State Bank of India vs Hari Datt Sharma and others

Gupta, J.—We have heard Mr. M. P. Gupta, learned counsel for the appellant as well as Mr. D. K. Khajuria, learned counsel for the

respondents in extenso.

This Letters Patent Appeal is directed against the judgment dated 12102000 formulated by the learned single Judge in CIA No. 34/89. By the

aforesaid judgment the learned single Judge dismissed the appeal and upheld the decree and judgment passed by the learned District Judge,

Udhampur dated 2851999.

The appellantBank commenced a suit for recovery of an amount of Rs. 2,47,323/ against the defendantsrespondents. The suit was resisted on

variety of grounds by the respondents in their demur, which became the subjectmatter of the following issues.

Whether the defendant 1 Hari Dutt Sharma executed revival letter and letter of balance confirmation in favour of the plaintiffBank, if so, what is

its effect on the suit? OPP

Whether the vehicle purchased by the defendant was defective and could not be plied on the road and its documents were not renewed after

1983, if so, whether the plaintiff was competent to insure the defective vehicle and charge premium amount from the defendant? OPD

How much money is due to the plaintiff from the defendant? OPP

Relief?

In support of their respective claims the parties examined witnesses, a graphic rmf which has been given by the trial Court in its judgment. After

the evaluation of the facts deposed to by the witnesses examined by the parties, the trial Court returned a finding that though the defendant owes

the suit amount to the plaintiffBank, but his liability cannot be enforced by this action for recovery and dismissed the suit, being barred by limitation.

Assailing the correctness of the decree, the appellant preferred an appeal which too met the same fate and was dismissed by the learned single

Judge, which became the subjectmatter of challenge in this L.P.A.

The sole controversy raised in this appeal is as to whether the revival letters dated 1541993 and 1551993 is a promise to pay and extend the

period of limitation of the defendant which already stands barred by time.

Mr. M. P. Gupta, learned counsel for the appellantBank vehemently urged that the revival letters and the balance confirmation letters having

been duly proved by cogent and sufficient evidence, the suit is well within time. His further submission is that the revival letter dated 1661987 is a

promise and therefore, cannot be taken as acknowledgment and that the same is a revival letter. Respondent No. 1 has admitted his signatures on

the document in question, but the same has not been appreciated in its proper perspective and the view taken by the learned single Judge is not in

accord with the evidence on record and the settled position of law in this behalf.

To appreciate the argument put across by the appellant's counsel, it was imperative to go into the record of the file and the evidence let in by the

parties. The acknowledgment of the balance confirmation letter and the revival letter dated 1551993 has been denied by the defendant. The

defendant has emphatically denied the contents of the revival letter dated 1661987, though admitted his signatures. Even the evidence produced by

the appellant to prove the revival letter stated least of having been executed by defendant/respondent No. 1. It is also in the evidence of

respondent No. 1 that though his signatures on document dated 2031985 exist but stated to have signed it in the year 1981, when the loan was

sanctioned. In the same manner he also admitted his signatures on the letter dated 2031985, but stated to have signed in the year 1981. The

appellant/plaintiff however by adducing evidence proved the execution of only documents which are revival letters dated 1541993 and 1551993,

but the question is as to whether the execution of revival letters dated 1541993 and 1551993 extend the period of limitation unless the execution of

the revival letter dated 1661987 is proved. The plaintiff/appellant however did not produce any evidence to prove the execution of the

acknowledgment dated 1661987 when its execution has been denied unequivocally by defendant/respondent No. 1, the defendant/ respondent

No. 1 is, however, stated to have admitted his liability in terms of the revival letter dated 1661987. But this document does not make mention of

any amounts outstanding against defendant/respdt. No. 1. The document dated 1661987 even does not mention the names of the parties besides

the amount stated to be outstanding against defendant/respdt. No. 1 though it makes reference to some hypothecationcumguarantees dated

1871981. This document is stated to be an acknowledgment of the defendant. But such an acknowledgment is devoid of any legal value being the

column of the amount and debt unfilled.

It is, therefore, undisputably gatherable from the evidence on record and rightly appreciated by the learned single Judge that unless the execution

of the revival letter dated 1661987 is proved, the execution of the letters dated 1541993 and 1551993 do not extend the period of limitation.

Section 18 of the Limitation Act, 1963 clearly contemplates that the acknowledgment must be prior to the debt becoming timebarred. It is only

during the subsistence of the period of limitation if any, document is executed, limitation would be revived afresh from the said date of

acknowledgment as is laid down by the Supreme Court of India in Sampran Singh v. Niranjan Kaur, AIR 1999 SC 1047. It, therefore, follows

that the essence of acknowledgment can be drawn only if the necessary facts constituting the liability are admitted, which is not the position in this

case. Defendant/respondent No. 1 Hari Dutt Sharma when confronted with the document dated 1661987 has admitted only his signatures. The

acknowledgment of liability, therefore, must be within substantive period of limitation. The acknowledgment, if any, has to be prior to the expiry of

the prescribed period for filing the suit, in other words if the limitation has already expired it would not revive under this section. It is only during the

subsistence of period of limitation, if any, such document is executed then the limitation would be revived afresh.

In the instant case the appellant having failed to prove the revival letter dated 1661987 by cogent and satisfactory evidence, the execution of the

letter dated 1541995 and 1551993 would not revive the limitation afresh, being not within the subsistence of period of limitation. The witnesses

examined by the appellant to prove the execution of revival letter dated 1661987 or any other letter pertaining to the acknowledgment of liability,

have not stated anything about the said letters. Their evidence was confined only to the balance confirmation letter dated 1541993 and revival

letter dated 1551993, which is of no way to the appellant unless execution of the revival letter dated 1661987 stood proved, and therefore, does

not extend the period of limitation.

A halfhearted attempt has been made by the learned counsel for the appellant to reemphasise that the revival letter dated 1661987 cannot be

taken as an acknowledgment, when it was a promise to pay and thus the suit was well within time. To support his contention, the appellant also

referred to a judgment of Bombay High Court reported as AIR 1991 Bombay 44. Since the defendant/respondent has denied the contents of the

revival letter dated 1661987 and which remained unproved by the plaintiff/appellant, the judgment is not applicable, the facts of the case being

clearly distinguishable. It may further be pointed out that this letter could only be an acknowledgment under Section 18 of the Limitation Act for

revival of period of limitation. It cannot by any stretch of reasoning be termed as promise to pay. The view expressed by the learned single Judge

who dealt with the issue at length is the view to which there is no cause to differ.

We do not find any infirmity, legal or factual in the judgment and decree propounded by the learned single Judge, which calls for any

interference.

For the foregoing reasons, we are of the view that the appeal does not possess any merit and is accordingly dismissed. There will be, however,

no order as to costs.