Bombay High Court
Vinod S/O Gajananrao Dattatraya vs Western Maharshtra Development ... on 17 January, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:899
1 8 sa10.24.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO. 10 OF 2024
VINOD S/o GAJANANRAO DATTATRAYA
VERSUS
WESTERN MAHARASHTRA DEVPT. CORPN., CHITALI, DIST. AMHEDNAGAR
-------------------------------------------------------------------------------------------------------
Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
-------------------------------------------------------------------------------------------------------
Mr. Amol S. Deshpande, Advocate for the appellant
CORAM : G. A. SANAP, J.
DATE : JANUARY 17, 2024.
1. Heard Mr. Amol S. Deshpande, learned advocate for
the appellant. Perused the record and proceedings.
2. The appellant seeks to challenge the judgment and
order passed by learned District Judge-2, Chandrapur, dated
12.09.2023 in Regular Civil Appeal No. 104/2013,
whereby the learned District Judge upheld the judgment
and decree of dismissal of the suit filed by the
appellant/plaintiff for recovery of Rs. 81,023/- with interest.
3. With the able assistance of learned advocate for the
appellant, I have gone through the record and proceedings.
4. The suit was filed by the appellant for recovery of
Rs.81,023/-, which was the amount deducted from the bill
of Rs.7,07,721.84. This was the price of coal supplied by
the plaintiff to the defendant. According to the
2 8 sa10.24.odt
appellant/plaintiff, despite repeated demands, the amount
was not paid and therefore, final notice was issued on
26.08.1999 and the defendant was called upon to make the
payment. On failure of the defendant, the suit was filed.
5. The defendant opposed the suit. One of the grounds
stated in the written statement was pertaining to the bar
under the Limitation Act, 1963. The defendant, inter alia,
contended that the cause of action for filing the suit aarose
in April-1997 and the suit filed beyond three years of
accrual of cause of action was barred by limitation.
6. The parties adduced evidence before the trial Court.
The trial Court on the issue of limitation recorded a finding
that Article 14 of the Schedule to the Limitation Act, would
govern the limitation for filing this suit. The trial Court
held that the suit was not filed within three years from the
date of accrual of cause of action and on that ground, the
suit was dismissed.
7. The appellant filed the first appeal before the District
Court. Learned District Judge found that even if the suit
was governed by Article 113 of the Limitation Act, still the
suit would be barred by limitation. It is pertinent to note
that as far as accrual of cause of action is concerned, the
Courts below have appreciated the entire evidence and
recorded a finding that the cause of action arose in April-
3 8 sa10.24.odt
1997 and as such the suit filed beyond three years from the
date of cause of action was not within limitation.
8. Learned advocate for the appellant, in support of his
submission, placed heavy reliance on the decisions of the
Hon'ble Apex Court in Mst. Rukhmabai .vs. Lala
Laxminarayan and others, reported at AIR 1960 SC 335
and G.S. Abdul Rahiman .vs. H.R. Venkatakrishnaiya,
reported at AIR 1983 Karnataka 98, and contended that
unless and until there is clear and unequivocal threat so as
to compel the plaintiff to file the suit, the cause of action in
such suit arises thereafter. It would be profitable to
reproduce paragraph 33 in Mst. Rukhmabai (supra).
"33. The legal position may be briefly stated
thus : The right to sue under Art.120 of the
Limitation Act accrues when the defendant has
clearly and unequivocally threatened to infringe
the right asserted by the plaintiff in the suit. Every
threat by a party to such a right, however
ineffective and innocuous if may be, cannot be
considered to be a clear and unequivocal threat so
as to compel him to file a suit. Whether a
particular threat gives rise to a compulsory cause of
action depends upon the question whether that
threat effectively invades or jeopardizes the said,
right."
9. Even if this position is kept in mind, in my view, the
same would be of no help to the case of the appellant. The
cause of action, as held by the Courts below, accrued in
4 8 sa10.24.odt
April-1997 when the demand was made by the appellant/
plaintiff. The Courts below have considered the subsequent
correspondence between the parties in this regard. On
consideration of subsequent correspondence, the Courts
below have recorded a finding that the said correspondence
would not, in any manner, change the date and month of
accrual of cause of action.
10. The questions of law, as sought to be contended,
would arise in such factual situation, if it is pointed out that
concurrent finding of fact, arrived at by the Courts below, is
perverse inasmuch as, it is not based on the evidence
available on record or on the ground of perversity in
appreciating the said evidence. It is undisputed that vide
letter dated 01.04.1997 (Exh.46), the defendant had
informed the plaintiff about withholding/deduction of
Rs.81,023/- from the sum of Rs.7,07,721.84. It is
undisputed that the letter dated 04.04.1997 (Exh.47) was
issued by the plaintiff and under this letter, demand of
Rs.81,023/- was made. It was contended that the amount of
Rs.81,023/- was illegally deducted from the amount of
Rs.7,07,721.84. In my view, irrespective of applicability of
Article 14 or Article 113 of the Limitation Act, the factual
scenario would not change. It is undisputedly the case of
the appellant that Article 113 of the Limitation Act would
apply to this case. The first Appellate Court has
categorically held that even if Article 113 is applied, in that
5 8 sa10.24.odt
eventuality also, the date of cause of action would be
01.04.1997 and not the one contended in the suit.
11. In view of above, I am of the view that no substantial
question of law arises in this appeal. There is no perversity
in the concurrent findings of fact recorded by the Courts
below. Therefore, this appeal stands dismissed at admission
stage. No order as to costs.
JUDGE
Diwale
Signed by: DIWALE
Designation: PS To Honourable Judge
Date: 23/01/2024 14:36:52
