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2001 DIGILAW 328 (KER)

George v. Koshy

2001-06-27

A.LEKSHMIKUTTY, S.SANKARASUBBAN

body2001
Judgment :- S. Sankarasubban, J. 1. This appeal is preferred by the defendant in O.S. No. 211 of 1984 on the file of the 1st Additional Sub Court, Trivandrum. Respondent is the plaintiff. Appellant and respondent are brothers. The suit was filed by the plaintiff for recovery of Rs. 75,000/- with interest thereon at 12% from 29.7.1980. The case of the plaintiff is as follows: 2. Defendant borrowed on different occasions from the plaintiff an amount of Rs. 75,000/- agreeing to repay the same with interest. All the amounts were sent by the plaintiff to the defendant through Bank drafts and which were drawn by the defendant through Bank of Cochin, Trivandrum. The defendant also executed a loan letter styled as receipt on 29.7.1980. The defendant undertook that the loan amount will be repaid by him within one year from 29.7.1980 with 12% interest. The plaintiff is permanently working in South America. When the plaintiff came on short leave, he requested the defendant to repay the amount due to him with interest loan on several occasions. But the defendant has not cared to repay the amount with interest to the plaintiff. Before filing the suit, a notice was sent by the plaintiff through his Advocate on 12.7.1984. The defendant accepted the notice. But he has not complied with the demands and hence, the suit is filed. 3. Defendant has filed a written statement. In the written statement, the case taken is that the suit is barred by limitation. Further, it is stated that the document relied on by the plaintiff is only with regard to past transaction. No consideration was passed on the date of the document. The plaintiff is not entitled to get any interest. There was no demand and the statement that notice had been sent to the defendant and that he had acknowledged the same is also denied. 4. On the basis of the above pleadings, the court below raised as many as five issues. The plaintiff was examined as PW.1. Exts. Al to A3 were examined on the side of the plaintiff. No evidence was adduced on the side of the defendant. The court below held that Ext. Al, a receipt, is supported by consideration. On the question of limitation, the court below held that there was no limitation. Ext. Al is dated 29.7.1980. The plaintiff was examined as PW.1. Exts. Al to A3 were examined on the side of the plaintiff. No evidence was adduced on the side of the defendant. The court below held that Ext. Al, a receipt, is supported by consideration. On the question of limitation, the court below held that there was no limitation. Ext. Al is dated 29.7.1980. The Court below held that the period of limitation starts from the date of Ext. Al. Thus, on the basis of the above finding, the suit ought to have been filed before 29.7.1983. But the suit is filed only on 21.7.1984. The plaintiff then submitted in his evidence that the defendant was outside India from April to November, 1981. Again he was in Kuwait in June, 1982 and came back in December, 1983. On the basis of this statement made in the deposition, the court below held that the plaintiff is entitled to the benefit of exclusion under S.15(5) of the Limitation Act and decreed the suit. It is against the above judgment and decree that this appeal is filed. 5. Senior counsel Sri. K.C. John appeared for the appellant. Even though notice was served on the defendant, there was no appearance for the defendant. Sri. K.C. John submitted that the court below was wrong in holding that the suit is not barred by limitation. According to him, when a suit is filed out of time, the plaintiff has to state the facts regarding exemption, if any, with regard to period of limitation. Learned counsel brought to our notice the provisions of O. VII R.6 of the Code of Civil Procedure, which read as follows: "Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed: Provided that the Court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint". Learned counsel took us through the plaint. The plaint does not state anything about the exclusion of limitation. Learned counsel took us through the plaint. The plaint does not state anything about the exclusion of limitation. S.15(5) of the Limitation is as follows: "In computing the period of limitation for any suit, the time during which the defendant has been absent from India and from the territories outside India under the administration of the Central Government, shall be excluded". The court below takes the view that since the statement given by the plaintiff in the chief examination regarding the fact that the defendant was outside India has not been denied or attempted to be questioned. At the time of cross-examination, the statement can be believed and S.15(5) can be applied. According to us, the view taken by the Court below is not correct. 6. In Ramaswamy Chetti v. Anaiya Pandayachi & Ors., AIR 1936 Madras 545. Venkataramana Rao, J. held as follows: "It is obligatory as a matter of pleading to show the ground upon which exemption from limitation is claimed. Consequently unless the plaint is amended, it will not be open to a party to rely on an exemption not pleading in the plaint". In Sha Manmall Misrimall v. K. Radhakrishnan, AIR 1972 Madras 108, the Madras High Court was dealing with the exemption under O. VII R.6 of the Code of Civil Procedure and observed as follows: "It is obligatory, as a matter of pleading, to show the grounds upon which the exemption from limitation is claimed. Consequently, unless the plaint is amended, it would not be open to the parties to rely on an exemption not pleaded in the plaint". There is no dispute that there is no pleaded by way of exemption. The plaintiff did not make any steps to get the plaint amended. 7. In the above view of the matter, the court below was not correct in holding that the suit is not barred by limitation. We hold that the suit is barred by limitation. The court below was not correct in not relying on S.15(5) of the Limitation Act. In the result, the appeal is allowed reversing the judgment and decree of the court below. No order as to costs.