R.S.A.No.3087 of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
R.S.A.No.3087 of 2008
Date of Decision:24.9.2008
Shabeg Singh
.....Appellant
versus
Raj Kumar
.....Respondent
CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL.
Present: Mr. Baltej Singh Sidhu, Advocate for the appellant.
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AJAY KUMAR MITTAL, J.
The present regular second appeal filed by the defendant is
directed against the judgment and decree dated 4.6.2008 passed by
the lower appellate Court whereby that of the trial Court dated
19.8.2005 dismissing the suit of the plaintiff for recovery of
Rs.6,25,000/- was set aside and the suit of the plaintiff was partly
decreed.
Put shortly, the facts of the case are that the defendant had
been selling his crops to the plaintiff firm and also used to take amount
on credit from time to time and had been returning the same which was
credited in his account. It was pleaded that on 18.10.1997, the
defendant visited the shop of the plaintiff and enquired about his
account, on which a total sum of Rs.1,73,378/- (including interest of
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Rs.13,713/-) was outstanding towards him. The defendant took another
sum of Rs.2,26,622/- in cash from the plaintiff and also executed a
pronote and receipt to the tune of Rs.4 lacs on the same day, i.e.
18.10.1997 in the presence of the witnesses and agreed to pay interest
at the rate of 2% per month. It was further pleaded that a dispute arose
between the parties and a compromise was got effected between them
vide agreement dated 30.7.1998. In the said compromise, the
defendant admitted the outstanding amount of Rs.4,00,000/- and the
execution of the pronote and receipt dated 18.10.1997 and agreed to
pay an amount of Rs.3,65,000/- to the plaintiff upto 31.10.1998, in
default, the defendant would pay the amount along with interest . It was
further agreed in the compromise that the defendant would withdraw the
criminal case filed against the plaintiff and the plaintiff would return the
pronote and receipt to the defendant after receiving the aforesaid
amount. According to the plaintiff, the defendant made a payment of
Rs.56,690/- on 7.5.1999 through M/s Siri Ram Kishan Chand and sons
and thereafter failed to make the payment of the outstanding amount
and a total amount of Rs.6,25,000/- (Rs.3,08,310/- as principal plus
Rs.3,16,690/- interest) is outstanding and recoverable from the
defendant after deducting the amount of Rs.56,690/- paid on 7.5.1999.
The plaintiff requested the defendant to make the payment of the
outstanding amount but he refused to do so and that gave rising to the
filing of the suit.
The claim of the plaintiff was controverted by the defendant
by filing a written statement and raising various preliminary objections
therein. It was pleaded that neither the defendant borrowed any
R.S.A.No.3087 of 2008 -3-
amount nor executed pronote and receipt in favour of the plaintiff. It was
further pleaded that the defendant had been selling his agricultural
produce at the plaintiff’s firm but after Harri 1997, the relations between
the plaintiff and the defendant became strained and the plaintiff showed
a huge amount outstanding against the defendant. According to the
defendant, he under fear and compelling circumstances signed the
pronote and bahis and the agreement dated 30.7.1998 was a false and
fabricated document as no compromise was effected between him and
the plaintiff. The other averments made in the plaint were denied and a
prayer for dismissal of the suit was made.
The trial Court on appreciation of the oral as well as the
documentary evidence adduced by the parties held that the plaintiff
failed to prove the execution of the pronote and receipt dated
18.10.1997 on the basis of which compromise dated 30.7.1998 was
effected. It was further held that the plaintiff was not entitled to the
recovery of Rs.6,25,000/- from the plaintiff and that the suit of the
plaintiff was time barred. Accordingly, the trial court vide judgment and
decree dated 19.8.2005 dismissed the suit of the plaintiff. Feeling
aggrieved, the plaintiff approached the lower appellate court which vide
judgment and decree dated 4.6.2008 accepted the appeal. The lower
appellate court while setting aside the judgment and decree of the trial
court held that the suit was filed within limitation. The lower appellate
court recorded that the parties had entered into a written
compromise/agreement on 30.7.1998 whereby the defendant had
accepted the liability of outstanding amount of Rs.3,65,000/- which was
to be deposited with the respondent-plaintiff in two installments, i.e. first
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installment of Rs.1,65,000/- on 31.10.1998 and second installment of
Rs.2,00,000/- on 15.5.1999. Further, in the criminal complaint filed by
defendant-Subeg Singh against Raj Kumar-plaintiff, an application,
Ex.P11, was filed by the defendant wherein he had admitted that he had
entered into a compromise for Rs.3,65,000/- and the criminal court after
recording the statement of the defendant on 29.9.1998 ordered the
complaint to be dismissed as withdrawn vide Ex.P7/A. Accordingly, it
was held that the defendant-appellant had admitted the compromise
between him and the plaintiff concerned by virtue of Ex.P11 and the suit
of the plaintiff was decreed to the extent that he was entitled to recover
Rs.3,65,000/- along with interest at the rate of 12% per annum from the
date of execution of the pronote, i.e. 18.10.1997 till the date of decision
of the appeal, i.e. 4.6.2008, and future interest at the rate of 6% per
annum from 4.6.2008 till the date of realization.
I have heard learned counsel for the appellant and perused
the impugned judgments with his assistance.
Learned counsel for the appellant has submitted that the
agreement/compromise and Ex.P11 relied upon by the lower appellate
court as acknowledgment for extension of limitation was in the criminal
case and the same could not be treated as an acknowledgment for the
purpose of extension of limitation in this case. He further submitted that
the principal amount claimed from the defendant was Rs.3,08,310/-
whereas the decree had been passed for the recovery of Rs.3,65,000/-.
Section 18 of the Limitation Act, 1963 (in short “the Act”)
relates to the effect of acknowledgment in writing. It reads thus:-
“18. Effect of acknowledgment in writing.- (1)
R.S.A.No.3087 of 2008 -5-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.
(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 (1 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 avers 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 “signed” means signed either
R.S.A.No.3087 of 2008 -6-personally or by an agent duly authorised in
this behalf, and
(c) an application for execution of a decree or
order shall not be deemed to be an application
in respect of any property or right.”
The aforesaid provision postulates that where before the
expiration of period of limitation for filing a suit in respect of any property
or right, an acknowledgment is made in writing by the party against
whom such property or right is claimed regarding the liability in respect
of such property or right, a fresh period of limitation commences from
the time of signing of the acknowledgment. The appellant could not run
away from the fact that the acknowledgment of debt had been made
and as per Section 18 ibid it does not draw any distinction between civil
or criminal proceedings but relates to the acknowledgment of an
existing debt. Thus, the plea of the learned counsel for the appellant
that the acknowledgment was made in criminal proceedings does not
carry any weight.
In view of the findings recorded, it cannot be disputed that
the defendant vide compromise deed dated 30.7.1998 and Ex.P11 had
accepted the liability of outstanding amount of Rs.3,65,000/- which was
to be deposited with the respondent in two installments, i.e. first
instalment of Rs.1,65,000/- on 31.10.1998 and the second instalment of
Rs.2,00,000/- on 15.5.1999. The suit having been filed on
30.7.2001/1.8.2001 for recovery of a loan amount cannot be said to be
beyond limitation on the face of the compromise dated 30.7.1998 and
the acknowledgment of the existing debt by way of application, Ex.P11.
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Now adverting to the next submission of the learned
counsel for the appellant, suffice it to notice that no installment in terms
of the aforesaid compromise was made by the appellant to the
respondent. It is, thus, undisputed that an amount of Rs.3,65,000/- is
outstanding against the defendant-appellant which is inclusive of
interest accrued on the debt also. The said submission is, therefore,
rejected.
No question of law much less a substantial question of law
arises in this appeal for consideration of this Court.
In view of what has been stated above, the present appeal
fails and the same is hereby dismissed with no order as to costs.
September 24, 2008 (AJAY KUMAR MITTAL) gbs JUDGE