Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 497 (MP)

Neelam Kumar Bachani v. Bhishamlal

2013-04-10

K.K.TRIVEDI

body2013
JUDGMENT This revision under section 115 of the Code of Civil Procedure is directed against the order dated 10-10-2012, passed in Civil Suit No. 91-B/2012 by the First Additional Civil Judge, Class-II to the Court of First Civil Judge, Class-II, Bhopal, whereby the application filed by the applicants under Order 7, Rule 11 of Civil Procedure Code for dismissal of the suit as barred by law, has been rejected. 2. Facts in brief giving rise to filing of this revision are that the non-applicant/plaintiff filed a suit for recovery of Rs.1,50,000/- against the applicants/defendants, on the grounds that the non-applicant has paid Rs. 1,50,000/- by a cheque on 15-5-2009 to the applicants/defendants, as loan for the purposes of purchase of a shop situated at Bhopal Plaza, Bhopal Talkies Compound from one M/s. Balaji Associates. It was averred that the applicant No. 2 promised to return the said loan amount within a year. The cheque was given on 15-5-2009 which was got encashed on the same day. When the demand was made by the non-applicant for refund of amount of loan, the same was not repaid, therefore, a notice was issued to the applicants by non-applicant on 13-9-2011 through a counsel. In reply to the said notice, though it was admitted that Rs. 1,50,000/- was received by the applicants, but it was said that the amount was in fact refund of amount spent by the applicants in the Ring Ceremony of the son of the non-applicant. The said amount was refunded back by the non-applicant to the applicants by the cheque. It was further contended that since it was not a loan transaction, therefore, no money was to be paid by the applicants to the non-applicant. 3. Contending that from the said refusal, the cause of action accrued to the non-applicant, the plaint dated 22-6-2012 was said to be presented in the Court on 23-8-2012. The trial Court entertained the suit, issued the notices to the applicants and upon service of the said notice, a written statement was filed by the applicants jointly. The applicants contended that the shop was purchased for an amount of Rs. 9,41,000/- from Balaji Construction. The amount of the shop was paid by two cheques one drawn on 2-4-2009 for an amount of Rs. 4 lakhs and the other one paid on 15-11-2009 for an amount of Rs. 5,41,000/-. The applicants contended that the shop was purchased for an amount of Rs. 9,41,000/- from Balaji Construction. The amount of the shop was paid by two cheques one drawn on 2-4-2009 for an amount of Rs. 4 lakhs and the other one paid on 15-11-2009 for an amount of Rs. 5,41,000/-. Thus, it was contended that a false story was concocted by the non- applicant/plaintiff that for the purchase of any shop, an amount of Rs. 1,50,000/- was taken by the applicants from the non-applicant as loan. Other pleas were also raised. 4. The applicants also moved an application under Order 7, Rule 11 of Civil Procedure Code seeking dismissal of the suit being barred by limitation. The said application having been rejected by the Court below by the impugned order, this revision is required to be filed. 5. It is contended by learned counsel for applicants that apparently from the description as made in the plaint itself, the suit was barred by limitation and was, thus, liable to be dismissed under the provisions of Order 7, Rule 11(d) of Civil Procedure Code. Reading the definition given in the Limitation Act, 1963 in section 2(c), it is contended that the bill of exchange includes a hundi and a cheque. Article 20 of Limitation Act would prescribe limitation for filing of a suit on the strength of a cheque which is three years when the cheque is paid. Article 35 of the Limitation Act prescribes that on a bill of exchange or promissory note payable on demand and not accompanied by any writing restraining or postponing the right to sue, the limitation would start from the date of the bill or the promissory note as the case many be. There was nothing indicated in the plaint that there was any restrain put that the claim would not be filed from the date of encashment of the cheque. Admittedly, the cheque was said to be encashed on 15-5-2009. No written agreement was executed in between the applicants and the non-applicant that the amount of loan would be refunded after a year, therefore, there would not be enlargement of the limitation for filing a suit nor there is shifting of the cause of action for filing of the suit from the date of encashment of the cheque. No written agreement was executed in between the applicants and the non-applicant that the amount of loan would be refunded after a year, therefore, there would not be enlargement of the limitation for filing a suit nor there is shifting of the cause of action for filing of the suit from the date of encashment of the cheque. As per the averments made in the plaint, notice of demand was issued by the non-applicant against the applicants and if there was denial in any manner by the applicants with respect to the said loan transaction, immediately the suit was required to be filed. Further, drawing attention of this Court to the provisions of section 5 of the Limitation Act, it is contended that there is no provision for extension of prescribed period of limitation in a suit as the said provision would not be applicable to a suit. If the suit was not filed within the limitation prescribed, it was barred by limitation and, therefore, upon the application of the applicants, it was necessary for the Court below to dismiss the suit as barred by limitation. It is contended that the law is not properly considered by the Court below. It was wrongly held that there was a mixed question of law and facts both involved in the present suit and, therefore, only on the ground of limitation on an application under Order 7, Rule 11 of Civil Procedure Code, the suit was not to be dismissed. 6. Per contra, it is contended by the non-applicant, who appeared in person that he was in the services. The applicant No. 1 is his brother. Upon asking for some financial assistance, the amount was given by cheque. Orally it was agreed that the amount would be returned after a year. Despite demand when the amount was not returned, a legal notice was issued to the applicants of which an evasive reply was given by the applicants. After receipt of the reply of the notice, the suit was filed and, therefore, the cause of action would start from the date of refusal to repay the loan and this being so, it cannot be said that the suit filed by the non-applicant was barred by limitation. After receipt of the reply of the notice, the suit was filed and, therefore, the cause of action would start from the date of refusal to repay the loan and this being so, it cannot be said that the suit filed by the non-applicant was barred by limitation. Further, it is contended that since question of limitation is a mixed question of law and facts, it would not be justified for the Court to decide the same merely on an application filed by the applicants under Order 7, Rule 11 of Civil Procedure Code. Relying on the case of Mrityunjay Prasad v. Santosh Kumar Mishra and others, 2006(1) MPLJ 38 : 2005(3) M.P.H.T. 492 . It is contended that suit so filed by the non-applicant was not to be dismissed without recording of evidence of parties and, therefore, if the trial Court has rejected the application filed by the applicants, no wrong has been committed. 7. Heard learned counsel for the parties at length and minutely perused the record. 8. It is settled law that if an application under Order 7, Rule 11 of Civil Procedure Code for dismissal of the suit is filed at the preliminary stage, as prescribed under the provisions of the aforesaid order, only the pleadings in the plaint are required to be examined. The pleadings raised by the defendants in the written statement are not required to be looked into while deciding an application under Order 7, Rule 11 of Civil Procedure Code. However, it is also to be seen that the law of limitation varies with respect to prescription of limitation for filing the suit of different descriptions. A suit for loan transaction may be based on the cause of action which accrued after payment of the loan amount. For example, if an agreed date for repayment of the loan amount is prescribed and on demand within the said period or day, the loan amount is not repaid, the cause of action would accrue on refusal of repayment of loan and the limitation would start from the date of refusal of the repayment of the loan. However, there are specific safeguard prescribed in cases where the amount is paid by cheques. As far as the cheques are concerned, the same are treated as bill of exchange as per the definition given under section 2(c) of the Limitation Act. However, there are specific safeguard prescribed in cases where the amount is paid by cheques. As far as the cheques are concerned, the same are treated as bill of exchange as per the definition given under section 2(c) of the Limitation Act. A specific bar is also created under the Limitation Act in section 3, where it is said that subject to the provisions contained in sections 4 to 24 (inclusive) every suit instituted, appeal preferred, and application made after the prescribed period of limitation shall be dismissed, although limitation has not been set up as a defence. Section 4 of the Limitation Act prescribes nothing but enlargement of the period of limitation if on the last date of filing of the suit, appeal or application expires on a day when the Court is closed, only upto the day when the Court reopens. The period of limitation as prescribed under Limitation Act can be extended only in case of an appeal or any application, but the provisions of section 5 of the Limitation act are not made applicable to the suits. 9. This leads no doubt that specific limitation prescribed under the Schedule of the Limitation Act are to be specifically followed. As has been referred to hereinabove, limitation for filing of the suit based on payment of money by cheque, the period of limitation is three years from the date when the cheque is paid. Admittedly, in the present case, the said date was 15-5-2009, as set forth in the plaint itself. As prescribed in section 35 of the Limitation Act, the period of repayment of the loan amount on the basis of the bill of exchange or promissory note was to be specifically written. A restrain was to be put postponing the right to sue from the date of payment of the aforesaid bill of exchange or cheque or promissory note as the case may be. If such a restrain is put, then from the date the right to sue accrued, the limitation would be three years for filing of the suit. A complete reading of the plaint nowhere indicates that there was any such restrain put by the applicants. If such a restrain is put, then from the date the right to sue accrued, the limitation would be three years for filing of the suit. A complete reading of the plaint nowhere indicates that there was any such restrain put by the applicants. Nothing has been stated whether the parties executed a separate agreement with respect to the said loan transaction for which the amount was paid by cheque on 15-5-2009, putting restrain to filing of a suit within three years from the said date of transaction. Merely because a notice was issued and a reply was submitted and payment of Rs. 1,50,000/- was admitted by the applicants, again the cause of action for filing of the suit for recovery of the alleged loan amount would start from 15-5-2009. From the averments made in the plaint, it is clear that the suit ought to have been filed by 14-5-2012. The period of three years limitation had expired on this day. The suit was not filed on the said date. On the other hand, the suit was said to be filed on 23-8-2012 when it was presented in the Court though the plaint was dated 22-6-2012. If these facts are taken together, only on the basis of pleadings in the plaint, it is apparently clear that the suit filed by the non-applicant was barred by limitation. No evidence was required to be recorded as these facts have emerged only from the plaint. Any oral evidence would not have changed the accrual of the cause of action to the non-applicant as in terms of the law made in the Limitation Act, the postponement of the right to sue should be in writing. If this was not, then again it was not necessary to prove anything by adducing evidence. 10. The Full Bench of this Court was dealing in the matter of limitation and it was of the opinion that the question of limitation is normally a mixed question of facts and law and cannot be decided except by recording evidence. However, the facts as were taken into consideration by the Full Bench of this Court in the case of Santosh Chandra and others v. Gyan Sunder Bai and others, 1970 MPLJ (F.B.) 363 : 1970 JLJ 290 were altogether different. However, the facts as were taken into consideration by the Full Bench of this Court in the case of Santosh Chandra and others v. Gyan Sunder Bai and others, 1970 MPLJ (F.B.) 363 : 1970 JLJ 290 were altogether different. The said case was not with respect to counting of limitation for the purposes of filing a suit on the strength of a bill of exchange or cheque. Again the reliance placed in the case of Mrityunjay Prasad (supra) is totally misconceived, because in that case the question of whether limitation for filing of a suit for declaration with respect to the change of entry of a birth or death in the register was being considered by this Court. Again in the case of Sharda Talkies (Firm) v. Madhulata Vyas and others, 1996 MPLJ 697 , a loan transaction not dependent on a cheque was being considered. The said case was being considered under a loan transaction for which limitation prescribed under the Limitation Act is under Article 22 and not under Article 20 or 35. As has been said hereinabove, for different suit, different provisions of limitations are made under the Limitation Act. Lastly the reliance placed in the case of Rajendra Singh v. Sheetaldas, 1992(1) MPWN 104 is also misconceived as the delay in filing of a Miscellaneous Appeal under the Motor Vehicles Act was being condoned by this Court in exercise of power under section 5 of the Limitation Act. Provisions of section 5 of the Limitation Act are not attracted for condoning delay in filing a suit. 11. The Apex Court in the case of Sant Lal Mahton v. Kamla Prasad and others, AIR 1951 SC 477 has categorically dealt with an acknowledgment and an admission to that effect made in the written statement. Even if the acknowledgment made in the reply to the notice sent by the applicants is taken into consideration, it will not mean that the same was in fact an acknowledgment of the fact that right to sue on the strength of the cheque given in favour of the applicants, was enlarged by the applicants. If that is not there, the limitation would start only from the date of issuance and encashment of the cheque for the purposes of filing of the suit. If that is not there, the limitation would start only from the date of issuance and encashment of the cheque for the purposes of filing of the suit. In such a situation again the suit was filed beyond the limitation and this aspect is not disputed by the non-applicant even before this Court while making his submission. This being so, for proving such facts which were specifically stated in the plaint no evidence was required. It was to be seen by the Court below that the suit filed by the non-applicant would be barred by limitation and since there is no provision to enlarge limitation for filing of such suit and no such power is vested in the Court, the suit of the non-applicant was liable to be dismissed under the provisions of Order 7, Rule 11 of Civil Procedure Code. Having failed to appreciate such legal position, the Court below erred in exercising the jurisdiction vested in it in appropriate manner and in rejecting the application of the applicants under Order 7, Rule 11 of Civil Procedure Code. 12. In view of the discussions made hereinabove, the revision is allowed. The order impugned dated 10-10-2012 in Civil Suit No. 91-B/2012 is hereby set aside. The application filed by the applicants under Order 7, Rule 11 of Civil Procedure Code is hereby allowed. The suit of the non-applicant is hereby dismissed being barred by limitation. However, in the facts and circumstances of the case, there shall be no order as to costs.