1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. APPEAL (L) NO. 747 OF 2008 IN SUIT NO. 2707 OF 2003 Chandra Valli s/o. Kailashpati Mishra .. Appellant Vs Hanumanta G. Kamble .. Respondent Ditendra Mishra for the Appellant CORAM : B.H. MARLAPALLE & C. L. PANGARKAR,, JJ. DATE : 10th February, 2010 P.C.: 1. This Appeal is directed against the Judgment and Order dated 18.07.2008 passed in Suit No. 2707 of 2003 thereby dismissing the said suit on the ground of limitation. 2. It was the case of the Plaintiff that he had advanced a friendly loan to the Respondent – Defendant in different installments and thus, the total sum of loan amount comes to Rs. 92,626/-. The Defendant had agreed to pay the interest at the rate of 24% per annum. The suit was filed on or about 05.06.2003 as against the loan amount receivable by 19.03.2000. The learned trial Judge framed the following issues : 5a.app747-08 2 (1)Whether the Plaintiff had advanced monies to the Defendant? (2)Whether the Defendant was liable to pay the monies to the Plaintiff? (3)Whether the suit filed by the Plaintiff is within the period of limitation? The first two issues were answered in affirmative, whereas the issue of limitation was answered in negative and the learned trial Judge held that the suit was filed beyond limitation and consequently, the suit was dismissed. 3. The transaction of the alleged loan with the respective dates payable were as under: Sr. No. Date of the Transaction Monies payable on 1 16.06.99 15.12.99 2 14.05.99 14.09.99 3 29.06.99 29.12.99 4 03.08.99 03.02.00 5 19.09.99 19.03.00 There was one transaction on 16.08.99 where there was no period specifically fixed so as to return the money by the Defendant. 4. In support of the plea of limitation and on the ground that the suit was filed within the prescribed period of limitation i.e 3 years, it was contended that the interest amounts were paid from time to 5a.app747-08 3 time and if the last date of the interest paid is taken into consideration, the suit was within the period of limitation. The learned trial Judge examined this contention as well and noted that there was no record to show that the last acknowledgment of payment of interest was made by the Defendant so as to commence the limitation from such date. As per the Plaintiff alone, the dates on which the amount of interest was paid by the Defendant was shown as under : Sr. No. Amount of the Dates on which the Interest amounts of interest is given by the Defendant to the Plaintiff --------- ------------------- -------------------------------- 1. 955.00 22.08.99 2. 3,000.00 20.12.99 3. 2,000.00 07.11.00 4. 300.00 17.02.00 5. 200.00 February, 2001 -------------- 6,455.00 Total Interest ====== This statement by itself did not indicate any acknowledgment by the Defendant so as to give the benefit of the proviso below section 19 of the Limitation Act to the Plaintiffs. 5. The learned trial Judge relied upon a decision of this Court in case of Dalichand Jugraj Jain Vs. Madhoo Wool Spinning Mills & Ors 5a.app747-08 4 [ 2000(3) MLJ 843] and the learned Trial Judge observed thus:- “Even if the word of the plaintiff that certain amount was paid towards the interest is accepted still the plaintiff has not been able to produce any document which can be termed as acknowledgment of payment in the handwriting or in the writing signed by the person making the payment i.e the defendant in the aforesaid case. In the absence of such acknowledgment of payment plaintiff would not be entitled to get the benefit of provisions of Section 19 and therefore in the present case, the plaintiff would not be able to say that the period of limitation stood extended from the time when the interest is paid by the defendant to the plaintiff between the period February 2000 to December 2001.” 6. We do not find any error in the reasoning set out by the learned trial Judge to hold that the suit was filed beyond limitation and hence, this Appeal must fail at the threshold. 7. In view of the above, the Appeal is dismissed. [C.L. PANGARKAR, J.] [B.H. MARLAPALLE, J.] 5a.app747-08 5 5a.app747-08