Jogindera Central Cooperative Bank Ltd. vs Kamlesh Kumar Gupta

Kuldip Singh, J.—This appeal has been directed against judgment, decree dated 11.4.2000 passed by learned Addl. District Judge, Solan in Civil Appeal No. 28-s/13 of 1999 affirming judgment, decree dated 28.12.1998 passed by learned Senior Sub Judge, Solan in Civil Suit No. 181/1 of 1990, dismissing the suit of the appellant for recovery of Rs. 24,504.22 along with interest.

The case of the appellant is that respondent had availed over draft facility from the appellant. The respondent had deposited Rs. 5283.32 on 13.3.1987, Rs. 1056.66 on 13.3.1987, Rs. 8,000/- on 22.4.1987, Rs. 10,000/- on 30.6.1987 and Rs. 9,973/- on 21.3.1988. The balance amount recoverable from the respondent is Rs.24,504.22 alongwith an amount of Rs. 11169.25 on account of interest. The respondent has failed to pay the amount and therefore, the suit was filed in which future interest at the rate of 17 1/2% per annum was also claimed.

The respondent had contested the suit by filing written statement and denied the claim of the appellant. The replication was filed in which defence projected by the respondent was denied and case put up by the appellant was reiterated. On the pleadings of the parties, the following issues were framed:

Whether the plaintiff is entitled to recover the suit amount from the defendant alongwith interest at the rate of 17 1/2 % per annum as alleged?....OPP

Whether the suit is within limitation? ....OPP

Relief.

The issues No. 1 and 2 were answered in negative and the suit was dismissed on 28.12.1998. In appeal on 11.4.2000 the learned lower appellate Court has afirmed the judgment, decree dated 28.12.1998. Hence, second appeal which has been admitted on following substantial question of law:

Whether the judgment and decree is the result of complete misreading, misinterpretation as well as misappreciation of Ex.PW-2/A and Ex.PW-1/D?

I have heard learned Counsel for the parties and have also gone through the record. It has been submitted on behalf of the appellant that the two Courts below have misread, misinterpreted Ex.PW-2/A and Ex.PW1-D. The appellant has pleaded various payments made by respondent in paragraph-4 of the plaint which has not been denied specifically by respondent in the written statement. In absence of specific denial, the averments regarding specific payments made in paragraph-4 of the plaint shall be deemed to have been admitted by respondent. The learned Counsel for the appellant has relied judgment dated 3.3.1999 in FAO No. 274/94.

It has been submitted on behalf of the respondent that Ex.PW-2/A and Ex.PW-1/D have been rightly appreciated by the two Courts. The Courts below have recorded a finding of fact that the suit of the appellant is not within limitation. The respondent has denied paragraph-4 of the plaint repeatedly in paragraph-4 of the written statement. It has been submitted that there is no substantial question of law involved in the appeal. The learned Counsel for the respondent has relied M/s. Domebell Investments Pvt. Ltd. v. Thakur Enterprises and Anr. 1999 (2) Shim LC 457.

The appellant in paragraph-4 of the plaint has alleged deposit of various payments in the account by respondent. The respondent in paragraph-4 of the written statement has stated that contents of paragraph-4 of the plaint are wrong and denied. The respondent has also pleaded in paragraph-4 of the written statement that amount mentioned in paragraph-4 of the plaint is wrong, the appellant has wrongly calculated the interest on quarterly basis. The appellant has prepared a wrong statement of account. The amount shown in the plaint and claimed by the appellant is not correct. The respondent has ultimately pleaded that rest of the para-4 is wrong and denied. Thus it cannot be said that respondent has not denied the payments alleged in paragraph-4 of the plaint.

The appellant is claiming extension of limitation u/s 19 of the Limitation Act, 1963 (for short Act) on the basis of part payment made by the respondent, Section 19 of the Act is as follows:

Effect of payment on account of debt or of interest on legacy.- Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorized in this behalf, a fresh period of limitation shall be computed from the time when the payment was made:

Provided that, save in the case of payment of interest made before the Ist day of January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment,-Explanation.- For the purposes of this section,-

(a) where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment;

(b) "debt" does not include money payment under a decree or order of a Court.

In order to appreciate the submissions of learned Counsel for the appellant it is necessary to refer to Ex.PW-2/ A and Ex.PW1/D. Ex.PW-2/A is the voucher showing the deposit of an amount of Rs. 10,000/- on 30.7.1987. PW-2 Kamlesh Kumar, Manager, Jogindra Cooperative Bank Ltd. has stated that this amount was deposited by Amar Nath Gupta father of respondent. There is no material on record to show that Amar Nath Gupta was the authorized representative of respondent to deposit any amount in the account of respondent nor it is the case of the appellant that Amar Nath Gupta was authorized by respondent to operate his bank account. In these circumstances, the alleged deposit made on 30.7.1987 in the account of respondent vide Ex.PW-2/A cannot be said to be made on behalf of respondent and it will not extend the limitation for filing the suit.

The appellant in paragraph-7 of the plaint has pleaded that cause of action for filing the suit has arisen on 21.3.1988 when the respondent had lastly made deposit of Rs. 9973/-. This pleading is not inconsonance with order 7 Rule 6 CPC where specific pleading is required for exemption from limitation. Ex.PW-1/D is the statement of account of respondent. The appellant has relied entry dated 21.3.1988 in Ex.PW-1/D showing deposit of Rs. 9973/-. The respondent has not stated or admitted that amount of Rs. 9973/- was deposited by him. The onus of issue No. 2 of limitation was on appellant, therefore, it was for appellant to discharge the onus. PW-1 Ishwari Dutt Swami has stated that on 21.3.1988 an amount of Rs. 9973/- was deposited through cheque. The said cheque has not been placed on record. In these circumstances, it cannot be said that respondent had deposited an amount of Rs. 9973/- in the account on 21.3.1988.

The part payment of the debt u/s 19 of the Act must be by the debtor or his authorized representative. The unauthorized amount deposited by some stranger or unauthorized person cannot extend the limitation, otherwise it is very simple to extend the limitation by arranging some deposit in the account from some third person. In addition, it has been held in M/s Dombell Investments that mere deposit of amount in the account would not extend the period of limitation unless the second requirement u/s 19 of the Act of written acknowledgement is also fulfilled. In the present case, it is not the case of the appellant that while depositing Rs. 9973/- the written acknowledgment was also made by the respondent. Thus, it cannot be said that limitation was extended for filing the suit on the basis of entry dated 21.3.1988 in Ex.PW-1/D. The judgment dated 3.3.1999 relied by learned Counsel for the appellant in FAO No. 274/99 is not applicable in the facts and circumstances of the case in as much as in the present case it has not been established that the aforesaid two amounts mentioned in Ex.PW-2/A and Ex.PW-1/D were deposited at the instance of respondent in his bank account.

The two Courts below have rightly appreciated the material on record. The view taken by the two Courts below emerges from the evidence on record. In second appeal, the evidence cannot be re-appreciated. The aforesaid substantial question of law is decided against the appellant. The result of the above discussion, appeal fails and is accordingly dismissed.