Umanath Naik v. Vinayak Shrinivas Naik, (since deceased) through his legal representatives
2015-06-23
C.V.BHADANG
body2015
DigiLaw.ai
Judgment :- 1. Heard. Admit. 2. Ms. Palyekar, the learned Counsel waives service for the respondent nos.1(i) to (iii). Shri Ramani, the learned Counsel waives service for the respondent no.2. 3. Second Appeal is taken up for final disposal with the consent of the parties. 4. The appellants are the original plaintiffs. Respondent nos.1(i) to (iii) are the legal representatives of Vinayak Naik, original defendant no.1 who is the brother of the appellant no.1. The second respondent is an Urban Cooperative Bank. 5. According to the appellants, the appellant no.1 had obtained a loan of Rs.45,000/- from the second respondent. It is contended that the loan was obtained in the name of original defendant no.1 Vinayak Naik (since deceased). The appellants had pledged their gold ornaments as a security for the loan with the Bank. It is undisputed that the entire loan amount has been repaid on 07/06/2002 and the loan account is closed. The amount has been repaid by the appellants. 6. Some time towards the end of 2001, relations between the appellants and Vinayak Naik soared and Vinayak Naik refused to consent for release of the gold ornaments to the appellants. The second respondent had insisted for an authority letter/ no objection certificate from Vinayak Naik for release of gold ornaments. Vinayak refused to do so. It appears that the matter was also reported to the police, followed by a legal notice issued by the appellants on14/01/2003, calling upon Vinayak Naik to hand over the gold ornaments. Vinayak failed to oblige. It appears that the appellants sent another notice dated 27/06/2008 and thereafter, filed a suit being Regular Civil Suit No.32/2009/C against Vinayak Naik and the second respondent before Civil Judge, Junior Division at Panaji. That suit was filed for relief of declaration that the ornaments pledged with the second respondent, are owned by the appellants, with a direction to Vinayak Naik, the original defendant no.1, to sign all the necessary documents for release of the gold ornaments in favour of the appellants. It is further prayed that the second respondent be directed to hand over the gold ornaments to the appellants. 7. It appears that Vinayak Naik died during the pendency of the suit and his legal representatives being respondent nos.1(i) to (iii) were brought on record. 8. The parties led evidence.
It is further prayed that the second respondent be directed to hand over the gold ornaments to the appellants. 7. It appears that Vinayak Naik died during the pendency of the suit and his legal representatives being respondent nos.1(i) to (iii) were brought on record. 8. The parties led evidence. The appellant no.1 examined himself while the respondent no.1(i) examined herself (DW1) and Pankaj Naik, the respondent no.1(ii)(DW2) and one Nishant Kurade (DW3). The parties produced certain documents on record. The learned Trial Court, by a judgment and order dated 29/03/2014, dismissed the suit, inter alia, on the ground that the suit was barred by limitation. 9. The appellants unsuccessfully challenged the same before the Appellate Court in Regular Civil Appeal No.39/2014. The appeal was dismissed on 08/10/2014, upholding the finding about the suit being barred by limitation. That is how, the appellants are before this Court, in the present Second Appeal. 10. On hearing the learned Counsel for the parties, it appears that the only substantial question of law, which arises for determination, is whether the Courts below were justified in holding that the suit is barred by limitation? 11. It is submitted by Shri D'Costa, the learned Senior Counsel for the appellants that the Courts below have come to the conclusion that the ornaments are owned by the appellants. It is submitted that the loan account has also been cleared as the entire outstanding amount has been paid by the appellants. It is submitted that under some peculiar circumstances, the appellant no.1 was required to obtain the loan in the name of Vinayak Naik. Subsequently, on account of certain dispute between the parties, Vinayak Naik and after his death, his legal representatives are refusing to sign the necessary documents in favour of the Bank, so that the ornaments can be released by the Bank. It is submitted that Vinayak Naik had not sent any reply to the first notice dated 14/01/2003. Thus, in the absence of any denial about the ownership of the ornaments and entitlement of the appellants to get back ornaments from the Bank, the limitation would not start and the cause of action could not be said to have accrued, on 14/01/2003. It is submitted that the appellants issued a second notice on 27/06/2008 and thereafter, filed the suit on 26/03/2009, which would be clearly within limitation.
It is submitted that the appellants issued a second notice on 27/06/2008 and thereafter, filed the suit on 26/03/2009, which would be clearly within limitation. It is submitted that the Courts below failed to consider the effect of Section 22 of the Limitation Act wherein the case of continuing breach of contract is provided and a fresh period of limitation would accrue on every breach of the contract. 12. On the contrary, it is submitted by Shri Usgaonkar, the learned Senior Counsel for the respondent nos.1(i) to (iii) that the suit was clearly barred by limitation. It is submitted that the suit would not be governed by Articles 68 and 69 of Schedule I of the Limitation Act, 1963. It is submitted that even so far as Article 70 is concerned, the suit has to be brought within a period of three years from the accrual of cause of action which in the present case would accrue in the year 2003, when the first notice was issued. It is submitted that the Courts below have rightly come to the conclusion that the second notice dated 27/06/2008 was a mere red herring to show that the suit was within limitation. It is submitted that successive issuance of the notices cannot extend/save limitation, in bringing the legal action. He submitted that the finding recorded by the Courts below on the point of limitation does not need any interference. 13. I have considered the rival circumstances and the submissions made. 14. Admittedly, the loan was obtained some time in the year 1998. It is further undisputed that now deceased Vinayak Naik was the borrower on record. The appellants had pledged the ornaments as a security for the loan with the second respondent. It is further undisputed that the loan was cleared on 07/06/2012. It is further a matter of record that DW1 Vidya Naik had accepted that the appellant no.1 having repaid the loan, the gold ornaments of the appellant no.2 have to be returned to her by the Bank. However, the only question which arises is whether the suit filed by the appellants was within limitation. Suits relating to movable property fall in part VI of the Schedule to the Limitation Act, 1963. Part VI contains four Articles from Articles 68 to 71.
However, the only question which arises is whether the suit filed by the appellants was within limitation. Suits relating to movable property fall in part VI of the Schedule to the Limitation Act, 1963. Part VI contains four Articles from Articles 68 to 71. Article 68 pertains to a suit relating to specific movable property lost or acquired by theft or dishonest misappropriation or conversion. Article 69 pertains to other specific movable property. It is apparent that Article 68 would not apply to the present case. In so far as Article 69 is concerned, the time from which the limitation period begins to run is when the property is wrongfully taken. Thus, this Article also will not apply as it is nobody's case that the property, namely the ornaments are wrongfully taken by any of the parties. Article 71 pertains to recovery of movable property deposited or pawned and afterwards bought from the depositary or pawnee for valuable consideration. The period, in such a case, begins to run when the sale becomes known to the plaintiff. Thus, this Article is also not attracted. Thus, the claim in the present suit would clearly fall under Article 70, where the period begins to run from the date of refusal after demand. In the present case, the appellants had initially issued a notice dated 14/01/2003 which was not complied with. It has to be held that there was a refusal on the part of Vinayak Naik to sign appropriate documents so that the Bank can release the ornaments in favour of the appellants. It cannot be gainsaid that because there was no reply issued by Vinayak Naik, there was no refusal/ denial on that date. It is significant that there was no compliance either. The denial need not be express. It could be gathered from the attending circumstances. Thus, the second notice dated 27/06/2008 cannot have the effect of extending the period of limitation or cannot have the effect of creating a fresh cause of action. Thus, in my considered view, no exception can be taken to the finding recorded by the Courts below that the suit was barred by limitation, as not having been instituted within a period of three years from the accrual of cause of action. 15.
Thus, in my considered view, no exception can be taken to the finding recorded by the Courts below that the suit was barred by limitation, as not having been instituted within a period of three years from the accrual of cause of action. 15. It is true that an anomalous situation has been created in as much as Vidya Naik DW1 has admitted that the ornaments have to be returned by the Bank, particularly when the loan account is cleared. However, the appellants cannot seek intervention of the Civil Court for the reliefs as prayed on the ground that the suit is barred by limitation. It is trite that limitation only bars the remedy and not the right. Thus, it would be open to the appellants to take recourse to any other appropriate remedy available in law and if so advised, for recovery of the ornaments. Subject to this, no case for interference is made out, in the present appeal. 16. In the result, the appeal is dismissed, with no order as to costs.