Orissa High Court
Upendra Prasad Debata vs Rangadhar Debata on 7 September, 2020
Equivalent citations: AIR 2021 ORISSA 49, AIRONLINE 2020 ORI 158
Author: D. Dash
Bench: D.Dash
HIGH COURT OF ORISSA : CUTTACK
S.A. NO.79 OF 1998
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In the matter of an application under section 100 of the Code
of Civil Procedure has assailed the judgment and decree dated
03.01.1998 and 09.01.1998 respectively passed by the learned
District Judge, Keonjhar in Money Appeal No. 06 of 1992.
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Upendra Prasad Debata :::: Appellant
Versus
Rangadhar Debata :::: Respondent
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Advocate(s) who appeared in this case by Video Conferencing mode:-
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For Appellant :::: M/s. R.K.Mohanty,
P.K.Patnaik,P.K.Patnaik,
Advocates.
For Respondent :::: M/s. R.N.Behera & S.K.Behera,
Advocates.
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE D.DASH
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Date of Hearing: 31.08.2020 Date of Judgment : 07.09.2020
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D. Dash, J. The appellant in this appeal under section 100 of the
Code of Civil Procedure (for short, 'the Code' )has assailed the
judgment and decree dated 03.01.1998 and 09.01.1998
respectively passed by the learned District Judge, Keonjhar in
Money Appeal No. 06 of 1992.
The appellant as the plaintiff had filed the Money Suit No. 05
of 1991 in the court of Sub-Ordinate Judge, Keonjhar (as it was
then) praying for a decree for recovery of sum of Rs.5,876/- with
interest, pendentilite and future @ 12% per annum from the
respondent, arraigned therein as defendant. The suit stood
(( 2 ))
dismissed by judgment and decree dated 03.011.1992 and
18.11.1992.
The appellant as the unsuccessful plaintiff had filed the
above noted appeal under section 96 of the Code wherein the
judgment and decree passed by the trial court have been
confirmed.
2. For the sake of convenience, in order to avoid confusion
and bring in clarity; the parties hereinafter have been referred to,
as they have been arraigned in the trial court.
3. The defendant is none other than the brother of the
plaintiff. They were residing separately under separate mess but
without any division of the ancestral property. Sometime in the
year 1986, the defendant approached the plaintiff with a proposal
to purchase his self-acquired immovable property measuring
Ac.0.66 decimals of land for consideration of Rs.6,000/- so as to
enable him to pay the dues towards the loan incurred by him for
his daughter's marriage. The proposal was accepted by the plaintiff
with condition that he would pay the consideration money
gradually in course of time. It is stated that after few days, the
defendant having come to Keonjhar, took some amount towards the
expenses for the sale deed. He had then requested the plaintiff to
come to Anandapur on 20.10.1986 for execution of the sale-deed.
Accordingly on 22.10.1986, the plaintiff went to Anandapur where
the deed being scribed was executed by the defendant. It is stated
to have been indicated in the said sale-deed that the defendant
pursuant to the sale had delivered the possession of the land to the
plaintiff. The defendant however, agreed to handover the deed to
the plaintiff upon receiving the agreed consideration amount in full
within six months. On 03.11.1986, the defendant coming to
Keonjhar had received a sum of Rs.2,200/- from the plaintiff and
then again on 19.11.1986, the plaintiff paid a sum of Rs.1000/- to
(( 3 ))
the defendant towards the consideration amount. On both the
occasion, the defendant in acknowledgement of receipt of the
money had executed documents on revenue stamp. It is the further
case of the plaintiff that after all the above developments; he came
to know that the land sold to him under the sale-deed was a part of
the undivided property of the family falling within the subject
matter of the partition suit. It was also learnt that the defendant
had mortgaged the said land on two occasion with the Land
Mortgage Bank, Anandapur as security for some loans. It was
futher ascertained that the plaintiff had that the defendant having
taken some money had put one Sri Kunja Bihari Pahi in possession
of the said land. When the matter stood thus, one day the
defendant came to Keonjhar to take the rest consideration amount
from the plaintiff. He was then requested by the plaintiff to repay
the dues of the Bank and deliver the possession of the said land to
him. The defendant however having refused to do so insisted for
payment of rest consideration. So, the plaintiff expressed his desire
not to proceed further to purchase the land and demanded refund
of the part consideration already paid along with the amount given
towards expenses for preparing the sale deed with interest from the
defendant. It being an unexpected moment for the defendant, he
left Keonjhar stating that he would pay back the amount with
interest. However, on 14.03.1988, the defendant gave a notice
through his Advocate to the plaintiff in demanding payment of rest
consideration amount, further stating that in case of failure, he
would sale the land to others. The plaintiff had replied to the same
on 01.02.1991. In reply, the plaintiff again gave stress upon the
fact that he did not want to purchase the land any more. Finally,
the defendant having failed to pay the amount received from the
plaintiff i.e., Rs.3200/- towards consideration and Rs.535.50 for
expenses; the plaintiff filed the suit for recovery of Rs.5876/- which
included interest @12% per annum.
(( 4 ))
4. The defendant in his written statement having taken
the plea that the suit is barred by limitation, has averred that when
the defendant gave out to sale the land to clear his loan dues; it is
the plaintiff who came forward to purchase the same. So, on
22.10.1988, sale-deed was executed with the condition that only on
payment of the consideration in full, said sale deed would be
handed over to the plaintiff. But the plaintiff did not clear the
consideration amount within the reasonable time. The situation
when did not improve even after notice, the defendant being in
need of money sold the land in question to one Gobinda Chandra
Jena with the full knowledge of the plaintiff. It is stated that the
defendant had never issued any document(s) acknowledging the
receipt of money towards the consideration amount in part. It is
further stated that the receipt(s), if any, are forged and fabricated.
5. On the above rival pleadings, the trial court had framed
as many as nine (9) issues. Issue no.3 relates to the limitation in
filing the suit for recovery of money said to have been paid by the
plaintiff to the defendant. The answer on that issue having been
returned against the plaintiff, the suit stood dismissed. The lower
appellate court has affirmed the said finding. Having held so, the
appeal has ended in dismissal in confirming the judgment and
decree passed by the trial court, thereby non-suiting the plaintiff.
6. By order dated 03.12.1999, this Court while admitting
the appeal has framed the followings as the substantial questions
of law:-
(a) Ext.2, the notice sent by defendant-respondent clearly
acknowledges the dues of the plaintiff-appellant before
expiry of the period of limitation as envisages under
section 18 of the Limitation Act;
(b) the plaintiff-appellant after receipt of the Ext.2 for the
first time came to know that the defendant-respondent
still desires to persist that his illegal sale and still
(( 5 ))
insists on balance payment which gave the cause of
action to the plaintiff to sue him for refund of money for
his illegal sale;
(c) the plaintiff-appellant's reply under Ext.3 is clear tht
defendant-respondent had acknowledged his dues and
therefore, the plaintiff had made a claim as the
defendant-respondent for the first time gave out under
Ext.2 that he insisted on balance consideration money
thereby acceding to his earlier sale which is illegal;
(d) the decision cited by the learned courts below are
inapplicable in as much as this is not a case of refund
of consideration money on a void sale deed, but a claim
made in pursuance of Ext.2; and,
(e) as there was no delivery of possession, the suit has
been filed within three years of the acknowledgement
under Ext.2 under Article-55 of the Indian Limitation
Act.
Careful reading of all the above noted formulated questions,
it is seen that those touch upon the concurrent finding on the issue
of limitation which has been answered against the plaintiff by the
courts below.
7. Learned counsel for the appellant in assailing the said
findings of the courts below on the question of limitation, which
has been answered against the plaintiff in non-suiting him
submitted that the view so taken are wholly erroneous. He further
submitted that in the present case, the suit having been instituted
on 15.03.1991, which falls well within a period of three years from
the date of notice given by the defendant to the plaintiff insisting
payment of balance consideration, indicating therein as to the total
agreed consideration, further as regards receipt of part
consideration by him from the plaintiff; it is well within period of
limitation as prescribed in law. It was submitted that the cause of
action for filing of the suit thus having finally arisen on
14.03.1988, i.e. the date of issuance of notice to the plaintiff by the
(( 6 ))
defendant as also on 01.02.1991, the date of issuance of last notice
by the plaintiff to the defendant, the finding of the courts below
that the suit is barred by limitation is untenable. He also submitted
that even assuming that the plaintiff having came to know about
the transaction made by the defendant, had opted to withdraw
from the proposal of purchasing the land, yet thereafter when the
defendant insisted for payment of balance consideration, the said
act of the defendant ought to have been taken to be an act of
acknowledgement of the amount received by him being paid by the
plaintiff and, therefore, the courts below have fallen in error in
applying Article 47 of the Limitation Act, 1963 when it is squarely
covered under Article 113 of the Limitation Act as the plaintiff's
right to sue accrued from the said act of issuance of notice by the
defendant and thereafter.
In support of the above contention, he submitted the
decision in case of Narayan Nanda Vrs. Sankar Sahoo; (XLI)
1975 CLT, 571 and M/s. Saktibhog Food Industries Ltd. Vrs.
Central Bank of India; 2020, SCC Online Supreme Court, Page
482.
8. None appeared on behalf of the respondent despite
repeated listing. This was also the situation on prior occasions
when the appeal had come on board for hearing.
9. The suit is one for recovery of money paid by the
plaintiff to the defendant. The money has been paid by the plaintiff
to the defendant in part towards agreed consideration for the
purpose of purchase of the land by the plaintiff. The last payment
was made on 19.11.1986 and prior to that on 03.11.1986 some
amount had been paid. Although, it is stated by the plaintiff that
on 22.10.1986, the defendant executed a sale deed in his favour at
Anandpur with the help of his scribe, no step has been taken by
the plaintiff in seeking a direction from the trial court or the lower
(( 7 ))
appellate court for production of the same by the defendant for at
least to know his response. It's also nobody's case that the said
sale deed had been registered.
The case of the plaintiff is that when he came to know that
prior to the execution of the said sale deed by the defendant in his
favour, the defendant had mortgaged the land with Land Mortgage
Bank on two occasions, he asked the defendant to clear the loan
dues first. The plaintiff examined as P.W.1 has stated that on
19.11.1986, he paid a sum of Rs.1,000/- He has next stated that
later he came to know about the factum of mortgage and that the
possession of the land has been given to one Sri Kunja Bihari Pahi.
It has been specifically stated by him that Sri Pahi being found to
be in possession of the said land, he told the defendant to release
the land from the Bank and demanded that the possession of the
land be given to him which was not agreed to by the defendant,
who on the other hand insisted that he be paid with the rest
consideration. It is further stated by the plaintiff P.W.1 that then
he asked the defendant to refund the sum of Rs.3,200/- with
interest @ 12%. Thereafter on 14.03.1988 the defendant sent the
notice asking the plaintiff to pay the full consideration giving
further threat therein that on failure he would sale the land to
others. Thus, it becomes crystal clear that prior to 14.03.1988, the
plaintiff had abandoned the idea of purchasing the land from the
defendant and had advanced the demand upon the defendant to
pay back the amount of Rs.3,200/-, which he had earlier received
towards part consideration. It is his further evidence in clear terms
that after about one month of the execution of the sale deed, i.e.,
after 22.11.1986, he came to know that the land had been
mortgaged by the defendant with the Land Mortgage Bank as
security for the loan that he had incurred. He further stated that
after one month of payment of Rs.1,000/- to the defendant, i.e.,
after 19.12.1986, he went over the land for taking possession when
(( 8 ))
he found standing crop over there raised by that Kunja Bihari Pahi
had raised said crop.
Keeping in view the case projected by the plaintiff as also his
evidence, the suit in my considered opinion is a simple suit for
recovery of money paid by the plaintiff to the defendant. So, its
filing on 15.03.1991 is beyond the period of limitation of three
years from the date when the right to sue had accrued in favour of
the plaintiff. The instant suit is one for recovery of the money
payable by the defendant to the plaintiff for the money received by
the defendant for the plaintiff's intended purchase of the land from
the defendant for his use which is governed by the Article 24 of the
Limitation Act, 1963. Given a careful reading to the decisions
(supra) cited by the learned counsel for the appellant, it is seen
that those have been rendered in suits of different nature
altogether. Therefore, the principles laid down therein are of no
assistance to the plaintiff for the suit as founded upon the facts
with the reliefs as claimed as there can be no application of the law
sans the facts of a case.
10. Taken to the next question as to whether the date of
issuance of notice would be taken to have extended the period of
limitation by further three years from said date as to have been the
acknowledgement of liability by the defendant in writing; the
provision of Section 18 of the Limitation Act needs to be given a
reading. It says that in a suit or application in respect of any
property or right, an acknowledgment of liability in respect of the
said property or right if has been made before the expiry of the
prescribed period for said suit or application by the party against
whom such property or right is claimed or by any persons 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. The demand of payment of balance consideration from the
plaintiff made by the defendant in the notice through his lawyer, in
(( 9 ))
my considered view, does not satisfy the requirement of the
provision contained in S-18 of the Limitation Act so as to be taken
as an acknowledgment of liability in writing in further extending
the period of limitation as contained in Article-24 of the Limitation
Act.
11. For all the aforesaid, the answers to the substantial
questions of law as stated in the aforesaid para-6 which concern
with the limitation in seeking the decree for recovery of money from
the defendant run favour of affirmation of the concurrent finding of
the court below.
12. Resultantly, the appeal stands dismissed. No order as
to costs.
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D. Dash, J.
Orissa High Court: Cuttack Dated the 7th day of September, 2020/Narayan