1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 229 OF 2009 Textile Corporation of Marathwada Limited through General Manager ..Appellant Versus Bhujang Gnanba Bhalke & another ..Respondents ... Advocates appearing for : Appellants: Shri G.M.Jadhav and Respondents : Shri Fulchand Tandale. ... CORAM : R.M.BORDE, J. Dated : 1.9.2009 PER COURT :- 1. The appellant / plaintiff is raising an exception to the concurrent judgments of both the courts below by way of the present appeal. 2. Special Civil Suit No.351 of 1996 came to be instituted by the plaintiff claiming recovery of amount from the respondents / defendants on account of disbursement of an excess amount to the employee of the plaintiff Corporation under Voluntary Retirement Scheme. It is not necessary to go into the factual details but suffice it to say that the suit has been dismissed by the trial court, which decree has been confirmed by the first appellate Court on the ground that the claim raised is beyond the prescribed period of limitation. The trial Court took a view that Article 23 of Schedule of the Indian Limitation Act ("the said Act") has an application to 2 the suit in respect of recovery and as the suit has been presented beyond the period of three years from the date of accrual of cause of action, it is not within limitation. It is to be noted that retiral benefits were paid during the months of June to August 1992, whereas, the suit has been presented in the Court on 30th December 1996. 3. The first appellate Court has considered the arguments advanced by the appellant in respect of the limitation to entertain the suit. It was urged by the appellant that in the facts and circumstances of the case, Article 4 of Schedule of the said Act shall have an application. However, the first appellate Court took a view that Article 113 has an application to the facts and circumstances of the case. 4. The suit was presented by the plaintiff claiming recovery from defendant No.2, who was serving as Managing Director of the Company. It is the contention of the plaintiff that the Managing Director has made an excess payment to the employee without there being an approval from the Board of Directors. According to the appellant, defendant No.2 is guilty of neglect and mis-conduct in performance of his duties. It is, therefore, urged that Article 4 of Schedule of the said Act is attracted. The limitation prescribed is three years and the starting point is the day when the neglect or misconduct becomes known to the plaintiff. In the instant case, admittedly, the advancement of sums to the employee was made in the months of June to August 1993. Defendant No.2 who functioned as Managing Director of the Company was an employee of the Company and acted in the capacity of an agent. It cannot be said that the company was unaware of the acts of defendant No.2. Apart from this aspect, the plaintiff has not 3 specifically pleaded the date of accrual of cause of action. There is no pleading in the plaint as to when the fact of neglect or misconduct on the part of the defendant No.2 came to the knowledge of the company. Even accepting the contentions raised by the appellant / plaintiff that Article 4 of Schedule has an application to the facts and circumstances of the case, it has not been established by the plaintiff as to how the claim raised is within limitation. In the absence of any pleading as to when the plaintiff gained the knowledge in respect of neglect or misconduct on the part of defendant No.2, it cannot be construed that the suit as presented by the plaintiff is within limitation. Admittedly, the advancement of the amount to the employees is prior to August 1993. It is, therefore, for the plaintiff company to establish how the suit falls within limitation. 5. From the perusal of the judgment of the Court below it transpires that defendant No.2 was proceeded departmentally and after holding the proper enquiry, the Enquiry Officer recommended that defendant No.2 be exonerated of the charges levelled against him. Thus, in the departmental proceeding, defendant No.2 has been exonerated of the charges. The first appellate Court, therefore, was justified in concluding that the plaintiff has not established any neglect or mis-conduct on the part of defendant No.2 in advancing the amount to the employee under the Voluntary Retirement Scheme. 6. The first appellate Court has recorded a finding that Article 113 of Schedule to the said Act will have an application to the facts of the case. It is true that Article 23 would not be attracted to the facts of the case. The trial Court has fallen in error in holding that Article 23 will have 4 application to the present case. Article 23 speaks of presentation of claim in respect of money payable to the plaintiff for money paid for the defendant and starting point of limitation is from the date of payment of money. As the plaintiffs are claiming recovery of amount from the defendants, on account of the lapses committed by defendant No.2, while functioning as a Managing Director, in my opinion, the first appellate Court was justified in holding that residuary Article 113 shall have an application. The right to sue accrued to the plaintiff when the payment was made i.e. since June to August 1993. The suit, therefore, ought to have been presented prior to August 1996. Admittedly, the suit is presented on 30.12.1996. In these circumstances, it cannot be held that the presentation of the suit by the plaintiff is within the prescribed period of limitation. The Courts below, therefore, were justified in holding that the suit presented by the plaintiff is beyond the period of limitation. 7. In the circumstances, the appeal does not call for interference in exercise of the powers under Section 100 of the Code of Civil Procedure. Further, no substantial question of law has arisen for consideration in the present appeal. 8. In the result, the Second Appeal stands dismissed. No order as to costs. (R.M.BORDE, J.) ... akl