Bombay High Court
M/S. Nelco And Company Thr. Proprietor ... vs Smt. Sheela Laxmikant Gupta on 16 July, 2025
2025:BHC-NAG:6897
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL REVISION APPLICATION NO.103 OF 2024
1. M/S. NELCO AND COMPANY PETITIONERS:
Through Proprietor Shri. Devendra (Original
Sugandh; Defendants)
...Original Defendant no.1
2. SHRI. DEVENDRA SUGANDH
aged about Major, Occ. Business, Both
R/o. Flat no. 202, Swarna Apartments,
Opp. Khandelwal Bhawan, Quetta
Colony, Nagpur - 400008.
...Original Defendant no.2
-Versus-
SMT. SHEELA LAXMIKANT GUPTA
aged about 67 years, Occup. Housewife, RESPONDENT:
R/o New Colony, Nagpur. (Original
Plaintiff)
WITH
CIVIL REVISION APPLICATION NO.104 OF 2024
1. M/S. NELCO AND COMPANY PETITIONERS
Through Proprietor Shri. Devendra :
Sugandh; (Original
...Original Defendant no.1 Defendants)
2. SHRI. DEVENDRA SUGANDH
aged about Major, Occ. Business, Both
R/o. Flat no. 202, Swarna Apartments,
Opp. Khandelwal Bhawan, Quetta
Colony, Nagpur - 400008.
...Original Defendant no.2
-Versus-
SHRI. NIKUNJ LAXMIKANT GUPTA,
R/o. Flat. No.101, Le Marvel, RESPONDENT
Temple Road, Next to Gupta Tower, Civil :
Lines, Nagpur - 440 001. (Original
Plaintiff)
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Adv. G.B. Sawal, for Applicant.
Adv. Radhika Gaurav Bajaj, for Respondents.
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CORAM : MRS.VRUSHALI V. JOSHI, J.
Date of Reserving the judgment:- 08/07/2025
Date of Pronouncing the judgment:- 16/07/2025
COMMON JUDGMENT:
-
1) Heard.
2) Rule. Rule made returnable forthwith. Both the Civil
Revision Applications are heard finally with the consent of the learned
counsel appearing for the respective parties.
3) By way of filing instant Civil Revision Applications, the
applicants seek to quash and set aside, the common order which is
impugned dated 08.08.2024 passed in Special Civil Suit nos. 890/2019
and 817 of 2019 by the Trial Court, while rejecting application filed
below Exhibit-26 and Exhibit 29 respectively by the defendants under
Order VII Rule 11(d) of the Code of Civil Procedure, 1908, read with
Sections 3, 18 of the Limitation Act 1963, on 11/10/2023, seeking
dismissal of suit and rejection of the Suit plaint.
4) Briefly stated, two suits are filed by the respondent in the
year 2019 for recovery of amount alleged to have been lent in cash to
the petitioners between 13.09.2011 to 20.03.2013 for the purpose of
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business of petitioner no.1-firm. Allegedly, Special Civil Suit No.817
of 2019 in Civil Revision Application N0.103 of 2024 is filed by the
respondent on 13.09.2019. While the Special Civil Suit No.890 of
2019 in Civil Revision Application No.104 of 2014 filed for the
recovery amount from the period between 16.11.2011 to 11.03.2013
and 13.09.2011 to 20.03.2013.
5) It is the contention of the learned counsel for the applicants,
that both the suits are barred by limitation. The said suits were ought to
have been filed within a period of three years which has not been
complied with. It was further pointed out that, as per Section 18 of the
Limitation Act, period of limitation is counted from the date of
acknowledgement from the time, when the acknowledgement is so
signed and not from the date on which payment is deferred. It had
further been stated that, the date of acknowledgement is 15.09.2013.
Even if the period for limitation is considered from the date of
acknowledgement, it is barred by limitation as limitation ends on
14.09.2016 and the suits are filed in the year 2019.
6) Learned counsel for the applicants, Mr. Sawal, argued that
the learned Trial Court erred in taking into consideration the aspect of
limitation as a pure question of law, which is not a mixed question of
facts and law. It is the contention of the learned counsel, that the Trial
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Court failed to consider a catena of judgments, ignoring the law laid
down by the Apex Court and the High Courts, thus, passing an
impugned order.
7) He further placed reliance on the judgment in the case of
Kovuru Kalappa Devara -Vs- Kumar Krishna Matter and another
reported in AIR 1945 Madras 10, wherein it is held that "The suit
based on upon the acknowledgement, a fresh period of limitation shall
be computed from the time when the acknowledgement was so signed
although the acknowledgement deferred the payment for two years".
(ii) A.I.R. 1989 Patna 111 Rajkishor Sahay and others-Vs-Binod
Kumar and others, wherein it is held that "Payments acknowledged by
the defendant in writing the limitation starts running from the date of
acknowledgement".
8) On the other hand, the plaintiff/non-applicant in her reply
has resisted the said application for rejection of plaint on the ground
that objection of limitation being a question of facts and law and hence
it cannot be decided as a preliminary issue.
9) Heard both the learned counsel.
10) The issue as to whether the claim of applicants is barred by
limitation is raised objecting the suits filed by the non-applicants for
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recovery of loan. The applicants have specifically set up the plea that
the limitation for recovery of the loan amount starts from the date of
acknowledgement. On perusal of acknowledgement, it appears that the
defendants have promised to pay the amount within three years. The
plaintiff has taken a stand that, the limitation starts from the date of
expiration of said three years. According to non-applicant though it is
not specifically mentioned in the plaint that it starts on expiration of
the date which he promised in the acknowledgement. The learned
counsel for the non-applicant has stated that the implied promise to
pay after three years is there, therefore as per Lord Wrenbury it starts
after expiration of period of said three years. It is observed by Lord
Wrenbury :-
"a promise to pay forthwith is superseded by the
express promise to 'pay six months hence', and an
action cannot be brought into force until six months
have expired".
11) Though the specific plea of promissory note is not taken by
the non-applicant in the suit, however, it is implied as the
acknowledgement itself shows that undertaking was given to pay the
entire amount within a period of three years along with interest @ 18%
per annum. It appears that the applicants have denied said
acknowledgement as fabricated document. The question whether the
document is forged or fabricated is a disputed question of fact, which
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would be decided after the trial of the suit. If after the trial, the court
comes to the conclusion that the acknowledgement is forged and
fabricated then the suit would be liable to be dismissed as being barred
by the limitation. To decide the issue of forged document, it requires
evidence which would be considered after trial only.
12) If a person had promised to do a particular act within a
stipulated period, then the cause of action to sue for breach of the
promise would accrue either on the specific refusal of the promise to
perform the said promise or on the expiry of the period stipulated for
the performance. It is observed in the case of Manoj Kumar Goyal Vs.
Jagdish Prasad Modi reported in 2014 SCC Online Del 698, that
regarding the effect of acknowledgement in writing, Section 18 of the
Act prescribes:-
18. Effect of acknowledgement in writing.--
(1) Where, before the expiration of the
prescribed period for a suit or application in
respect of any property or right, an
acknowledgment of liability in respect of such
property or right has been made in writing
signed by the party against whom such property
or right is claimed, or by any person through
whom he derives his title or liability, a fresh
period of limitation shall be computed from the
time when the acknowledgement was so signed.
(2) Where the writing containing the
acknowledgement is undated, oral evidence may
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be given of the time when it was signed; but
subject to the provisions of the Indian Evidence
Act, 1872 (1 of 1872), oral evidence of its
contents shall not be received.
Explanation.- For the purposes of this section,-
(a) an acknowledgement may be sufficient
though it omits to specify the exact nature of the
property or right, or avers that the time for
payment, delivery, performance or enjoyment
has not yet come or is accompanied by a refusal
to pay, deliver, perform or permit to enjoy, or is
coupled with a claim to set - off, or is addressed
to a person other than a person entitled to the
property or right,
(b) the word "signed" means signed either
personally or by an agent duly authorised in
this behalf, and
(c) an application for the execution of a decree
or order shall not be deemed to be an
application in respect of any property or right."
9. In terms of Section 18 of the Act, if before
the expiry of the prescribed period for filing a
suit an acknowledgement of liability is made in
writing by the party against whom such claim is
made a fresh period of limitation shall be
computed from the time when the
acknowledgement was so signed. If a person
availing a loan before the expiry of the period of
limitation for filing the suit acknowledges his
liability in writing, then the lender gets a fresh
period of limitation for filing the suit".
13) The learned counsel for the applicant has relied on the
judgment in the case of Kovuru Kalappa Devara Vs. Kumar Krishna
Mitter and anr reported in AIR 1945 Madras 10, wherein it is
observed as under :-
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The language of Section 19 of the Act is clear
that where there is an acknowledgement of
liability the result which follows is that the
fresh period of limitation shall be computed
from the time when the acknowledgement was
so signed. There can be no doubt we think that
the learned District Judge is right also in
holding that any suit based upon the original
cause of action in 1930 is barred by limitation.
In the result this appeal must fail and is
dismissed with costs.
14) In case in hand the acknowledgement is filed on record. It is
signed on 15.09.2013. The limitation expires after three years from
the date of signing of said acknowledgement, however, it appears that
there is undertaking about payment of loan amount after three years
therefore it requires consideration. The acknowledgement is denied by
defendant as fabricated document then it becomes question of law and
fact.
15) This court has observed in the case of Civil Revision
Application No.367 of 2023 (Prasad Nandkumar Deshmukh Vs.
Dhaku Navlu Aukirkar and ors.) decided on 09/07/2024:-
"In every case that is filed, objection raised
under O.VII, R.11 has to be decided on the
facts of the case pleaded in the suit plaint, cause
of action and reliefs sought for. It cannot be
stated by the Court that issue of limitation
raised by Defendant cannot be decided at an
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early stage since it is a mixed question of fact
and law as is done in the present case. If what is
countenanced by the learned Trial Court is
accepted, then provisions of O.VII, R.11 of the
CPC will be rendered completely redundant".
16) The Hon'ble Apex Court in the case of Salim D.Agboatwala
and ors. Vs. Shamalji Oddhavji Thakkar and ors reported in (2021)
17 Supreme Court Cases in paragraph Nos.8 and 11 has observed
under:-
8. Insofar as the rejection of plaint on the
ground of limitation is concerned, it is needless
to emphasis that limitation is a mixed question
of fact and law. It is the case of the
appellants/plaintiffs that only after making
inspection of the records in connection with the
suit land available in the office of defendant
No.3 (Court Receiver) that they came across the
correspondence and documents relating to the
transactions and that the proceedings before
the ALT were collusive, fraudulent and null
and void. The appellants/plaintiffs have even
questioned the authority of the Court Receiver
to represent them in the tenancy proceedings.
11. As observed by this Court in P.V. Guru
Raj Reddy vs. P. Neeradha Reddy And Others
(2015)8 SCC 331, the rejection of plaint under
Order VII Rule 11 is a drastic power conferred
on the Court to terminate a civil action at the
threshold. Therefore, the conditions precedent
to the exercise of the power are stringent and it
is especially so when rejection of plaint is
sought on the ground of limitation. When a
plaintiff claims that he gained knowledge of the
essential facts giving rise to the cause of action
only at a particular point of time, the same has
to be accepted at the stage of considering the
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application under Order VII Rule 11".
17) On perusal of plaint, it reveals that cause of action was
counted from the date when legal notice was issued by plaintiff and the
loan is denied by defendant by replying the said notice.
18) It is also observed by the Hon'ble Apex Court in the case of
Mongia Realty and Buildwell Private Vs.Manik Sethi reported in
(2022) 11 SCC 5723.
The issue as to whether the claim of the
appellant is barred by limitation cannot be
isolated from the nature of the transactions
between the parties. In any event, whether the
plea of the appellant as set up in paragraph 5 of
the plaint is proved would depend upon
evidence adduced at the trial. The course of
action which was followed by the learned trial
Judge of directing the parties to address
arguments on the issue of limitation was
irregular. The issue of limitation in the present
case would require evidence to be adduced.
"In a case, question of limitation can be decided
based on admitted facts, it can be decided as a
preliminary issue under Order 14 Rule 2(2)(b).
Once facts are disputed about limitation, the
determination of the question of limitation also
cannot be made under Order 14 Rule 2(2) as a
preliminary issue or any other such issue of law
which requires examination of the disputed
facts. In case of dispute as to facts, is necessary
to be determined to give a finding on a
question of law. Such question cannot be
decided as a preliminary issue. In a case, the
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question of jurisdiction also depends upon the
proof of facts which are disputed. It cannot be
decided as a preliminary issue if the facts are
disputed and the question of law is dependent
upon the outcome of the investigation of facts,
such question of law cannot be decided as a
preliminary issue, is settled proposition of law
either before the amendment of CPC and post
amendment in the year 1976".
19) Here in case in hand, the acknowledgement is disputed by the
defendant. It requires examination of disputed facts. Whether
limitation starts from date of expiration of period promised in
acknowledgement will be decided only after the documentary and oral
evidence.
20) As per the observations made by learned Apex Court it is
mixed question of law and facts. It will be decided after the evidence,
whether the document is fabricated, whether it is a promissory note
and limitation starts from the date after giving undertaking.
Considering above said observation the application stands dismissed.
21) Rule stands discharged.
(MRS.VRUSHALI V. JOSHI, J)
Signed by: Kavita P Tayade
Designation: PS To Honourable Judge
Date: 18/07/2025 16:09:47
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