HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO A.S. No.443 of 1991 Date: August 01, 2011 Between: Dharma Cheruvu … Appellant And 1. Davuluri Sitaramayuya & 2 others … Respondents * * * HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO A.S. No.443 of 1991 JUDGMENT: The plaintiff in O.S. No.30 of 1985 on the file of the Subordinate Judge, Tenali, is the appellant herein. The suit was filed for recovery of a sum of Rs.40,959.44 ps. being the amount of maktha payable by the first defendant for the lands auctioned on 26.6.1978 for a period of one year for 1978-’79. The first defendant became the highest bidder agreeing to pay 51 bags of paddy and has taken possession of the property and the maktha is payable on or before 31st March of the succeeding year. Defendants 2 and 3 are the guarantors for the above maktha. The first defendant having cultivated the land made payment of Rs.45/- on 30.11.1982 which was appropriated for the earlier years and subsequently the first defendant also paid a sum of Rs.1,500/- on 21.11.1983 and these amounts were also appropriated towards the earlier maktha payable by the first defendant. Therefore the suit is in time and the defendants are liable to pay the said amount. 2. The first defendant filed a written statement denying the liability of paying interest. The first defendant seriously disputed the contention of the plaintiff that the payments dated 30.11.1982 and 21.11.1983 were payments towards the earlier maktha periods and the plaintiff has no right to appropriate the same. Further, the first defendant never authorized for such apportionment of the debt and therefore the suit is liable to be dismissed. Several other contentions about the liability and the value of the paddy were also raised. 3. On the above pleadings, the lower court framed the following issues: 1. Whether plaintiff is entitled to interest? 2. Whether the rates of paddy are correct? 3. Whether claim for maktha for 1978-79, 1979-80, 1980-81 and 1981-82 is barred by time? 4. Whether the acknowledgment by first defendant are created by Executive Officer over the signatures of the first defendant? 5. Whether the second defendant is not liable to pay maktha? 6. To what relief? 4. On behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A-1 to A-12 were marked. On behalf of the defendants D.W.1 was examined and Exs.B-1 and B-2 were marked. 5. After considering the evidence on record, the learned Subordinate Judge, Tenali, found that the plaintiff’s claim of payments on 30.11.1982 and 21.11.1983 and apportionment of the same towards the earlier maktha is not valid and therefore held that the suit of the plaintiff in so far as it relates to the claim for the maktha of the years 1978 to 1982 are barred by time and however decreed the suit of the plaintiff for the years 1982-‘83 and 1984-‘85. Aggrieved by the said judgment, the present appeal is filed. 6. The points that arise for consideration in this appear are as hereunder: (1) Whether the claim of the plaintiff for recovery of the maktha for the years 1978 to 1982 is barred by time? (2) Whether the payments dated 30.11.1982 and 21.11.1983 saves limitation and authorization of the plaintiff to apportion the payment of earlier dues? (3) Whether the judgment and decree passed by the learned Subordinate Judge is legal and sustainable? (4) To what relief? 7. Point Nos.1 to 3: At the outset, it is not seriously disputed that the first defendant cultivated the lands and also was in arrears of the maktha. So far as the decree passed against the first defendant for the years 1982-83, 1984-85 is concerned, no appeal was filed by the first defendant. The whole dispute in this case depends upon the nature of Exs.A-2 and A- 3. If Exs.A-2 and A-3 were discarded by the lower Court are to be taken as not benefiting the plaintiff, then there are no grounds to interfere with the judgment of the lower Court. But however, the learned counsel for the appellant contends that under Section 59 of the Contract Act when there is no specific direction by the debtor as to the nature of the payment of the amount due under a debt, even for a time barred debt, the creditor has got a right to apportion the same and therefore in this case the said payments were apportioned to the earlier years. He relied upon the decision in State of Gujarat v. Bank of Baroda[1] and M/s. Industrial Credit and Development Syndicate now called I.C.D.S. Ltd., v. Smt. Smithaben H. Patel[2]. 8. Before accepting the legal contention of the appellant, the Court has to first consider as to whether the endorsements on Exs.A-4 and A-5, which were said to be the acknowledgments made by the first defendant on the reverse of Exs.A-2 and A-3 are true. If Exs.A-4 and A- 5 are true, the law as relied on by the appellant need not be looked into, because it has to be taken as authorization given by the first defendant for the apportionment to the previous years. Therefore, the contention of the first defendant which was accepted by the lower Court that he has only put his signature under Exs.A-4 and A-5 and the apportionment was subsequently manipulated by the executive officer to be taken as true or not. Evidently, the counterfoil of the receipt was given to the defendant and one of it was marked as Ex.B-2. It does not contain any endorsement as on Ex.A-4 or Ex.A-5. 8. The most important circumstance which has to be looked into is prior to the filing of the suit, a legal notice was said to have been emanated from the plaintiff and it was marked as Ex.A-6. The existence of Exs.A-4 and A-5 endorsements with regard to the apportionment was not mentioned in the legal notice as found by the lower Court. If really, the first defendant has authorized the plaintiff to apportion those amounts for the earlier years and also has signed under Exs.A-4 and A-5 giving such permission, the plaintiff would not have failed to mention the same in the legal notice. Added to that, in order to show that in pursuance of the apportionment agreed by the first defendant, the amounts have been credited to the previous years, it is the duty of the plaintiff to show that the accounts reflect the same. But for the reasons best known to the plaintiff such accounts were not exhibited before the Court. These two circumstances give credence to the contention of the first defendant that he has only signed on the original of the receipts as receiving of the counterfoil after payment and since the lower Court has appreciated the evidence and found the evidence of the plaintiff is not convincing and there being no reason to discredit the contention of the first defendant, particularly when important documents to support the contention of the appellant are not forthcoming, I do not find any reason to interfere with the judgment of the lower Court. Therefore the points are answered accordingly. 9. Point No.4: In the result, the appeal is dismissed, but in the circumstances, no order as to costs. ____________________________ N.R.L. NAGESWARA RAO, J Date: August 01, 2011. BSB [1] AIR 1997 Gujarat 130 [2] AIR 1999 Supreme Court 1036