Delhi High Court
M/S National Minorities ... vs Andhra Pradesh Mahila Welfare ... on 16 August, 2016
#15
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 16.08.2016
RFA 589/2016
M/S NATIONAL MINORITIES DEVELOPMENT
AND FINANCE COPRORATION ..... Appellant
Through: Mr. Danish Zubair Khan, Advocate
versus
ANDHRA PRADESH MAHILA WELFARE SOCIETY
THR ITS PRESIDENT & ORS ..... Respondents
Through: None
CORAM:
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
SIDDHARTH MRIDUL, J (ORAL)
CM APPL.29547/2016 (Condonation of Delay in Refiling)
For the reasons stated in the application, which are duly supported by an
affidavit, the delay in refiling the accompanying appeal is condoned.
The application is disposed of accordingly.
RFA 589/2016 & CM APPL.29546/2016 (Condonation of Delay in Filing),
CM APPL.29545/2016 (Stay)
1. The present appeal under Section 96 of the Code of Civil Procedure,
1908 assails the judgment and decree dated 27.08.2015, passed by the
District & Sessions Judge (East), Karkardooma Courts, Delhi in CS
RFA 589/2016 Page 1 of 5
No.109/2015, titled "M/s National Minorities Development and Finance
Corporation vs. Andhra Pradesh Mahila Welfare Society & Ors." whereby
the said suit for recovery of money, instituted on behalf of the appellant
herein came to be dismissed, as being barred by limitation.
2. Learned counsel appearing on behalf of the appellant canvasses a
solitary ground before this Court in the present appeal. It is urged on behalf
of the appellant that the guarantee executed by the defendant was in the
nature of a continuing guarantee and that consequently, since the appellant
kept issuing demand notices invoking the said guarantee, the period of
limitation came to be extended on account of the acknowledgement of debt,
in terms of Section 19 of the Limitation Act, 1963 (hereinafter referred to as
the 'said Act').
3. In this behalf, it would be expedient to consider the provision of
Section 19 of the said Act:-
"19. Effect of payment on account of debt or of interest
on legacy. - Where payment on account of a debt or of
interest on a legacy is made before the expiration of the
prescribed period by the person liable to pay the debt or
legacy or by his agent duly authorised in this behalf, a fresh
period of limitation shall be computed from the time when the
payment was made:
Provided that, save in the case of payment of interest
made before the 1st day of January, 1928, an
acknowledgement of the payment appears in the handwriting
of, or in a writing signed by, the person making the payment.
Explanation. - For the purpose of this section, --
(a) Where mortgaged land is in the possession of
the mortgagee, the receipt of the rent or produce
of such land shall be deemed to be a payment;
RFA 589/2016 Page 2 of 5
(b) "debt" does not include money payable under a
decree or order of a court."
4. A plain reading of the above provision clearly postulates that where a
payment is made on account of a debt, before the prescribed period of
limitation under the said Act expires, by the debtor, a fresh period of
limitation is set into motion from the time such payment is made.
5. In the present appeal, it is observed that subsequent upon the
disbursement of the loan on 23.12.2000, the appellant has not averred that
any payment has been received from the defendants.
6. In this backdrop, the learned trial court dismissed the suit with the
following order:-
" Vide this order, I shall dispose arguments on the point
of limitation. Present suit has been filed by the plaintiff
against defendants for recovery of Rs.3,80,366/- (Rupees
Three Lacs Eighty Thousand Three Hundred Sixty Six).
Facts
as mentioned in the plaint are that defendant No.1
Society requested the plaintiff for financial assistance by way
of loan and the plaintiff sanctioned loan under Micro Credit
Scheme to the tune of Rs.4,32,000/- in two installments. First
installment of Rs.2,16,000/- was released vide bank draft
dated 01.07.2000 and the second installment of the same
amount was released on 23.12.2000. The plaintiff requested
the defendants several times to refund the loan amount but
defendants avoided to pay back the same on one pretext or the
other. As per statement of account, a sum of Rs.3,80,366 /-
(Rupees Three Lacs Eighty Thousand Three Hundred Sixty
Six) was due as on 16.06.2014. Demand notice dated
24.06.2014 was sent to the defendants calling upon them to
repay the amount due, but of no avail.
2. Perusal of averments of the plaint shows that the
plaintiff has sought to recover the loan amount advanced in
the year 2000 in two installments and last installment was
released to the defendants on 23.12.2000. Documents such as
loan agreement, disbursement slip etc. have been filed on
record. Limitation for recovery of loan amount is three years.
But there is nothing on record to show that defendants have
acknowledged their liability in the last three years. No reply
has been received by the plaintiff from the defendants in
response to demand notice sent whereby defendants had
acknowledged the liability. Merely sending demand notice to
the defendants can not extend the period of limitation. The
limitation can be extended only either by way of
acknowledgement of debt in writing or part payment of debt
as provided under Sections 18 & 19 of the Limitation Act,
1963. In the absence of any document i.e. acknowledgement
of debt in writing or part payment of debt allegedly made by
the defendants, I hold that there is inordinate delay in filing of
the present suit. So, the present suit, being barred by
limitation, is liable to be dismissed. Accordingly, present suit
is dismissed, being barred by limitation. Decree sheet be
drawn.
File be consigned to record room."
7. It is trite to state that the Court has no discretion to extend the period
of limitation prescribed by the said Act, except insofar as it falls within the
mandate of the provisions contained in Sections 4 to 24 (inclusive) of the
said Act.
8. In the present case, in my view, in the facts and circumstances, the
submission made on behalf of the appellant to the effect that there was an
acknowledgement on the part of the defendants, in view of the guarantee
furnished by the latter, which according to them was a continuing guarantee
and extended the period of limitation on account of acknowledgement of
debt, is fallacious and devoid of merits. There admittedly is no other
acknowledgement of debt in writing by the defendants apart from this
unsupported argument of "continuous guarantee" set up by the appellant.
Thus, the provision of Section 19 of the said Act, are not attracted to the
facts of the present case.
9. The suit being CS No.109/2015 titled "M/s National Minorities
Development and Finance Corporation vs. Andhra Pradesh Mahila Welfare
Society & Ors.", instituted on behalf of the appellant was patently barred by
time in view of the findings of the trial court, which have not been
controverted on behalf of the appellant. Accordingly, its dismissal as being
barred by limitation cannot be found fault with.
10. Since no other ground has been urged on behalf of the appellant in the
present appeal, I confirm the decision arrived at by the trial court, which has
been impugned in the appeal.
11. The appeal is accordingly dismissed. Pending applications also stand
disposed of.
SIDDHARTH MRIDUL, J
AUGUST 16, 2016
dn
