Gujarat High Court
Navnitbhai Mepabhai Vadgama vs Chandrakant Lavjibhai Mandanka on 12 August, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 570 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
No
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NAVNITBHAI MEPABHAI VADGAMA & ANR.
Versus
CHANDRAKANT LAVJIBHAI MANDANKA
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Appearance:
KUSHAL A DESAI(9435) for the Applicant(s) No. 1,2
MR SP MAJMUDAR(3456) for the Applicant(s) No. 1,2
MR TRILOK J PATEL(658) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 12/08/2025
ORAL JUDGMENT
1. With the consent of learned advocates appearing for the respective
parties, matter is taken up for final disposal. Hence, Rule returnable
forthwith. Mr.Patel, learned advocate waives service of notice of Rule on
behalf of respondent.
2. The present Civil Revision Application has been filed, challenging
the order dated 08.11.2019, passed below Exh.8, in Special Civil Suit
No.193 of 2019, whereby 16th Additional Senior Civil Judge, Vadodara
has rejected the application filed under the provisions of Order VII Rule
11 of the Code of Civil Procedure, 1908.
3. For the sake of brevity, the parties herein are referred to as per their
original status before the trial Court.
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4. The brief facts arising in the present petition are that the plaintiff
filed Civil Suit No.193 of 2019, for recovery of an amount of
Rs.22,25,533/- pursuant to an agreement entered into between the
plaintiff and defendant on 30.05.2007. The defendant appeared in the said
suit and filed an application under Order VII Rule 11 of the CPC on the
ground that plaint is barred on the ground of limitation. After taking into
consideration the plaint and the documents annexed with the plaint, the
trial Court rejected the said application by order dated 08.11.2019 and,
therefore, present Civil Revision Application.
SUBMISSIONS OF THE DEFENDANT - PETITIONER:
5. Learned advocate for the defendant has mainly argued that the civil
suit that has been filed by the plaintiff is not for specific performance of
the agreement dated 30.05.2007, but the suit that has been filed is with
respect to recovery of an amount of Rs.9,50,000/-, that was taken as soft-
loan by the defendant from the plaintiff and agreement to that effect was
entered into between plaintiff and defendant on 30.05.2007, wherein it
was agreed that the amount of Rs.9,50,000/- will have to be repaid by the
defendant within nine months from 30.05.2007 and if the defendant failed
to pay the said amount, the plaintiff was entitled for monthly 1% interest
on the said amount and, therefore, suit that has been filed is for recovery
of an amount of Rs.9,50,000/- plus interest amount which accrued on the
said amount of Rs.9,50,000/-. Therefore, in all, the suit has been filed for
an amount of Rs.22,25,533/- and in view of the said fact it has been
argued that the plaint is hopelessly time barred in view of the Articles 19,
27 and 55 of the Limitation Act and, therefore, it has been argued that
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plaintiff could not have filed the suit in the year 2019, for recovery of
amount of loan that has been advanced by the plaintiff to the defendant in
the year 2007 and in view of the provisions of Article 19 of the
Limitation Act, the period of limitation is three years and, therefore, the
plaint is required to be rejected and the trial Court could not have
dismissed the said application filed by the defendant under the provisions
of Order VII Rule 11 of the CPC, wherein the trial Court has also held
that only because there is a clause in the agreement that, the amount of
Rs.9,50,000/- is to be recovered with interest @ 1%, the trial Court could
not have come to conclusion that suit filed by the plaintiff is within
period of limitation.
6. Learned advocate for the defendant has relied upon the following
judgments.
(i) Elder vs. Northcott, 1930 Chancery Division 442;
(ii) Attar Singh vs. Dalip Singh , AIR 1935 Lah 516; and
(iii) The Commissioner, Corporation of the City of Bangalore vs.
K.N.Vasudeva Murthy and others, 2011 SCC OnLine Kar
It is, therefore, submitted that in view of the above, present
Civil Revision Application is required to be allowed and the plaint is
required to be rejected.
SUBMISSIONS OF THE PLAINTIFF - RESPONDENT :
7. Per contra, learned advocate for plaintiff has mainly argued that
relationship between the plaintiff and defendant no.2 is that of brother
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and sister and in view of the said fact, because of the said relationship the
plaintiff has filed suit in the year 2019. It has also been argued that while
deciding the application filed under the provisions of Order VII Rule 11
of the CPC, the Court will only have to consider the plaint and documents
annexed with the plaint and from the averments made in the plaint and on
perusal of the same it cannot be said that the plaint is barred by law.
8. Learned advocate for the plaintiff has also argued that issue of
limitation is mixed question of fact and plaint cannot be rejected at the
threshold taking into consideration the facts of the case.
9. Learned advocate for the plaintiff has also argued that entire
dispute in the plaint revolves around agreement dated 30.05.2007,
wherein defendant have agreed to pay Rs.9,50,000/- within period of nine
months and said amount is not paid within nine months and that there is
clause that if defendant fails to pay said amount within period of nine
months, the plaintiff will be entitled for monthly interest @ 1% on the
said amount and, therefore, the said breach is continuous breach and,
therefore, plaintiff is entitled to recover the said amount and that plaint is
within period of limitation.
10. Learned advocate for the plaintiff relied upon the judgment in the
case of Mahipatbhai Ramabhai Thakor vs. Vinubhai Shamalbhai
Thakarda (Decd.) & Ors. Reported in 2017 GLR (4) 3160 and submitted
that the present revision application is required to be dismissed in view of
the findings arrived at by the trial Court.
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ANALYSIS :-
11. Having heard learned advocates for the parties, from the plaint and
documents annexed with the plaint, following are admitted position:
(i) the agreement is executed on 04.05.2007;
(ii) the said agreement specifies that the payment has to be paid within
period of nine months ;
(iii) the said agreement also states that if the amount is not paid within
period of nine months, plaintiff shall be entitled to 1% monthly interest. It
has also been stated in the agreement that still amount is paid, there will
be charge on immovable property mentioned in the agreement.
12. The fact remains that suit that has been filed is for recovery of the
loan amount given by the plaintiff to the defendant and in view of the said
fact Articles 19 and 27 of the Limitation Act will have to be taken into
consideration which read thus:
Article Description of suit Period of Time from
limitation which period
begins to run
19 For money payable for Three years When the loan is
money lent made.
27 For compensation for Three years When the time
breach of a promise to do specified arrives
anything at a specified or the
time, or upon the contingency
happening of a specified happens.
contingency.
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13. In view of the fact that the suit that has been filed is not only for
recovery of interest amount, but also includes recovery of principal
amount and in the present case the interest is accessory to the principal
and if the suit for recovery of the principal amount is barred, the question
of interest to be paid on the principal does not arise, therefore, the
plaintiff claims of 1% monthly interest on the principal amount will not
be justified. In view of Article 19 of the Limitation Act, principal sum
having been barred by the statute, the interest so claimed was only
accessory to the principal and the interest also will be barred by period of
limitation. In view of the said fact, the principal amount of Rs.9,50,000/-
is barred by lapse of time and, therefore, claim of interest on the said
amount is also barred and, therefore, plaintiff cannot succeed on the claim
only on the ground that the claim of interest of 1% per month is
continuing breach and, therefore, plaintiff is required to file the suit.
14. The judgment relied upon by learned advocate for the plaintiff is
on the point that limitation is mixed question of fact, but the facts in the
present case clearly show that the suit that has been filed by the plaintiff
is hopelessly time barred in view of the fact that plaintiff is seeking
recovery of loan amount that was given by plaintiff on 30.05.2007 and
the suit having been filed in the year 2019.
14.1 In the judgment relied upon by the learned advocate for the
defendant in the case of Elder vs. Northcott (supra) it is held that the
principal sum having been barred by the statute, the interest so claimed
was, as being only accessory to the principal, barred with it. It is also
observed that "Accordingly, I hold that since the claim to the principal is
barred by lapse of time, the claim to the interest on it is barred also, and
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accordingly the plaintiffs cannot succeed in the claim so ingeniously put
forward for interest between the dates that I have mentioned. The action
will accordingly be dismissed".
14.2 Learned advocate for defendant relied upon the judgment relied
upon by the learned advocate for the defendant in case of Attar Singh vs.
Dalip Singh (supra), more particularly para:7, which reads as under:
"7. The argument, was that in the present case the interest was not
a mere accessory to the principal as there was a separate stipulation
for it. That is however not exactly what is stated in the mortgage
deed itself. The mortgagee was only given two options by the deed,
namely, that he could sue for interest at the end of a year or sue for
possession of the land to be held by him as usufructuary mortgagee
for the amount of principal and interest due at the time of his suit.
His remedy to obtain personal decree for the principal has gone and
so has his remedy to sue for possession of the land and to obtain a
charge upon it to the extent of what was due. In these
circumstances the usual principle must be applied namely, that
interest is an accessory to the principal and a subsequent suit for
interest must be barred if the suit for the principal is barred as well
as the suit for possession of the land and to have the interest made a
charge upon the land. All the remedies provided have been
exhausted and the suit for a personal decree against the mortgagor
for the interest was rightly held time-barred when a personal decree
for the principal was time-barred as well as the suit to obtain
possession of the land and to hold it in usufructuary mortgage to the
extent of the principal and interest due."
The above judgment relied upon by the learned advocate for the
defendant are applicable to the facts of the present case in view of the fact
that the entire case of the plaintiff to bring the suit within a period of
limitation is claim of interest and the claim of interest will always be
accessory to the principal and a subsequent suit for interest must be
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barred if the suit for principal is barred.
14.3 Learned advocate for defendant relied upon the judgment in case
of The Commissioner, Corporation of the City of Bangalore vs.
K.N.Vasudeva Murthy and others (supra), more particularly paras:16 and
17, which read as under:
"16. In the present case, the contract was terminated on 29-12-
1978, which was duly approved by the Government on 30-9-1979.
After almost 11 years of the termination of the contract, the
respondent-contractor filed a representation before the Chief
Minister. Under Article 18 of the First Schedule to the Limitation
Act, 1963, the period of limitation prescribed for the price of the
work done by the plaintiff for the defendant at his request, where
no time has been fixed for payment, is three years from the date the
work is done. Section 18 of the Limitation Act was admittedly not
available to the respondent-contractor for extension of the period of
limitation since the Corporation had not acknowledged the liability
within the prescribed period for a suit for the purpose. Further, the
Government had no authority under the Act either to acknowledge
any liability on behalf of the Corporation nor it could have forced
the Corporation to concede to any disputed liability. It is further to
be borne in mind that on the date of filing the writ petition, the suit
for recovery of interest in question had also become barred for the
reason that if the suit for recovery of principal is barred then
remedy for recovery of interest is also barred. This aspect of the
law has been laid down by the Privy Council in the case of Cheang
Thye Phin v Lam Kin Sang AIR 1929 PC 240 wherein it has been
held that.-
"It seems to their Lordships to follow that there being no
independent contract to pay interest, the interest is a mere
accessory of the principal and if the principal is irrecoverable
so is the interest on it".
17. Similar view has been expressed by the High Court of
Saurashtra in the case of Mochi Mulji Valji v Acharya Dolatram
Chatrabhuj AIR 1964 Sau 93 that "if a suit for the principal
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becomes barred then the present suit which is for interest on that
principal also becomes barred".
The above judgment also will be applicable to the facts of the
present case in view of the fact that there cannot be any independent
contract to pay interest and, therefore, the interest is a mere accessory of
the principal and if the principal is irrecoverable so is the interest on it.
15. In view of the aforesaid facts, the suit that has been filed by the
plaintiff is hopelessly time barred by period of limitation and, therefore,
the present Civil Revision Application is allowed. The plaint is rejected
being barred by law. Rule is made absolute to the aforesaid extent. No
order as to costs.
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
