ORDER
1.This revision under Section 18 of the Karnataka Small Causes Act arises out of judgment and decree dated 9-11-1993 passed by the Principal Civil Judge, Shimoga, in suit No. 57 of 1993 decreeing the plaintiff’s suit for a sum of Rs. 17,430/-.
2. The sole point that has been urged in the revision is that the Court below did not act according to law when it held the plaintiff’s suit to be within limitation. Learned Counsel contended that prima facie suit had been filed much beyond the expiry of period of limitation. According to the plaintiff’s case, 1st defendant had borrowed a sum of Rs. 5,000/- from the plaintiff-bank on 27-12-1978 agreeing to repay the same with interest at 13% with quarterly rests and executed pronote to that effect in favour of the plaintiff. According to the plaintiff, first defendant had hypothecated stock-in-trade in favour of the plaintiff and the first defendant had been irregular in repayment of the loan amount with interest. Plaintiff’s case has been that in spite of repeated demands and notice being issued demanding the repayment of money, the defendant did not make the payment and the first defendant was alleged to be in arrears for a sum of Rs. 17,430/-. The cause of action in the suit has been alleged to have taken place on 27-12-1978. But, it has further been alleged that it had accrued also on 31-12-1980, 22-6-1982, 30-6-1982, 29-7-1983, 25-2-1984, 31-12-1985, 30-9-1986 and 24-12-1988 when the first defendant for himself and for defendants 2 and 3 had executed debt acknowledgment letters. According to the plaintiff’s case that the date of last acknowledgment is dated 24-12-1988 and the suit had been filed on 19-12-1991, hence, the suit was within time. The Trial Court has held the suit to be within time observing that the plaintiff has produced Exs. P. 5 to P. 10, acknowledgment of debt letters and execution of acknowledgment of debts due letters have been disputed by the defendants. Trial Court opined that the suit is within time on the basis of those acknowledgment of debt letters.
3. On behalf of the revision petitioners, Sri M.R. Rajagopal, learned Counsel contended that acknowledgment of debt letters have not been proved to have been made by the defendant by any admissible or reliable evidence and these documents could not have been relied upon by the Court below to give the benefit of Section 18 or Section 19 of the Limitation Act.
4. On behalf of the respondent it has been contended by Sri B.C. Seetharama Rao, learned Counsel, that Exs. P. 5 to P. 10 are the acknowledgment of debt and the liability to pay which were executed by the defendants. Learned Counsel contended that the defendants had not denied those documents and P.W. 1’s evidence has been sufficient
enough to prove those documents and the Court below did not commit any error of law or jurisdiction in relying upon those documents. He submitted that when the defendant has not denied these documents, these documents should have been presumed to have been executed by the defendant or should have been presumed to have been signed by the defendant-revision petitioner.
5. I have applied my mind to the contentions raised by the learned Counsel for the parties.
According to the plaintiff’s case, it was a loan advanced on a promissory note executed by the defendant. The execution of the promissory note is not denied. The defendant has only denied the execution of any acknowledgments which have been asserted to in the plaint. After filing of the written statement by the defendants, issues were framed which read as under.-
1. Whether the plaintiff proves the suit claim against the defendants?
2. Whether the defendants are entitled for instalments?
3. Whether the plaintiff is entitled for the relief claimed?
6. It is one of the well settled principles of law of evidence that a person who comes to claim relief before the Court with a specific case, he has to rest and stand on his own legs and not on the weakness of defendants’ case. Even if the defendants had not led any evidence, burden did lie on the plaintiff to prove the transaction of loan and the alleged agreement to pay 13% interest as well as failure of the defendants to repay that amount or repayment of debt amount. Plaintiff has also to prove that the claim suit filed by him is within limitation. In the present case, on the merits of the case, the Court has found that the transaction of loan has been proved as per the unchallenged testimony of P.W. 1 coupled with documentary evidence contained in Exs. P.1 to P. 3 and P. 11 which establishes that the defendants are liable to pay the sums as claimed in the plaint. As regards the plea of limitation, prima facie the transaction of loan had taken place on 27-12-1978. The suit had been filed on 19-12-1991. Limitation for filing the suit for recovery of money based on pronote is three years from the date of pronote vide Article 35 of the Schedule to the Limitation Act, 1963. Suit in the present case, as mentioned earlier, prima facie is barred by time unless it is found that the plaintiff has established necessary ingredients of Section 18 or 19 of the Limitation Act in which cases limitation could be said to have been started from the date of acknowledgment. Exs. P. 5 to P. 10 have been relied upon by the plaintiff as well as by the Court below as letters of acknowledgment of debt. The defendant has denied execution of those documents in his pleadings. Therefore, burden did lie on the plaintiff to establish the execution of those documents Exs. P. 5 to P. 10. P.W. 1 — the Manager has been examined to prove it. P.W. 1 has stated that he had been working in the concerned Branch of Allahabad Bank with effect from February 25, 1995. It is one of the well settled principles
of law that documents have to be proved by primary evidence i.e., if the execution of a document has to be proved, it has to be proved by the witness or by the person in whose presence the transaction did take place and who had seen the person signing the document or who had been well conversant and who had seen the executant signing the document. In the present case, no such deposition has been made by P.W. 1 that he has seen the defendant signing the document nor can he so state as during the period when the transaction was entered into in the year 1978 or the acknowledgment were alleged to have been made namely during the period from 31-12-1980 to 24-12-1988, P.W. 1 was not working in the concerned branch of the Bank as a Manager or otherwise. In any case he has not deposed that he was working in the Allahabad Bank or plaintiff’s branch at Shimoga. When there is no such evidence that he was working in the plaintiff’s Bank and especially in the branch at Nehru road, Shimoga, it cannot be expected that he would have seen or would have witnessed the transaction exhibited by the documents numbered as Exa. P. 5 to P. 10. He has also not stated that he is well conversant with the signature of the defendant.
7. In this view of the matter, the Manager’s evidence is inadmissible to prove the execution of the documents Exs. P. 5 to P. 10. The learned Court below has not applied its mind to this aspect of the matter whether the execution of documents Exs. P. 5 to P. 10 has been proved. The documents themselves cannot be taken to be of any value unless their execution is proved by the legal, relevant and material evidence of the person who has either seen the persons signing the document or who may be said to be conversant with the signature of the person executing the document. In absence of any such evidence, Exs. P. 5 to P. 10 cannot be said to have been established as the acknowledgments made by the defendants. The Court below, as such, in my opinion, did not act according to law in relying on Exs. P. 5 to P. 10, on the basis of which, it held the suit to be within time.
8. Learned Counsel for the plaintiff-respondent contended, as mentioned earlier, that as defendant has not appeared in witness box and denied, the documents Exs. P. 5 to P. 10 should have been presumed to have been signed by the defendant. No such presumption can be raised. Section 90 of the Evidence Act is of no help to the plaintiff as the documents are not [20 years] old or more, instead entire series of documents on the date of the suit has been at the most three to eleven years old. So presumption under Section 90 cannot be applied in favour of the plaintiff-Bank. No provision of law has been brought to my notice by the learned Counsel for the plaintiff-respondent under which such a presumption could be raised in favour of the plaintiff and against the defendants to the effect that the documents Exs. P. 5 to P. 10 be presumed to have been executed by the defendant.
9. Thus considered, it comes out that the alleged acknowledgments i.e., Exs. P. 5 to P. 10 cannot be said to have been proved by admissible evidence as the plaintiff has failed to prove the alleged acknowledgments. He cannot get the benefit or protection of Section 18 or Section 19 of the Limitation Act as one of the essential ingredients is acknowledgment of either of liability to repay or acknowledgment of repayment by the person making acknowledgment has to be proved. This has not being established, in my opinion, looking to the date of suit when the suit had been filed, it is prima facie barred by limitation. Learned Counsel contended that the case may be remanded for decision afresh on the point after giving the plaintiff an opportunity to produce additional evidence. Remand is not meant to allow a party to fill up the lacuna.
10. Revision, as such, is allowed. Suit is hereby dismissed.