Madras High Court
A.Palanivelrajan vs J.Suganthi on 28 June, 2022
CRP(MD)No.556 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
CRP(MD)No.556 of 2020
and
CMP(MD)Nos.3489 & 3490 of 2020
A.Palanivelrajan : Petitioner
Vs.
1.J.Suganthi
2.Madhava Chakra
3.Latchana
4.A.Ravi
5.M/s.Rathina Exports,
1-2-10, High School Road,
Pattiveeranpatti – 624 211,
Dindigul District.
6.M/s.Tamilnadu Mercantile Bank Ltd.,
Dindigul Branch,
Salai Road, Dindigul – 624 001.
7.State Bank of India,
Ayyampalayam Branch,
Ayyampalayam – 624 004. : Respondents
PRAYER: Civil Revision Petition filed under Article 227 of
the Constitution of India to call for the records of the
fair and decreetal order dated 06.02.2020 made in I.A.No.
1/11
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CRP(MD)No.556 of 2020
304 of 2019 in O.S.No.224 of 2019 on the file of the
Principal District Court, Dindigul, and set aside the same.
For Petitioner : Mr.T.S.R.Venkataramana
For Respondents : Mr.T.Sivananthan
for R.1 to R.3
Mr.N.Dilipkumar
for R.6
No appearance for RR.4, 5, 7
*****
ORDER
The petitioner is the plaintiff in O.S.No.224 of 2019
and he has filed the suit for recovery of money. Pending
the suit, the petitioner has also taken out an
interlocutory application in I.A.No.304 of 2019 for
attachment of property under Order 38 Rule 1 & 5 CPC. The
said application was rejected by the trial Court vide order
dated 06.02.2020 on the ground that the suit was not filed
within the period of limitation. Aggrieved over the same,
the petitioner has filed the instant revision petition.
2.Learned Counsel for the petitioner submitted that the
petitioner, as a guarantor to the 5th respondent, has paid a
sum of Rs.33,00,000/- (approx) to the Tamilnadu Mercantile
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CRP(MD)No.556 of 2020
Bank / 6th respondent. In discharge of that liability,
(late) Jeyachandran, Partner of the 5th respondent firm, has
paid part amount and for the remaining amount, he has
executed six promissory notes, however, he failed to honour
the promissory notes and therefore, the suit was filed in
the year 2019.
3.According to the learned Counsel for the petitioner,
the respondents are attempting to sell the properties to
defeat the petitioner's claim and therefore, he has taken
out the application under Order 38 Rule 1 & 5 CPC. The said
application was rejected by the trial Court stating that
there is no acknowledgement of liability in the pronote as
required under Section 18 of the Limitation Act and
therefore, the basic prima facie is not made out to sustain
the suit.
4.Learned Counsel for the petitioner drew the attention
of this Court to Sections 18 & 19 of the Limitation Act and
for better appreciation, the same are extracted as under:-
“18. Effect of acknowledgment in writing:
(1) Where, before the expiration of the prescribed
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CRP(MD)No.556 of 2020
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
acknowledgment was so signed.
(2) Where the writing containing the
acknowledgment is undated, oral evidence may be given
of the time when it was signed; but subject to the
provisions of the Indian Evidence Act, 1872, oral
evidence of its contents shall not be received.
Explanation: For the purposes of this section,
(a) an acknowledgment 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.
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CRP(MD)No.556 of 2020
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
acknowledgment of the payment appears in the
handwriting of, or in a writing signed by, the person
making the payment.
Explanation. For the purposes 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;
(b) “debt” does not include money payable under a
decree or order of a court.”
By referring the above provisions, learned Counsel for the
petitioner submitted that part amount of Rs.15,000/- each
in all the six pronotes was made and an endorsement to that
effect was also made on 06.11.2016 by the respondents and
therefore, the period of limitation has to be reckoned from
the date of endorsement as per Section 19 of the Limitation
Act. In support of his contention, he has also relied upon
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CRP(MD)No.556 of 2020
the decisions of this Court in (1981) 1 Mad LJ 232
[L.R.M.L.L.Lakshmanan Chettiar v. AR.Alagappa Chettiar and
Others] and in (2004) 2 MLJ 380 [V.S.Manickasundaram v.
V.S.Ramalinga Gounder & Co., and Others].
5.Learned Counsel appearing for the first respondent,
by referring to the counter affidavit, submitted that
neither Sections 18 & 19 of the Limitation Act nor the case
laws dealing with the differences between these sections
are required to be gone into at this stage of the trial,
since the issue available is with regard to attachment
before judgment. The principle laid down by this Court as
regards attachment is to examine the surrounding
circumstances and to draw an inference as to whether the
defendant is about to dispose of the property and if so,
with what intention. Based on this principle, the trial
Court has rightly dismissed the petition for attachment
before judgment. He further submitted that there are, in
fact, other encumbrances in the suit schedule property and
they are not having any intention to flee away from the
country and they are very much available.
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CRP(MD)No.556 of 2020
6.This Court considered the rival submissions made on
either side and perused the available materials.
7.The petitioner was a surety for the loan provided by
the 6th respondent Bank to the 5th respondent firm, by
mortgaging his properties. The defendants 1 to 5 defaulted
the loan, hence, the properties of the petitioner were
brought for sale. One (late) Jeyachandran, the partner of
the firm, came forward to pay the liabilities of the
petitioner, paid a part amount and also executed six
promissory notes dated 02.01.2014, in favour of the
petitioner for a sum of Rs.5,00,000/- each. He made a
payment of Rs.15,000/- each in the promissory notes on
06.11.2016 and also made an endorsement. Thereafter, the
suit was filed in the year 2019. Pending the suit, the
petitioner has also taken out an application for attachment
before judgment and the same was dismissed by the trial
Court that the suit was not filed within the period of
limitation and that there is no prima facie case in favour
of the petitioner.
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CRP(MD)No.556 of 2020
8.In the decision in Lakshmanan Chettiar's case
(supra), a Division Bench of this Court has held as
follows:-
“11. ... ... ... We are clearly of opinion that
the view taken by the Subordinate Judge on the question
of limitation is patently wrong and manifestly opposed
to law. The Subordinate Judge has failed to see that
with the creation of the equitable mortgage the debt
became a secured one and the two transactions, viz.,
the acknowledgment of liability under the deposit
letter and the creation of the equitable mortgage,
became an integrated transaction, and as a result
thereof, endorsement of payment contained in Exhibit
A-1 will automatically extend the period of the
mortgage. There need not be, as the Subordinate Judge
has thought, an independent acknowledgment of the
mortgage liability.”
9.In the decision in V.S.Manickasundaram's case
(supra), yet another Division Bench of this Court has held
as follows:-
“21.So from the above said decisions, it is clear
that even endorsement with respect to the payment of
interest has to be taken as an acknowledgment of
liability and even if no money is paid but endorsement
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CRP(MD)No.556 of 2020
is made to that effect, the limitation is extended as
it is an acknowledgment. In this case, we are having
the evidence of the debtor who said categorically that
such endorsement was made to extend limitation.”
10.In the case on hand, though the suit was filed in
the year 2019, there is an endorsement by (late)
Jeyachandran in the six promissory notes on 06.11.2016, by
making a part payment of Rs.15,000/- in each pronotes.
Therefore, as per Section 19 of the Limitation Act and in
view of the decisions referred to supra, the endorsement
made in the year 2016 has to be considered and as such, the
suit is maintainable.
11.In fine, the order impugned dated 06.02.2020, passed
by the learned Principal District Judge, Dindigul, in
I.A.No.304 of 2019 in O.S.No.224 of 2019 stands set aside.
The petition in I.A.No.304 of 2019 is remanded back to the
file of the learned Principal District Judge, Dindigul, for
fresh consideration. The trial Court is directed to dispose
of the interlocutory application within a period of two
months from the date of receipt of a copy of this order and
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CRP(MD)No.556 of 2020
till the disposal of this interlocutory application, the
respondents are restrained from alienating the properties.
After the disposal of the interlocutory application, the
trial Court shall endeavour to dispose of the main suit as
expeditiously as possible, preferably within a period of
eight months from the date of receipt of a copy of this
order.
12.In the result, this civil revision petition stands
allowed. No costs. Consequently, connected miscellaneous
petitions are closed.
Index : Yes / No 28.06.2022
Internet : Yes
gk
Note:
Issue order copy by 05.07.2022.
To
The Principal District Judge,
Dindigul.
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CRP(MD)No.556 of 2020
B.PUGALENDHI, J.
gk
CRP(MD)No.556 of 2020
28.06.2022
https://www.mhc.tn.gov.in/judis
