THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
APPEAL SUIT No.25 of 2003
JUDGMENT:
This appeal is filed against the Judgment and Decree of the trial Court in O.S.No.48 of 1992 dated 27.11.2002.
2. Plaintiff filed suit for recovery of amount of Rs.52,000/- along with interest at the rate of 36% per annum. Plaintiff examined himself as P.W.1 and marked Exs.A1 to A3 i.e, promissory note, office copy of the legal notice and returned postal cover. He also examined attestor as P.W.2. The defendant No.4 was examined as D.W.1. The trial Court considering the evidence on record and arguments of both sides decreed the suit with costs for Rs.52,000/- against the estate of the first defendant in the hands of defendant Nos.2 to 4 and future interest is granted at the rate of 6% per annum on Rs.25,000/- from the date of suit till the date of realization. Aggrieved by the said order present appeal is preferred by the defendant Nos.2 to 4 and mainly contended that the promissory note was executed on 24.05.1989 and the suit has to be filed within three years of limitation i.e, 23.05.1992, but it is filed on 11.06.1992 as such it is barred by limitation. The purport of Section 4 of the 2 Limitation Act was wrongly understood. Though issue No.5 is framed regarding the necessity of defendant to borrow the suit amount, it was not discussed and contested, as such the order of the trial Court is to be set aside and it is to be remitted back. The rate of interest at 36% per annum is exorbitant and the suit ought to have dismissed for mis-joinder of parties. The trial Court held that there is no cause of action in the suit. Therefore, requested the Court to set aside the Judgment and Decree in O.S.No.48 of 1992 dated 27.11.2002.
3. Heard arguments of both sides and perused the entire record.
4. Plaintiff stated that he is well acquainted with the defendant No.1. Out of said acquaintance the defendant No.1 approached him for hand loan of Rs.25,000/- for his family needs and business necessities and agreed to repay the same with interest at the rate of Rs.3/- per hundred per month. Considering his request, he paid the said amount on 24.05.1989 and defendant No.1 had executed a promissory note promising to repay the said amount with interest at the rate of Rs.3/- per hundred per month and also executed a receipt 3 acknowledging the receipt of the said amount. Later, when defendant No.1 failed to repay the said amount, in spite of repeated demands he got issued legal notice on 22.04.1992. Even afterwards, the defendant No.1 obtained some other amounts from him and it is not the subject matter of the suit. He stated that defendant No.1 has got sufficient means to discharge the suit amount, but with a malafide intention only to harass him and to cause irreparable loss, he is evading the payments. Therefore requested the Court to grant Rs.52,000/-.
5. He also stated that as the three years expired by 23.05.1992, it is filed during summer vacation before the vacation Court and sought for attachment of properties of the defendant No.1 before Judgment. As defendant No.1 is no more, his wife and sons brought on record as legal representatives of the defendant No.1. Therefore, requested the Court to grant decree in favour of plaintiff against the estate of defendant Nos.2 to 4 and also requested for future interest.
6. The appellants Counsel mainly contended that suit is barred by limitation as it is not filed before the appropriate Court it is not maintainable. They also contended that suit is 4 filed before the Vacation Court (District Court) and thus it is not filed before appropriate Court, but the said contention was not raised either in the Written Statement or in the appeal grounds of this Court and they only came up with the said contention at the time of arguments. As the said plea was not taken up at the earlier point of time, he cannot raise it at this stage. They also contended that suit was not filed within three years i.e, on or before 23.05.1992, it is filed on 11.06.1992.
7. Admittedly, there was summer vacation for Courts from 01.05.1992 to 14.06.1992 (both days inclusive) and was reopened on 15.06.1992. In fact, suit was filed during vacation before the Vacation Court of Mahabubnagar on 11.06.1992. Even when it was returned with objection regarding limitation, it was resubmitted on 15.06.1992 reopening day, as such the trial Court observed that the suit was well within the limitation as per Section 4 of Limitation Act. The learned Counsel for the defendants argued that the Section 4 is not applicable to the suits basing on promissory note and it applies only for injunction and other suits but the said argument was held as not proper and it was held that Section 4 applies to the suits based on the promissory notes also. Though the Judgment was 5 pronounced by the trial Court on 27.11.2002, appeal was filed on 07.01.2003 and thus there is also delay in filing the appeal. It seems that the delay petition was condoned and the appeal was admitted long back therefore it need not be looked into at this stage. Another argument of the appellants Counsel is that the interest is excessive. The rate of interest was disputed in the Written Statement filed by the first defendant on 28.09.1995. The trial Court granted interest as claimed till the filing of the suit, but future interest of 6% per annum was granted on Rs.25,000/- from the date of suit till the date of realization, as such this Court finds no illegality or infirmity in the Order of the trial Court and it needs no interference.
In the result, the appeal is dismissed confirming the Judgment and Decree of the trial Court in O.S.No.48 of 1992 dated 27.11.2002. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA DATED: 29.12.2022 tri 6 THE HONOURABLE SMT. JUSTICE P.SREE SUDHA APPEAL SUIT No.25 of 2003 DATED: 29 .12 .2022 TRI