1 SA 59.2006 ARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 59 OF 2006 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mrs. Vaishali Patil Jadhav,Advocate for the appellant. Mr.A.S.Bajaj, Advocate for respondent. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 24/03/2011 PER COURT : 1. This is defendant’s Second Appeal. 2. The plaintiff/respondent had filed Suit for recovery of its dues pending since 1981 to 1985. The trial Court decreed the suit. The defendant preferred Appeal. The appellate Court dismissed the Appeal confirming the Judgment and Decree passed by the trial Court. The defendant has assailed the said Judgment in the present Second Appeal. 3. Mrs. Vaishali Patil Jadhav, the learned counsel for the appellant contends that in fact, the 2 SA 59.2006 Suit was not within limitation. The recovery was for the period from 1981 to 1985 and the Suit was filed in 1985. The learned counsel further contends that the acknowledgment given after the filing of the Suit can not extend the period of limitation as the acknowledgment within the meaning of Section 18 of the Limitation Act has to be prior to the lapse of limitation period. The learned counsel further contends that no notice under section 164 of the Maharashtra Co-operative Societies Act was given as the consumption of electricity was for the purpose of business of the Society and it will have to be construed that the same was touching to the business of the society. 4. Per contra, Mr. A.S.Bajaj, the learned counsel for the respondent submits that Exh. 216 can be construed as a promise to pay the debt under Section 25 (3) of the Indian Contract Act, 1872. As it was an unequivocal promise to pay the debt, the limitation stood extended. The previous acknowledgment was given in March 1985 i.e. prior to the filing of the Suit. The Courts below have taken into consideration all these aspects. Non payment of electricity dues can not be construed as touching the business of the appellant/society. 3 SA 59.2006 5. With the assistance of the learned counsel, I have gone through the Judgments. 6. The issue on which the defendant had contested the Suit was of limitation and notice under section 164 of the Maharashtra Co-operative Societies Act not being issued. The Courts have taken into consideration the fact that the said acknowledgment in fact tantamounts to the promise and in such circumstances the same would be within the realm of Section 25 ( 3) of the Contract Act and not under Section 18 of the Limitation Act. In view of the fact that the same was promise to pay the debt, the argument of the learned counsel for the appellant that the same was before the lapse of limitation period, would not be sustainable. More over, the recovery of the amount of its dues by the M.S.E.B. can not be construed as touching to the business of the society. 7. The Courts below have properly scanned the evidence and dealt with the matter. The Second Appeal being devoid of any substantial question of law, as such is dismissed, however with no order as to costs. 8. In view of dismissal of Second Appeal, the 4 SA 59.2006 Civil Application does not survive and is dismissed. 9. At this stage the learned counsel for the appellant states that the appellant have moved for compromise of the matter with the respondent. The compromise between the parties is a contract between the parties. The same is the concern between the parties interse and not concerned with the decision of the case. The amount of Rs. 1,00,000/- ( Rupees One Lac only ) which is deposited can be considered in amount of settlement if the parties so desire. In view of the dismissal of the Second Appeal, the respondents are entitled to withdraw the amount deposited along with accrued interest. [ S.V. GANGAPURWALA,J. ] KNP/SA 59.2006