Sekhar Banik vs Keshab Banik

S. Talapatra, J.—1. Heard Mr. D. Chakraborty, learned senior counsel assisted by Mr. H. Laskar, learned counsel appearing for the appellant as well as Mr. D.C. Roy, learned counsel appearing for the respondent.

This is an appeal from the judgment dated 17.03.2012 delivered in Money Appeal No. 10 of 2011. The respondent instituted a suit in the court of the Civil Judge, Junior Division, Court No. 1, Agartala being Money Suit 09 of 2008 for realisation of a sum of Rs. 1,00,000/- from the appellant.

The respondent as the plaintiff stated in the plaint that of paying back the amount within March, 2005, the respondent extended a loan of Rs. 1,00,000/- to the appellant, the defendant of the suit. But on his demand on expiry of the due date the appellant failed to repay the said loan amount. After much insistence a cheque of Rs. 1,00,000/- under No. 3389012 dated 02.09.2005 drawn on Punjab and Sindh Bank, was issued by the appellant Agartala, in favour of the respondent and the cheque was deposited for encashment. The said cheque was bounced. The bank had shown the reasons that the cheque was irregularly drawn exceeding the arrangement meaning for insufficiency of fund. A criminal proceeding was also launched against the appellant by the respondent under Section 138 of the Negotiable Instrument Act. But ultimately that complaint was not persued. On the basis of the pleadings, the following issues were framed by the trial court:

"i) Whether the suit is maintainable in law and form;

ii) Whether the plaintiff is entitled to realization of Rs. 1,00,000/- from the defendant;

iii) Whether the plaintiff is entitled to the decree as prayed for in this suit or any other relief or reliefs."

After recording evidence, the suit was allowed and decree for recovery of the said sum was passed following the judgment dated 31.05.2011 in Money Suit No. 09 of 2008. On questioning the said judgment and decree, the appellant herein fled the appeal under Section 96 of the CPC being Money Appeal No. 10 of 2011 in the court of the District Judge, West Tripura, Agartala. The said appeal was in the course of the time, transferred to the court of the Addl. District Judge, Court No. 4, West Tripura, Agartala for disposal in accordance with law. By the impugned judgment dated 17.03.2012, the appeal was dismissed by the Additional District Judge holding that the respondent has sufficiently proved that the money was lent out and the appellant did not repay in terms of the condition for such loan. The first appellate court applied the prescription as provided under Section 139 of the Negotiable Instrument Act for drawing presumption as to the liability and relied on the apex court decision in Krishna Janardhan Bhat vrs. Dattatraya G. Hegde reported in , 2008(4) SCC 54. The appeal challenging that judgment was admitted by this court on 30.03.2012 formulating the following substantial question of law:

"Whether the plaintiff is entitled to a decree in absence of evidence relating to the amount of the dishonoured cheque allegedly borrowed by the defendant from the plaintiff."

However, the appellant was given liberty to raise any other substantial question of law at the time of hearing.

Mr. D. Chakraborty learned senior counsel appearing for the appellant at the outset submitted that the suit is hopelessly barred by limitation as Article 19 of the Schedule to the Limitation Act specifically provides that for money payable for money lent, the limitation is three years from the date when the loan is made. According to the plaintiff the loan was made on 22.11.2004 and as such three years expired on 21.11.2007, whereas the suit was fled on 27.08.2008, much after the period of limitation for fling the suit of this category had expired.

Mr. D. Chakraborty, learned senior counsel has further submitted that aspect of the matter was not examined by the trial court in terms of Section 3 of the Limitation Act and on such premises he has emphatically contended that the primary duty lies with the trial court to find whether the suit has been fled within the period of limitation or not, irrespective of whether such objection has been raised by any party in the suit. Mr. Chakraborty, learned senior counsel has submitted that the substantial question of law on that aspect was not agitated at the time of admission. But in view of the leave granted by the court he has pressed this question on limitation as it evinces form the records that the suit is barred under Section 3 of the Limitation Act. No civil court can adjudicate the dispute as displayed in the suit in that event. The primary condition for adjudication is to that the suit should be fled within the period of limitation, unless of course any discount is made in terms of the provisions of Section 14 of the Limitation Act.

Mr. Roy, learned counsel appearing for the respondent has strongly submitted that the issue of limitation was never raised by the appellant, the defendant in the suit before the trial court and the issue of limitation being a mixed question of fact in law should not be allowed to be raised for the first time in the second appeal.

For purpose of a prima facie opinion this court has examined the records of evidence. It clearly transpires that the respondent has categorically stated in para-2 of the plaint as under:

"That the defendant requested the plaintiff to give him Rs. 1,00,000/- (Rupees one lakh) only as loan for the purpose of his marriage on 22.11.2004."

Therefore, the money was lent, as admitted by the plaintiff, on 20.11.2004 and that in terms of the Article 19 of the Schedule of the Limitation Act that day would be the starting day for purpose of counting the limitation.

Mr. D.C. Roy, learned counsel appearing for the respondent is to some extent correct that usually this court does not allow the parties to raise any question of this in the second appeal. But prima facie and on the basis of the statement made by the plaintiff this court finds that there is least dispute about the day of extending the loan and as such this court frames the additional substantial question of law which runs as under:

"Whether for non-examination that under Section 3 of the Limitation Act, whether the trial court as well as the first appellate court have acted against the provisions of law as embodied in Art. 19 of the Appendix to the Limitation Act, 1963."

In view of the statement made in para-2 of the plaint this court does not have any reluctance to hold that the respondents cannot be allowed to say any other date for purpose of calculating the period of limitation, unless of course it is established that he is entitled to get discount under Section 14 of the Limitation Act.

Having regard to this aspect of the matter, this court is of the considered opinion that this appeal should not be decided on merit rather ends of justice would meet if the impugned judgment dated 17.03.2012 along with the judgment dated 31.05.2011 passed in Money Suit No. 09 of 2008 are set aside and the suit is remitted for fresh trial to the trial court. The trial court shall frame an issue on the question of limitation along side the other issues. The trial court may also frame the preliminary issue on limitation. The suit shall be disposed in accordance with law.

Having held so, this appeal stands allowed to the extent as indicated above. The suit is remanded for fresh trial in terms of the above. Prepare the decree accordingly and send down the records thereafter. The Fixed Deposit Certificate bearing No. SSP/FD/881171 dated 10.05.2012 deposited in this court by the appellant on 30.07.2012 for Rs. 1,00,000/- shall also be sent with the records under a sealed cover and the release of the fixed deposit certificate would be subject to the outcome of the suit.