JUDGMENT D. Raju, C.J.—The above appeal has been filed against the judgment and decree passed by the learned Additional District Judge, Solan dated 12.9.1994 in Civil Appeal No. 24-NL/13 of 1994 whereunder the learned Judge, as a First Appellate Judge while allowing the appeal and setting aside the judgment and decree passed by the learned Subordinate Judge 1st Class, Nalagarh dated 15.1.1994 in Civil Case No. 328/ 1 of 1991, remitted the matter to the learned trial Judge to decide the same, once-again in accordance with law on merits. 2. The learned trial Judge chose to dismiss the suit filed by the respondent-bank which was the plaintiff seeking for the recovery of certain amounts said to be due from the defendant-appellant on the ground that the suit of the claim was barred by limitation. Aggrieved, the plaintiff pursued the matter before the first Appellate Court and in the said appeal, the learned first Appellate Judge came to the conclusion that the limitation in the present case started from 31.12.1989 in terms of Article 1 of the Schedule to the Limitation Act and, therefore, the suit could have been filed within a period of three years from the said date, namely, 31.12.1992 and the suit having been actually filed in December 1991, the same was well within the period of limitation. Aggrieved, the above appeal has been filed in this Court by the defendant. 3. Heard Mr. Deepak Gupta, learned Counsel for the appellant and Mr. Ramakant Sharma, learned Counsel for the respondent. There is and there could be no serious dispute or controversy over the factual position that the dealings between the parties was under a current, mutual and open account. In that view of the matter, it is Article 1 in the Schedule to the Limitation Act, 1963 which has been applied by the learned First Appellate Judge that would be really and properly attracted. 4. Mr. Deepak Gupta, learned Counsel contended that the acknowledgment or admission by making any payment towards the loan has to be within a period of three years limitation provided for the recovery of the amount lent and any amount, that is, paid subsequent thereof, even though constitute sufficient acknowledgment and admission, does not have the effect of saving the period of limitation for the plaintiff to recover the amounts due under the loan transaction.
Reliance has been placed in this regard as before the Courts below on AIR 1965 Supreme Court 1711, (Kesharichand Jaisukhalal v. Shillong Banking Corporation Ltd. Shillong) and the decision reported in AIR 1967 Supreme Court 1058 (Chandradhar Goswami and others v. Gauhati Bank Ltd.) In our view, on going through the said decisions carefully, nothing could be pointed out to draw sustenance for the proposition advanced by the learned Counsel for the appellant in this regard. In the decision reported in AIR 1965 Supreme Court 1711 as also one reported in AIR 1967 Supreme Court 1058, in cases, where the dealings related to open, current and mutual account, their Lordships have specifically held that for computing the period of limitation the last entry in the account could be and has to be taken into account in computing the limitation of three years, the reason being that in respect of a suit on dealings relating to mutual, open and current account, the account is not closed simply because there are no subsequent dealings for a long period and that even after some time later, a fresh debit and credit entry or entries may be made or come into existence to continue their account and it does not, therefore, matter if the earlier items are within or outside the period of limitation. Consequently, we see no merit in the challenge made to the order of remand passed by the first appellate Judge. 5. The learned Counsel for the appellant further contended that before the plaintiff-bank could rely upon the last of such entries as is sought to be made in this case, the plaintiff must prove that the mutuality had continued and that such payment to be relied upon to save the period of limitation must be further proved to have been made by the person against whom the payment is sought to be used to save the period of limitation, viz., the defendant, in this case. We find from the record that a document purporting to be a receipt for such a deposit said to have been made by the defendant to evidence payment has been marked in evidence.
We find from the record that a document purporting to be a receipt for such a deposit said to have been made by the defendant to evidence payment has been marked in evidence. The learned Counsel for the appellant in this context would contend that such payments said to have been made, to really come to the rescue of the plaintiff in order to save limitation must also be shown to have been made by the defendant or to his account, with his permission and consent and this is a matter which has to be substantiated in the remit proceedings by the plaintiff-bank. On considering the submissions of the learned Counsel appearing on either side in this case, we are of the view that there could be no exception to the said plea and to gain an extended period of limitation on the basis of the acknowledgment flowing from such payment, it is necessary for the plaintiff-bank to prove that the money was really paid as indicated in the receipt by the defendant or under his authority to make it a corroborative proof of the factum of payment of the said amount so to sufficiently constitute it as an acknowledgment and admission to claim an extended period of limitation. The learned trial Judge is not only obliged and expected but is also directed to go into this aspect of the matter in deciding about the claim on merits and thereafter consider the question, even if the Article in the Schedule to the Limitation Act that applies to the case on hand is Article 1, as to whether the suit claim is within the extended period of limitation and the suit claim is thereby saved. Except clarifying the above position of law and as to the obligation cast on the trial Court in the procedure to be adopted in adjudging the claim pursuant to the order of remand, we are unable to grant any relief in favour of the defendant-appellant in this appeal. The appeal, therefore, fails and shall stand dismissed. 6. Parties are directed to appear before the trial Court on April 6, 1999. Record of the courts below be remitted to the trial Judge immediately by the Registry. C.M.P. No. 553/94. In view of the dismissal of the appeal, the application shall stand dismissed. Appeal dismissed.