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2019 DIGILAW 1244 (MAD)

S. R. Gopalakrishnan v. G. Vasantha

2019-04-23

R.PONGIAPPAN

body2019
JUDGMENT : The unsuccessful defendant in O.S.No.16 of 2009, on the file of the learned Additional District and Sessions Judge, Fast Track Court No.III, Madurai, is the appellant herein. Before the trial Court, the respondent / plaintiff filed a suit for recovery of Rs.7,50,000/- with interest from the date of plaint till the date of realisation and for costs. By the Judgment and Decree, dated 16.09.2009, the learned Additional District and Sessions Judge decreed the Suit with costs, directing the defendant to pay a sum of Rs. Rs.7,50,000/- with interest at the rate of 12% per annum from the date of filing of the suit till the date of Judgment. 2. For the sake of convenience, the parties are referred to as, as described before the trial Court. 3. The gist of averments made in the plaint, in brief, are as follows:- (i) The defendant is doing the Jewellery Business, under the name and style of “Jeyalakshmi Jewellery Mart” and was having a close contact with one G.Sivanandam, the plaintiff's eldest son. He requested the members of the plaintiff's family to deposit the money in the account of “Jeyanthi Finance”, his another concern and in response to the request of the defendant, the plaintiff, her son, daughter and daughter-in-law all have deposited a sum of Rs.17,20,000/-, during the period of 2000-2004. Against which, the defendant issued receipts with a chit in his own handwriting in acknowledgement of alleged deposits, in favour of “Jeyanthi Finance”. The plaintiff deposited Rs.4,00,000/- on 01.08.2000, besides a sum of Rs. 3,50,000/-, on 28.01.2003, with the defendant, who issued the deposit receipts in writing respectively. (ii) The defendant used to pay the interest through the husband of the plaintiff, at the rate of 2% per month, for some months and then, he failed to pay interest from the year of 2005. In the meantime, there was a serious dispute between the defendant and the eldest son of the plaintiff in their business in partnership on the plea that the son of the plaintiff misused a property document of the defendant in obtaining loan, in favour of one “Arasan Trading Company” from the Union Bank of India of Kochadai Branch, Madurai. Therefrom, the defendant refused to release the deposited money of the plaintiff. Therefrom, the defendant refused to release the deposited money of the plaintiff. There was few Panchayats between the parties for the amicable settlement of releasing the deposited money, but the defendant was adamant in releasing the money owed to the plaintiff. (iii) Based on the complaint given by the plaintiff, a criminal case was registered against the defendant, in Crime No.42 of 2006, by the Inspector of Police, City Crime Branch, Madurai and the same is pending for investigation. The defendant somehow managed on 19.09.2006 to file an anticipatory bail application. After getting the anticipatory bail order, he filed the vexatious petition against the plaintiff in PCEIOP No.1 of 2006, on the file of the learned First Additional District Judge, Madurai. The said petition was dismissed for default on the part of the defendant. In the said proceedings, the defendant has admitted his liability to repay the deposit and he himself alleged in PCEIOP No.1 of 2006 that he has regularly paid interest for the deposit upto May, 2006, as such, the question of Limitation will not arise. Even after registration of the criminal case, the defendant has not realized his moral and legal responsibility to discharge the monetary liability. Hence, the Suit. 4. The gist of the averments made in the written Statement filed by the defendant, in brief, are as follows:- The defendant had paid the entire principal amount with interest to the plaintiff. Apart from that, the suit is filed after the lapse of statutory period of limitation and hence, the suit is not maintainable. The plaintiff has received 36% of interest per month for the loan amount. A criminal case in Crime No.42 of 2006, registered against the defendant was closed, as a Mistake-of-fact. The Document No.1 filed along with the plaint clearly shows that it is purely a money transaction. The plaintiff not made any deposit and the intention of the parties is to treat it as loan transaction. The nomenclature is not a criteria and the intention is the test. The proceedings initiated in PCEIOP No.1 of 2006 established the fact that the defendants paid the exorbitant interest and it cannot be treated as an acknowledgement, as defined in the Limitation Act. The defendant has neither admitted nor acknowledged any liability as mentioned by the plaintiff. The suit is barred by limitation and therefore, the same is liable to be dismissed. 5. The defendant has neither admitted nor acknowledged any liability as mentioned by the plaintiff. The suit is barred by limitation and therefore, the same is liable to be dismissed. 5. Based on the above pleadings, the following issues are framed by the trial Court:- (1) Whether the plaintiff is entitled to recover a sum of Rs.7,50,000/- from the defendant, as prayed for in the Suit? (2) Whether the suit is barred by limitation? (3) To what relief the plaintiff is entitled to? 6. Before the trial Court, during the time of trial, the plaintiff Vasantha examined herself as P.W.1 and examined two more witnesses as P.Ws.2 and 3. Further, she marked 8 documents, as Exs.A1 to A8. No oral or documentary evidence is let in on the side of the defendant. 7. After concluding the trial, the learned Additional District and Sessions Judge, Fast Track Court, Madurai, decreed the Suit, in favour of the plaintiff. Aggrieved over the same, the defendant is before this Court through this Appeal Suit. 8. Now, the said findings is challenged by the defendant on the following grounds;- 1. The trial Court have not followed the plea of limitation. 2. Picking the holes from the defence the trial Court decreed the suit in favour of the plaintiff. 3. The question of applying the Doctrine of Estoppel against the defendant / appellant does not arise. 4. The learned trial Judge did not follow Section 3 of the Limitation Act, which determined the duty of the Court. 5. A mere claim by the defendant in PCEIOP No.1 of 2006 did not constitute an acknowledgement in terms of Sections 18 and 19 of Limitation Act. 6. The Theory of Approbation and reprobation is wholly in applicable to the facts and circumstances of the case. 7. Since the defence of the defendant is on the strength of legal claim, there is no necessity for him to enter into the witness box. 8. The civil Court did not have any jurisdiction to adjudicate the subject matter of the suit, as the Special Court constituted under TANPIT Act is functioning at Madurai itself. 9. The claim of the defendant made in earlier proceedings cannot be selectively taken for the purpose of limitation alone. 9. Now, on considering the points raised by the appellant, for deciding this appeal, we have to formulate the following issues;- “1. 9. The claim of the defendant made in earlier proceedings cannot be selectively taken for the purpose of limitation alone. 9. Now, on considering the points raised by the appellant, for deciding this appeal, we have to formulate the following issues;- “1. Whether the transactions happened between the plaintiff and the defendant is a loan transaction or the plaintiff made a deposit in a finance run by the defendant.? 2. Whether the appellant gave any real valid acknowledgement through the petition filed in PCEIOP No.1 of 2006, under Provisions of the Tamil Nadu Prohibition of Charging Exorbitant Interest Act, 2003? 3. Whether the suit is barred by limitation or not? 4. Whether the Judgment and Decree passed by the trial Court is found correct or not?” Point No.1. 10. As per the plaint, there was two transactions happened between the plaintiff and the defendant. One is on 01.08.2000 for Rs.4,00,000/- and another one is on 28.01.2003 for Rs.3,50,000/-. In respect to the question whether the amount given by the plaintiff is a deposit or loan, it is necessary to extract the recitals found in Exs.A1 & A2, which are the receipts issued by the defendant, when at the time of receiving money from the plaintiff, which reads as follows: Ex.A.1 recitals is as follows:- The Ex.A.2 recitals is as follows:- 11. The learned trial Judge, at the time of concluding the suit in the trial Court concluded the issue as the said transaction made between the plaintiff and the defendant is a money transaction and not comes under the category of deposit, but on go through the recitals found in Ex.A1, it would go to show that the amount advanced by the plaintiff is only deposit and not a loan. However, as per the averment made in the plaint, the plaintiff insisted the defendant for repayment of the principal amount long prior to the filing of the suit. Now, on go through the evidence given by the plaintiff as P.W.1 would reveal the fact that the defendant was paying interest regularly till 2004 and only after committing the default by the defendant, the plaintiff took steps for recovering the amount. In this regard, the defendant has contended through the petition filed under the Tamil Nadu Prohibition of Exorbitant Interest Act that he paid interest at the rate of 13.5% per annum to the plaintiff. In this regard, the defendant has contended through the petition filed under the Tamil Nadu Prohibition of Exorbitant Interest Act that he paid interest at the rate of 13.5% per annum to the plaintiff. At this juncture, it is relevant to see the Judgment of this Court in Abdul Hamid Sahib and Others Vs. Rahmat Bi reported in (1964 STPL 2507 Madras), wherein, this Court differentiated the loan and deposit, which reads as follows:. (8) The terms "loans" and "deposits" are not mutually exclusive terms: There are a number of common features between the two. In a sense a deposit is also a loan with this difference that is a loan with something more. Both are debts repayable. But, when the repayment is to be, in our opinion, furnishes the real point of distinction between the two concepts. A loan is repayable the minute it is incurred. But this is not so with a deposit. Either the repayment will depend upon the maturity date fixed there for or the terms of the agreement relating to the demand, on making of which the deposit will become repayable. In other words, unlike a loan there is no immediate obligation to repay in the case of a deposit. That we think is the essence of the distinction between a loan and a deposit. This view of ours is supported by the observations of the Privy Council in 63 Id App 279: ( AIR 1936 PC 171 ): "The distinction which is perhaps the most obvious is that the deposit not for a fixed term does not seem to impose an immediate obligation on the deposit to seek out the depositor and repay him. He is to keep the money till asked for it. A demand by the depositor would, therefore, seem to be a nominal condition of the obligation of the depositee to repay". 12. Applying the principle laid down by this Court with the case in our hand, in both the receipts issued by the defendant no time limit was fixed for repayment of the amount, which have been deposited by the plaintiff. Further, there is no matured date fixed for the deposit made by the plaintiff. It was the admission made on the side of the defendant that he had regularly paying interest for the deposit upto May 2006. Further, there is no matured date fixed for the deposit made by the plaintiff. It was the admission made on the side of the defendant that he had regularly paying interest for the deposit upto May 2006. In this regard, it is necessary to see the Judgment of the Hon'ble Apex Court in Union of India Vs. Ibrahim Uddin reported in ( 2012 (8) SCC 148 ) in which, it has been held in Para 29 & 32, as follows: “29. Admission is the best piece of substantive evidence that an opposite party can rely upon, though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. Admission may in certain circumstances, operate as an estoppel. The question which is needed to be considered is what weight is to be attached to an admission and for that purpose it is necessary to find out as to whether it is clear, unambiguous and a relevant piece of evidence, and further it is proved in accordance with the provisions of the Evidence Act. It would be appropriate that an opportunity is given to the person under cross-examination to tender his explanation and clear the point on the question of admission.... 32. ....Even if the admission is not conclusive it may operate as an estoppel. Law requires that an opportunity be given to the person who has made admission under cross-examination to tender his explanation and clarify the point on the question of admission. Failure of a party to prove its defence does not amount to admission, nor it can reverse or discharge the burden of proof of the plaintiff.” 13. Thus, the circumstances shows that the plaintiff gave money to the defendant only for the purpose of receiving interest at 2% per month. So, it is obvious that the said transaction cannot be treated as a loan transaction. The evidence of the plaintiff is very clear that the defendant was paying interest regularly till 2004. Only thereafter, she took steps for recovering the amount. In order to deny the same, the defendant, before the trial Court, did not enter into the box and to deny the case of the plaintiff. Thereby, without any denial from the defendant, in respect to the case filed by the plaintiff, it is necessary for this Court to believe the contention raised by the plaintiff. 14. In order to deny the same, the defendant, before the trial Court, did not enter into the box and to deny the case of the plaintiff. Thereby, without any denial from the defendant, in respect to the case filed by the plaintiff, it is necessary for this Court to believe the contention raised by the plaintiff. 14. Accordingly, even though it was pleaded on the side of the defendant that the transaction happened between the plaintiff and the defendant is a money transaction, on considering the circumstances that the defendant paid interest regularly upto the period of 2006, it cannot be treated as money transaction. Ultimately, I am of the considered opinion that where certain amount was paid or given by a particular person to other, without there being the requirement of the person, receiving the same without applying about it, it would certainly be a deposit. Accordingly, to sum up the entire circumstances and following the principles laid down by the Hon'ble Apex Court, in this case also the circumstances enumerates in respect to the transaction made between the plaintiff and the defendant will clearly prove that the plaintiff deposited the money only for the purpose of receiving interest on monthly basis. So, the Point No.1 is decided, as the amount given by the plaintiff to the defendant is only having the character of deposit. Point Nos.2 to 4:- 15. It is the case of the defendant that the suit filed by the plaintiff is barred by limitation. On the other hand, it is the case of the plaintiff that, since the defendant himself admitted in PCEIOP No.1 of 2006, which was the petition filed against the plaintiff, under the Tamil Nadu Prohibition of Charging Exorbitant Interest Act, 2003, in which the defendant admitted that he paid interest upto 2006, thereby the limitation is saved. Now, considering the said submissions with the evidence available in this case, it is admitted on either side that the defendant received the money from the plaintiff on 01.08.2000 and 28.01.2003. Subsequently, in a petition filed under the above referred Act, the defendant claimed that he paid interest upto May 2006. Both the facts stated above are undisputed one. So, we have to decide whether the entries made in the petition filed by the defendant amounts to acknowledgement or not. 16. Subsequently, in a petition filed under the above referred Act, the defendant claimed that he paid interest upto May 2006. Both the facts stated above are undisputed one. So, we have to decide whether the entries made in the petition filed by the defendant amounts to acknowledgement or not. 16. In this regard, the learned counsel appearing for the appellant relied on the Judgment of the Apex Court in Valliama Champaka Pillai Vs. Sivathanu Pillai and Others reported in (1979 STPL 2900) in which, the Hon'ble Apex Court has held that under Section 18 of the Limitation Act, 1908, one of the essential requirements for a valid “acknowledgement” is that the writing concerned must contain an admission of a subsisting liability. A mere admission of a past liability is not sufficient to constitute such an “acknowledgement”. Hence a mere recital in a document as to the existence of a past liability coupled with a statement of discharge, does not constitute an acknowledgement within section 18. Applying the said principle with the case in our hand, the plaintiff herein filed the case in the year of 2008. On the other hand, it is the case of the plaintiff that the defendant paid interest upto 2004. 17. It is an admitted fact on either side that as per the evidence of P.W. 1, the defendant paid interest upto 2004. However, she has stated in her evidence as follows:- xxx xxx xxx and further stated that xxx xxx xxx 18. In this regard, the learned trial Judge came to the conclusion that the entries made in the petition filed by the defendant would constitute acknowledgement and thereby, the suit is not barred by limitation. In this regard, the learned counsel for the appellant would contend that according to the case of the plaintiff, the defendant paid interest upto only 2004 but the suit have been filed on 01.02.2008 and hence, the suit is barred by the period of limitation, since the period of limitation for the deposit is three years from the date of demand. 19. Per contra, the learned counsel appearing for the respondent would contend that previous to the filing of the suit, there was no demand on either side. So, it can be presumed only after filing of the suit, there is a demand and thereby, the suit is not barred by limitation. 19. Per contra, the learned counsel appearing for the respondent would contend that previous to the filing of the suit, there was no demand on either side. So, it can be presumed only after filing of the suit, there is a demand and thereby, the suit is not barred by limitation. Upon considering the arguments advanced by the respondent / plaintiff, it is true, in this case, there is no express acknowledgement from the defendant in the receipts executed in earlier by the defendant. However, in respect to Section 18 Acknowledgement, the Full Bench of Kerala in the Judgment in P.D. Pillai V. Kaliyanikutty Amma (FB) reported in (AIR 1995 KERALA 78), has held as follows:- “It is an admission of the truth of one's liability. It must be made by a person who is under a liability at the material time and must be made at a time when the liability exists. It has to be understood that such an acknowledgement does not create a new right of action but merely extends the period of limitation by this act of acknowledgement. Therefore, the exact nature or specific character of the liability is not necessary but the words of acknowledgement must relate to a person and substantial liability; must indicate the existence of jural relationship between the parties, such as one is a debtor and the other is a creditor and there is an intention to admit such jural relationship. It is not necessary that there should be a specific and direct acknowledgement of the particular liability which is sought to be enforced, but if there is an admission of facts of which the liability in question is a necessary consequence, there would be an acknowledgement within the meaning of Section 18 of the Limitation Act. What is necessary is admission of the existence of a debt, a liability for contribution, in case a part of it is paid and such an admission would operate to enlarge the period of limitation.” 20. Now, before the trial Court, on the side of the plaintiff, the carbon copy of the petition in PCEIOP No.1 of 2006 filed by the defendant was marked as Ex.A5. In the said petition, there was an express acknowledgement by the defendant that he has paid interest upto 2006. Now, before the trial Court, on the side of the plaintiff, the carbon copy of the petition in PCEIOP No.1 of 2006 filed by the defendant was marked as Ex.A5. In the said petition, there was an express acknowledgement by the defendant that he has paid interest upto 2006. In order to deny the said averment, the defendant has not entered into the box and denied the said document. So, it can be presumed that the copy of the petition filed in PCEIOP No.1 of 2006 is a genuine one. In the said circumstances, the said admission made by the defendant is nothing but he admits the liability. Even though the contention of the defendant that no amount is due from him to the respondent, filing of the petition for the declaration that he has paid more amount towards principal by way of interest, and leaving the said petition for dismissal on 17.12.2007 will prove that there is a real, valid acknowledgement by the defendant in respect to the alleged transaction. In the said circumstances, as already discussed, the Suit has been filed in the Court on 01.02.2008. The said circumstances will prove that the Suit is not barred by limitation. 21. It is made clear that in this case no demand was made by the plaintiff within the period prescribed under Article 60 of the Limitation Act. However, if that was so, the suit was certainly not barred by the Law of Limitation. The Hon'ble Apex Court in the Judgment in V.E.A. Annamalai Chettiar Vs. S.V.V.S.Veerapa Chettiar reported in ( AIR 1956 SC 12 ) has held that the very institution of the suit itself would tantamount to demand and the defendant cannot plead that the suit is barred by the period of limitation. 22. Accordingly, even though there is no earlier demand Notice was issued by the plaintiff to the defendant in respect to the suit claim, the very institution of the suit has to be taken into account that she made demand only on the date on which the suit was filed. Now, in the said circumstances, Section 60 of Limitation Act is no way helpful to the case of the defendant. The trial Court, on appreciation of the above facts came to the correct conclusion that the defendant is having the liability to pay the suit amount with interest. Now, in the said circumstances, Section 60 of Limitation Act is no way helpful to the case of the defendant. The trial Court, on appreciation of the above facts came to the correct conclusion that the defendant is having the liability to pay the suit amount with interest. For the above said reasons, this Court approved the decision taken by the trial Court. Accordingly, the Point Nos.2 to 4 are answered. 23. In the result, the Appeal Suit is dismissed, confirming the Judgment and Decree, dated 16.09.2009, passed by the learned Additional District and Seasons Judge, Fast Track Court No. III, Madurai in O.S.No.16 of 2009. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is also dismissed.