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Madhya Pradesh High Court · body

1998 DIGILAW 504 (MP)

B. Viplava Prasad v. State Bank of India

1998-07-17

D.M.DHARMADHIKARI

body1998
JUDGMENT D.M. Dharmadhlkari, J. 1. The Appellant has preferred this appeal under Section 96 of the Code of Code of Civil Procedure against the decree granted against him in the suit filed by the Respondent-bank for recovery of a sum of Rs. 5000/-with 18.5% interest calculated with quarterly rests, aggregating to Rs. 20,099.93. 2. The facts not in dispute are that the Appellant who is now working as a teacher, had earlier carried on business in sale of Mahul Leaves in the year 1978-79. During the said period, he had opened a saving bank account in the State Bank of India, branch at Katghora in Bilaspur district. Mahul leaves purchased by him used to be sent to his partner Shankar Rao at Madras for its eventual supply there. For the above supplies to Madras, he used to receive payments by telegraphic transfers in his saving bank account. 3. The case of the bank is that on the basis of a receipt of telegram the amount of telegraphic transfer for Rs. 5000/- dated 24-1-1979 was credited in the savings bank account of the Appellant on 29.1.1979. The further case of the bank is that by mistake, on receipt of duplicate list of telegraphic transfer issued for Rs. 5000/- dated 24.1.1979, the same amount was again credited in the savings bank account of the Appellant on 23.4.1979. (It is to be noted that the witness of the bank in his statement as P.W.2 has clarified some typing mistake in the notice of the bank (Ex.P/7) regarding the so called double payment or credit entry made in the saving bank account of the Appellant and the said typing mistake has been duly noted by the Court and marked 'A' to 'A' in Ex.P/7). 4. The bank first made a demand of return of a sum of Rs. 5000/- to the Appellant as a result of double credit entry made in his favour by its letter dated 26th August 1985 (Ex.P/7). The bank then served a legal notice on 28.8.1996 (marked a Ex.D/1) and in paragraph 3 of the said notice it was mentioned that the mistake of double crediting entry and payment came to the knowledge of the bank on 4.12.1983. The suit for recovery of the above sum with 18.5% interest was filed on 23.6.1987 after the Appellant, in reply dated 20.9.1986 (Ex. The suit for recovery of the above sum with 18.5% interest was filed on 23.6.1987 after the Appellant, in reply dated 20.9.1986 (Ex. D/2) to the legal notice of the bank had denied his liability to make the payment for the mistake committed by the bank. 5. The suit was resisted mainly on the ground of limitation as also tenability of the claim for interest on the sum. 6. The trial Court decreed the whole suit for the principal sum and interest holding that the period of limitation would be governed by Article 113 of the Limitation Act, 1963 and the right to sue accrued to bank from the date 20.9.1986 on which the written refusal by the Appellant was communicated to the bank danying his liability. The trial Court also decreed the claim of interest at the rate of 18.5% treating the amount to be an over-draft. 7. The learned Counsel appearing for the Appellant, Shri Umesh Trivedi, assails the decree firstly on the ground of limitation and secondly on the ground that no decree towards interest could be passed treating the mistake credit entry to be an over-draft from the bank. 8. I shall first take up the question of limitation for decision. As is clear from the case set up by the bank in the plaint, it is a suit based on mistake. Under the old Limitation Act of 1908, there was a specific Article 96 for a suit of this nature. The relevant Article 96 of the old Act is as under: "96. For relief on the ground of Mistake Three years When the mistake becomes known to the plaintiff." Under the new Limitation Act of 1963, there is no specific Article covering such a suit based on mistake. The residuary Article 113 would, therefore, govern the subject of limitation for claiming a relief on the ground of mistake. '113. Any suit for which no period of limitation is provided elsewhere in this Schedule. Three years. When right to sue accrues." 9. The residuary Article 113 would, therefore, govern the subject of limitation for claiming a relief on the ground of mistake. '113. Any suit for which no period of limitation is provided elsewhere in this Schedule. Three years. When right to sue accrues." 9. The main question that falls for consideration is - It a suit for relief based on mistake, on which date the right to sue accrues ?; whether it accrues on the date of discovery of the mistake or it accrues on the date of mistake discovered by the Plaintiff is made known to the Defendant and the latter on demand by the former refuses to give any relief of such mistake ? 10. In the new Limitation Act of 1963 in relation to suits for relief based on mistake and fraud, there is a specific provision contained in Section 17 which reads as under: 17. Effect of fraud or mistake -(1) where, in the case of any suit or application for which a period of limitation is prescribed by this Act-(a) ............................ (b) ............................... (c) the suit or applicant is for relief from the consequence of a mistake; (d) Where any document necessary to establish the right of the Plaintiff or application has been fraudulently concealed from him; the period of limitation shall not begin to run until the Plaintiff or applicant has discovered the fraud or the mistake or could with reasonable diligence, have discovered it; or in the case of a concealed document, until the Plaintiff or applicant first had the means of producing the concealed document or compelling its production: Provided........................ 11. Learned Counsel for the Appellant contends that the period of limitation for the purpose of Article 113 read with Section 17 of the Act of 1963 would commence from the date of discovery of mistake which in this case admittedly is 4.12.1983 and the suit filed on 23.6.1987, therefore, should have been held as clearly barred by time. 12. In the opinion of this Court, there is great force in the legal submission advanced on behalf of the Appellant. As has been noted above, under the Old Limitation Act of 1908 and the new Act of 1963 there is no difference on the commencement of the period of limitation for a suit of the present nature for relief based on mistake. As has been noted above, under the Old Limitation Act of 1908 and the new Act of 1963 there is no difference on the commencement of the period of limitation for a suit of the present nature for relief based on mistake. The period of limitation would commence from the date of discovery of the mistake. This was provided in Article 96 of the Old Act and the same should be taken to have been provided under Article 113 read with Section 17 of the New Act. For the purpose of residuary Article 113, the commencement of limitation for a suit of this nature would be the date of discovery of mistake and that is the date on which the right to sue accrues. It cannot be held, as has been stated in the judgment of the learned trial Judge, that the right to sue accrues in the suit based on mistake, when on the basis of mistake notice was sent to the Defendant and he refused to give any relief and repudiated the claim of the bank. Neither from the provisions of Section 17, nor from the entries in Article 113 of the new Limitation Act can it be reasonably said that communication of the alleged mistake by the Plaintiff to the Defendant and the latter's refusal of repudiation of the claim would be a starting point of original or fresh limitation. 13. Right to sue accrues on discovery of mistake and intimation or communication of such mistake to the Defendant and latter's refusal does independently give rise to any cause of action. In all eventualities, the period of limitation would commence from the date of discovery of mistake or the date on which such mistake could with reasonable diligence have been discovered within the meaning of Section 17 of the Act. 14. In my considered opinion, therefore, the suit was clearly barred by time and should have been dismissed on the ground alone. 15. Having held that the suit was liable to be dismissed on the ground of limitation, it is not necessary for me to decide the other question with regard to the liability of interest which has also been questioned on behalf of the Appellant in this appeal. I, however, briefly indicate my decision also on the same. 16. 15. Having held that the suit was liable to be dismissed on the ground of limitation, it is not necessary for me to decide the other question with regard to the liability of interest which has also been questioned on behalf of the Appellant in this appeal. I, however, briefly indicate my decision also on the same. 16. It was clearly wrong on the part of the trial Judge to saddle the Appellant with interest at the rate of 18.5% treating it to be a case of overdraft. It is the case of the bank itself that the credit entry in the savings bank account of the Appellant was made by mistake. If that was so, such double credit entry made in favour of the Appellant In his account was not an over-draft. For the mistake of the bank no interest at the rate of 18.5% with quarterly rests could not have been charged from the Appellant. 17. It appears that the learned trial Judge was influenced by the fact that the effect of such mistake double credit entry went to the benefit of the Appellant who on that basis utilised the amount of Rs. 5000/-. It has been stated by the Appellant as witness in the Court that in the business of Mahul leaves in which he was engaged, he was receiving amount by telegraphic transfers there was continuous course of transactions. Therefore, he himself was not conscious of the fact that there was any mistake credit entry made in his favour in the saving bank account. It is likely that the Appellant acted bonafide in availing benefit of such mistake credit entry in his account. But for the reason, he cannot be saddled with such higher rate of interest at 18.5% with quarterly rests. 18. It may also be mentioned that law of limitation is based on principle of "rest and repose of litigation after certain period." The general principles of law and equity have no application beyond what is expressly permissible in the law of limitation. 19. Consequently, this Court cannot sustain the decree. The appeal is allowed. The judgment and Decree passed by the Trial Court is hereby set aside. The suit filed by the Appellant is dismissed. The Appellant shall be entitled to costs through out. Counsel's fee as per schedule, if certified.