IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3520 OF 2007 NOTICE OF MOTION NO. 3520 OF 2007 NOTICE OF MOTION NO. 3520 OF 2007 IN IN IN SUIT NO.1372 OF 2007 SUIT NO.1372 OF 2007 SUIT NO.1372 OF 2007 Ramnik Gelabhai Gala ..Plaintiff V/s. T.Harikishan ..Defendant Mr.M.P.Vora for plaintiff. Mr.A.H.Yadav for defendant in support of the Motion. CORAM : J.P.DEVADHAR, J. CORAM : J.P.DEVADHAR, J. CORAM : J.P.DEVADHAR, J. DATED : 21ST AUGUST, 2008. DATED : 21ST AUGUST, 2008. DATED : 21ST AUGUST, 2008. P.C. :- P.C. :- P.C. :- 1. This Notice of Motion is taken out by the defendant seeking dismissal of the suit filed by the plaintiff inter alia on the ground that the suit is barred by law of limitation. 2. The suit is filed by the plaintiff to recover the loan advanced to the defendant on 3rd July, 2003. The averments made in the plaint are that the defendant was liable to repay the loan amount with interest @ 12% p.a. within a period of - = : 2 : = - one year i.e. on or before 3/7/2004. According to the plaintiff, the 3 years limitation for filing the suit would commence from 3rd July, 2004 and would end on 2nd July, 2007. It is the case of the plaintiff that on 25th November, 2006 the defendant had repaid Rs.11,000/- towards part payment of the loan advanced by the plaintiff. Since that part payment of the loan was made within the period of limitation, according to the plaintiff the suit filed within 3 years from 25/11/2006 would be within the period of limitation. 3. According to the defendant, since specific time was not fixed for repayment of the loan, the limitation would start from the date on which the loan was advanced. Accordingly, it is contended that the limitation for recovery of the loan advanced on 3/7/2003 would expire on 2/7/2006 and, therefore, the part payment made on 25/11/2006 beyond the period of limitation would not extend the period of limitation. Learned counsel for the defendant has also placed reliance on the Judgment of this Court in the case of State of Maharashtra State of Maharashtra State of Maharashtra V/s. Sadiq and Company V/s. Sadiq and Company V/s. Sadiq and Company reported in 1993 Mh.L.J. 1993 Mh.L.J. 1993 Mh.L.J. 1476 1476 1476. 4. In my view, the averments made in the - = : 3 : = - plaint based on a oral contract has to be established by leading evidence. Since the issue of limitation has to be decided by leading evidence the suit cannot be dismissed without giving an opportunity to the plaintiff to prove the averments made in the plaint. In fact, that is what this Court held in the case of State v/s. Sadiq & Co. (supra). 5. In this view of the matter, I see no merit in the Notice of Motion and the same is dismissed with no order as to costs. (J.P. DEVADHAR, J.) (J.P. DEVADHAR, J.) (J.P. DEVADHAR, J.)