Calcutta High Court (Appellete Side)
Smt. Mamata Ghosh & Anr vs Tapas Kumar Ghosh on 12 April, 2011
Author: Dipankar Datta
Bench: Dipankar Datta
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IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Present: The Hon'ble Justice Dipankar Datta
C.O. No. 2015 of 2010
Smt. Mamata Ghosh & anr.
Versus
Tapas Kumar Ghosh
For the petitioners : Mr. S.P. Mazumder, Sr. Advocate
Mr. D. Biswas, Advocate
Mr. M.K. Mitra, Advocate
For the opposite party : Mr. P.S. Biswas, Advocate
Heard on : March 21 and April 6, 2011
Judgment on : April 12, 2011
1. Money Suit No.945/2007 has been instituted by the opposite party against the
petitioners claiming a decree for Rs.49,000/- together with interest @ 12% p.a. for Rs.
64,390/- and further interest @ 12% p.a. till realisation of the entire amount.
2. The plaint reveals that the petitioners approached the opposite party on diverse dates
for loan to help them tide over financial crisis. In pursuance thereof they were
advanced loan in phases totaling Rs.70,000/- (approx.), the last of which was Rs.
10,000/- on December 6, 2000. However, only Rs.21,000/- had been repaid in
instalments by the petitioners. In paragraph 38 of the plaint, it has been averred that
the petitioners made the last payment of Rs.3,000/-on April 8, 2005. Repeated
persuasions on the part of the opposite party having failed to yield any result, the suit
was presented in December, 2007.
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3. The petitioners after entering appearance in the suit had filed a petition under Order
VII Rule 11 of the Code of Civil Procedure (hereafter the Code) read with Section 151
thereof. It was contended therein that the opposite party had never advanced any loan
and the plea that he lent money is absolutely vexatious. It was also contended that the
claim is barred by limitation and, therefore, the plaint ought to be rejected.
4. The opposite party opposed the petition by filing a written objection.
5. The petition for rejection of plaint was considered by the trial Court on contest. By its
order dated May 25, 2010, the trial Court rejected the petition. It correctly expressed
that while considering a petition for rejection of plaint, only the statements made in
the plaint are to be looked into. Treating the said statements as correct, the suit
cannot be held to be time-barred, since on April 8, 2005 the petitioners repaid
Rs.3,000/- for the last time. In holding so, the trial Court overruled the objection of
the petitioners that absence of any material evidencing payment made to the opposite
party by the former in their own hand-writing is fatal for the suit.
6. This order of the trial Court is under challenge in this application under Article 227 of
the Constitution of India dated June 23, 2010.
7. I have heard Mr. Mazumder, learned senior advocate for the petitioner and Mr. Biswas,
learned advocate for the opposite party.
8. The issue raised in this application is not res integra. The suit, on the authority of the
decision of the Supreme Court reported in AIR 1951 SC 477 (Sant Lal Mahton vs.
Kamla Prasad & ors.), does appear to be barred by limitation. The facts giving rise to
the appeal before the Supreme Court are discussed in paragraph 2 of the decision and
read as follows:
"2. The appellants before us are the first party defendants in a suit,
commenced by the plaintiff-respondents, for enforcement of a simple
mortgage bond, by sale of the mortgaged property. The trial Judge, while deciding all the other issues in favour of the plaintiffs, held on the evidence on the record, that the bond sued upon was not legally attested and hence could not rank as a mortgage bond. On this finding he refused to make a decree for sale of the mortgaged property in 3 favour of the plaintiffs and passed a money decree, for the amount due on the bond, personally against the defendants first party. According to the Subordinate Judge, although the suit was instituted more than 6 years after the date fixed for payment in the bond, yet the claim for personal relief against the mortgagors did not become time- barred by reason of the fact that there were several payments made by the defendants towards the satisfaction of the debt, which attracted the operation of Section 20 of the Indian Limitation Act. Against this decision an appeal was taken by the defendants mortgagors to the High Court of Patna, but no appeal or cross-objection was filed by the plaintiffs against the refusal of the trial court to make an order for sale of the mortgaged property in their favour. The appeal was heard by a Division Bench of the Patna High Court, consisting of Fazl Ali, C.J. and Beevor, J., and the principal point canvassed on behalf of the defendants appellants was, that the trial court was wrong in holding that the plaintiffs' claim for a personal decree was not barred by time. The argument put forward was that the suit, as one for personal relief against the debtors, was barred on the expiry of 6 years from the date for repayment mentioned in the bond and the part payments relied upon by the plaintiffs in their plaint were ineffectual for the purpose of extending the period of limitation under Section 20 of the Indian Limitation Act. The High Court on hearing the appeal came to the conclusion that the bond in suit was duly attested and was effective and enforceable as a mortgage bond, and that the view taken by the trial court on the question of attestation could not be sustained on the evidence on the record. As the bond could be treated as a mortgage bond, the suit, as one for enforcement of a mortgage, was, in the opinion of the learned Judges, quite within time, and it was not necessary in these circumstances to call in aid the provisions of Section 20 of the Limitation Act for the purpose of extending the period of limitation. The learned Judges held, however, that as the plaintiffs had not preferred any appeal or cross objection attacking that part of the judgment of the trial Judge which dismissed their claim for a sale of the mortgaged property, they were unable to pass a mortgage decree in their favour. The result was that the decree made by the trial Judge was affirmed. It is the propriety of this decision that has been challenged before us in this appeal."
9. While considering Section 20 of the Limitation Act, 1908 which is pari materia Section 19 of the Limitation Act, 1963, it was ruled by the Supreme Court as follows:
"8. Admittedly in the case before us, none of the payments specified above were endorsed on the bond itself and there was no acknowledgment either in the handwriting of, or signed by, the debtors prior to the institution of the suit. What the Subordinate Judge relied upon, is the admission contained in para 15 of the written statement filed on behalf of defendants 1 to 3 in the present suit where these defendants admitted not only that the payments specified in the plaint were actually made on the respective dates but asserted that there were other payments besides these, which reduced the debt 4 still further and for which the plaintiffs did not give any credit to the defendants. In the opinion of the Subordinate Judge as the written statement was signed by these defendants, it would fulfil all the requirements of a signed acknowledgment as is contemplated by the proviso to Section 20. The short point for our consideration is: whether the view taken by the Subordinate Judge is correct ?
9. It would be clear, we think, from the language of Section 20 of the Limitation Act that to attract its operation two conditions are essential: first, the payment must be made within the prescribed period of limitation and secondly, it must be acknowledged by some form of writing either in the handwriting of the payer himself or signed by him. We agree with the Subordinate Judge that it is the payment which really extends the period of limitation under Section 20 of the Limitation Act; but the payment has got to be proved in a particular way and for reasons of policy the legislature insists on a written or signed acknowledgment as the only proof of payment and excludes oral testimony. Unless, therefore, there is acknowledgment in the required form, the payment by itself is of no avail. The Subordinate Judge, however, is right in holding that while the section requires that the payment should be made within the period of limitation, it does not require that the acknowledgment should also be made within that period. To interpret the proviso in that way would be to import into it certain words which do not occur there. This is the view taken by almost all the High Courts in India and to us it seems to be a proper view to take. See Md. Moizuddin v. Nalini Bala, AIR (24) 1937 Cal. 284 : ILR (1937) 2 Cal. 137; Lal Singh v. Gulab Rai, 55 ALL. 280; Venkata Subbu v. Appu Sundaram, 17 Mad. 92; Ram Prasad v. Mohan Lal, A.I.R. (10) 1923 Nag. 117 and Viswanath v. Mahadeo, 57 Bom. 453.
10. But while it is not necessary that the written acknowledgment should be made prior to the expiry of the period of limitation, it is, in our opinion, essential that such acknowledgment, whether made before or after the period of limitation, must be in existence prior to the institution of the suit. Whether a suit is time-barred or not has got to be determined exclusively with reference to the date on which the plaint is filed and the allegations made therein. The legislature has expressly declared in Section 3 of the Limitation Act that whether defence of limitation be pleaded or not, the court is bound to dismiss a suit which is brought after the period provided therefore in the first schedule to the Limitation Act. If the plaintiff's right of action is apparently barred under the Statute of Limitation, Order 7 Rule 6 of the Civil Procedure Code makes it his duty to state specifically in the plaint the grounds of exemption allowed by the Limitation Act upon which he relies to exclude its operation; and if the plaintiff has got to allege in his plaint the facts which entitle him, to exemption, obviously these facts must be in existence at or before the time when the plaint is filed; facts which come into existence after the filing of the plaint cannot be called in aid to revive a right of action which was dead at the date of the suit. To claim exemption under Section 20 of the Limitation Act the plaintiff must be in a position to allege and prove not only that there was payment of interest on a debt or part payment of the principal, but that such payment had been acknowledged in writing in the manner contemplated by that section. The ground of exemption is not complete without this second element, and unless both these elements are proved to exist at the date of the filing of the plaint the suit would be held to be time-barred.*****"
10. Section 19 of the Limitation Act, 1963 reads as follows :
5"19. Effect of payment on account of debt or of interest on legacy.--Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made:
Provided that, save in the case of payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment. Explanation.--For the purposes of this section,--
(a) where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment.
(b) 'debt' does not include money payable under a decree or order of a court.
11. The proviso ordains that an acknowledgement of the payment must appear either in the hand-writing of the person making the payment or in a writing signed by such person to extend the period of limitation to be computed from the date the payment is made. Sant Lal Mahton (supra) requires that the said signed acknowledgement must exist on the date the suit is instituted; even acknowledgement of payment in the written statement would not be sufficient to extend limitation.
12. The learned Judge in the impugned order returned a finding of fact that indeed there was no written transaction between the parties in respect of giving of loan and repayment thereof. Despite the same, he proceeded to reject the petition for rejection of plaint on the ground that the opposite party had averred in the plaint that sums were repaid in the presence of witnesses and that absence of any written document cannot non-suit the opposite party ahead of the trial as it is a matter of evidence and construction. The benefit of doubt, accordingly, ought to go in favour of the opposite party.
13. It appears from the impugned order that the decision in Sant Lal Mahton (supra) was referred to on behalf of the petitioners; unfortunately, the said decision along with other decisions were bypassed holding that the same were not applicable in so far as the present suit is concerned. If only the learned Judge had been cautious enough to look into the contents of the decision in Sant Lal Mahton (supra) and appreciate its 6 ratio decidendi, the parties would have saved sufficient time, energy, money and agony.
14. I hold that in the absence of a signed acknowledgement by the petitioners, which is an undisputed fact, the requirement of Section 19 of the Limitation Act, 1963 for extending the period of limitation and computing it from the date of last payment was not fulfilled and hence the suit is not maintainable.
15. In the result, the petition under Order VII Rule 11 of the Code filed by the petitioners is entitled to succeed. It is allowed Money Suit No. 945/2007 pending on the file of the trial Judge stands dismissed as time barred.
16. The revisional application stands allowed without order for costs.
17. Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)