Gujarat High Court
Amarshibhai Harjivanbhai Patel vs Ramesh Cotton Company on 9 September, 2025
NEUTRAL CITATION
C/SA/49/2003 JUDGMENT DATED: 09/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 49 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
No
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AMARSHIBHAI HARJIVANBHAI PATEL
Versus
RAMESH COTTON COMPANY
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Appearance:
MANAN K PANERI(7959) for the Appellant(s) No. 1
MR ASHISH M DAGLI(2203) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 09/09/2025
ORAL JUDGMENT
1. The present Second Appeal has been filed under Section 100 of the Code of Civil Procedure, 1908 ('cpc', for short) challenging the judgment and decree, dated 20.01.2003, passed by Joint District Judge and 2 nd Fast Track Judge at Dhangadhra, in Regular Civil Appeal No.05 of 2001, allowing the said appeal and quashing and setting aside the judgment and decree dated 24.04.2001, passed by 2nd Joint Civil Judge (J.D.), Halvad in Regular Civil Suit No.131 of 1993.
2. For the sake of brevity, the parties herein are referred to as per their original status as that of before the trial Court.
3.1 The brief facts arising in the present Second Appeal are that the plaintiffs filed a suit for recovery for an amount of Rs.48,550/- (Rupees Page 1 of 8 Uploaded by MISHRA AMIT V.(HC00187) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:38 IST 2025 NEUTRAL CITATION C/SA/49/2003 JUDGMENT DATED: 09/09/2025 undefined Forty Eight Thousand and Five Hundred Fifty Only) from the defendant. It was the case of the plaintiff before the trial Court that, the plaintiff is a partnership firm and that the defendant had borrowed Rs.30,000/- from the plaintiff on condition to pay the same during the season of 1986 in the month of January. It was the case of the plaintiff that initially an amount Rs.10,000/- (Rupees Ten Thousand Only) was taken by the defendant on 17.2.1985. Thereafter, further amount of Rs.10,000/- (Rupees Ten Thousand Only) was taken on 10.3.1985 and the third installment of Rs.10,000/- (Rupees Ten Thousand Only) was taken by the defendant on 20.04.1985 and therefore in all an amount of Rs.30,000/- (Rupees Thirty Thousand Only) was paid by the plaintiff to the defendant and the receipts for the same were also issued by the defendant and as the defendant did not pay the said amount, a legal notice was issued by the plaintiff on 10.10.1988 and thereafter the plaintiff filed a suit for recovery of the amount.
3.2 The defendant appeared in the said suit and filed written statement vide Exh.41. The defendant denied that an amount of Rs.30,000/- (Rupees Thirty Thousand Only) was taken for the plaintiff. The trial Court framed issues vide Exh.29, which reads as follow:
"(1) Whether the plaintiff firm is duly registered under Indian Partnership Act ?
(2) Whether the plaintiff proves that defendant advanced sum of Rs.30000/- by three instalments as alleged ? (3) Whether plaintiff proves that sum receipts are executed by the defendant ?
(4) Whether plaintiff's suit is within limitation ?Page 2 of 8 Uploaded by MISHRA AMIT V.(HC00187) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:38 IST 2025
NEUTRAL CITATION C/SA/49/2003 JUDGMENT DATED: 09/09/2025 undefined (5) Whether plaintiff proves suit claim ?
(6) What order and decree ?"
3.3 After considering the oral evidence produced by the plaintiff and
the defendant and after giving findings on all the issues, the trial Court held that the plaintiff has proved that the plaintiff had advanced a sum of Rs.30,000/- (Rupees Thirty Thousand Only) by three instalments and that the plaintiff had proved that receipts were executed by the defendant but, the said suit was dismissed by the trial Court only on the ground that the suit is filed beyond the period of limitation. The said judgment and decree of the trial Court was challenged by the plaintiff by filing Regular Civil Appeal No.5 of 2001 and after considering the provisions of the Bombay Execution of Decrees (Temporary Postponement) Act, 1959 ('the Act, 1959', for short) more particularly Sections 6 and 7 of the Act, 1959, the said appeal was allowed and the judgment and decree passed by the trial Court was quashed and set aside and the defendant was directed to pay an amount of Rs.48,550/- with cost and interest @ 9% per annum from the date of suit till realisation to the plaintiff. Hence, the present Second Appeal.
4. The coordinate Bench of this Court, by an oral order dated 14.10.2003 admitted the present Second Appeal on the following substantial question of law.
"Whether the lower Appellate Court has erred in holding that the Suit instituted by the respondent - plaintiff was not barred by the period of limitation ?"Page 3 of 8 Uploaded by MISHRA AMIT V.(HC00187) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:38 IST 2025
NEUTRAL CITATION C/SA/49/2003 JUDGMENT DATED: 09/09/2025 undefined
5. Learned advocate for the defendant has argued that in view of the fact that the suit that has been filed by the plaintiff is for recovery of an amount which the plaintiff has given to the defendant i.e. the last payment that was made and in view of Article 19 of the Limitation Act, the period of limitation would be three years when the loan was made and, therefore, if the amount that has lent by the plaintiff to the defendant is taken into consideration, the first installment of Rs.10,000/- is paid on 17.02.1985, second installment of Rs.10,000/- is paid on 10.3.1985 and the third installment of Rs10,000/- is paid on 20.4.1985 and, therefore, if the period of limitation is taken into consideration as per Article 19 of the Limitation Act, the suit had to be filed within three years from the date when the loan is taken i.e. if the last amount of loan is considered, the said date would be 20.4.1985 and, therefore, the suit that was to be filed by the plaintiff was to be filed on or before 20.04.1988 and the suit that has been filed by the plaintiff is filed on 10 10. 1988 i.e. beyond the period of limitation and, therefore, the trial Court has rightly rejected the said suit on the point on the ground of limitation and the first appellate Court could not have taken into consideration the provisions of 'the Act, 1959'. In view of the fact that the central Act shall prevail to substantiate his argument, learned advocate for the defendant has relied on the judgment reported in 2012 (7) SC 106 in the case of State of Kerala and others vs. Mar Appraem Kuri Company Limited and another and submitted that present Second Appeal is required to be allowed.
6. Per contra, learned advocate for the plaintiff has mainly argued that if the provisions of Sections 6 and 7 of 'the Act, 1959' are taken into consideration, in computing the period of limitation prescribed by the Indian Limitation Act,1908, a suit in Civil Court, in any area, against any Page 4 of 8 Uploaded by MISHRA AMIT V.(HC00187) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:38 IST 2025 NEUTRAL CITATION C/SA/49/2003 JUDGMENT DATED: 09/09/2025 undefined agriculturist for money, the period during which this Part remains in force, in that area, is excluded and further period not exceeding 30 days, shall be added as to make up, the deficit, if any, prior to expiry of one month from the date of withdrawal of the said part, will have to be taken into consideration. Therefore, in view of Section 29 of the Limitation Act where the local law prescribes for any suit a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule. Therefore, in view of Sections 6 and 7 of 'the Act, 1959', prescribe different date, than one stated in Article 19 of the Limitation Act, the local law shall apply and, therefore, it has been argued that first appellate Court has not erred in considering the fact that the suit that has been filed by the plaintiff is within the period of limitation and, therefore, the present Second Appeal is required to be dismissed.
7. Having heard learned advocates for the parties and having considered the judgment and decree passed by the trial Court and the judgment and decree passed by the first appellate Court and taking into consideration Article 19 and section 29 of the Limitation Act and taking into consideration the provision of Sections 4, 6 and 7 of 'the Act, 1959' , the fact remains that under Article 19 of the Limitation Act, the suit that has been filed by the plaintiff, is beyond the period of three years when the loan is made, but at the same time this Court will have to take into consideration the fact that even while filing the suit, it was the case of the plaintiff that the defendant is an agriculturist and even in the plaint it has been stated that the defendant is an agriculturist, in Juna Devlia and with respect to the fact of limitation in the plaint, the plaintiff has stated that the suit that has been filed by the plaintiff, is within the period of Page 5 of 8 Uploaded by MISHRA AMIT V.(HC00187) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:38 IST 2025 NEUTRAL CITATION C/SA/49/2003 JUDGMENT DATED: 09/09/2025 undefined limitation in view of the Notification of the State Government, whereby the State Government by Notification dated 20.11.1987, which has been produced, vide Exh.21, whereby the village Juna Devaliya is notified under the provisions of 'the Act, 1959' and at the time when the suit was filed, there was existence of the Notification, declaring scarcity and the Notification was in existence and, therefore, the plaintiff was entitled to file the suit after the period of scarcity, in view of the said Notification produced at Exh.21 was over.
8. In the present case, the plaintiff has already filed the suit during the said Notification. Therefore, the first appellate Court has rightly held that the suit that has been filed by the plaintiff is within time in view of the application of provisions of 'the Act, 1959'. Moreover, while considering the judgement reported in the case of State of Kerala and others vs. Mar Appraem Kuri Company Limited and another (supra), the same refer to Articles 246 (1) (2) and 254 (1) the Constitution of India which referes that such Article provides that, to the extent to which a State Law is in conflict with or repugnant to the Central Law, the Central Law shall prevail and the State law shall be void to the extent of its repugnancy, however, in the facts of the present case, Section 29 (2) of the Limitation Act, 1963 specifically states that where any special or local law prescribes for the suit, a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule. Section 6 of 'the Act, 1959' states as under:
"6. Computation of the period of limitation.
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(1) In computing the period of limitation prescribed by the Indian Limitation Act, 1908 (IX of 1908) or any other law for the time being in force, for-
(a) a suit in a Civil Court in any area against any agriculturist for money or for foreclosure or sale in enforcement of a mortgage, referred to in clause (b) of sub-section (2) of section 3, or
(b) an application in a Civil Court in any area for execution of any decree referred to in sub-section (1), of section 3 or an application in a Civil Court in any area for making final any preliminary decree for foreclosure or sale referred to in that sub-
section, the period during which this Part remains in force in that area shall be excluded, and a further period not exceeding thirty days shall be added so as to make up the deficit, if any, prior to the expiry of one month from the date of withdrawal of this Part under subsection (4) of section 1 from that area.
(2) In computing the period of twelve years prescribed in section 48 of the Code of Civil Procedure, 1908 (V of 1908) for an application in a Civil Court for execution of any decree referred to in sub-section (1) of section 3 the period during which this Part remains in force in that area shall be excluded.
(3) In computing the aforesaid period of twelve years, the period during which proceedings were stayed under the Madhya Pradesh Temporary Postponement of Execution of Decrees Act, 1956, shall, notwithstanding the expiry of that Act by efflux of time, also be excluded as if that Act had not expired."
Therefore, the first appellate Court has not erred in taking into consideration the fact that the suit that has been filed by the plaintiff is within the period of limitation.
9. In view of the above facts, the substantial question of law that has been formulated is answered in negative. The first appellate Court has not erred in holding that the suit instituted by the plaintiff was not barred by period of limitation. In view of the same present Second appeal is required to be dismissed.
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10. Further, in the case of Jaichand (Dead) through Lrs and Other v. Sahnulal and Another reported in 2024 SCC OnLine SC 3864, the Hon'ble Apex Court has observed as under:-
"28. It is thus clear that under Section 100 CPC, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence."
11. Under the circumstances, the learned first appellate Court has rightly decided the issue between the parties in the right perspective and the appellant has failed to prove his case before the appellate Court and, therefore, the present Second Appeal being devoid of any merit both on facts and law is dismissed.
(SANJEEV J.THAKER,J) MISHRA AMIT V. Page 8 of 8 Uploaded by MISHRA AMIT V.(HC00187) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:04:38 IST 2025