Canara Bank vs Choice Apparels Pvt. Ltd. and Others

Valmiki J Mehta, J.—This matter is on the Regular Board of this Court since 3.1.2011. Today, this matter is effective item No. 7 on the Regular Board. It is 2:40 pm and none appears for the parties. I have therefore perused the case and am proceeding to dispose of the appeal.

The challenge by means of this Regular First Appeal u/s 96 of the Code of Civil Procedure, 1908 is to the impugned judgment and decree dated 3.4.2001 whereby the suit of the Appellant/bank was partly decreed to the extent of the amounts stated to be due in the acknowledgement of debts letters.

The Appellant/bank filed a suit for recovery of Rs. 2,25,632/- along with pendent lite and future interest @ 21.75% per annum compounded with quarterly rests. The suit was filed for recovery of an amount of Rs. 80,555/-under a bill of exchange, which was discounted on 11.7.1983. The suit was filed on 3.3.1994 i.e. more than 10 years after the discounting of the bill. The Appellant/bank relied upon three acknowledgments of debt dated 8.5.1985 (Ex.PW2/13), 7.4.1988 (Ex.PW3/1) and 4.3.1991 (Ex.PW3/2) to seek extension of period of limitation.

The Trial Court has decreed the suit only for Rs. 13,346.60 paisa with interest with effect from 1.1.1991 inasmuch as in the acknowledgement of debt letter dated 4.3.1991 (Ex.PW3/2), the amount which was stated to be due from the borrower was specifically written to be Rs. 13,346.60 paisa with interest thereafter due from 1.1.1991. 5. The relevant finding of the Trial Court in this regard is contained in issue No. 3 which reads as under:

Issue No. 3

The Plaintiff has filed a suit for recovery of Rs. 2,25,632/-. The case of the Plaintiff bank is that the bill No. FDB-117/83 for Rs. 80,555/- had been discounted by Plaintiff bank on 11.7.83. The suit has been filed by the Plaintiff bank on 3.3.94. The Plaintiff bank is claiming extension of limitation on the basis of acknowledgment of debt dated 8.5.85, 7.4.88 and 6.3.91 by the Defendants. The case of the Plaintiff bank in respect of Rs. 13,346.60 p. which has been acknowledged vide letter dated 6.3.91 Ex.PW3/3/ is within limitation. On behalf of the Plaintiff bank it has been submitted that regarding the plea of time barred claim of the Defendants, the bank has proved loan documents dated 6.5.82, discounting of documents on 11.7.83, further acknowledgment of debts on 8.5.85, 7.4.88 and 6.3.91 which the Defendant have failed to rebut. The filling of the amount was of Rs. 37,114.03 p. with interest due from 30.4.85 in acknowledgment of debt dated 8.5.85 and of Rs. 13,346.60p. with interest w.e.f. 1.9.91 in acknowledgment of debt dated 6.3.91 was wrongly done. The amount of Rs. 37,114.03 p. and Rs. 13,346.60 p. was filled up as the said amounts were due on dates mentioned in acknowledgments but in fact these were excluding interest from 11.7.83. The amount of interest was not debited uptill 31.3.91 and it was debited only on 31.3.91 for almost eight years which amounted to Rs. 1,00,467.40p. The mistakes done in acknowledgment is genuine and bonafide which can be very well explained when read with statement of account filed by band which is duly certified under Banker''s Books of Evidence Act and proved. Hence, the suit is not time barred. On behalf of the Defendant it has been contended that the claim of the Plaintiff only to the extent which has been acknowledged vide Ex.PW3/3 is within time and rest of the claim is not within limitation. Ld. counsel for the Defendant has relied upon Bindeshwari Prasad Vs. District Board of Saran, wherein it was held as under:

When, therefore, the Plaintiff submits his bill for a certain amount of money, for work done, to the Defendant, and the Defendant passes the bill for a lesser amount and disallows the Plaintiff''s claim for the rest and expressly denies and repudiates its liability in respect of the remaining amount of the bill, the mere fact that the Defendant passes the bill for a lesser amount and thereby admits its liability to pay the sum allowed, cannot amount to an acknowledgment of its liability to the Plaintiff to pay also the balance amount of the bill which was expressly disallowed.

It is present case the acknowledgment Ex.PW3/3 specifically provides that Defendant No. 1 is acknowledging the liability of Rs. 13,346.60p. only under the said guarantee which includes interest, charges etc, upto 31.12.90. When the amount of Rs. 13,346.60p. has been mentioned in Ex.PW3/3 including the interest upto 31.12.90, there is no force in the plea of the ld. counsel for the Plaintiff that it did not include the interest and plea of the Plaintiff has to be rejected. The suit of the Plaintiff is within time only in respect of the amount mentioned in Ex.PW3/3 and rest of the claim is barred by limitation.

I have myself examined all the three acknowledgements of debts. In the last acknowledgement of debt dated 4.3.1991 it is very clearly written that the amount due is only Rs. 13,346.60 paisa with interest from 1.1.1991. In view of this categorical figure mentioned in the acknowledgement of debt, the Trial Court has rightly decreed the suit only for that amount. The Trial Court was justified in returning the finding that an amount of Rs. 13,346.60 paisa cannot swell up from 1.1.1991 with interest into the huge suit amount of Rs. 2,25,632/- when the suit was filed on 3.3.1994 i.e., just about 3 years later.

This Court is not entitled to interfere with the findings of the Trial Court, where two views are possible and the Trial Court adopts one plausible view, unless the view taken by the Trial Court is wholly illegal and perverse. I do not find any illegality or perversity in the impugned judgment and decree which calls for interference by this Court in appeal. The appeal being without merits is therefore dismissed, leaving the parties to bear their own costs. Trial Court record be sent back.