Gujarat High Court
A.K.Moitra vs B.A.S.F. India Ltd on 8 May, 2026
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/FA/1883/2007 JUDGMENT DATED: 08/05/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1883 of 2007
With
R/FIRST APPEAL NO. 4075 of 2006
With
CIVIL APPLICATION (FOR ORDERS) NO. 2 of 2006
In R/FIRST APPEAL NO. 4075 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
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A.K.MOITRA
Versus
B.A.S.F. INDIA LTD. & ORS.
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Appearance:
MR BHARAT JANI(352) for the Appellant(s) No. 1
MR ADIL R MIRZA(2488) for the Defendant(s) No. 1,2,5
RULE UNSERVED for the Defendant(s) No. 3,4
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D.
KARIA
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
Date : 08/05/2026
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE L. S. PIRZADA) Page 1 of 26 Uploaded by DIKSHA HARISH GUSAIN(HC02363) on Fri May 08 2026 Downloaded on : Sat May 09 03:35:55 IST 2026 NEUTRAL CITATION C/FA/1883/2007 JUDGMENT DATED: 08/05/2026 undefined
1. The captioned First Appeals have been preferred by the respective defendants under Section 96 of the Code of Civil Procedure, 1908 (for short 'the Code, 1908') challenging the Judgment and Decree dated 30.06.2006 passed by the learned Principal Civil Judge, Valsad in Special Civil Suit No.180 of 1993, whereby, the learned Principal Civil Judge has partly allowed the suit of the plaintiff and directed the original defendant nos. 1 to 5 and 8 to be jointly and severally liable to pay Rs.27,29,585.75 from the date of filing of the suit till realization at the rate of 9% per annum to the plaintiff.
2. Both the captioned appeals have been challenging the same aforesaid Judgment and Decree passed by the learned Trial Court, hence, it has been decided by this Common Judgment in this appeal.
3. The appellant of the First Appeal No.1883 of 2007 has been shown as defendant no.2 in the suit and the appellant of First Appeal No.4075 of 2006 has been shown as defendant no.1. For the sake of brevity, the Page 2 of 26 Uploaded by DIKSHA HARISH GUSAIN(HC02363) on Fri May 08 2026 Downloaded on : Sat May 09 03:35:55 IST 2026 NEUTRAL CITATION C/FA/1883/2007 JUDGMENT DATED: 08/05/2026 undefined parties herein are referred to as per their original status as that in the suit.
4. Factual matrix leading to the present appeal is that the present respondent no.1 - original plaintiff had filed a Special Civil Suit No.180 of 1993 before the Principal Civil Judge, Valsad and it is also pertinent to note that initially the present suit was filed on 06.09.1993 by original plaintiff - Cynamide India Limited. Subsequently, a Company Petition was preferred before the Bombay High Court by Company Petition No.514 of 1997 and by Application No.19 of 1997 a scheme was presented to be amalgamated into M/s. Cynamide Agro Limited and subsequently, as per the order of the Bombay High Court dated 14.10.1997, Cynamide Agro was assigned to recover the dues of the original plaintiff - Cynamide India Limited and subsequently, Cynamide Agro Limited and B.A.S.F. Limited preferred a Company Petition No.415 of 2001 and Application No.93 of 2001 for the amalgamation scheme which was confirmed on 22.06.2001 and Page 3 of 26 Uploaded by DIKSHA HARISH GUSAIN(HC02363) on Fri May 08 2026 Downloaded on : Sat May 09 03:35:55 IST 2026 NEUTRAL CITATION C/FA/1883/2007 JUDGMENT DATED: 08/05/2026 undefined subsequently, in the suit B.A.S.F. India Limited has been joined as the original plaintiff in place of the Cynamide India Limited.
5. Originally, it is the case of the plaintiff that the original plaintiff - Cynamide India Limited is registered under the provisions of the Companies Act, 2013 having its registered office at Mumbai and manufacturing unit at Atul, Taluka: Valsad. The original plaintiff is engaged in the business of manufacturing and supplying pesticides, agricultural products and pharmaceutical goods used for the health and protection of animals and cattle. The present dispute arises out of commercial transactions entered into between the plaintiff and the defendants in the ordinary course of business.
6. Defendant No. 1 is a co-operative society registered with the Registrar of Co-operative Societies, Bharuch District and defendant nos.2 to 5 are its agents and stockists responsible for the distribution, storage and handling of goods supplied by the original plaintiff. The Page 4 of 26 Uploaded by DIKSHA HARISH GUSAIN(HC02363) on Fri May 08 2026 Downloaded on : Sat May 09 03:35:55 IST 2026 NEUTRAL CITATION C/FA/1883/2007 JUDGMENT DATED: 08/05/2026 undefined defendants were acting in a fiduciary and commercial capacity and were entrusted with the goods supplied by the plaintiff for sale and further distribution.
7. In pursuance of business dealings, the plaintiff supplied various consignments of pesticides, particularly a product known as "Dermet" to defendant No.1 under multiple invoices including a consignment dated 23.06.1989. The plaintiff contends that the goods were duly delivered and accepted by defendant No.1 without any immediate objection, thereby completing the contractual obligations on the part of the plaintiff.
8. During the period from 27.09.1989 to 18.01.1990, the plaintiff supplied approximately 34,000 liters of Dermet products to the defendants amounting to a total value of Rs. 51,55,373.74. Out of this amount, a sum of Rs. 32,73,345.50 was collected by defendant no.4 on behalf of defendant no.1 leaving a substantial balance amount due and payable to the plaintiff.
9. After adjusting the payments received, the principal Page 5 of 26 Uploaded by DIKSHA HARISH GUSAIN(HC02363) on Fri May 08 2026 Downloaded on : Sat May 09 03:35:55 IST 2026 NEUTRAL CITATION C/FA/1883/2007 JUDGMENT DATED: 08/05/2026 undefined outstanding amount remained Rs.19,18,584.24. As per established commercial usage and trade practice, interest at the rate of 18% per annum was applicable on delayed payments. Accordingly, interest amounting to Rs.16,22,003.03 accrued bringing the total outstanding liability of the defendants to Rs.35,40,587.27.
10. Despite repeated demands and reminders, the defendants failed and neglected to pay the outstanding dues. The plaintiff, therefore, issued a legal notice dated 18.06.1992 through its advocate and also served a statutory notice upon the District Registrar, Co- operative Societies, Bharuch. However, the defendants neither complied with the notice nor made any payment towards the outstanding amount.
11. The plaintiff further alleges that defendant No.1 in collusion with defendant nos.2 to 5 manipulated accounts and created false and fabricated records to misrepresent the actual stock position and returns of goods. Discrepancies were found in the quantities of Page 6 of 26 Uploaded by DIKSHA HARISH GUSAIN(HC02363) on Fri May 08 2026 Downloaded on : Sat May 09 03:35:55 IST 2026 NEUTRAL CITATION C/FA/1883/2007 JUDGMENT DATED: 08/05/2026 undefined goods allegedly returned and shown in stock which did not correspond with the actual supply made by the plaintiff, thereby indicating misappropriation and falsification of accounts.
12. In light of such acts, the plaintiff has initiated criminal proceedings against the defendants under Sections 408, 409, 468, 477-A, and 114 of the Indian Penal Code, 1860 alleging criminal breach of trust, forgery and falsification of accounts. The said criminal proceedings are presently under investigation.
13. It is also relevant that defendant No. 5 has instituted a separate Civil Suit against the plaintiff, thereby compelling the plaintiff to file the present suit for recovery of its legitimate dues. The plaintiff has also approached the Competent Authority under the Co- operative Societies law for recovery proceedings, however, no effective relief has been obtained.
14. The defendants have contested the claim and denied the receipt of goods as well as the correctness of the plaintiff's accounts contending that the claim is false, Page 7 of 26 Uploaded by DIKSHA HARISH GUSAIN(HC02363) on Fri May 08 2026 Downloaded on : Sat May 09 03:35:55 IST 2026 NEUTRAL CITATION C/FA/1883/2007 JUDGMENT DATED: 08/05/2026 undefined illegal and not maintainable. The learned Principle Civil Judge has allowed the suit of original plaintiff holding that defendant nos.1 to 5 are jointly and severally liable to pay Rs.27,29,585.75 with interest @ 9% per annum from date of suit till the date of recovery.
15. Being aggrieved and dissatisfied with the Judgement and Decree passed by learned Principal Senior Civil Judge, Valsad original defendant No.2, defendant no.1 has filed present appeals.
Submission of appellant - original defendant no.2 of First Appeal No.1883 of 2007
16. Heard learned advocate Ms.Mohini Bhavsar for learned advocate Mr.Bharat Jani appearing for the appellant.
17. Learned advocate Ms.Mohini Bhavsar submitted that the present appellant who is original defendant no.2 in the suit was working in the original plaintiff company and the transaction was taken place between the plaintiff and the goods were sold to the defendant no.1. Hence, there is no privity of contract with defendant Page 8 of 26 Uploaded by DIKSHA HARISH GUSAIN(HC02363) on Fri May 08 2026 Downloaded on : Sat May 09 03:35:55 IST 2026 NEUTRAL CITATION C/FA/1883/2007 JUDGMENT DATED: 08/05/2026 undefined nos. 2 to 5, who are Officers of the original plaintiff company and therefore, no vicarious liability can be attributed to them. Consequently, the learned Trial Court has erred in holding the original Defendant No.2 liable, along with the other defendants, to pay the decretal amount to the plaintiffs.
18. It was submitted that a criminal case was filed against original defendant nos. 2 to 5 before the Chief Judicial Magistrate Court, Bharuch, and in that case all the accused have been discharged. As there is no privity of contract between the parties and therefore, the judgment and decree passed by the learned Trial Court are required to be set aside.
19. It was submitted that the suit is barred by the law of limitation, as it has been filed after the expiry of the prescribed period of limitation; hence, on this ground as well, the Judgment and Decree passed by the learned Trial Court are required to be set aside.
20. It was submitted that the oral evidence has been given by Officers of B.A.S.F. India Limited, who were not Page 9 of 26 Uploaded by DIKSHA HARISH GUSAIN(HC02363) on Fri May 08 2026 Downloaded on : Sat May 09 03:35:55 IST 2026 NEUTRAL CITATION C/FA/1883/2007 JUDGMENT DATED: 08/05/2026 undefined associated with the original plaintiff company at the relevant time and, therefore, do not have any personal knowledge of the transactions. They have deposed merely on the basis of documentary evidence. In cross- examination, both witnesses, Mr.C.H. Madhavrao and Mr.Nitin Bhalchandra have admitted that they do not have any personal knowledge of the transactions. This material aspect has not been considered and the plaintiff had failed to prove its case. Nevertheless, the learned Trial Court has wrongly held defendant No.2 vicariously liable and the suit is also barred by limitation.
21. Considering this the suit of the present First Appeal No.1883 of 2007 is required to be allowed and the Judgment and Decree passed by the learned Trial Court is required to be set aside.
Submission of appellant - original defendant no.1 of First Appeal No.4075 of 2006
22. Heard learned Senior Advocate Mr.B.S. Patel assisted by learned advocate Mr.Chirag B. Patel appearing for Page 10 of 26 Uploaded by DIKSHA HARISH GUSAIN(HC02363) on Fri May 08 2026 Downloaded on : Sat May 09 03:35:55 IST 2026 NEUTRAL CITATION C/FA/1883/2007 JUDGMENT DATED: 08/05/2026 undefined the appellant.
23. It was submitted that the dispute essentially revolves around the alleged order of materials, namely various pesticides, by the original defendant No. 1. It was submitted that the Judgment and Decree passed by the learned Trial Court are bad in law, illegal, improper and liable to be set aside.
24. It is submitted that so far as the learned Trial Court has framed the Issue No.6 with respect to the limitation whether the suit is filed after the period of limitation but after considering the evidence, the learned Trial Court came to completely erroneous conclusion that the suit is filed within the period of limitation.
25. It is submitted that as per the averments made in the plaint by the plaintiff itself the transaction period is from 27.09.1989 to 18.01.1990 and it is not the case that after 18.01.1990 any payment has been made or anything like that so from 18.01.1990 suit ought to have been preferred within 3 years which expired on Page 11 of 26 Uploaded by DIKSHA HARISH GUSAIN(HC02363) on Fri May 08 2026 Downloaded on : Sat May 09 03:35:55 IST 2026 NEUTRAL CITATION C/FA/1883/2007 JUDGMENT DATED: 08/05/2026 undefined 18.01.1993 but in the present case the suit has been filed by the plaintiff on 04.09.1993 and merely the learned Trial Court has come to the conclusion that an advocate has issued a notice on 19.06.1992 to the Registrar Gujarat Cooperative Society and that cannot extend the limitation for filing the suit, hence apparently the suit is time barred.
26. It is submitted that the original defendant no.5 has also challenged the Judgment and Decree passed by the learned Trial Court and defendant no.5 Krushico Sales Corporation has also challenged the said Judgment and Decree by the Trial Court by preferring First Appeal No.3842 of 2006 and Division Bench of this Court by Judgment dated 19.12.2025 has allowed the appeal and qua original defendant no.5 the Judgment and Decree has been quashed and set aside.
27. Considering this the captioned First Appeals are required to be allowed.
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NEUTRAL CITATION C/FA/1883/2007 JUDGMENT DATED: 08/05/2026 undefined Submission made by the respondent no.1 in both the appeals -original plaintiff.
28. Heard learned advocate Mr.Adil Mirza appearing for the respondent no.1 - original plaintiff.
29. It was submitted that findings recorded by the learned Trial Court is just and proper and does not require any interference.
30. Further, it was submitted that as the original defendant no.2 was the employee and it was his responsibility to recover the amount from the defendant no.1 but the amount was not recovered. Hence, the original plaintiff - Company was constrained to file a criminal case against them and considering the overall aspects as well as the documentary evidence adduced before the learned Trial Court, learned Trial Court had rightly passed the decree against all the defendants as all the defendants are jointly and severally liable to pay the amount.
31. It was submitted that the books of account had already been produced in the Trial Court and perusing Page 13 of 26 Uploaded by DIKSHA HARISH GUSAIN(HC02363) on Fri May 08 2026 Downloaded on : Sat May 09 03:35:55 IST 2026 NEUTRAL CITATION C/FA/1883/2007 JUDGMENT DATED: 08/05/2026 undefined the same, it is an admitted position that when the goods were supplied, the amount was not paid by the original defendant no.1. Hence, the suit was filed for recovery of the amount.
32. It was submitted that as the Trial Court had considered every aspect of the matter in its Judgment and had decided Issue No.6, which was pertaining to limitation, the Trial Court had rightly come to the conclusion that the transaction had taken place between the plaintiff and the defendant no.1 between 27.09.1989 to 18.01.1990 and as per the law of limitation, a suit is required to be filed within 3 years of arising of the cause of action. It is recorded by the Trial Court that the defendants in the written statement are not disputing that the transaction had taken place till 18.01.1990 and subsequently, a notice under Section 167 of the Gujarat Cooperative Society Act, 1962 had been issued to the Registrar on 19.06.1992 as per the provisions of the law which was received on 24.06.1992. After the notice was issued, Page 14 of 26 Uploaded by DIKSHA HARISH GUSAIN(HC02363) on Fri May 08 2026 Downloaded on : Sat May 09 03:35:55 IST 2026 NEUTRAL CITATION C/FA/1883/2007 JUDGMENT DATED: 08/05/2026 undefined the defendants had failed to pay the amount. Hence, the suit was filed by the plaintiff on 04.09.1993 and therefore, the suit is within the period of limitation of 3 years and the findings of the learned Trial Court are just and proper and do not require any interference.
33. It was submitted that even from the books of account and the statement of account produced before the learned Trial Court, it is an admitted position that in the month of July, 1990, a credit note was issued by the plaintiff in favor of the defendant no.1 and from that, the limitation could have been considered to commence and even though considering this aspect it can be said that the suit was filed within the prescribed period of limitation of 3 years.
34. It was submitted that the defendants have neither entered into witness box nor gave any evidence. Hence, the learned Trial Court has rightly decreed the suit against the defendants.
35. Hence, both the appeals are devoid of any merits and are required to be dismissed.
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36. After hearing rival submissions of the learned advocates for the respective parties, perusing the record and proceedings of the Trial Court, following points come before us for consideration:
(1) Whether the appellant proved that the original defendant no.2 cannot be held liable as there is no privity of contract between the plaintiff and the original defendant no.2?
(2) Whether the appellant proved that suit filed by the original plaintiff before the learned Trial Court is time barred?
(3) What order?
37. Our findings are as under:
(1) Affirmative (2) Affirmative (3) As per final order.
38. So far as the controversy raised in the present appeals are concerned, the same is in a very narrow compass. Only it is required to be considered that how the original defendant no.2, who is the appellant of First Page 16 of 26 Uploaded by DIKSHA HARISH GUSAIN(HC02363) on Fri May 08 2026 Downloaded on : Sat May 09 03:35:55 IST 2026 NEUTRAL CITATION C/FA/1883/2007 JUDGMENT DATED: 08/05/2026 undefined Appeal No.1883 of 2007, he can be held liable for this amount?
39. In this regard, it is required to consider that the suit has been filed against all the defendants. The main contention of the plaintiff is that goods were delivered through defendant no.1 i.e. mostly the pesticide. The defendant no.1 had placed an order with the plaintiff - Company by letter dated 23.06.1989 and during the period of 27.09.1989 to 18.01.1990 pesticides amounting to total Rs.51,55,000,373.74 was delivered. Against that, defendant no.1 had paid amount of Rs.32,73,345.50 and for the rest of the principal amount towards the delivery of goods i.e. Rs.19,18,584.24 was due and payable from the defendant no.1. The plaintiff had also calculated the interest at the rate of 18% per annum as per the custom of the business and amount of Rs.16,22,003.03 and the suit has been filed for the total amount of Rs.3540587.27. It is the case of the plaintiff that defendant no.1 had not paid the amount Page 17 of 26 Uploaded by DIKSHA HARISH GUSAIN(HC02363) on Fri May 08 2026 Downloaded on : Sat May 09 03:35:55 IST 2026 NEUTRAL CITATION C/FA/1883/2007 JUDGMENT DATED: 08/05/2026 undefined to the plaintiff in collusion with the defendant nos.2 to 5 and they had created false and fake documents to that effect.
40. It is also not in dispute that initially, the suit was filed by the Company, namely, Cinamide India Limited. Subsequently, it was taken over by Cinamide Agro Limited and it was amalgamated and all the dues was to be recovered by B.A.S.F. India Limited.
41. The plaintiff had examined witness, namely, Nitin Bhalchandra vide Exhibit 157 and another witness - Mr.C.H. Madhavrao vide Exhibit 19. As per their deposition, it is an admitted position that witness - Nitin Bhalchandra is the employee of B.A.S.F. India Limited and in the cross examination, he had admitted that he did not have any personal knowledge regarding the said transaction. At the time of the transaction, he was not serving in the plaintiff - Company and gave his evidence on the basis of the documents only.
42. Further, it has come on record that original plaintiff had filed one criminal complaint against the defendant Page 18 of 26 Uploaded by DIKSHA HARISH GUSAIN(HC02363) on Fri May 08 2026 Downloaded on : Sat May 09 03:35:55 IST 2026 NEUTRAL CITATION C/FA/1883/2007 JUDGMENT DATED: 08/05/2026 undefined no.2 and other persons and subsequently, defendant no.2 was discharged by the Court. Against that, the plaintiff - Company has preferred Revision Application, whereby, the order of the learned Trial Court was confirmed.
43. Another witness Mr.C.H Madhavrao gave his evidence vide Exhibit 190 and admitted that he has no personal knowledge regarding the transaction. From the evidence of both these witnesses nowhere it has been come out that the defendant no.2 can in any way, be held vicariously liable as he was not an employee of the defendant no.1 - Company but defendant no.2 was the Regional Manager of the plaintiff - Company and other defendant nos.3 and 4 were the Manager and Sales Executive respectively of plaintiff Company and defendant no.5, as per the averments of the plaintiff, was the agent of the plaintiff - Company.
44. Merely because the defendant no.2 was the employee of the original plaintiff - Company and amount has not been recovered, it cannot be said that he can be held Page 19 of 26 Uploaded by DIKSHA HARISH GUSAIN(HC02363) on Fri May 08 2026 Downloaded on : Sat May 09 03:35:55 IST 2026 NEUTRAL CITATION C/FA/1883/2007 JUDGMENT DATED: 08/05/2026 undefined liable for the dues of defendant no.1. Hence, from the evidence itself, nothing has come out that the defendant no.2 can be held liable for the dues of the defendant no.1 to the plaintiff.
45. Hence, considering this, the findings of the learned Trial Court are required to be considered and the learned Trial Court has not assigned any cogent reason to hold that defendant nos.2 to 5 are jointly and severally liable with the defendant no.1 to pay the decretal amount to the plaintiff. Hence, the original defendant no.2 cannot be held liable for the dues of defendant no.1. Hence, the answer to the issue no.1 is in affirmative;
Issue No.2
46. The important question, now before us is that whether the suit filed by the plaintiff is within the limitation or not?
47. It is not in dispute that so far as the transaction between the plaintiff and the defendant no.1 are concerned, it is of the nature of goods sold and Page 20 of 26 Uploaded by DIKSHA HARISH GUSAIN(HC02363) on Fri May 08 2026 Downloaded on : Sat May 09 03:35:55 IST 2026 NEUTRAL CITATION C/FA/1883/2007 JUDGMENT DATED: 08/05/2026 undefined delivered and against that, suit was filed by the plaintiff to recover the due amount from the defendants. Even the Judgment passed by the learned Trial Court and the case of the plaintiff, it is not in dispute that as per the order placed by the defendant no.1, goods were delivered by the plaintiff to the defendant no.1 between 27.09.1989 to 18.01.1990. Thereafter, no payment has been made and after 18.01.1990, no transaction had taken place between the plaintiff and the defendant no.1. As per findings recorded by the Trial Court, even the part payment of Rs.32 Lacs has been made by the defendant no.1, i.e. Rs.32 Lacs. Also, prior to 18.01.1990 and from 18.01.1990, no transaction has been taken place. From 19.01.1990, the cause of action for filing of the suit has arisen.
48. The arguments advanced by the learned advocate Mr.Adil Mirza appearing for the respondent no.1 - plaintiff are that in the month of July, 1990, a credit note has been issued by the plaintiff - Company but Page 21 of 26 Uploaded by DIKSHA HARISH GUSAIN(HC02363) on Fri May 08 2026 Downloaded on : Sat May 09 03:35:55 IST 2026 NEUTRAL CITATION C/FA/1883/2007 JUDGMENT DATED: 08/05/2026 undefined were not produced before the Trial Court. Further, it can be said that the credit note was issued by the plaintiff unilaterally. Even assuming for a moment that credit note has not been issued in the month of July, 1990 then also, the suit is required to be filed before 31.07.1993 by the plaintiff but, in the present case, the suit has been filed by the plaintiff on 06.09.1993, i.e. after expiry of the period of three years.
49. As per the law of limitation, for filing of the suit for recovery of the due amount, more particularly, so far as Articles 13, 14 and 15 of the Limitation Act, 1963 are concerned, as per Article 14, the period of limitation is three years and the time period began to run was from the date of the delivery of the goods. Further, at this stage, it is required to consider Section 18 of the Limitation Act, 1963 which reads as under:
"18. Effect of acknowledgment in writing.--(1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.Page 22 of 26 Uploaded by DIKSHA HARISH GUSAIN(HC02363) on Fri May 08 2026 Downloaded on : Sat May 09 03:35:55 IST 2026
NEUTRAL CITATION C/FA/1883/2007 JUDGMENT DATED: 08/05/2026 undefined (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received.
Explanation.--For the purposes of this section,--
(a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set off, or is addressed to a person other than a person entitled to the property or right,
(b) the word "signed" means signed either personally or by an agent duly authorised in this behalf, and
(c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right."
50. Considering Section 18 of the Limitation Act, 1963 if there is any acknowledgment by the defendant in writing regarding the debt, from that period, only the limitation can be extended and further three years can be extended for filing the suit from the written acknowledgment of date by the defendant. So if any written acknowledgment of date was made by the defendant no.1, in that circumstances only, the limitation can be extended.
51. In this regard, now it is required to consider the Page 23 of 26 Uploaded by DIKSHA HARISH GUSAIN(HC02363) on Fri May 08 2026 Downloaded on : Sat May 09 03:35:55 IST 2026 NEUTRAL CITATION C/FA/1883/2007 JUDGMENT DATED: 08/05/2026 undefined findings recorded by the Trial Court. The learned Trial Court while deciding Issue No.6, has mainly recorded the finding that as the suit was filed by the plaintiff for the recovery of the amount and as per the case of the plaintiff, the transaction between plaintiff and the defendant no.1 took place between 27.09.1989 and 18.01.1990. It was recorded by the learned Trial Court that the defendant had admitted this transaction. Subsequently, a suit is required to be filed within three years from the last date of transaction that is 18.01.1990 but plaintiff has issued a notice under Section 167 of the Gujarat Cooperative Society Act, 1962 and the said notice was served on the defendant on 19.06.1992 which was received on 24.06.1992. Hence, inspite of the receipt of the notice, defendant no.1 has not paid the amount. The learned Trial Court recorded that the suit was filed on 04.09.1993, from 1992 within three years, the same has been filed and hence, it is not time barred.
52. In our humble opinion, the findings recorded by the Page 24 of 26 Uploaded by DIKSHA HARISH GUSAIN(HC02363) on Fri May 08 2026 Downloaded on : Sat May 09 03:35:55 IST 2026 NEUTRAL CITATION C/FA/1883/2007 JUDGMENT DATED: 08/05/2026 undefined learned Trial Court are against the settled principle of law, as merely by issuing a notice under Section 167 of the Gujarat Cooperative Society Act, 1962, the Trial Court cannot extend the period of limitation. If any part payment was made within three years or if any acknowledgment of date was given in writing by the defendant, then only in these two eventualities the limitation period could have been extended for further period of three years. But the findings of the learned Trial Court is that by issuance of notice in the year 1992 the limitation period gets extended is settled principle of law and apparently, as we discussed above, the last transaction took place on 18.01.1990 and thereafter, no further transaction has been made and the suit has been filed on 04.09.1993. So admittedly, when the suit is filed after three years it is time barred. Only on this ground also, the Judgment and Decree passed by the learned Trial Court is required to be quashed and set aside. Hence, we answer the issue no.2 in the affirmative. Page 25 of 26 Uploaded by DIKSHA HARISH GUSAIN(HC02363) on Fri May 08 2026 Downloaded on : Sat May 09 03:35:55 IST 2026
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53. As discussed above, we are of the considered view that as the suit is time barred as it is filed after period of three years and original defendant no.2 cannot be held liable, the Judgment and Decree passed by the learned Trial Court is against the settled principle of law and is required to be quashed and set aside.
54. Accordingly, the First Appeal No.1883 of 2007 and First Appeal No.4075 of 2006 are hereby allowed. The judgment and decree passed by learned Principal Senior Civil Judge, Valsad in Special Civil Suit No.180 of 1993 dated 30.06.2006 is hereby quashed and set aside.
55. Decree is to be drawn accordingly.
56. In view of the above, the Civil Application (For Orders) No.2 of 2006 would not survive and the same stands disposed of accordingly.
(BHARGAV D. KARIA, J) (L. S. PIRZADA, J) DIKSHA Page 26 of 26 Uploaded by DIKSHA HARISH GUSAIN(HC02363) on Fri May 08 2026 Downloaded on : Sat May 09 03:35:55 IST 2026