A. Chandramma vs K. Sathyam
2022 Latest Caselaw 7120 Tel

     THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

                  APPEAL SUIT No.25 of 2003

JUDGMENT:

This appeal is filed against the Judgment and Decree of

the trial Court in O.S.No.48 of 1992 dated 27.11.2002.

2. Plaintiff filed suit for recovery of amount of Rs.52,000/-

along with interest at the rate of 36% per annum. Plaintiff

examined himself as P.W.1 and marked Exs.A1 to A3 i.e,

promissory note, office copy of the legal notice and returned

postal cover. He also examined attestor as P.W.2. The defendant

No.4 was examined as D.W.1. The trial Court considering the

evidence on record and arguments of both sides decreed the suit

with costs for Rs.52,000/- against the estate of the first

defendant in the hands of defendant Nos.2 to 4 and future

interest is granted at the rate of 6% per annum on Rs.25,000/-

from the date of suit till the date of realization. Aggrieved by the

said order present appeal is preferred by the defendant Nos.2 to

4 and mainly contended that the promissory note was executed

on 24.05.1989 and the suit has to be filed within three years of

limitation i.e, 23.05.1992, but it is filed on 11.06.1992 as such

it is barred by limitation. The purport of Section 4 of the

Limitation Act was wrongly understood. Though issue No.5 is

framed regarding the necessity of defendant to borrow the suit

amount, it was not discussed and contested, as such the order

of the trial Court is to be set aside and it is to be remitted back.

The rate of interest at 36% per annum is exorbitant and the suit

ought to have dismissed for mis-joinder of parties. The trial

Court held that there is no cause of action in the suit.

Therefore, requested the Court to set aside the Judgment and

Decree in O.S.No.48 of 1992 dated 27.11.2002.

3. Heard arguments of both sides and perused the entire

record.

4. Plaintiff stated that he is well acquainted with the

defendant No.1. Out of said acquaintance the defendant No.1

approached him for hand loan of Rs.25,000/- for his family

needs and business necessities and agreed to repay the same

with interest at the rate of Rs.3/- per hundred per month.

Considering his request, he paid the said amount on

24.05.1989 and defendant No.1 had executed a promissory note

promising to repay the said amount with interest at the rate of

Rs.3/- per hundred per month and also executed a receipt

acknowledging the receipt of the said amount. Later, when

defendant No.1 failed to repay the said amount, in spite of

repeated demands he got issued legal notice on 22.04.1992.

Even afterwards, the defendant No.1 obtained some other

amounts from him and it is not the subject matter of the suit.

He stated that defendant No.1 has got sufficient means to

discharge the suit amount, but with a malafide intention only to

harass him and to cause irreparable loss, he is evading the

payments. Therefore requested the Court to grant Rs.52,000/-.

5. He also stated that as the three years expired by

23.05.1992, it is filed during summer vacation before the

vacation Court and sought for attachment of properties of the

defendant No.1 before Judgment. As defendant No.1 is no more,

his wife and sons brought on record as legal representatives of

the defendant No.1. Therefore, requested the Court to grant

decree in favour of plaintiff against the estate of

defendant Nos.2 to 4 and also requested for future interest.

6. The appellants Counsel mainly contended that suit is

barred by limitation as it is not filed before the appropriate

Court it is not maintainable. They also contended that suit is

filed before the Vacation Court (District Court) and thus it is not

filed before appropriate Court, but the said contention was not

raised either in the Written Statement or in the appeal grounds

of this Court and they only came up with the said contention at

the time of arguments. As the said plea was not taken up at the

earlier point of time, he cannot raise it at this stage. They also

contended that suit was not filed within three years i.e, on or

before 23.05.1992, it is filed on 11.06.1992.

7. Admittedly, there was summer vacation for Courts from

01.05.1992 to 14.06.1992 (both days inclusive) and was

reopened on 15.06.1992. In fact, suit was filed during vacation

before the Vacation Court of Mahabubnagar on 11.06.1992.

Even when it was returned with objection regarding limitation,

it was resubmitted on 15.06.1992 reopening day, as such the

trial Court observed that the suit was well within the limitation

as per Section 4 of Limitation Act. The learned Counsel for the

defendants argued that the Section 4 is not applicable to the

suits basing on promissory note and it applies only for

injunction and other suits but the said argument was held as

not proper and it was held that Section 4 applies to the suits

based on the promissory notes also. Though the Judgment was

pronounced by the trial Court on 27.11.2002, appeal was filed

on 07.01.2003 and thus there is also delay in filing the appeal.

It seems that the delay petition was condoned and the appeal

was admitted long back therefore it need not be looked into at

this stage. Another argument of the appellants Counsel is that

the interest is excessive. The rate of interest was disputed in the

Written Statement filed by the first defendant on 28.09.1995.

The trial Court granted interest as claimed till the filing of the

suit, but future interest of 6% per annum was granted on

Rs.25,000/- from the date of suit till the date of realization, as

such this Court finds no illegality or infirmity in the Order of the

trial Court and it needs no interference.

In the result, the appeal is dismissed confirming the

Judgment and Decree of the trial Court in O.S.No.48 of 1992

dated 27.11.2002. There shall be no order as to costs.

Miscellaneous petitions pending, if any, shall stand

closed.

_________________________

JUSTICE P.SREE SUDHA

DATED: 29.12.2022

tri

THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

APPEAL SUIT No.25 of 2003

DATED: 29 .12 .2022

TRI