(c-lfc c^ Y-,•€' (^ Z?^° /• BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.) FIRST APPEAL No. l2-o /2010 APPELLANT/ PLAINTIFF ^.y'^ ^••":.'^ ••" ^'^T.-y ^•••'" RESPONDENT/ DEFENDANT Smt. Tapaswani Behra, Wd/o Bairagi Prasad Behra, aged about 51 years, Occupation - House f^M> wife, R/o.^Baikunthpur, Raigarh, Tahsil & District - Raigarh (C.G.) VERSUS Ganesh Ram Hota, S/o. Late Ishwar Prasad Hota, Occupation - Service, R/o. Doctor Das Gali /H^fcA^> - Baikunthpur, Raigarh, Tahsil 85 District - Raigarh (C.G.) . FIRST APPEAL UNDER SECTION 96 OF CODE OF CIVIL PROCEDURE, 1908 HIGH COURT OF CHHATTISGARH AT BILASPUR First Appeal No. 120 of 2010 Appellant Plaintiff Respondent Defendant Smt. Tapaswani Behra VERSUS Ganesh Ram Hota Post for pronouncement ofjudgment on2^ /04/2011 Sd/- N.K.Agrawal Judge '^^'•r^'' 'yt^^y" HIGH COURT OF CHHATTISGARH AT BILASPUR First Appeal No. 120 of 2010 Appellant Plaintiff Respondent Defendant Smt. Tapaswani Behra VERSUS Ganesh Ram Hota (First Appeal under Section 96 of the Code of Civil Procedure) (Sinfifle Bench: Hon'ble Mr. N.K. Afifarwal. J.l Present : Shri Sachin Singh Rajput, Advocate for the appellant. Smt. Hamida Siddique, Advocate for respondent. JUDGMENT (Delivered on^^/04/2011) 1. This is plaintiffs Hrst appeal filed under Section 96 of the Code of Civil Procedure against the order dated 28.08.2010, passed by IVth Additional District Judge, Raigarh, in Civil SuiePNo. 12-B709,-t-whereby^the^-plaintifFs's^it has been dismissed holding it as time barred. 2. Brief facts of the case are: plaintiff instituted a suit for recovery of Rs. 58,000/- along with interest @ 12 percent per annum against the defendant. According to plaintiff, defendant who treats her as sister, showing some necessity, borrowed Rs. 30,000/- from her on 19.11.2004 and executed an agreement. According to said agreement, the amount borrowed was repayable within a p6ri6d bf two months from the date of execution of agreement with interest. Above amount was not paid by him. On 10.09.2005, defendant further borrowed Rs. 28,000/- from her and thus, total amount borrowed l:>y him is Rsl 58,o6b^- and above fe.ct has been mentioned in the same agreement dated 19.11.2004 .^" ru\v vvilrinr ^ ^^~. 11 - ^ 1 ^^:^^... Iffcss&.l r ^ •-;a^j '^,. '^.^" .^^ ^ •^ according to which the amount was repayable along with interest. On 09.09.2009, due to her need plaintiff demanded her money from the defendant. Defendant refused to repay the same. At this juncture, plaintiff issued a notice of demand and thereafter filed present suit for recovery thereof. By Hling written statement, the defendant denied the execution of above agreement and receipt of above amount of Rs. 58,000/-, also raised plea of limitation. Based on pleadings of the parties, the trial court framed issue including the issue "whether or not suit is barred by limitation?\ Plaintiff filed an affidavit under order 18 Rule 4 of CPC on 18.06.2010. At this stage, a prayer was made by the defendant for deciding the issue of limitation as preliminary issue. Plaintiff opposed the above prayer. Trial court heard the issue of limitation as preliminary issue and dismissed the suit holding it as time barred. Hence this first appeal. Shri Rajput, learned counsel appearing for the appellant/plaintiff would submit in the facts and circumstances of the case, issue of limitation is a mbced question of law and fact, matter had already been reached to the stage of evidence, without considering the effect and import of the agreement in question, the issue of limitation cannot be appropriately decided and the trial court has grossly erred in deciding the issue as preliminary issue and in dismissing the suit as time barred. T''"^-, /f^ ^. ^:,/./ ^ ^ 7. On the other hand, Smt. Hamida Siddique, learned counsel appearing for the respondent/defendant would submit: suit, on the face, is barred by limitation under Article 113 of the Act, suit has not been filed within a period of three years from the date of accrues of cause of action, and therefore, order passed by the trial court deserves to be upheld. 8. I have heard the counsel appearing for the parties and perused the order impugned. 9. The trial court, holding Article 113 of the Act applicable in the case, dismissed the suit as time barred. As per Article 113 of the Act, ariy suit for which no period of limitation is g provided elsewhere in Schedule, can be filed within a period of three years when the right to sue accrues. 10. As per Article 19 of the Act, suit can be filed within a period of three years from the date 6f loan for money; payable for money lent. Under Article21 of the Act, suit can be filed within a period of three years when the loan is made for money lent under an agreement that it shall be payable on demand. Under Article 22 of the Act, suit can be filed within a period of three years when the demand is made for money deposited under an agreement that it shall be payable on demand, including money of a customer in the hands of his a.n-: - ••:^ :.'-J'i:iHu inc uaie (n ioai- ior n.i<..!'K-v .-.,\;:n'-!;- • banker so payable. 11. Here in the instant case, what is the nature oftransaction and which Article of Limitation would apply will depend upon the true interpretation of the agreement entered into between the ^..i.ipn-.l. f.:,Ki.(,r ,'vri.rjc ;^^ of t.hc A.ct sii^- <-.n^ j:)(1 iH^.! ;.v,n;' partles in the llght ot evidence that may be adducecl m the case, and therefore, in the facts and circumstances of the case, the ^s, ^. '^•I^ €^ trial court should have decided the above issue after recording evidence and considering the effect and import of agreement alleged to be executed by defendant, and therefore, the trial court has grossly erred in deciding above issue as preliminary issue and thereby dismissing the suit holding suit is governed by Article 113 of the Act. 12. For the reasons mentioned hereinabove, the appeal deservres to be and is hereby allowed. Order impugned dated 28.08.2010 is set aside. The matter is remitted back to the trial court to deicide the suit including issue of limitation after recording :>eil •.. ,--., ^.v-.-.'/:;:'!i bv ' u-ieiida.iit, .t.nd .u'i-r-?s ^•-, :!- evidence of the parties on its own merits in accordance with law. However, it is made clear that this court has not expressed any opinion regarding limitation and applicability of a particular provision. ri-i,- —,.snns,^i^n-^neri h-; ^•U-^bj.vV(/, ;1):, -orH::.: 13. Records of court below be sent back forthwith. 14. Parties are directed to appear before the trial court on 16.06,2011. No order asto costs. §^/_ N.K. Agrawal sahu Jud§e o ^