Madan S/O Tulshiramji Sakhare And ... vs Shashichandra S/O Dhruvnarayan ...
2021 Latest Caselaw 11872 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR

                           Second Appeal St.No.1799 of 2021
                            Madan Tulshiramji Sakhare & another
                                            vs.
                      Shashichandra s/o Dhruvnarayan Jaiswal & another
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Office notes, Office Memoranda of
Coram, appearances, Court's orders                               Court's or Judge's Orders
or directions and Registrar's orders.
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                              Shri A.H. Lohiya, Advocate for the Appellants.


                                               CORAM : S.M. MODAK, J.

DATE : 26th AUGUST, 2021.

Heard learned Advocate Shri Lohiya for the appellants/defendants.

02] There is an office objection about delay of 45 days. Whereas, the appellants have placed on record the orders dated 23/03/2020 and 10/07/2020 passed by the Hon'ble Supreme Court in Suo Motu Writ Petition (Civil) No(s).3/2020.

03] The first appellate Court has delivered the judgment on 08/09/2020. So, when the normal period of limitation expired, at that time, the extension granted by the Hon'ble Supreme Court was in force. In view of that the office objection about limitation is overruled.

04] Appellant/defendant No.2, who is the owner of the shop, has authorized appellant/defendant No.1 to run the shop. The present respondents have filed a suit for recovery of money for the liquor, they have sold to the defendants. The trial Court has dismissed the suit on the ground that the suit is barred by the

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law of limitation on the basis of Article 14 of the Limitation Act. The last date of delivery as per the plaintiffs is 09/03/2007, whereas the suit was filed after three years i.e. on 31/03/2010.

05] When the original plaintiffs filed the first appeal, it was held that the suit is within limitation. Before the first appellate Court, the plaintiffs have pleaded that Article-1 of Part-I of the Limitation Act is applicable. The first appellate Court, though not accepted the said contention, held that the suit is within limitation. Reference of Article 113 i.e. residuary article was taken by the first appellate Court and, accordingly, money decree is passed against the present appellants.

06] The main thrust of the argument is that Article 113 will be applicable only when no period of limitation is prescribed in the Schedule. So also, he submits that on many occasions, the defendants have not signed the indents and on many occasions the invoices are not signed by these defendants.

07] It is a matter of record that the defendants, though filed a written statement, have not given evidence. Apart from examining plaintiff No.1, one Raju Koche was examined. He was an ex-employee of the defendants. He was examined in order to prove that he has signed on behalf of the defendants on the invoices.

08] At this stage, I am inclined to issue notice before admission only on the following substantial question of law :

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                                          (i)    Whether the first appellate Court was right

in invoking Article 113 of the Limitation Act, when it was not the case of the original plaintiffs and when the Limitation Act provides for other articles?

09] So far as the argument about framing the substantial question of law pertaining to invoices, being fraudulent (for the reason that it does not bear the signature of the defendants) and the indents not having the signatures of the defendants will be considered later on, once the appellants will produce necessary documents.

10] Hence, issue notice before admission to the respondents, returnable after eight weeks.

Civil Application [CAS] St.No.1800/2021:

Today, this Court has issued notice before admission after framing one substantial question of law. As it is on money decree, the appellants are bound to deposit the amount.

Hence, the appellants are directed to deposit the principal amount of Rs.18,79,594/-. The appellants to deposit Rs.10,00,000/- within two weeks from today and remaining amount within a period of four weeks from today. Subject to that, the money decree is stayed till appearance of the respondents.

JUDGE *sandesh