Bombay High Court
Smt.Rukhminidevi Wd/O ... vs Madanmohan S/O Balmumdji Kakani on 13 December, 2017
Bench: V.M. Deshpande
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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:
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"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
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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.
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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
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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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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.
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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.
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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
