and would be an acknowledgment, falling under Section 18 of the Limitation Act.
17. The question raised by the counsel for the defendant/appellants pertaining to the sustainability of the proceedings, because of the bar allegedly, being created by the provisions of The Recovery of Debt Dues to The Bank and Financial Institution of Act of 1993 is concerned, the learned trial court while deciding the aforesaid Issue no.4 about the bar created by the said Act of 1993 by way of Issue No.4; had righty decided the issue holding thereof that the provision of Act of 1993, would be excluded to be made applicable, under the facts and circumstances of the recovery sought to be made by the plaintiff/respondent in the present suit, in view of the provisions contained under Section 1 Sub Section (4), of the said Act of 1993 because as per the provisions substituted therein, the applicability of Act has been made available to the financial institution or the bank for the purposes of resorting to the recovery under the Act of 1993, "for a sum not less than Rs.10,00,000/-". Here in the present case since the total recovery which was sought to be made, was of Rs.2,56,230/- hence 12 in view of Sub Section (4) of Section 1 of the Act of 1993, the provisions of 1993 Act; would not be applicable and the institution of the suit would fall to be well within the ambit of an agreed terms and conditions provided under Clause 15 of the hypothecation deed, executed by the principal borrower to which as per its terms the nominee was equally bound by it.
18. The learned Senior Counsel for the appellant had argued that the entire proceedings of the recovery of the amount and institution of the suit itself was vitiated; because there was no prior notice given to the defendants/appellants, herein prior to the institution of the suit, this argument runs contrary to the record itself, for the reason being that as per the documents on record i.e. Paper No.8 Ga 1/60, Paper No.8 Ga 1/62 and 8 Ga 1/64, itself showed and proved by evidence before the trial court that the bank prior to resorting to the process of recovery by institution of the suit had issued several notices to the defendants/appellants; for the purposes of meeting up their loan liability, but since no response was given to it nor the amount due to be paid and demanded was remitted within the provided time, and hence on account of an admitted default being committed, the entire amount had fallen due to be paid, which otherwise as per the terms of the hypothecation deed of 20.03.1998, could have fallen due to be paid as per the agreed terms in 2003, had the EMI's remitted regularly without default. Hence, on this pretext that the proceedings was vitiated due to non issuance of the notices is bad and contrary to records because otherwise, the finding has also been recorded by the court below that despite of the aforesaid notices (dealt above) being issued by the bank the defendants/appellants, herein had not responded within time provided to the said notice and hence it cannot be contended that the initiation of the proceedings by way of filing of the suit was without a prior notices, being issued to the defendants/appellants herein. Thus, the 13 point of determination as observed above are answered against the defendants/appellants.
19. Lastly, a very peculiar argument, which has been raised by the learned Senior Counsel for the defendants/appellants, is that if at all there was any default committed by the predecessor of the defendants/appellants, in remittance of the instalments, since the loan agreement was by way of a hypothecation deed, the vehicle itself should have been seized by the respondent/bank by lifting it, rather instead of institution of a suit for the grant of decree of recovery of the amount, this contention is belied from the records itself and particularly in terms of Clause 15 of the hypothecation deed itself, which binds the defendants where the principal borrower to whom the defendant no.1, was the nominee and was equally bound by its terms and conditions on his death, had in fact, agreed for the terns for having a recourse to file a suit for recovery of the amount and hence the said plea that the vehicle ought to have been seized by the bank instead of institution of suit itself cannot be of any credence for the purposes of deciding of present first appeal.
20. The Senior Counsel or the defendants/appellants had made reference to the judgment reported in AIR 1999, Supreme Court 1047 Sampuran Singh and others vs. Smt. Niranjan Kaur and others, where the issue which was raised and was under
consideration before the Hon'ble Apex Court, was pertaining to the redemption of a mortgage after the expiry of the period of limitation. The Hon'ble Apex Court in the said case which was dealing with an oral mortgage and its redemption, which was executed in the year 1893, for the sum of Rs.53/- wherein the question of limitation was raised; whether it would revive from 11.01.1960 or not? It was under those circumstances the Hon'ble Apex Court has observed that the acknowledgment of the liability; after the expiry or the lapsed period of limitation, would not revive the period 14 of limitation, it was those peculiar facts, which was under the circumstances where the issue of redemption of a mortgaged deed was a subject matter of consideration and institution of proceedings was after the lapse of period of limitation. The principle laid down therein in para 9 which is referred to herein:-
"9. In his endeavour, learned counsel for the appellants, referred to Section 18 of the Limitation Act to hold that the acknowledgement by the original mortgagees to the respondents, through the said registered docu-ment dated 11th January 1960, the period of limitation is revive which would only start from that date of acknowledgement hence the suit filed in the year 1980 would be within limitation. The said submission is without any force. Section 18, sub-section (1), itself starts with the words "Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made...". Thus, the acknowledgement, if any, has to be prior to the expiration of the prescribed period for filing the suit, in other words, if the limitation has already expired, it would not revive under this Section. It is only during subsistence of a period of limitation, if any, such document is executed, the limitation would be revived afresh from the said date of acknowledgement. In the present case, admittedly the oral mortgage deed is in March 1893. If the period of limitation for filing suit for redemption is 60 years then limitation for filing a suit would expire in the year 1953. Thus, by the execution of this document dated llth January 1960 it cannot be held by virtue of Section 18 that the period of limitation is revived afresh from this date."
21. The aforesaid, ratio, since being entirely distinct to the present case, will not be applicable in the present case for the reason being that in the instant case, it is the acknowledged loan which was sanctioned on 30.03.1998. The said amount was agreed to be paid in 60 equal instalments and normally the period of which would be ending on the expiry of three years period i.e. on 2001. But here in the present case, the cut of for limitation would be construed from the date when the default is committed; because otherwise under normal circumstances if the principal borrower, continued to remit the instalments then the 15 interpretation of the bar of Section 18 of the Act would not come into play or not could be said to be a stage to be considered in its implications, but since here according to the stand taken and proved by evidence by the P.W.1 in the evidence, since the last EMI was paid on 26.02.2001; since the acknowledgment was executed by the borrower on 31.03.2001 and the suit was filed on 21.03.2004, it was well within the period of limitation provided under Article 37 of the Act and the said ratio as laid down in the aforesaid judgment of the Hon'ble Apex Court, would not be applicable in the present case.
22. What is surprising is that if the entire pleadings and evidence which were adduced by the parties before the trial court are taken into consideration; in fact the defendants/appellants in principal had not disputed the liability of loan, which was sought to be recovered by the bank by institution of the suit, except for the technical grounds, which are being raised pertaining to the limitation; pertaining to the sustainability of the suit itself due to the bar of Act of 1993; as already observed above, I am of the view that once the loan liability as demanded by the notices referred to above stands an admitted fact in that eventuality, the plea raised by the defendants/appellants, herein in the present first appeal had been appropriately dealt with by the learned trial court and for the reasons referred to above, I am of the view that none of the questions/point of determination, as sought to be answered by the defendants/appellants in the present first appeal entails its consideration and is answered against the defendants/appellants. Consequently the first appeal fails and the same is accordingly dismissed.
23. The learned trial court is directed to proceed with the Execution Case No.08 of 2005, Nainital Almora Kshetriya Gramin Bank vs. Govindi Devi & others as per law. However, there would be no order as to cost.
(Sharad Kumar Sharma, J.) 16