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2000 DIGILAW 286 (RAJ)

Devendra Kumar v. UCO Bank and Anr

2000-03-02

N.P.GUPTA

body2000
JUDGMENT 1. - With consent of the parties, the revision is finally heard at this stage itself.I have perused the impugned order. 2. The contention of the learned counsel for the petitioner is that on the pleadings of the plaint, the acknowledgement said to have pleaded by the plaintiff do not bring the suit to be within time. The payment relied upon by the learned court below said to have been made by the petitioner on 6.11.90 is also not supported by any material or pleading sufficient to attract the provisions of Section 18 of the Limitation Act. In this view of the matter, according to the learned counsel, apart from the other defence, the defence of limitation, in this circumstance of the case, is such which does require to be gone into and cannot be said to be wholly illusory or a moon shine and the petitioner is entitled to unconditional leave to defend. 3. Controverting the submissions, learned counsel for the non-petitioner submitted that it was a case of open mutual and current account for which limitation is governed by Article 1 of the Limitation Act and computing the limitation from the last entry of the transactions, the suit has been filed within limitation. It was further submitted that from the statement of account produced by the bank, it is clear that Rs. 50,000/- was deposited by the petitioner on 6.11.90 whereby the limitation stands continuously extended. Learned counsel further submitted that the defendant has not filed the affidavit along with the application for leave to defend. On this premise, it was contended that the petitioner is not entitled to leave to defend and therefore, when the leave was granted on the condition of Bank Guarantee by the learned trial Court no interference should be made by this court. 4. I have considered the submissions. So far as objection about non-filing of the affidavit is concerned, suffice it to say that after filing the application for leave to defend, the order was passed by the learned trial Court on 9.4.96 granting leave to defend on condition of depositing Rs. 50,000/- or on furnishing Bank Guarantee. That order was set aside by this court in revision No. 558/97 vide order dated 16.2.99 and thereby taking into account the pleadings of the plaint being paras Nos. 50,000/- or on furnishing Bank Guarantee. That order was set aside by this court in revision No. 558/97 vide order dated 16.2.99 and thereby taking into account the pleadings of the plaint being paras Nos. 12, 13 and 16, the matter was remanded back to the learned trial Court for deciding the matter afresh specially looking to the question of limitation raised. In this view of the matter non filing of the affidavit need not be allowed to come in the way of the petitioner in considering the question of entitlement of leave to defend looking to the question of limitation. 5. A perusal of the plaint which has been shown to me by the learned counsel for the non-petitioner, it is clear that bank has not claimed the extension of limitation on the basis of the payment said to have been made on 6.11.90 by invoking Section 18 of the Limitation Act, nor has it taken the pleading about the suit being governed by Article I of the Limitation Act. In these circumstances, without going into the question as to whether it is open to the bank to take all these stands or not, all that is required to be said is, that in totality of the circumstances, on the parameters laid down by the Apex Court in the case reported in AIR 1977 Supreme Court 523, the petitioner is entitled to unconditional leave to defend. 6. Consequently, the revision petition is allowed, the impugned order is set aside and the petitioner is granted unconditional leave to defend. 7. It is made clear that whatever observations have been made in this order on the question of limitation shall not come in the way of the learned trial Court in ultimately deciding the section of limitation in the suit. Likewise, since the matter has already remained pending for long, the suit being one of 1995, the learned trial Court is directed to decide the main suit expeditiously preferably within one year. The parties to bear their own costs.Petition allowed. *******