Madhya Pradesh High Court
Union Bank Of India Head Office 239 ... vs Smt.Manrajua on 8 February, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 8 th OF FEBRUARY, 2024
FIRST APPEAL No. 128 of 1998
BETWEEN:-
UNION BANK OF INDIA HEAD OFFICE 239
RECLAMATION NARIMAN POINT BOMBAY 400021
THROUGH BRANCH MANAGER UNION BANK OF INDIA
BR AN CH SIDHI BUS S TAN D ROAD SIDHI DISTRICT
(MADHYA PRADESH)
.....APPELLANT
(BY MS. NEERJA AGRAWAL - ADVOCATE )
AND
1(a). SMT. MANRAJUA W/O RAMNATH, AGED ABOUT
58 YEARS, RESIDENTS OF GRAM SEMARIYA P.S.
CHURHAT TEHSIL CHURHAT DISTRICT SIDHI
(MADHYA PRADESH)
(b). PANNALAL GUPTA S/O RAMNATH GUPTA, AGED
ABOUT 32 YEARS, RESIDENTS OF GRAM
SEMARIYA P.S. CHURHAT TEHSIL CHURHAT
DISTRICT SIDHI (MADHYA PRADESH)
(c). GOMTI PRASAD S/O RAMNATH GUPTA, AGED
ABOUT 30 YEARS, RESIDENTS OF GRAM
SEMARIYA P.S. CHURHAT TEHSIL CHURHAT
DISTRICT SIDHI (MADHYA PRADESH)
2. BAIJNATH SINGH S/O BHAGWAT SINGH
RESIDENTS OF GRAM SEMARIYA P.S. CHURHAT
TEHSIL CHURHAT DISTRICT SIDHI (MADHYA
PRADESH)
3. GANESH PRASAD GUPTA S/O RAMNATH GUPTA,
AGED ABOUT 30 YEARS, RESIDENTS OF GRAM
SEMARIYA P.S. CHURHAT TEHSIL CHURHAT
DISTRICT SIDHI (MADHYA PRADESH)
.....RESPONDENTS
2
(NONE )
Th is appeal coming on for hearing this day, t h e court passed the
following:
JUDGMENT
Heard on the question of admission.
2. This First appeal under Section 96 of Civil Procedure Code (for brevity,
CPC) has been filed by the appellant against the respondents being aggrieved
the impugned judgment and decree dated 29.11.1997 passed by the District
Judge, Sidhi in Civil Suit No. 30-B/97 whereby the appellant's suit was
dismissed on the ground of limitation.
3. The everment in the suit in brief is that plaintiff/bank, is the banking
company, gave a sum of Rs. 40,000/- with interest at the rate of 12.5% per
annum on 08.09.1979 for purchase of a tractor trolley to the original borrower
Late Ramnath who executed a demand promissory Note dated 08.09.1979 (Ex.
P/1), Bandhak Patras (Ex. P/2, P/3 and P/4) in order to secure repayment of
loan. Respondents No. 2 and 3 executed a deed of guarantee (Ex. P/5)
guaranteeing repayment of loan. The original borrower defendant after seeing
his account, signed debt balance confirmation memos on 20.09.1980,
10.08.1981, 24.03.1982, 19.02.1983, 12.02.1985 and 14.07.1986. The last
payment made by the original borrower was on 01.03.1983. The appellant-
bank, after calculation of the amount due, filed the suit on 31.10.1987 for grant
of decree to the tune of Rs. 64,796.15 and future interest.
4. The original borrower Ramnath had died, therefore, his legal heirs
respondent No.1(a), (b) and (c) were sued in his place but they did not filed an
written statement. Defendant No. 2 has filed his written statement but died
during the pendency of the suit. His legal representatives having not been
brought on the record, the suit abated against him as per order-sheet dated
30.08. 1996.
5. Respondent No. 3 was remain ex-parte before the trial Court. The
appellant/bank led evidence and examined Shri Manoj Kumar Agrawal (PW-1),
Sadan Choudhary (PW-2) and A.K. Bhargava (PW-3) in support of its case
but learned trial Court dismissed the suit on the ground of limitation, holding
that no debit balance memos after 10.08.1981 were proved to have been
executed by the original borrower and that being so, the suit having not been
filed within three years from the date of the last debt balance confirmation
memo so it was barred by limitation.
6. It is submitted by learned counsel for the appellant/bank that the learned
trial Court after hearing held that Ex. P/2, P/3 and P/4 were the deeds of
mortgage having been executed by the original borrower Late Ram Nath in
order to secure repayment of loan and a decree for recovery of the loan amount
plus interest was prayed for by the sale of mortgage property, therefore, Article
62 of the Limitation Act was to be applicable in this case and limitation was 12
year from the date of money had become dues. The loan was advanced on
08.09.1979 and last installment was fallen dues in September, 1984 Therefore,
the limitation starts from September ,1984 and lasts up to 12 years therefore, the
judgment and decree of the trial Court is liable to be set aside.
7. Having heard learned counsel for the appellant and perusal of the entire
record it is found that no written statement has been filed by the LRs of original
borrower late Ramnath. Defendant No. 2 though filed a written statement but
the suit was remained abated against him. The ex-parte evidence of plaintiff was
taken by the trial Court. Ex. P/1, P/2, P/3 and P/4 are the document which
have been exhibited and proved by the plaintiff witnesses and thereby it is
established that by taking loan late Ramnath signed these documents and
mortgaged his movable as well as immovable property Ex. P/4 contains the
detail of property at page 4 and area of land mortgaged is also specifically
mentioned. Therefore, apparently in this case Article 62 of the Limitation Act is
apply which is as under:-
Time from which
Description of suit Period of limitation
period begins to run
To enforce payment of
money secured by a
When the money sued
mortgage or otherwise Twelve years
for becomes due.
charged upon immovable
property
8. It is mentioned by the trial Court in impugned judgment that it is not
found proved from the evidence of the plaintiff that on 14.07.2086 late Ramnath
Gupta has reached the bank and perused account and thereafter signed debit
balance confirmation and admitted any dues. Therefore, the trial Court
assuming that the DBC dated 14.07.1986 is not proved. The last DBC was of
10.08.1981 which is Ex. P/9 and since the suit is not filed within three years
from the 10.08.1981 therefore, it is held to be time barred but the findings in this
regard is erroneous as discussed earlier that Article 62 of the Limitation applies
in this case therefore, the suit dismissed on the ground of limitation cannot be
said to be legal.
9. Therefore, the impugned judgment and decree is hereby set aside and this
appeal is allowed. This case is remanded back to the trial Court for deciding
it after issuing notice to the parties to the suit and to proceed further in
accordance with law. Parties are directed to appear before the trial Court on
23.04.2024.
(RAJENDRA KUMAR VANI)
JUDGE
L.R. by
