Kautik Ragho Marathe vs Javerchand Surtingaji Company
2006 Latest Caselaw 781 Bom

JUDGMENT

S.B. Deshmukh, J.

1. Heard learned Counsel Mr. Sangit, instructed by learned Senior Counsel Mr. V.J. Dixit, who appears for the appellant. None for the respondent. This second appeal is filed by the original defendant in Special Civil Suit No. 51 of 1975. Parties hereinafter are referred to their status in Special Civil Suit No. 51 of 1975, as plaintiff and defendant.

2. The plaintiff filed Special Civil Suit No. 51 of 1975 for recovery of the goods sold, against the defendant. An amount of Rs. 16,974.31 Ps. was sought to be recovered, along with interest. Agreement Exhibit-36 is referred in the suit. The defendant, after entering appearance, filed written statement in the suit and resisted the claim. The trial Court framed as many as fifteen issues. Out of these fifteen issues, issue No. 11 is in respect of bar of limitation, plea set up by the defendant, in the written statement. The trial Court referred the oral evidence of plaintiff. Defendant, admittedly, did not enter the witness box, neither any witness is examined on behalf of the defendant. The agreement between the parties is filed by the plaintiff at Exhibit-36. Trial Court recorded a finding that the suit is not within limitation. The trial Court was of the opinion that the suit filed by the plaintiff is premature, and, therefore, rejected the suit under Order 7, Rule 11(a) of the Code of Civil Procedure (Code) and dismissed the suit by the judgment and decree dated 27th February, 1981.

3. It was plaintiffs Regular Civil Appeal (RCA) No. 341 of 1982 in the Court of learned District Judge, at Dhule under Section 96 of the Code. The appeal is allowed by the learned District Judge, Dhule by the judgment and decree passed on 19th October, 1985. The judgment and decree passed by the trial Court is set aside and the suit filed by the plaintiff for recovery of Rs. 16,974.31 Ps. is decreed with interest at the rate of 6% p.a. However, this interest is permitted on the amount of Rs. 11,309.31 Ps. It is this judgment and decree, passed by the learned District Judge, Dhule, in RCA No. 341 of 1982, is the subject-matter of this second appeal.

4. This second appeal is admitted by this Court by the order passed on 7th March, 1986. The substantial question of law, framed by this Court, at the time of admission is "whether suit is premature raises a question of law".

5. The learned Counsel Mr. Sangit invited my attention to the judgment of the trial Court and more specifically para 8 of the judgment. The trial Court referred to the notice Exhibit-47, the date of filing of the suit and agreement Exhibit-36. The trial Court was of the opinion that the suit is within limitation, however, it is premature. The first Appellate Court framed as many as nine points/issues. Out of these nine points, point No. 5 was in respect of limitation and point No. 7 was in respect prematurity of the suit. These two issues/points for determination have been dealt with by the first Appellate Court in para Nos. 12, 13 and 14. The first Appellate Court referred to the agreement Exhibit-36 and provision laid down under Section 55 of the Indian Contract Act. The first Appellate Court is of the opinion that the plaintiff is left with the option to continue or avoid the contract and ultimately held that neither the suit is premature nor the suit is hit by provisions of Limitation Act. The first Appellate Court has observed that there is no pleading in the written statement, raised on behalf of the defendant, that the suit is premature. This observation is also made by the trial Court in its judgment. The learned Counsel Mr. Sangit for the appellant admits that there is no such pleading in the written statement. However, according to him, prematurity of the suit is a question of law and, therefore, can be considered by this Court.

6. This Court can entertain and decide the second appeal under Section 100 of the Code. The substantial question of law, formulated in this appeal, is regarding prematurity of the suit. Undisputedly, there is no pleading raised in the written statement filed by the defendant. The defendant also did not enter into the witness box and no oral evidence, by way of witnesses, is led on behalf of the defendants. The substantial question of law, has to be a foundation in the pleadings of the parties. In the absence of any pleading in the written statement, the first Appellate Court, in my view, justifiably held that the suit cannot be said to be premature.

7. Apart from the pleadings, it appears that the first Appellate Court has examined the evidence on record and the provisions laid down under Section 55 of the Indian Contract Act. Apart from the agreement, between the parties, Section 55 of the Indian Contract Act gives the consequences of failure to perform, at fixed time, the contract between the parties, in which time is the essence. Undisputedly, the contract is in respect of sale of goods. The first Appellate Court has justifiably held that the time is the essence of the contract. The first Appellate Court, on the basis of appreciation of evidence, considered the provision laid down under Section 55 and on merits, held that the amount due was more than Rs. 11,000/- and was not cleared by the defendant. The option, therefore, was left with the plaintiff who has exercised the option. On merits also, I do not find that the finding of the first Appellate Court, regarding prematurity of the suit, is perverse. In other words, the substantial question of law, regarding prematurity of the suit, has to be held that, the suit, on the date of filing, was not premature.

8. The learned Counsel for the appellant, resorting to Section 100(5) of the Code submits that the suit filed by the plaintiff was beyond the period of limitation. Though no substantial question of law is framed by this Court, at the time of admission of the second appeal, he submits that such a question of law can be formulated by this Court, at the time of final hearing of the appeal. Such power do exist with this Court under Sub-section (5) of Section 100 of the Code. However, looking to the facts and circumstances, date of the agreement as 5th March, 1971, the date of filing of the suit as 27th June, 1975 and a fact that the first Appellate Court has specifically recorded a finding on the point of limitation. In favour of the plaintiff, I do not wish to exercise the power under Sub-section (5) of Section 100 of the Code and formulate a question of law regarding limitation, as a substantial question of law, at the time of final hearing of the second appeal.

9. In this view of the matter, the substantial question of law, framed in this second appeal, has to be answered in negative, holding that the suit filed by the plaintiff is not premature and the second appeal deserves to be dismissed.

10. In the result, the second appeal stands dismissed. In case of grant of stay, if any, during the pendency of this appeal, it shall stand vacated. No costs.