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 SUIT NO.2707 of 2003. SUIT NO.2707 of 2003. SUIT NO.2707 of 2003. Chandra valli s/o. Kailashpati Mishra res. at B-2-1-7, Sector XXIII, Jui Nagar, New Bombay 400 705 ..Plaintiff versus Hanumanta G. Kamble Block No.5, Quarter No.104, R.B.t. Co-op. Hsg. Soc. Ltd., New Chickubari, Mankhurd (West), Bombay 400 043 ..Defendant Mr.Ditendra Mishra for the Plaintiff None for the Defendant CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 18th July, 2008. DATED : 18th July, 2008. DATED : 18th July, 2008. JUDGMENT. JUDGMENT. JUDGMENT. 1. The plaintiff has filed this suit against the defendant so as to recover from the defendant a sum of Rs.92,626/- along with interest at the rate of 24% per annum on Rs.54,000/- from the date of filing of the suit till realisation and for costs. The defendant was served with the Writ of Summons. He has not filed written statement. Few facts necessary for the disposal of the suit are as -2- under: 2. It has been the case of the plaintiff that the plaintiff advanced to the defendant Rs.5000/- on 16.6.1999, Rs.20,000/- on 14.5.1999, Rs.5000/- on 29.6.1999, Rs.20,000/- on 3.8.1999, Rs.2,000/- on 16.8.1999 and Rs.2,000/- on 19.9.1999. According to the plaintiff, at the time of advancing money, on every occasion the defendant had executed a document in a nature of receipt thereby admitting that the respective amount mentioned in the receipt was received by him and that the same would be paid to the plaintiff. Out of the aforesaid six transactions, with regard to transaction dated 29.6.1999 the defendant has agreed to pay interest at the rate of 18%. Same is the position with regard to the transaction which according to the plaintiff was entered into on 19.9.1999. In rest of the transactions there is no mention about the payment of interest by the defendant and as such the said advancement of money will have to be taken without making the defendant liable to pay interest. 3. In each of the transaction as to when the -3- monies are to be repaid is specifically set out in the respective document and on perusal of the same one can observe following particulars. So far as the transaction dated 16.6.1999 monies were to be repaid after six months i.e. on 15.12.1999. With regard to transaction of 14.5.1999 monies were to be repaid on fixed dated i.e. on 14.9.1999. In the other four transactions, except the transaction of 16.8.1999 wherein there is no fixed period of payment of money, monies were to be repaid within 6 months i.e. the dates on which the monies were repayable ranged from 15.9.1999 to 19.3.2000. In the present case the plaint came to be lodged on 5.6.2003. 4. Since the defendant has not filed written statement there was no occasion for the court to frame formal issues. However, the court is required to give its finding on the following questions. i) Whether the In the plaintiff had advanced affirmative monies to the defendant? -4- ii) Whether the In the defendant was liable affirmative to pay monies to the plaintiff? iii Whether the In the suit filed by the negative plaintiff is within the period of limitation ? iv What Order? As per final Order Answer to each of the point is mentioned against the respective point. 5. The plaintiff has filed evidence affidavit and has relied upon the six documents said to have been executed by the defendant in favour of the plaintiff, evidencing payment by the plaintiff to the defendant and the promise given by the defendant to the plaintiff with regard with the -5- repayment. 6. Plaintiff has at paragraph 11 stated that the defendant had paid interest of Rs.6455/- till February 2001. In paragraph 12 the plaintiff has stated that the defendant has paid Rs.6300/- by way of interest during the period 2000 to December 2001. With this the plaintiff has instituted the present suit. 7. In so far as the question of institution of suit within the period of limitation, the plaintiff has averred in paragraph 21 that the present suit is filed within the period of limitation. 8. With the assistance of learned Advocate Mr. Mishra, appearing on behalf of the plaintiff, I have gone through the record and I have understood the submissions made by the learned Advocate Mr.Mishra. Learned Advocate Mr. Mishra submitted that the defendants having paid interest to the plaintiff, as stated in paragraph 11 and 12 of the evidence affidavit the defendant has admitted the liability to pay the amount and therefore the Court should pass the decree in favour of the plaintiff. -6- Learned Advocate Mr. Mishra submitted that the said summons was served upon the defendants and the evidence of plaintiff. As the defendant has not filed written statement and as there is no cross examination on behalf of the defendant the case of the plaintiff has gone unchallenged and therefore the plaintiff is entitled to the relief as prayed for. 9. The learned Advocate Mr. Mishra appearing on behalf of the plaintiff had taken me through the record and submitted that the defendant has accepted the liability to pay the principal amount and interest whatsoever mentioned and therefore the claim of the plaintiff is made out. He pressed for decree in terms of the suit. 10. I have perused the evidence and have taken into consideration the respective dates. If one peruse the different dates on which the respective amount was advanced with regard to the respective transactions and the date on which the monies were liable to be paid as per the text of the respective documents, it will be clear that for the transaction of 16.9.1999 monies were payable on -7- 15.12.1999, for the transaction of 14.5.1999 the monies were payable on 14.11.1999, for the transaction of 29.6.1999 the monies were payable on 29.12.1999 along with interest, for the transaction of 3.8.1999 monies were payable on 3.2.2000. For the transaction of 16.8.1999 since no period is specifically fixed, there was no date on which the monies to be paid by the defendant. For the transaction of 17.9.1999 monies were payable on 19.3.2000. If one considers the relevant dates on which the monies were to be paid by the defendant and applying provisions of the Indian Limitation Act, it would be clear that in so far as the transaction dated 16.6.1999, 14.5.1999, 29.6.1999, 16.8.1999, the same would fall within the parameters of Article 19 and rest of the two transactions namely transaction dated 29.6.1999 and 19.9.1999 would fall within the parameters of Article 22. Reading the provisions of these two articles it would be clear that the respective suit should had to be filed within three years from the dates when the monies were payable as mentioned earlier i.e. to say the date on which the suit were to be filed will be as follows, namely 15.12.2002, 14.11.2002, 29.12.2002, 3.2.2003, -8- 16.8.2002 and 19.3.2003. It is required to be noted that all these so called causes of action were clubbed by the plaintiff and common suit came to be filed by the plaintiff on 5.6.2003. Learned Advocate Mr. Mishra appearing on behalf of the plaintiff made efforts to submit that the composite suit is filed on 5.6.2003. In the absence of written statement and cross examination by defendant, the case of plaintiff about advancement of loan and liability to pay interest has gone unchallenged. The question before the court is whether the institution of this suit on 5.6.2003 is within the period of limitation. 11. Learned Advocate Mr. Mishra appearing on behalf of the plaintiff submitted that as interest has been paid by the defendant to the plaintiff between 2000 to 2001 the period of limitation is extended for a further period from the date of payment of interest and therefore the institution of the suit on 5.6.2003 is within the period of limitation. 12. Learned Advocate Mr. Mishra had relied upon certain judgments in support of his contention -9- that the suit is filed within the period of limitation and other related arguments. He had relied upon the judgments in the case of (i) (i) (i) Madishetti Shekar & Anr. v. Puliyala Komurelli Madishetti Shekar & Anr. v. Puliyala Komurelli Madishetti Shekar & Anr. v. Puliyala Komurelli reported in AIR 2008 A.P. 131 reported in AIR 2008 A.P. 131 reported in AIR 2008 A.P. 131, (ii) Om Prakash and (ii) Om Prakash and (ii) Om Prakash and Ors. v. UCO Bank and Ors. reported in AIR 2005 Ors. v. UCO Bank and Ors. reported in AIR 2005 Ors. v. UCO Bank and Ors. reported in AIR 2005 M.P. 234 M.P. 234 M.P. 234, and (iii) Bank of India v. Sudhir Kumar (iii) Bank of India v. Sudhir Kumar (iii) Bank of India v. Sudhir Kumar Pandey & Ors. reported in AIR 2001 Patna 53. Pandey & Ors. reported in AIR 2001 Patna 53. Pandey & Ors. reported in AIR 2001 Patna 53. These three judgments relate to liability of defendants after the document known as acknowledgement of liability is signed after the period of limitation is over. These judgment are of no avail to the plaintiff as in the present case no document in the nature of acknowledgement of liability is at all signed by the defendant. 13. Learned Advocate Mr. Mishra also relied upon the judgment in case of Hanuman Mal v. Jatan Hanuman Mal v. Jatan Hanuman Mal v. Jatan Mal reported in AIR 2005 Rajasthan 71. Mal reported in AIR 2005 Rajasthan 71. Mal reported in AIR 2005 Rajasthan 71. The said judgment deals with the scope of Section 18 & 19 and the field in which these two sections would operate. In the present case since the defendant has not executed any document as required under Section 19 to extend the period of limitation this judgment would not be applicable to the facts of -10- this case. 14. In so far as the question of extension of period of limitation one will have to refer to the provisions of Section 19 of the Limitation Act. It provides for extension of period of limitation if payment is made on account of a debt. The word debt would undoubtedly include the principal amount as well as the interest and this is clear in view of the judgment of this Court in the case of Angel Angel Angel Infinn Pvt. Ltd. Vs. M/s Echjay Industries Ltd Infinn Pvt. Ltd. Vs. M/s Echjay Industries Ltd Infinn Pvt. Ltd. Vs. M/s Echjay Industries Ltd reported in 2007(4) MLJ 618. reported in 2007(4) MLJ 618. reported in 2007(4) MLJ 618. Even if the word of the plaintiff as set out in para 10 and 11 is accepted that part of the interest is paid by the plaintiff the question is whether the period of limitation will be extended and the answer is in the negative in view of the proviso to Section 19. Detail reading of the provisions of Section 19 would go to show that when a person makes the payment on account of debt before the expiration of the prescribed period of limitation, the fresh period of limitation shall be computed from the time when the payment was made provided the acknowledgement of payment appears in the handwriting of, or in a writing signed by the -11- person making the payment is made. Provisions of Section 19 would clearly go to show that mere payment by the defendant to the plaintiff before the expiration of the period of limitation would not have the effect of extending the period of limitation. The defendant i.e. the debtor has to execute the document which is titled as acknowledgement of payment. If the payment is accompanied by acknowledgement of payment then only the period of limitation shall stand extended. This view of mine is supported by the judgment delivered by this Court in case of Dalichand Jugraj Dalichand Jugraj Dalichand Jugraj Jain vs. Madhoo Wool Spinning Mills & Ors. Jain vs. Madhoo Wool Spinning Mills & Ors. Jain vs. Madhoo Wool Spinning Mills & Ors. reported on 2000(3) MLJ 843. reported on 2000(3) MLJ 843. reported on 2000(3) MLJ 843. 11. With the aforesaid discussion, the question is whether in the present case the period of limitation has been extended. Even if the word of the plaintiff that certain amount was paid towards the 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 -12- acknowledgement 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. In my view, if the plaintiff wanted to have benefit of extension of period of limitation he should have produced the document in the nature of acknowledgement of payment. Hence the stand of the plaintiff that the suit filed is well within the time. Hence I record the finding that the suit is filed beyond the period of limitation. Hence point Nos.1 and 2 will have to be answered in the affirmative and point No.3 will have to be answered in the negative. As a result of above discussion, the plaintiffs suit will have to be dismissed. For the reasons mentioned aforesaid I pass the following decree. i) Suit is dismissed with no order as to costs as the defendant has remained absent at the stage of trial. -13- ( R.Y.Ganoo, J.) ( R.Y.Ganoo, J.) ( R.Y.Ganoo, J.)