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2002 DIGILAW 248 (JK)

State Bank Of India v. Hari Dutt Sharma

2002-08-02

S.K.GUPTA, T.S.DOABIA

body2002
S.K. Gupta, J. We have heard Mr. M.P. Gupta learned counsel for the appellant as well as Mr. D.K. Khajuria, learned counsel for the respondents in extenso. 2. This Letters Patent Appeal. is directed against the judgement dated 12-10-2000 formulated by the learned Single Judge in CIA No. 34/89. By the afore-said judgment the learned Single Judge dismissed the appeal and up-held the decree and judgment passed by the learned District Judge Udhampur dated 28-5-1999. 3. The appellant Bank commenced a suit for recovery of an amount of Rs 2,47,323/- against the defendants-respondents. The suit was -resisted on variety of grounds by the respondents in, their demurr, which became the subject matter of the following issues. 1. Whether the defendant-I Hari Dutt Sharma executed revivals letter and letter of balance confirmation in favour of the plaintiff bank if so what is its effect on the suit? OPP 2. Whether the vehicle purchased by the defendant was defective and could not be plied on the road and its documents were not renewed after 1983 if so whether the plaintiff was competent to insure the defective vehicle and charge premium amount from the defendant? OPP 3. How much money is due to the plaintiff from the defendant ? OPP 4. Relief ? 4. In support of their respective claims the parties examined witnesses, a graphic resume of which has been given by the trial Court in its judgment, After the evaluation of the facts deposed to by the witnesses examined by the parties, the trial court returned a finding that though the defendant owes the suit amount to the plaintiff-Bank, but his liability cannot be enforced by this action for recovery and dismissed the suit, being barred by limitation. 5. Assailing the correctness of the decree, the appellant preferred an appeal which too met the same fate and was dismissed by the learned Single Judge, which became the subject matter of challenge in this L.P.A. 6. The sole controversy raised in this appeal is as to whether the revival letters dated 15-4-1993 and 15-5-1993 is a promise to pay and extend the period of limitation of the defendant which already stands barred by time. 7. Mr. M.P.Gupta, learned counsel for the appellant Bank vehemently urged that the revival letters and the balance confirmation letters having been duly proved by cogent and sufficient evidence, the suit is well within time. 7. Mr. M.P.Gupta, learned counsel for the appellant Bank vehemently urged that the revival letters and the balance confirmation letters having been duly proved by cogent and sufficient evidence, the suit is well within time. His further submission is that the revival letter dated 16-6-1987 is a promise and therefore, cannot be taken as acknowledgement and that, the same is a revival letter. Respondent No. 1 has admitted his signatures on the document in question, but the same has not been appreciated in its proper perspective and the view taken by the learned. Single Judge is not in accord with the evidence on record and the settled position of law in this behalf. 8. To appreciate the argument-put across by the appellants-counsel, it was imperative to go into the record of the file and the evidence let in by the parties. The acknowledgement of the balance confirmation letter and the revival letter dated 15-5-1993 has been denied by- the defendant. The defendant has emphatically denied the contents of the revival letter dated 16-6-1987, though admitted his signatures. Even the evidence produced by the appellant to prove the revival letter stated least of having been executed by defendant/respondent No. l. It is, also in the evidence of respondent No. 1 that though his signatures on document dated 20-3-1985 exist but stated to have signed it in the year 1981, when the loan was sanctioned. In the same manner he also admitted his signatures on the letter dated 20-3-1985, but stated to have signed in the year 1981. The appellant/plaintiff however by adducing evidence proved the execution of only documents which are revival letters dated 15-4-1993 and 15-5-1993, but the question is as to whether the execution -of -revival letters dated 15-4-1993 and 15-5-1993 extend the period of limitation unless the execution of the revival letter dated 16-6-1987 is proved. The plaintiff/appellant however did not produce any evidence to prove the execution of the acknowledgement dated 16-6-1987 when its execution denied has been un-equivocally, by defendant/respondent No-1, the defendant/respondent No. 1 is however, stated to have admitted his liability in terms of the revival letter dated 16-6-1987. The plaintiff/appellant however did not produce any evidence to prove the execution of the acknowledgement dated 16-6-1987 when its execution denied has been un-equivocally, by defendant/respondent No-1, the defendant/respondent No. 1 is however, stated to have admitted his liability in terms of the revival letter dated 16-6-1987. But this document does not make mention of any amounts outstanding against defendant/respdondent No. l. The document dated 16-6-1987 even does not mention the names of the parties besides the amount stated to be outstanding against defendant/respdondent No. 1 though it makes reference to some hypothecation-cum-guarantees dated 18-7-1981. This document is stated to be an acknowledgement of the defendant. But such an acknowledgement is devoid of any legal value being the column of the amount and debt un-filled. 9. It is therefore, un-disputably gatherable from the evidence on record and rightly appreciated by the learned Single Judge that un- less the execution of the revival letter dated 16-6-1987 is proved, the execution of the letters dated 15-4-1993 and 15-5-1993 do not extend the period of limitation. Section 18 of the Limitation Act 1995 clearly contemplates that the acknowledgement must be prior to the debt becoming time barred. It is only during the subsistence of the period of limitation if .any,- document is executed, limitation would be revived afresh from the said date of acknowledgement as is laid down by the Supreme Court of India in Sampuran Singh v. Niranjan Kour, AIR 1999 SC 1047. It therefore follows that the essence of acknowledgement can be drawn only if the necessary facts constituting the liability are admitted, which is not the position in this case. Defendant/respondent No. 1. Hari Dutt Sharma when confronted with the document dated 16-6-1987 has admitted only his signatures. The acknowledgement of liability therefore, must be within substantive period of limitation. The acknowledgement, if any, has to be prior to the expiry of the prescribed period for filing the suit, in other words if the limitation has already expired it would not revive under this section. It is only during the subsistence -of period of limitation, if any, such document is executed then the limitation would be revived afresh. 10. The acknowledgement, if any, has to be prior to the expiry of the prescribed period for filing the suit, in other words if the limitation has already expired it would not revive under this section. It is only during the subsistence -of period of limitation, if any, such document is executed then the limitation would be revived afresh. 10. In the instant Case the appellant having failed to prove the revival letter dated 16-6-1967 by cogent and satisfactory evidence, the execution of the letter dated 15-4-1995 and 15-5-1993 would not revive the limitation afresh, being not within the subsistence of period of limitation. The witnesses examined by the appellant to prove the execution of revival letter dated 16-6-1987 or any other letter pertaining to the acknowledgement of liability, have not stated anything about the said letters. Their evidence was confined only to the balance confirmation letter dated 15-5-1993 and revival letter dated 15-4-1993, which is of no way to the appellant unless execution of the revival letter dated 16-6-1987 stood proved and therefore, does not extend the period of limitation. 11. A half-hearted attempt has been made by the learned counsel for the appellant to re-emphasise that the revival letter dated 16-6-1987 cannot be taken as an acknowledgement, when it was a promise to pay and, thus the suit was well within time. To support his contention, the appellant also referred to a judgment of Bombay High Court reported as AIR 1991 Bom 44. Since the `defendant/respondent has denied the contents of the revival letter dated 16-6-1987 and which remained un-proved by the plaintiff/appellant, the judgment is not applicable, the facts of the case being clearly distinguishable. It may further be pointed out that this letter could only be an acknowledgement under section 18 of the Limitation Act for revival of period of limitation. It cannot by any stretch of reasoning be termed as promise to pay. The view expressed by the learned Single Judge who dealt with the issue at length is the view to which there is no cause to differ. 12. We do not find any infirmity, legal or factual in the judgment and decree propounded by the learned Single Judge, which calls for any interference. 13. For the fore-going reasons, we are of the view that the appeal does not possess any merit and is accordingly dismissed. There will be however, no order as to costs.