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2005 DIGILAW 3036 (RAJ)

Jagdish Narain v. Partnership Firm Rameshwarlal Kanhiyalal

2005-11-18

PRAKASH TATIA

body2005
Judgment Prakash Tatia, J.-Heard learned Counsel for the appellant as well as learned Counsel for the respondent. 2. The appellant-defendant is aggrieved against the Judgment and decree passed by the two Courts below. 3. Brief facts of the case are that according to plaintiff defendant-firm took loan of Rs. 5,500/-from the plaintiff on 21.04.1972 with agreement that the amount will be re-paid in installments of Rs. 500/-in every third month. It was decided that first installment shall be paid on 21.07.1972. The defendant executed a pro-note and receipt in favour of the plaintiff containing the term as referred above. According to plaintiff , the defendant paid Rs. 500/-against the first installment, but did not pay thereafter any amount, therefore, plaintiff filed the suit for recovery of the principle amount of Rs. 5,500/- alongwith interest. 4. The defendant submitted written statement and denied the transaction itself . The defendant also denned payment of any installment to the plaintiff . 5. The issues were framed. The plaintiff produced the pro-note and receipt as Exhibit-1 and Exhibit-2 and also produced other documents, which for the purpose of deciding the appeal are not very much relevant because only question involved in this appeal and found to be substantial question of law by this Court is that whether the finding of the trial Court and of the first appellate Court that the suit was within limitation are perverse. 6. The two Courts below found the pro-note Exhibit-1 and receipt Exhibit-2 proved and held that the plaintiff advanced Rs. 5,500/-to the defendant and defendant admitted that he will pay the amount in installment of Rs. 500/-every third month and first installment shall be payable on 21.07.1972. According to learned Counsel for the appellant the issue No. 2 was framed as the plaintiff took a plea that in view of the payment of first installment, the suit is within limitation as it was filed on 110.1975. It is submitted that the defendant did not take any loan from the plaintiff nor he paid any installment to the plaintiff . Secondly, the suit is not within limitation because the plaintiff did not press the issue No. 2, which is the issue on proving which the plaintiff s suit could have been within limitation. It is submitted that the defendant did not take any loan from the plaintiff nor he paid any installment to the plaintiff . Secondly, the suit is not within limitation because the plaintiff did not press the issue No. 2, which is the issue on proving which the plaintiff s suit could have been within limitation. It is also submitted that in the plaint as well as in the statement, the plaintiff did not disclose when the first installment was paid by the defendant to the plaintiff , therefore, the cause of action accrued to the plaintiff on 21.04.1972 itself and suit for recovery of the amount could have been filed upto the period 20.04.1975 only. 7. I considered the submissions of learned Counsel for the appellant and perused the record, particularly, the plaint allegation as well as pro-note Exhibit-1 and receipt Exhibit-2. It is clear from the finding recorded by the two Courts below that plaintiff proved the pro-note as well as the receipt and the endorsement made on the back of the pro-note containing the term that amount will be re-paid in installment of Rs. 500/-and first installment shall be payable on 21.07.1972. There is an endorsement of payment of Rs. 500/-as first installment singed by the defendant. This endorsement was also proved. In view of the above fact and in view of the fact that issue No. 1 was framed about the endorsement made on back of the pro-note even if the plaintiff did not press the issue No. 2, the fact remained is that plaintiff s case stands fully proved that he advanced Rs. 5,500/-to the defendant and defendant agreed to re-pay the said amount to the plaintiff in installment of Rs. 500/-after every third month and first installment was to fell due on 21.07.1972. Assuming for the sake of argument that at the time of advancing the loan on 21.04.1972 itself , the defendant paid the first installment of Rs. 500/-then that is payment against the installment of the date 21.07.1972. The plaintiff could not have demanded second installment before 210.1972, therefore, the cause of action in this case accrued to the plaintiff only when the defendant failed to pay the installment by 210.1972 whereas the suit has been filed on 110.1975, which is within the period of limitation from the date when the second installment fell due. The plaintiff could not have demanded second installment before 210.1972, therefore, the cause of action in this case accrued to the plaintiff only when the defendant failed to pay the installment by 210.1972 whereas the suit has been filed on 110.1975, which is within the period of limitation from the date when the second installment fell due. In view of the above, the suit of the plaintiff was rightly held within limitation despite the fact that plaintiff did no press the issue No. 2. The substantial questions framed by this Court is answered against the appellant and in favour of the respondent. 8. Consequently, the appeal of the appellant is dismissed.