Assam Industrial Development Corporation v. B. S. (Assam) Industries (P. ) Ltd. and Ors.
2015-03-10
N.CHAUDHURY
body2015
DigiLaw.ai
1. The first appeal is directed against judgment and decree dated 7.7.2006 passed by the learned Civil Judge, Senior Division No.3, Guwahati in Money Suit No. 4 of 2004 dismissing the suit on the point of limitation. 2. The Assam Industrial Development Corporation Ltd. ('Corporation') instituted Money Suit No.4 of 2004 in the Court of learned Civil Judge No. 3, at Guwahati against B.S. (Assam) Industries (P.) Ltd. and two others. The suit was for realization of a sum of Rs.1,49,12,742.83. It is stated in the plaint that on 21.6.1982, defendant' company applied for financial assistance for manufacturing three lakhs LPG cylinders from its plant to be set up in 12 acres of land belonging to one A.C. Barooah of Village-Gauripur, North Guwahati. The loan application was amended on many occasions and finally the target and production was fixed at one lakh fifty thousand LPG cylinders per annum. The plaintiff by its sanction order dated 20.1.1986 sanctioned a term of loan of Rs.66.8 lakhs and seed capital assistance of Rs.7 lakhs for the purpose. The defendant No.1 also accepted the terms and condition as mentioned in the sanction letter and thereupon adopted a resolution empowering to sign and execute all documents on behalf of defendant No.1 for availing the financial assistance. After the necessary formalities were completed a loan agreement was executed between the parties on 6.5.1986 with the following features : (i) That the defendant was sanctioned a term loan of Rs.66.80 lakh and seed capital assistance of Rs.7.00 lakhs. (ii) The loan would bear interest of 12.5% per annum calculated at 6 monthly rests on March 31 and November, 30 each year. (iii) The defaulted installments would carry additional interest of 2% per annum over and above the normal rate of interest calculated at half yearly rests. (iv) The rate of interest would be as many be determined by the IDBI. (v) The defendants would create first mortgage over their immoveable properties and moveable properties including its moveable machinery, machine spares, tools and accessories, etc., both present and future. (vi) The disbursement was to be made at discretion of the plaintiff as per the evidence of utilization of disbursement, and subject to other terms and conditions of the loan agreement. 3.
(v) The defendants would create first mortgage over their immoveable properties and moveable properties including its moveable machinery, machine spares, tools and accessories, etc., both present and future. (vi) The disbursement was to be made at discretion of the plaintiff as per the evidence of utilization of disbursement, and subject to other terms and conditions of the loan agreement. 3. It is further stated in the plaint that in order to secure re-payment of the loan taken, the defendant No.1 executed a deed of hypothetication on 6.5.1986 by virtue of which the properties described in clause 2 of the contract agreement stood hypotheticated by way of first charge in favour of the plaintiff. Defendant Nos. 2 and 3 executed guarantee for repayment of the loan on the same date, i.e., on 6.5.1986 and an undertaking was also given on 6.5.1986 by defendant No.1 in favor of IDBI not to dispose of their share holding. A seed capital loan agreement was executed by defendant No.1 on 6.5.1986 to secure the re-payment of the seed capital loan of Rs. 7 lakhs and overall interest @ 12.5% per annum was agreed to be paid on this amount in addition to a further interest of 1% per annum in case of default. A demand promissory note was given by the defendant No.1 on 6.5.1986 for Rs.66.80 lakhs. Accordingly, on 12.2.1987 plaintiff sanctioned Rs.12.20 lakhs to the defendants and Rs.3 lakhs on 9.11.1987. The same was accepted by defendant No.1 in its meeting held on 2.3.1987 for the additional sum of Rs.12.20 lakhs pursuant to sanction letter dated 12.2.1987. A supplementary loan agreement was subsequently made, between the parties but the date thereof does not figure in the body of the plaint. Be that as it may, on 10.4.1987 a fresh deed of hpothetication was made by defendant No.l with respect to the properties mentioned in clause 2 of the deed of hypothetication. Thus, a charge was created on the asset of the defendant No.l in respect of additional loan of Rs.12.20 lakhs with overall limit of Rs.86,00,00 and this was registered before the jurisdictional Registrar of Companies vide certificate dated 30.4.1987. As done earlier, a deed of guarantee was executed by the defendant No.2 on 10.4.1987 for re-payment of the loan with interest and all other dues payable to the plaintiff. Defendant No.1 acknowledged the receipt of the plaintiff's sanction letter on 30.12.1987.
As done earlier, a deed of guarantee was executed by the defendant No.2 on 10.4.1987 for re-payment of the loan with interest and all other dues payable to the plaintiff. Defendant No.1 acknowledged the receipt of the plaintiff's sanction letter on 30.12.1987. The overall terms loan was reduced from Rs.79 lakhs to Rs.76 lakhs thereby. Defendants then entered into direct subscription agreement with the plaintiff on February, 9, 1998 in respect of equity participation to the extent of Rs.3 lakhs and the deed of guarantee to that effect on 6.9.1991 by defendants. According to the plaintiff, defendants committed default in re-payment of the principal and interest and, as such, letters were issued by plaintiff to the defendants on 9.11.1994 and 9.12.1994 and on other dates. Thereafter, a publication was made of a public notice asking for recovery of the loan with indication that in case the amount is not repaid, proceeding under section 29 of the State Financial Corporation Act, 1951 shall follow. Still, defendants did not make payment and it is under such circumstances, the plaintiff took over possession of the unit of defendant No. 1 by issuing possession certificate on 7.4.1995 under section 29 of the State Financial Corporation Act, 1951. Till such exercise was made plaintiff became entitled to recover a sum of Rs.1,49,12,742.83 as per the statement of account maintained by in its ordinary book of accounts.. The plaint further reveals that defendants challenged the takeover before this High Court by filing Civil Rule No.2396 of 1995 but what happened thereafter is not disclosed in the plaint. With these averments of facts the plaintiff claimed in para 29 that cause of action for the suit arose on various dates including 20.2.2002 and accordingly suit was instituted for realization of the aforesaid amount with interest @ 14.5% per annum till realization on 3.1.2004. 4. On being summoned defendants appeared and submitted written statement and raised objection on the maintainability of the suit on the ground of limitation. Thereupon the learned court heard the parties and in exercise of power under section 3 of the Limitation Act dismissed the suit as barred by limitation by impugned judgment and order dated 7.7.2006. It is this order which has been brought under challenge in the present appeal. 5. I have heard Mr. B.D. Das, learned senior counsel assisted by Ms. R. Deka, learned counsel for the appellant and Ms.
It is this order which has been brought under challenge in the present appeal. 5. I have heard Mr. B.D. Das, learned senior counsel assisted by Ms. R. Deka, learned counsel for the appellant and Ms. M. Hazarika, learned senior counsel assisted by Ms. E. Bharali for the respondents. 6. Mr. B.D. Das would argue that the suit was dismissed on the ground of limitation before it entered into stage of evidence. After all limitation is a point of law as well as fact and so unless the appellant/plaintiff was afforded opportunity to lead evidence, the same should not have been dismissed on the ground of limitation. Per contra, Ms. M. Hazarika, learned counsel representing respondents would argue that point of limitation can be decided at the threshold by the court itself from the averments made in the body of the plaint. After all no evidence can be led beyond what has been pleaded and so even if for argument's sake it is accepted that in course of evidence plaintiff would have been successful to bring some more facts on record to bring the suit within the period of limitation, the same could not have been considered for lack of appropriate pleadings. This is because as per established norms, no amount of evidence beyond pleadings can be accepted by court. 7. To understand the arguments made by the learned counsel for the parties, I have myself read the plaint in entirety and the basic fact stated therein are stated herein above. It is conspicuous that the last statement of fact occurs at para 28 of the plaint wherein it is mentioned that property charged against securing the loan have been taken over by plaintiff on 7.4.1995 in exercise of power under section 29 of the State Financial Corporation Act, 1951. After 7.4.1995 what happened thereafter and as to whether there was any acknowledgment of liability by defendants after this date does not appear from the body of the plaint. Under section 18 of the Limitation Act, if during continuance of the period of limitation defendants acknowledge the liability to repay the loan in that event fresh limitation would run with effect from the date of such acknowledgement. Nevertheless, acknowledgment has to be made within the period of limitation i.e. 3 years from the last date of transaction.
Under section 18 of the Limitation Act, if during continuance of the period of limitation defendants acknowledge the liability to repay the loan in that event fresh limitation would run with effect from the date of such acknowledgement. Nevertheless, acknowledgment has to be made within the period of limitation i.e. 3 years from the last date of transaction. Herein this case, plaintiff did not disclose any fact as to what had happened on 20.2.2002 although in para 29 it was mentioned that cause of action had arisen on that date. However, in the list of documents there is mention of the date and it refers to a letter of demand made by the plaintiff to the defendants. A letter of demand whenever it is made unless acknowledged by defendants in terms of section 18 of the Limitation Act, no fresh limitation can arise. Although the learned trial court has held that last cause of action of the suit arose on 20.1.1986 granting of the initial loan but even if this finding is found to be incorrect and the plaint is examined to find out further materials to consider the maintainability of the suit on the ground of limitation it would appear that the plaintiff succeeded to make averment giving dates up to 7.4.1995 only. There is no material whatsoever in the plaint to come to a finding that cause of action of suit had arisen on 20.2.2002 or on any other date subsequent thereto. Section 3 of the Limitation Act cast a duty on the court to examine the maintainability of the suit, appeal or an application on the ground of limitation. If on examination of the averments made in the plaint, it is found that facts if taken at face value, the suit will be within the period of limitation, in that event suit, appeal or application can be admitted. For the purpose of discharge of responsibility cast under section 3(1) of the Limitation Act no other material is necessary. This being the position of law the impugned judgment and order is not vitiated by any illegality or impropriety. From bare perusal of the plaint it does not appear that the suit is not barred by limitation. Even if statement of facts mentioned in the plaint are accepted at face value without any evidence, in that event the suit of the plaintiff remains barred by limitation. 8.
From bare perusal of the plaint it does not appear that the suit is not barred by limitation. Even if statement of facts mentioned in the plaint are accepted at face value without any evidence, in that event the suit of the plaintiff remains barred by limitation. 8. The appeal therefore, has no merit. It is accordingly dismissed. 9. Send down the records.