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2009 DIGILAW 848 (PNJ)

Lehri Singh v. Sawan Traders (India)

2009-05-01

VINOD K.SHARMA

body2009
Judgment Vinod K.Sharma, J. 1. This regular second appeal is directed against the judgment and decree dated 19.3.2009 passed by the learned Courts below, vide which the suit filed by the plaintiff/respondent for recovery of amount, stands decreed. 2. The plaintiff/respondent brought a suit on the pleadings that there was business transaction between the parties, being agriculturist and commission agent. In course of their dealing, the defendant/appellant has been taking loans from time to time, which was duly entered in the account books and vahi entries, and used to be signed by the appellant/defendant. 3. The learned Courts below, on appreciation of evidence, have recorded a concurrent finding of fact, that the loan was advanced to the defendant/appellant from time to time, whereas he had failed to return the complete amount, though some of the amount was returned or adjusted. 4. The learned counsel appearing on behalf of the appellant contends, that this appeal raises the following substantial question of law :- "Whether the learned Courts below were in error of law in decreeing the suit, though the claimed raised was time barred ?" 5. In support of the substantial question of law, the learned counsel for the appellant contends that it was the case set up by the plaintiff that money was advanced to the defendant/appellant from time to time, since the year 1995 onwards, therefore, the suit filed in 2001 was clearly barred by limitation. The learned Courts below committed an error in deciding issue No. 2 against the defendant/appellant and in favour of the plaintiff. 6. The plea raised by the learned counsel for the appellant cannot be accepted. The learned lower appellate Court has rightly held the suit to be within limitation by recording as under :- "Now coming to the last leg of the argument addressed by the learned counsel for the defendant/appellant herein that the present suit is time barred, and the observation of the learned lower appellate court is erroneous. Even this contention of the learned counsel has no sound base. It has been fully proved on record that the plaintiff/respondent herein-firm was maintaining its account in regular cours of business. The testimony of DW-1 also proves this fact. This apart, a collective reading of the witness herein-firm also proves that the defendant/appellant herein was maintaining a running and current account with the plaintiff/respondent herein firm. It has been fully proved on record that the plaintiff/respondent herein-firm was maintaining its account in regular cours of business. The testimony of DW-1 also proves this fact. This apart, a collective reading of the witness herein-firm also proves that the defendant/appellant herein was maintaining a running and current account with the plaintiff/respondent herein firm. While tendering in evidence the documents Ex.P-1 to Ex.P-6, the witness PW-1 Amarjit has brought the original of these documents in the court, which were seen by the court and returned. As per Ex.P-6 the last entry bears the date as 7.7.2000, when Rs. 2500/- was returned by the defendant/appellant herein to the plaintiff/respondent herein-firm. Thus, article 1 of the Limitation Act applies to the controversy involved in the suit, and the suit is within limitation, reckoned from 7.7.2000. Our Honble High Court in case of State Bank of India v. M/s Kashmir Arts Printing Press, AIR 1981 Punjab 188 has held that, for cash/credit account as per article 1, the limitation is three years which start from the close of the year, in which the last item admitted or proved is entered in account. Meaning thereby, the year in which thelast entry is made is excluded from computing the limitation, and thereafter, i.e. from following January the limitation of three years would start. In the present case, the last entry proved on record is bears the date as 7.7.2000 (Ex.P6), the suit was filed on 19.11.2001, i.e. in the following year, therefore, clearly within limitation. Article 85 of the Limitation Act of the year 1903, is equivalent to Article 1 of the Limitation Act, 1963 . This controversy was before the Honble Constitution Bench of the Honble Apex Court in Keshri Chand v. Shillong Banking Corporation, AIR 1965 SC 1711 wherein it was held that there has to be a mutual dealing between the parties on each side, creating an independent obligation, and not merely transaction which create obligation on one side, only such transaction would attract the applicability of article 1. It is further required to be shown that the suit has been filed within three years of the close of year of the last such transaction. The principle laid down in this judgment, if applies to the controversy then also it is established that the suit is within limitation." 7. It is further required to be shown that the suit has been filed within three years of the close of year of the last such transaction. The principle laid down in this judgment, if applies to the controversy then also it is established that the suit is within limitation." 7. The finding recorded by the learned lower appellate Court is based on well settled law, and no fault can be found with the finding. It is not in dispute that last entry was made on 7.7.2000, on account of part payment of amount returned to the plaintiff/respondent, therefore, the limitation for filing the suit was to commence from the said date. The suit could be filed within three years from the date of part payment. The suit was admittedly filed in the year 2001, thus, was rightly held to be within limitation. 8. The substantial question of law raised is answered against the appellant. No merit. Dismissed.