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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.22/2001
1. Smt. Rukhminidevi wd/o Ballabhdasji
Rathi, aged 90 years, Occ. Household
r/o Tiosa Gin Compound, Amravati,
Tq. Dist. Amravati.
2. Radhakisan s/o Ballabhdasji Rathi,
aged 80 years, Occ. Business,
r/o Tiosa Gin compound, Amravati,
Tq. Dist. Amravati.
3. Vijaykishor Ballabhdasji Rathi,
aged 70 years, r/o 10/5, New Palasia,
Indore (M.P.)
4. Navalkishor s/o Ballabhdasji Rathi,
aged 68 years, Occ. Business, r/o Tiosa Gin,
Amravati, Tq. Dist. Amravati.
5. Jugalkishor s/o Ballabhdasji Rathi,
aged 66 years, Occ. Business, r/o Tiosa Gin,
Amravati, Tq. Dist. Amravati.
6. Sau. Pramila w/o Kamlakishorji Kabra,
aged 69 years, Occ. Household Work,
r/o Madhav Mills Pvt. Ltd. Patna (Bihar)
7. Sau. Urmila w/o Ashokkumarji Daga,
aged 64 years, Occ. Household work,
r/o 6, Sweat Park Society No.1,
Behind Ambedkar Colony,
Bhandarpure Road, Ambawadi,
Ahmedabad-380 006 (Gujarat) .....APPELLANTS
...V E R S U S...
Madanmohan s/o Balmukund Kakani,
aged 69 Years, Trader, r/o Dr. Joshi's
Bungalow, Adhivesan Road, Ramdaspeth,
Nagpur, Tq. Dist. Nagpur. ...RESPONDENT
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Mr. J. B. Kasat, Advocate for appellants.
Mr. V. P. Panpalia, Advocate for respondent.
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CORAM:- V. M. DESHPANDE, J.
Date of Reserving the Judgment:
05.10.2017
Date of Pronouncing the Judgment:
13.12.2017
J U D G M E N T
1. Being aggrieved by the judgment and decree passed on 25.04.2000 by the learned Additional District Judge, Amravati in Regular Civil Appeal No. 269/1993, allowing an appeal filed on behalf of respondent/defendant and setting aside the judgment and decree passed in Special Civil Suit No.90/1976 dated 24.09.1993 by the Joint Civil Judge Senior Division, Amravati decreeing the claim of the appellants herein for recovery of Rs.50,000/- together with future interest at the rate of 6% p.a. and dismissing the suit on the ground of limitation. The original plaintiff died and his legal representatives are before this Court in the present second appeal. Substantial Question of Law:
2. On 17.02.2004, while admitting the present second appeal, following substantial question of law was framed: ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:01:24 :::
3 sa22.01.odt "Whether the suit filed by the plaintiff is within limitation or not? And whether suit transaction would be governed by the period of limitation prescribed under Article 23 or 113 of the Limitation Act?
Factual Matrix:
3. For answering the aforesaid substantial question of law, it would be useful to narrate the undisputed facts as under:
(i) Originally, Ballabhdas Thakurdas Rathi filed a suit for recovery of an amount of Rs.50,000/- against Madanmohan Balmukund Kakani. The said suit was registered as Special Civil Suit No.90/1976.
(ii) During the pendency of the said suit, Ballabhdas died and therefore his legal representatives were brought on record as per the order dated 17.07.1992. They are the appellants.
(iii) On 22.10.1956, Balmukund, father of Madanmohan (defendant) deposited Rs.51,000/- with Ballabhdas and the said Ballabhdas executed a note i.e. "Deposit Receipt" (Chitti) in the name of Balmukund.
(iv) On 19.01.1957, Ballabhdas paid Rs.20,000/- towards principal and Rs.717.30/- by way of interest due and executed a ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:01:24 ::: 4 sa22.01.odt fresh deposit receipt in favour of Balmukund for Rs.31,000/-.
(v) In the month of February-1957, Balmukund expired. Consequently, the said transaction was revised and on 10.12.1957, Ballabhdas executed fresh receipt of Rs.32,500/- in the joint name of Bhikulal and Madanmohan (defendant).
(vi) On 09.04.1958, Ballabhdas he paid Rs.33,000/- along with interest to Madanmohan (defendant) who represented that he was authorised to receive the payment for and on behalf of Bhikulal. Thus, it was Ballabhdas' case that by the said payment, he had factually discharged his liability, not only towards Madanmohan (defendant) but also towards Bhikulal in view of deposit note dated 10.12.1957, which was executed by him in favour of joint name.
(vii) It is also admitted fact on record that Bhikulal had filed Special Civil Suit No.82-B/1959 in the Court of Civil Judge Senior Division, Nagpur against Ballabhdas and Madanmohan for recovery of his half share in the amount of Rs.33,000/- in respect of which Ballabhdas has executed deposit receipt on 10.12.1957. ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:01:24 :::
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(viii) The aforesaid suit of 1958 was dismissed by the learned
trial Court. Bhikulal carried an appeal against the said judgment and decree before this Court by filing First Appeal No.59/1964. The Division Bench of this Court set aside the decree of dismissal and the claim of Bhikulal was granted for recovery of Rs.16,250/- along with future interest at the rate of 6% p.a.
(ix) According to Ballabhdas, Bhikulal filed execution proceeding for decree granted in his favour by this Court in the first appeal and towards satisfaction of the said decree, he paid Rs.43,975.16/-. It is also the case of Ballabhdas that he was required to incur expenses of Rs.7429.15/- for defending the suit expenses and appeal filed by Bhikulal.
(x) As per Ballabhdas, Madanmohan (defendant) represented to him that he had an authority to receive half share of Bhikulal in the amount of deposit of Rs.33,000/- and since he had discharged his liability towards Bhikulal independently, amount which he had paid to Madanmohan (defendant), did not amount to valid discharge of his liability towards Bhikulal. He has every right to recover the amount which he has paid to Bhikulal and also litigation expenses. On these pleadings, Ballabhdas claimed a ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:01:24 ::: 6 sa22.01.odt decree of Rs.50,000/- against Madanmohan towards the amount which he had paid to Bhikulal towards the satisfaction of the decree passed in First Appeal No.19/1964 and the expenses incurred for defendant litigation.
(xi) On being summoned, Madanmohan filed his written statement in Special Civil Suit No.90/1976. As per his standing, Ballabhdas had on 10.12.1957 executed a deposit note in the joint name of himself and Bhikulal but on 02.05.1958, Bhikulal paid him an amount of Rs.12,250/- including the interest before the maturity of the deposit of Rs.33,000/-. The amount of Rs.21,000/- was due from Ballabhdas in pursuance of the deposit note dated 10.12.1957 but Ballabhdas credited the amount ante date in the name of mother; Gulabibai. In view of this transaction, he had acknowledged the receipt of Rs.33,000/- payable under deposit receipt dated 10.12.1957. It is also a defence and stand of Madanmohan in his written statement that claim of plaintiff- Ballabhdas for recovery of Rs.50,000/- was not within limitation. He also claimed Rs.8,640/- from Ballabhdas after deducting the half share of Bhikulal in amount deposit of Rs.33,000/- and thus, claimed decree of Rs.8,640/-.
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(xii) The learned Judge of the trial Court on rival pleadings
framed 17 issues. Issue No.17-A was as under:
"Whether the suit is in limitation?
Appellant no.4-Navalkishor s/o Ballabhdas, the deceased plaintiff examined himself. Madanmohan examined himself and also examined one Sudhir.
(xiii) After appreciating the rival claims, the learned Judge of the trial Court, vide judgment and decree dated 24.09.1993 found that Madanmohan (defendant) in the suit filed by Bhikulal against him and Ballabhdas (i.e. Special Civil Suit No.82-B/1959) had taken a stand that he had an authority to receive half share of Bhikulal payable under deposit note dated 10.12.1957 and in fact he has received half share of Bhikulal and as such now he is estopped from denying the said payment. In view of this fact, the learned trial Court recorded a finding that legal representatives of Ballabhdas i.e. plaintiff nos.1 to 7 are entitle to recover the amount which deceased Ballabhdas had paid to Bhikulal in execution of decree passed in First Appeal No.19/1964 along with the expenses incurred by him for defending the suit and appeal.
(xiv) As regards the limitation, the learned Judge of the trial
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Court held that for calculating the period of limitation, Article 23 of the Limitation Act is applicable and as such the suit is within limitation since the said Article provides the period of limitation of 3 years from the date on which the money is paid.
(xv) Being aggrieved by the judgment and decree dated 24.09.1993 by which the learned Judge of the trial Court ordered the plaintiffs to recover Rs.50,000/- from the defendants with interest at the rate of 6% p.a. from the date of the suit till its realization, the defendant preferred an appeal before the learned lower appellate Court and the said appeal was registered as Regular Civil Appeal No.269/1993. It is to be noted that the counter claim of Madanmohan was dismissed with costs. However, Madanmohan did not challenge the decree of dismissal of his counter claim.
(xvi) The learned Judge of the appellate Court formulated following points after having heard the parties to the appeal:
(i) Whether the claim of the plaintiff for recovery of Rs.50,000/- is within limitation?
(ii) What order?
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9 sa22.01.odt After elaborate judgment, the learned Judge of the appellate Court recorded a finding that the suit filed by the plaintiffs was not within limitation and consequently, allowed the appeal by setting aside the impugned judgment and decree. Hence this second appeal.
SUBMISSIONS:
4. Mr. Kasat, learned counsel for appellants, submitted that the amount paid to Bhikulal was paid under the decree given by this Court in First Appeal No.19/1964. It is his submission that till the amount is paid or demanded by Bhikulal, there will be no cause of action. He submitted that the execution is filed in 1974 and according to his submission, it is a demand, therefore, limitation will start from the said date subsequently when the first installment was paid on 12.12.1974. Therefore in his submission, suit is within limitation in view of Article 23 of the Limitation Act. He submitted that the cause of action to file the suit and limitation for filing the suit are two different concepts. He relied on two very old cases, first is of Calcutta High Court in Nilruttam Lal & Ors. Vs. Torab Ali Khan & Ors.; reported in MANU/WB/0143/1886 and second one of Lahore High Court in (Bakshi) Jiwan Singh Vs. Radha Kisan; reported in AIR 1936 Lahore 747. He prayed that the appeal may be allowed. ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:01:24 :::
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5. Per contra, it is the submission of Mr. Panpalia, learned counsel for the respondent, that the cause of action arose firstly; when Bhikulal filed the suit in 1959 and lastly at the most on 01.08.1973, when this Court passed the decree in the first appeal and therefore according to him, the suit was barred by limitation. CONSIDERATION:
6. Special Civil Suit No.90/1976 was filed on 01.09.1976. The said suit was for recovery of the excess payment made to the defendant on 01.07.1958 under impression that the defendant was authorised to give valid discharge in respect of the amount due and payable by Balmukund (plaintiff) to Bhikulal.
7. In appeal No. 19/1964 decided on 01.08.1973, arising out of Special Civil Suit No.82-B/59 filed by Bhikulal, rights of the parties were crystallized and it was held that discharge by defendant- Madanmohan to the plaintiff Ballabhdas on 01.07.1958 was not valid discharge on behalf of Bhikulal and accordingly a decree was passed for recovery of the amount in favour of Bhikulal against the plaintiff Ballabhdas.
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8. Article 23 of the Limitation Act relates to the suit for recovery of money, payable to the plaintiff for money paid for the defendant and it would be attracted only in case where plaintiff has made payment to the third party, either to discharge the liability of the defendant or to make payment for and on behalf of defendant.
9. In the present case, if the claim of the plaintiff had been for recovery of the amount paid by him to Bhikulal to discharge the liability of the defendant then the question of attracting Article 23 of the Limitation Act would have arisen.
10. The present case is a suit for recovery of the amount from the defendant which the plaintiffs paid him to discharge the liability of Bhikulal in whose favour the decree was passed in First appeal No.19/1964. The payment was made to the defendant under an impression that the defendant was authorised to quote or receive the amount payable to Bhikulal by the plaintiff. In short, the suit is for recovery of the excess amount paid to the defendant on the basis of misrepresentation. As such the suit is not covered by any of the specific provision of Articles under the Limitation Act and hence the residuary Article 113 of the Limitation Act would be attracted. ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:01:24 :::
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11. In paragraph 8 of the plaint, the cause of action for filing is the suit is shown to have been arisen in the year 1974 when the decree was transferred for execution at Amravati and warrant of attachment was taken by Bhikulal against Ballabhdas. It is to be noted that the claim is also for reimbursement of the amount spent by Ballabhdas on account of fighting out the litigation in Civil Suit No.828/1959 filed by Bhikulal. The limitation of 3 years for filing such a suit under Article 113 of the limitation commences from the date, the right to sue accrues. In the present case, the right to sue accrued to the plaintiff when the decree was passed on 01.08.1973 in Appeal No.19/1964 and in the suit filed on 01.09.1976, it is required to be held that it is filed beyond the period of limitation of 3 years. The transfer of decree for its execution does not give rise to any cause of action to file civil suit in question. The ultimate payment was made in execution of decree on 14.04.1981, which was during the pendency of the suit and hence it cannot be a cause of action for filing the suit on 01.09.1976. The cause of action for filing the suit in question accrued when the right of the parties were crystallized on 01.08.1973 in Appeal No.19/1964 and in subsequent event, in my opinion, cannot extend the period of limitation which started running.
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12. Consequently, I answer the substantial question of law to the effect that the suit filed by the plaintiff would be governed by the period of limitation under Article 113 of the Limitation Act and consequently, in my view, the learned lower appellate Court has rightly dismissed the suit on the ground of limitation.
Resultantly, the appeal is dismissed with no orders as to costs.
JUDGE kahale ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:01:24 :::