Madras High Court
V.P.M.Murugan vs C.D.Swaminathan on 16 July, 2014
Author: V.Ramasubramanian
Bench: V.Ramasubramanian
In the High Court of Judicature at Madras Dated : 16.7.2014 Coram : The Honourable Mr.Justice V.RAMASUBRAMANIAN A.S.No.2 of 2010 and M.P.Nos.1 to 3 of 2010 and 1 of 2011 V.P.M.Murugan ...Appellant Vs C.D.Swaminathan ...Respondent APPEAL under Section 96 of the Civil Procedure Code against the judgment and decree dated 31.12.2008 made in O.S.No.318 of 2004 on the file of the Additional District and Sessions Court and Fast Track Court No.2, Coimbatore. For Appellant : Mr.V.Nicholas For Respondent : Mr.S.R.Sundaram JUDGMENT
The appeal arises out of a money decree passed by the Additional District and Sessions Court and Fast Track Court No.2, Coimbatore against the appellant.
2. Heard Mr.V.Nicholas, learned counsel for the appellant and Mr.S.R. Sundaram, learned counsel for the respondent.
3. The respondent filed a suit in O.S.No.318 of 2004 on the file of the Trial Court against the appellant herein, for recovery of a sum of Rs.7,92,324/- together with interest at the rate of 3% per month from the date of the suit till date of realisation. The claim of the respondent/plaintiff was actually two fold. They are (a) that on the sale and delivery of gold jewelery on credit basis, a sum of Rs.4,40,820/- became due and payable by the appellant/defendant; and (b) that in respect of a borrowing of Rs.1,50,000/-, a total amount of Rs.1,54,836/- became due and payable by the appellant/defendant.
4. The appellant/defendant resisted the suit, on the ground that there were no transactions and that there was no borrowing. In other words, the appellant/defendant made a total denial of the averments contained in the plaint, without explaining as to how a letter of undertaking came to be executed by him in favour of the respondent/plaintiff.
5. The Trial Court framed two issues for consideration. They are (i) whether the plaintiff was entitled to the suit claim; and (ii) to what reliefs, if any.
6. Before the Trial Court, the respondent/plaintiff examined himself as PW1. The respondent also filed six documents as exhibits on his side. They were (i) the letter of undertaking dated 22.5.2002 as Ex.A.1; (ii) the endorsement for payment of Rs.25,000/- on 25.5.2002 as ExA.2; (iii) the endorsement for payment of Rs.25,000/- on 2.7.2002 as Ex.A.3; (iv) the endorsement for payment of Rs.25,000/- on 9.9.2002 as Ex.A.4; (v) the legal notice dated 11.12.2002 as Ex.A.5; and (vi) the postal acknowledgment card as Ex.A.6.
7. The appellant/defendant examined himself as D.W.1. He filed two sets of documents. The first set of documents were three UCO Bank cheques, which were marked as Ex.B.1 Series. The second set of documents were two cheque returning memos, which were marked as Ex.B.2 Series. The appellant/defendant also examined his maternal uncle one Mr.K.Subburaj as D.W.2. This D.W.2 was an attester of Ex.A.1.
8. On the basis of the oral and documentary evidence, the Trial Court came to the conclusion that both transactions namely (a) sale and supply of gold jewelery; and (b) the borrowal of Rs.1,50,000/- stood proved. Therefore, the Trial Court concluded that the respondent/plaintiff was entitled to a decree for recovery of Rs.7,92,324/-. But, on the question of rate of interest, the Trial Court appears to have crumbled a little. In the answer to issue No.2, the Trial Court held as follows :
As decided in the earlier issue No.1, the plaintiff is entitled to get the relief of recovery of suit amount of Rs.7,92,324/- from the defendant with the subsequent interest of 12%. Thus, this issue No.2 is answered accordingly. In the result, the plaintiff is entitled to get the relief of recovery of Rs.7,92,324/-from the defendant with interest of 12% per month from the date of the suit, till the date of realisation and thereby the suit is decreed with cost.
9. It can be seen from the portion of the judgment extracted above that in the first part of the above extract, the Trial Court came to be conclusion that the respondent/plaintiff was entitled to interest at 12%. It did not indicate in the first part of what is extracted above as to whether this 12% is per month or per annum. But, in the latter portion of the judgment extracted above, the Trial Court directed payment of interest at 12% per month. Consequently, the decree also indicated that the plaintiff was entitled to recover a sum of Rs.7,92,324/- together with interest at 12% per month.
10. The very prayer of the respondent/plaintiff in th suit was for interest at 3% per month. But, the Trial Court directed payment of interest at 12% per month. Therefore, aggrieved by the grant of a decree and also aggrieved by the rate of interest so fixed, the defendant has come up with the above appeal.
11. The questions that arose for consideration in this appeal are (i) whether the Trial Court was right in holding that the appellant is liable to pay money under both transactions in question ? And (ii) whether the Trial Court was right in granting interest at 12% per month ?
Issue No.1 :
12. As stated earlier, the suit was for recovery of money based upon two transactions. The first transaction was that of sale and delivery of gold jewelery weighing about 922.520 grams. According to the plaintiff, the transactions were mutual, running and concurrent and a sum of Rs.4,40,820/- became due on a particular date. That had become so due got confirmed by the appellant/defendant under Ex.A.1 agreement dated 22.5.2002. The execution of Ex.A.1 was denied by the appellant/defendant. But, his signature in Ex.A.1 was admitted by him. In the course of cross examination, the appellant/defendant claimed that he affixed signatures on blank papers. But, he admitted that the stamp papers were purchased in his name. He also admitted that he purchased gold jewelery both on cash basis as well as credit basis.
13. The relevant portion of the admission made by the appellant/ defendant during cross examination is as follows :
thjp vdf;F jq;f eiffs; rg;is nra;jhh; vd;W ehd; xg;Gf; nfhs;fpNwd;. jd;Dila vjph; ciuapy; jq;f eiffs; rg;is nra;J tpl;L ntw;Wg; Ngg;ghpy; ifnaOj;J thq;fpr; nry;thh;. thjpaplk; ehd; jq;f eiffis nuhf;fkhfTk;> fldhfTk; thq;fpAs;Nsd; vd;why; rhp. ehd; thq;fpa jq;f eif flDf;F ghz;l; Ngg;ghpy; tUlh tUlk; ifnaOj;Jg; Nghl;Lf; nfhLj;Njd;. vd; ngahpy; jhd; =tpy;ypg;Gj;J}hpy; Kj;jpiuj;jhs; tp.gp.vk; KUfd; vd;w ngahpy; thq;fg;gl;lJ vd;why; rhp.
14. Though the appellant/defendant claimed that his signatures were affixed in blank stamp papers, such a defence was not taken by him even in the written statement. While dealing with the letter of undertaking dated 22.5.2002, in paragraph 9 of his written statement, the appellant/defendant did not come up with any positive averment about the circumstances, under which, he affixed his signatures in blank papers. Therefore, the Trial Court was right in disbelieving the evidence of the appellant/defendant and coming to the conclusion that as per Ex.A.1, the appellant/defendant was due and liable to pay a sum of Rs.4,40,820/- on business transactions.
15. Coming to the second transaction, it was the contention of the appellant/defendant that he did not borrow a sum of Rs.1,50,000/- on 15.5.1997 as claimed by the respondent/plaintiff. But, other than a bare denial of the borrowing, the appellant/defendant could not succeed in clearing the air of suspicion as to how the borrowing was also mentioned in Ex.A.1. As per Ex.A.1, the appellant/defendant had borrowed Rs.1,50,000/- on 15.5.1997 and that a sum of Rs.1,54,836/- had become due under the said borrowing. Once it is found that Ex.A.1 is a valid and true document, a part of the said document cannot be rejected, unless there is a strong evidence on the side of the appellant/defendant. In the absence of any such evidence, the Trial Court was right in concluding that the second transaction also stood proved.
16. Mr.V.Nicholas, learned counsel appearing for the appellant/ defendant contended that the suit claim was barred by limitation, even as per the pleadings. The learned counsel submitted that even as per the plaint, the borrowing was made on 15.5.1997 and that Ex.A.1 was executed only on 22.5.2002, after a gap of about five years. Therefore, the learned counsel submitted that irrespective of whether a plea of limitation had been taken by the appellant/defendant or not, the Trial Court was bound to take note of the bar of limitation by itself.
17. There is no doubt about the proposition that the question of jurisdiction and the issue of limitation, are questions, which can be gone into by a civil court, even without a specific plea. But unfortunately in this case, the undertaking dated 22.5.2002 cannot be construed as an acknowledgment of liability in terms of Section 18 of the Limitation Act, 1963. Only if Ex.A.1 is an acknowledgment of liability, it would save the limitation, provided it had been made within the period of limitation. In other words, if Ex.A.1 is an acknowledgment of liability, it should have been made on or before 14.5.2000, to save limitation in respect of the borrowing.
18. But, a careful look at Ex.A.1 would show that it was a fresh promise. As a matter of fact, the respondent/plaintiff filed the suit on the specific plea that Ex.A.1 was a fresh promise. This can be seen from paragraph 6 of the plaint filed by the respondent/plaintiff. If what is relied upon is not acknowledgment of liability, but a fresh promise, the limitation would start running only from the date of the fresh promise. There can be no dispute about the fact that even a time barred debt can be a valid consideration for a fresh promise in terms of Section 25(d) of the Indian Contract Act. The contents of Ex.A.1 clearly show that it was a fresh promise and an acknowledgment of liability. Hence, the suit was not barred by limitation. Therefore, I hold on issue No.1 that the Trial Court was right in holding that both the transactions pleaded by the respondent/plaintiff stood proved.
Issue No.2 :
19. Coming to the second issue namely the one relating to rate of interest, the judgment of the Trial Court is obviously and patently wrong. The very claim of the plaintiff was for payment of interest at 3% per month. However, the Trial Court has granted a decree for payment of interest at 12% per month. Therefore, the only question to be considered is as to whether the Trial Court could have awarded interest at 3% per month or not.
20. The transaction in question was only a commercial transaction. It was for sale and delivery of gold jewelery, in the course of business dealings of both the plaintiff and the defendant. The defendant himself was also carrying business in gold jewelery. Therefore, under Section 34 of the Code, the rate of interest pleaded by the plaintiff is saved. Hence, I conclude on issue No.2 that the plaintiff is entitled to interest at 3% per month from the date of the suit upto the date of decree. But, from the date of the decree, the plaintiff is entitled to interest only at 6% per annum as per the statute.
21. In view of the above, the appeal is partly allowed, modifying the judgment and decree of the Trial Court to the following effect :
(i) There will be a decree for payment of a sum of Rs.7,92,324/- together with interest at 3% per month from the date of the suit till the date of decree;
(ii) The plaintiff is entitled to future interest from the date of decree upto the date of realisation at the rate of 6% per annum; and
(iii) The plaintiff will be entitled to costs throughout. No costs. Consequently, all the above MPs are closed.
16.7.2014 Internet : Yes To The Additional District and Sessions Court and Fast Track Court No.2, Coimbatore.
RS V.RAMASUBRAMANIAN,J RS A.S.No.2 of 2010 and MP.Nos.1 to 3 of 2010 & 1 of 2011 16.7.2014 Appeal Suit No.2 of 2010 V.RAMASUBRAMANIAN, J.
The matter was posted being mentioned, at the instance of the learned counsel for the respondent.
2. The appeal was disposed by a judgment dated 16.7.2014. The operative portion in paragraph 21 of the judgment reads as follows:
"21. In view of the above, the appeal is partly allowed, modifying the judgment and decree of the trial Court to the following effect:
(i) There will be a decree for payment of a sum of Rs.7,92,324/- together with interest at 3% per month from the date of the suit till the date of decree;
(ii) The plaintiff is entitled to future interest from the date of decree up to the date of realisation at the rate of 6% per annum; and
(iii) The petitioner will be entitled to costs throughout.
No costs. Consequently, all the above MPs are closed."
3. Unfortunately, after recording the operating portion, the words "no costs" have been included mechanically. This goes contrary to the decree in paragraph 21(iii). Therefore, the words "no costs" are removed.
14.10.2015.
kpl V.RAMASUBRAMANIAN,J.
Appeal Suit No.2 of 2010.
14.10.2015.