JUDGMENT
S.J. Mukhopadhaya, J.
1. Both these appeals arise out of common order dated 17th July, 2007, passed in two different applications, one preferred by the plaintiff and other by the defendant. They were heard together and disposed of by this common judgment.
2. R. Madesh, appellant of O.S.A. No. 227/07 is the plaintiff whereas A.M.Rathinam, appellant of O.S.A. No. 288/07 is the defendant in the suit. The plaintiff preferred suit for recovery of a sum of Rs. 25,50,000/= advanced by the plaintiff to the defendant and for permanent injunction and other reliefs. Originally, an order of interim injunction was granted on 18th April, 2007. In view of interim order, the defendant, while preferred an application for vacating the stay, an application under Order VII Rule 11 (d) of the Code of Civil Procedure was also filed by the defendant to dismiss the suit, being barred by limitation. By impugned common order dated 17th July, 2007, learned Judge, while refused to reject the plaint, mixed question of fact and law being involved, pursuant to the other application, vacated the interim order of injunction.
3. Learned Counsel appearing on behalf of the plaintiff (appellant in OSA No. 227/07) submitted that the plaintiff paid a sum of Rs. 25 lakhs to the defendant by way of three cheques between 31st Jan., 2000 and 2nd Feb., 2000. The defendant, earlier promised and assured the plaintiff that he will repay the amount during all these years, ultimately, by superseding the oral assurances/arrangements, the defendant, on 2nd Jan., 2007, wrote a letter to the plaintiff admitting his liability to the tune of Rs. 25 lakhs payable to the plaintiff, having received the said amount towards advance for a film. According to counsel for the plaintiff, the defendant had promised to repay the said amount to the plaintiff before the conclusion of sale of his present film “Bheema” (Tamil and Telegu release rights), which is due for release, but contrary to the defendant’s assurance, the defendant, instead of discharging his admitted liability, secretly concluded to sell the film to third-parties with a view to deceive the plaintiff. It was submitted that there being a prima facie case, balance of convenience in favour of the plaintiff and release of cinema as may cause irreparable loss, it was a fit case to grant interim injunction, which was granted and impugned order vacating such stay was uncalled for.
It was also submitted that the defendant, all the time, while submitted returns in different years before the income tax authorities, has shown liability of Rs. 25 lakhs in favour of the plaintiff and, thereby, it cannot be alleged that the suit is barred by limitation nor it can be dismissed under Order VII Rule 11 (b) of the Code of Civil Procedure. Reliance was placed on this Court’s decision in Saravana Paper Cutting Works v. Indian Express (Madurai) Pvt. Ltd. , wherein the Court held that Under Section 18 of the Limitation Act, 1963, a statement containing acknowledgement need not be necessarily addressed to the creditor. The part of the return of income submitted by the defendant to the income tax department may suggest that the defendant has acknowledged the payment, which could be accepted as acknowledgement of liability in accordance with Section 18 of the Limitation Act.
4. Learned Counsel appearing on behalf of the defendant (appellant in OSA No. 288/07), on the other hand, referred to the plaint and submitted that the cause of action shown therein relate back to January-February, 2000, when cheques were stated to have been issued to the defendant. There is nothing on the record to suggest that any promise was made by defendant and the reference to document dated 2nd Jan., 2007, which has been made is not a letter to the plaintiff, but a certificate, which cannot be taken into consideration to determine the question of limitation or for the purpose of Order VII Rule 11 (d) of the Code of Civil Procedure.
Referring Section 18 of the Limitation Act it was submitted that in absence of acknowledgement in writing before the expiration of the prescribed period for a suit, the plaintiff cannot derive any advantage of Section 18. In support of such stand, reliance was placed on Supreme Court decision in Popat and Kotecha Property v. State Bank of India Staff Association , M. Gurudas and Ors. v. Rasaranjan and Ors. reported in 2007 (1) MLJ 41 (SC) and Ram Prakash Gupta and Ors. v. Rajiv Kumar Gupta and Ors. reported in 2008 (1) MLJ 45 (SC) and Full Bench decision of this Court in Nallathambi Nadar Chellakanu Nadar v. Ammal Nadachi Chellathankom Nadachi and Ors. reported in 1964 MLJ 181 The decision of the Supreme Court in Sopan Sukhdeo Sable and Ors. v. Assistant Charity Commissioner and Ors. ) was also referred in support of the argument that the effect of acknowledgement in writing could be accepted if such acknowledgement of liability is given before the expiration of the prescribed period.
Learned Counsel for the defendant (appellant in OSA No. 288/07) also submitted that no prima facie case is made out to grant temporary injunction under Order XXXIX Rule 1 of the Code of Civil Procedure.
5. We have heard the parties and noticed the rival contentions. From the plaint it will be evident that the plaintiff (appellant in OSA No. 227/07), while pleaded that he lent money to the tune of Rs. 25 lakhs during 2000 by way of three cheques dated 31st Jan., 2000, 1st Feb., 2000 and 2nd Feb., 2000, has also pleaded that though there were promises and assurances given by the defendant to the plaintiff as to the repayment during all the years, ultimately, by superseding all earlier assurances and arrangements by the defendant, on 2nd Jan., 2007, the defendant wrote a letter to the plaintiff admitting his liability to the tune of Rs. 25 lakhs payable to the plaintiff.
The question as to whether such promise and assurance were given by defendant to the plaintiff culminated in writing letter dated 2nd Jan., 2007, is a question of fact, which cannot be determined at the present stage. In this background, if learned Judge observed that there is a mixed question of fact and law and, thereby, ordered to decide such issue at the time of trial, we find no ground to interfere with such finding.
6. So far as the submission on behalf of the plaintiff that the defendant had submitted income tax returns admitting the liability every year is concerned, in absence of any pleading, we are not inclined to make any observation, which may be looked into by the trial court.
From the pleading made by parties and the submissions, we accept the view of learned Judge that the defendant has made out a case to doubt the maintainability of the suit. In absence of prima facie case, if learned Judge vacated the interim order, it also requires no interference. This apart, from paragraph 4 of the plaint, we find that the plaintiff has submitted that the only avenue for the plaintiff to get back his advance of Rs. 25 lakhs from defendant is out of the business realisation of defendant’s film, “Bheema”, through Tamil and Telugu versions in Indian territory, which is likely to be released shortly. In view of such statement made in the plaint, if interim order granted is vacated and, thereby, defendant has been allowed to release the film, it requires no interference.
7. There being no merits, both the appeals are dismissed. Consequently, connected miscellaneous petition is also dismissed. However, there shall be no order as to costs.