sa229.99.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.229/1999
APPELLANT :- Madhukar alias Babanrao s/o Ganpat
Sabnis, aged about 67 years,
Original
Defendant Occupation Landlord, resident of
Khaparde Bagicha, Amravati, Taluka
and District Amravati.
...Versus...
RESPONDENT :-
Original
Plaintiff
ig Smt. Kantabai wd/o Shankarrao Sangole,
aged about 50 years, Occupation
Household, resident of Ravi Nagar,
Amravati, Taluka and District Amravati.
------------------------------------------------------
[Shri Rahul Dhande, Adv. for appellant]
[None for respondent]
------------------------------------------------------
CORAM : A.B. CHAUDHARI J.
Date of reserving the judgment : 08.07.2011
Date of pronouncing the judgment : 28.07.2011
J U D G M E N T
1. Feeling aggrieved by the judgment and decree
dated 13.9.1993, passed by the 10th Jt. Civil Judge
(J.D.), Amravati in Regular Civil Suit No.30/1991,
decreeing the suit of the respondent/plaintiff in the
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sum of Rs.23,400/- with future interest @ 18% per
annum from the date of suit till its realization and
confirmed in appeal by the Extra Joint District Judge,
Amravati on 3.2.1999 in Regular Civil Appeal
No.4/1994, the present appeal was filed by the
appellant/defendant.
2. In support of the appeal, Shri Rahul Dhande,
the learned ig Counsel for the appellant vehemently
argued that though there is concurrent finding of fact
recorded by both the Courts below while decreeing the
suit of the respondent/plaintiff, the findings of
facts are utterly perverse and thus would constitute
substantial question of law. The findings are not
based on evidence on record documentary as well as
oral. According to the learned Counsel for the
appellant, the suit was clearly barred by limitation
but the Courts below have relied on the documents Exh.
81 and 82 dated 14.1.1988 and 24.2.1988, showing the
payment of Rs.200/- each allegedly made by the present
appellant/defendant in order to bring the suit within
limitation. The learned Counsel for the appellant
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vehemently argued that these documents Exh.81 and 82
if carefully perused, would show that they had never
been signed by the appellant/defendant and have been
stoutly denied by him. According to the learned
Counsel for the appellant when the documents Exh.81
and 82 were never signed by the appellant, the Courts
below could not have taken them into consideration as
acknowledgments within the meaning of the provisions
of the Limitation Act in order to extend the
limitation. The learned Counsel then went on to argue
that the documents Exh.81 and 82 show that the alleged
payment of Rs.200/- was received by one Shri Rambhau
Loney allegedly from the appellant and that the said
Shri Loney had thereafter made the payment to one
Shri Pattalwar Advocate and further that the said
Advocate Shri Pattalwar had made the said payment to
the respondent/plaintiff. The Courts below ought to
have rejected this theory propounded by the
respondent/plaintiff in order to sustain the money
claim in question. The learned Counsel thus submitted
that the suit having been thus filed on 10.1.1999 was
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clearly barred by law of limitation and was required
to be dismissed as such, rejecting the evidence of
said Rambhau Loney also. The said Advocate
Shri Pattalwar was never examined by the plaintiff
before the Court to prove the receipt of payment by
him or onward payment to the plaintiff by him. The
learned Counsel then went on to argue that the
transaction in question was money lending transaction
and that would certainly be in contravention of the
provisions of the Money Lending Act, which cannot be
enforced by a Court of law. Invoking Section 103 of
the Code of Civil Procedure, he argued that High Court
has powers to determine even questions of facts while
hearing a second appeal. Therefore, though no issue
was framed by the trial Court on the question of
money-lending nature of transaction, this Court can
decide the said question. He also argued that the
documents relied upon by the plaintiff were
insufficiently stamped and hence could not be made
admissible in evidence.
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3. None appeared for the respondent despite
several opportunities. Finally, on 2.7.2011, Advocate
Shri R.R. Vyas for the respondent filed pursis,
stating that the respondent had taken all his papers
and is not in a position to defend the present appeal.
Pursis is accepted.
4. I have heard learned Counsel for the
appellant on several dates, who argued the appeal with
good preparation. I have gone through the impugned
judgment and decree passed by the Courts below. I have
also gone through the entire evidence documentary as
well as oral. Upon hearing the learned Counsel for the
appellant, I find that following substantial question
of law arises in the present appeal.
(i) Whether the Courts below could
have taken into consideration the documents
Exh.81 and 82 as the documents of
acknowledgments in order to bring the suit
within limitation and whether consequently,
the suit was barred by law of limitation ?
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5. The submissions made by the learned Counsel
for the appellant on Section 103 of the Code of Civil
Procedure with reference to money lending nature of
transaction and insufficient stamped documents will
have to be rejected for the following reasons.
Section 103 of the Code of Civil Procedure
reads thus :
Power of High Court to
ig 1
" 03.
determine issues of fact. – In any second
appeal, the High Court may, if the evidence
on the record is sufficient, determine any
issue necessary for the disposal of the
appeal, –
(a) which has not been determined
by the lower Appellate Court or both by
the Court of first instance and the lower
Appellate court, or
(b) which has been wrongly
determined by such such Court or Courts
by reason of a decision on such question
of law as is referred to in section 100.”
6. Perusal of the provisions brought into force
w.e.f. 1.2.1977 shows first contingency namely that
the issue of fact not determined by lower Courts
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should be ‘necessary’ for disposal of the appeal; and
if the same is wrongly determined. In the case at
hand, on these two questions issues were never framed
nor tried and therefore, respondent had no notice
thereof to contest. The said provision cannot read in
violation of principles of natural justice; else it
would be destructive of the rule of audi alteram
partem. No provisions should be read de hors these
principles.
7. It is not in dispute that the suit was filed
on 10.1.1991 by the respondent/plaintiff for recovery
of money. The documents Exh.81 and 82 are dated
14.1.1988 and 24.2.1988 respectively. These two
documents have been treated as acknowledgments within
the meaning of Section 18 of the Limitation Act for
the purposes of examining whether the suit was filed
within limitation or not. It was the case of the
respondent/plaintiff that she had paid Rs.20,000/- by
way of loan and the appellant had signed hand loan
receipt Exh.22 on 22.2.1986. According to the
respondent, the appellant used to pay amount in small
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installments through one Rambhau Loney and Advocate
Shri Pattalwar. The plaintiff relied on the last
receipts Exh.81 and 82 dated 14.1.1988 and 24.2.1988
to contend that these two receipts clearly brought the
suit within limitation and they were acknowledgments
for that purpose. The question that arises for
consideration before this Court is interpretation of
the documentsig Exh.81 and 82 since all earlier
documents are of no relevance for determining the
issue in question. Section 18 of the Limitation Act
reads thus.
” 18. Effect of acknowledgment in
writing. – (1) Where, before the expiration of
the prescribed period for a suit or
application in respect of any property or
right, an acknowledgment of liability in
respect of such property or right has been
made in writing signed by the party against
whom such property or right is claimed, or by
any person 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.
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(2) Where the writing containing
the acknowledgment is undated, oral evidence
may be given of the time when it was signed;
but subject to the provisions of the Indian
Evidence Act, 1872 (I of 1872), oral evidence
of its contents shall not be received.
Explanation.- For the purposes of this
section. –
(a) an acknowledgment may be sufficient
though it omits to specify the exact nature
of the property or right, or averse that the
time for payment, delivery, performance or
enjoyment has not yet come or is accompanied
by refusal to pay, deliver, perform or permit
to enjoy, or is coupled with a claim to
set-off, or is addressed to a person other
than a person entitled to the property or
right;
(b) the word s
" igned" means signed
either personally or by an agent duly
authorised in this behalf; and
(c) an application for the execution of
a decree or order shall not be deemed to be an
application in respect of any property or
right.”
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Perusal of the above provision shows that
the ‘acknowledgment’ spoken of must be in ‘writing’
and ‘signed’ by a party or its duly authorised agent.
The burden of proof about it is surely on the
plaintiff. There is no doubt that it can be express or
implied. The plaint is silent about the agent Rambhau
Loney having any express or implied authority. Rambhau
stated in his
ig cross-examination that he had no
authority whatsoever from the appellant to make
payment under Exh.81 and 82. Hence, there is no
‘acknowledgment’ for extending the limitation.
8. I have perused the documents Exh.81 and 82
and the relevant oral evidence of the parties. The
documents Exh.81 and 82 both do not bear the signature
of the appellant/defendant. Both these
documents/receipts show that Rambhau Loney had
collected Rs.200/- each on both occasions from the
appellant and paid Rs.200/- on each occasion to
Advocate Shri Pattalwar and then Advocate
Shri Pattalwar paid the said amount to
respondent/plaintiff. Plaintiff and Advocate
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Shri Pattalwar had signed Exh.81 and 82 in token of
receipt. Neither Advocate Shri Pattalwar was examined
nor Exh.81 and 82 were got proved from Rambhau Loney.
In other words, documents Exh.81 and 82 in the first
place have not been proved according to law so that
they could be read in evidence as they are. To sum up,
if these two documents Exh.81 and 82 are ignored from
consideration and looking at the last acknowledgment,
namely Exh.70, dated 27.10.1987, signed by the
appellant/defendant for Rs.500/-, the suit ought to
have been filed on or before 26.10.1990 but the suit
in the instant case was filed on 10.1.1991 i.e. beyond
the period of limitation of three years. As a sequel
to the above discussion, it will have to be held that
Exh.81 and 82 cannot be treated as valid
acknowledgments within the meaning of Section 18 of
the Limitation Act for the purposes of treating the
suit as the one within limitation. The substantial
question of law, therefore, will have to be answered
holding that the suit filed by respondent/plaintiff
was clearly barred by limitation and the documents
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Exh.81 and 82 were not proved in accordance with law
and were not the acknowledgments, contemplated by
Section 18 of the Limitation Act. In the result, the
second appeal must succeed. As a sequel, I make the
following order.
O R D E R
(i)
ig Second Appeal No.229/1999 is allowed
with costs throughout.
(ii) The judgment and decree passed by the
10th Jt. Civil Judge (J.D.), Amravati in Regular Civil
Suit No.30/1991 on 13.9.1993 and the judgment and
decree passed by the Extra Joint District Judge,
Amravati in Regular Civil Appeal No.4/1994 on 3.2.1999
are set aside.
(iii) The suit of the plaintiff is
dismissed with costs.
Decree be drawn up accordingly.
JUDGE
ssw
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