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2001 DIGILAW 1376 (AP)

Venkayala Bhadram v. Noni Venkata Rao

2001-11-01

S.ANANDA REDDY

body2001
( 1 ) THIS revision petition is filed by the plaintiff in Small Cause Suit No. 51 of 1996 aggrieved by the dismissal of the said suit as barred by limitation. ( 2 ) THE Petitioner filed the suit for recovery of a sum of Rs. 1376/- being the principal and interest due on a promissory note dated 7-8-1993 executed by the defendant in favour of the Plaintiff for a sum of Rs. 800/- repayable with interest at rs. 2-00 per month and for subsequent interest and costs. The said suit was filed by the plaintiff on 7-8-1996. ( 3 ) ONE of the contentions advanced by the Defendant was that the suit is barred by limitation. In fact, in the written statement the defendant contended that he has paid the amount at the rate of Rs. 80/- per month towards penal interest and another sum of rs. 400/- during Dasara 1995 towards principal and therefore contended that he had discharged the promissory note executed by him in favour of the plaintiff. ( 4 ) THE Court below without deciding the genuinenss or otherwise of the claim of the defendant with reference to the payments made, though in fact such payments were denied by the plaintiff, but proceeded to decide the issue as to the limitation raised by the defendant. The Court below relied upon a judgment of this Court in the case of s. Laxmaiah (died) per L. Rs. v. Venkateswara rao (died) per L. Rs. where this Court held that a suit filed on 2-11-1971 basing on a promissory note executed on 2-11-1968 was held as barred by limitation and accordingly the Court below dismissed the suit. The plaintiff, therefore, has come up in the present revision. ( 5 ) THE learned Counsel for the Petitioner contended that the view taken by the Court below is illegal, erroneous and contrary to the provisions of Sec. 12 of the Limitation act, as per which the day on which the cause of action arose for filing of the suit, has to be excluded while computing the period of three years and if so excluded, after excluding the day of execution of the promissory note, the suit is well within the time. The learned Counsel also relied upon a judgment of the Supreme Court in the case of Saketh India Ltd. v India Securities Ltd. v. India Securities Ltd. where the Supreme court considered the provisions of Sec. 12 of the Limitation Act 1963 and held that the first day of the cause of action has to be excluded while computing the period of limitation. The learned Counsel also relied upon a Judgment of the Madras High Court in the case of K. Ramakrishna Landa Kathir v. Narayanaswamy. The learned Counsel, therefore, contended that the judgment relied upon by the Court below, which was rendered by this Court without referring to the provisions of Sec. 12 of the limitation Act but by referring only to Art. 36 of the limitation Act, is not good law in the light of the Judgment of the Supreme Court and, therefore, the Judgment of the Court below is liable to be set aside. ( 6 ) THOUGH notice is served on the respondent/defendant, none appeared and there was no representation on his behalf and hence the revision is heard and disposed of on merits. ( 7 ) THE suit filed by the Petitioner/ plaintiff basing on a promissory note executed on 7-8-1993 was dismissed on the ground that it was filed on 7-8-1996 and by that date the period of three years had expired and therefore the suit is barred by limitation. While doing so, the Court below relied upon a judgment of this Court in the case of S. Laxmaiah (died) per LRs. v. Venkataeswara Rao (died) per L. Rs. (1 supra ). A perusal of the above judgment shows that the suit was filed on 2-11-1971 basing on a promissory note executed on 2-11-1968. A learned Single Judge of this Court simply referred to the dates and came to the conclusion that prima facie the suit was filed after the period of three years. While coming to the above conclusion, this Court referred only to Art. 36 of the Limitation Act and in fact there was no reference to the provisions of Sec. 12 of the Limitation Act, which provides for exclusion of the day on which the cause of action for filing the suit arises while computing the period of limitation. A similar issue was considered by the supreme Court in the case of Saketh India ltd. A similar issue was considered by the supreme Court in the case of Saketh India ltd. v. India Securities Ltd. (3 supra ). In the said decision it was considered with reference to the provisions of Sec. 138 of the negotiable Instruments Act, 1881. In that case the Apex Court considered the period of limitation for filing a complaint for prosecution under the provisions of sec. 142 (b) of the Negotiable Instruments act, where one month is the period prescribed. While computing the said period of limitation the Apex Court considered the provisions of Sec. l2 (1) and 12 (2) of the Limitation Act, 1963. In that case, the notice of bouncing the cheque was served on the drawer on 29-9-1995 and the period of 15 days provided under Sec. 138 for effecting the payment, expired on 14-10-1995. So the cause of action for filling the complaint would arise from 15-10-1995. But actually the complaint was filed on 15-11-1995. The issue was whether the said complaint was filed beyond the period of one month or not. The Apex Court after referring to the provisions of Sec. 12, which provides for exclusion, while computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, held that the first day of the cause of action for making complaint i. e. , 15th October was held to be excluded and if so computed after excluding that day, the complaint filed was held to be within the time. The Apex Court further held as under:"hence, there is no reason for not adopting the rule enunciated in the aforesaid case which is consistently followed and which is adopted in the General Clauses Act and the limitation Act. Ordinarily in computing the time, the rule observed is to exclude the first day and to include the last. Applying the said rule, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of 15 days from the date of the receipt of the notice by the drawer expires. The period of 15 days in the present case expired on 14-10-1995. That day (15th October) is to be excluded for counting the period of one month. Complaint is filed on 15-11-1995. The result would be that the complaint filed on 15th November is within time. The period of 15 days in the present case expired on 14-10-1995. That day (15th October) is to be excluded for counting the period of one month. Complaint is filed on 15-11-1995. The result would be that the complaint filed on 15th November is within time. "the decision of the Madras High Court in the case of K. Ramakrishna Landa Kathir v. Narayanasrvamy (3 supra) is also to the same effect. ( 8 ) IN the light of the above decision the contention of the learned Counsel was that the suit is within time. I find merit in the said contention of the learned Counsel. Article 36 of the Limitation Act simply prescribes the period of limitation as three years from the date of execution of the promissory note for filing a suit for recovery of money based on the said promissory note. It does not spell out how to compute the said period of limitation and it is only Sec. 12 of the Limitation Act that prescribes the mode of computation of the period of limitation. As was held by the apex Court, the day on which the cause of action arose has to be excluded and if that day is excluded, then the suit filed by the petitioner/plaintiff is well within the time and therefore, the Court below was not justified in dismissing the same holding that the suit is barred by limitation. ( 9 ) UNDER the above circumstances, the judgment of the Court below is set aside and the suit is restored to the file of the court-below to decide the same afresh on merits, as expeditiously as possible. ( 10 ) THE revision petition is accordingly allowed. No costs.