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2020 DIGILAW 173 (ORI)

Upendra Prasad Debata v. Rangadhar Debata

2020-09-07

D.DASH

body2020
JUDGMENT : D. Dash, J. The appellant in this appeal under section 100 of the Code of Civil Procedure (for short, ‘the Code’ )has assailed the judgment and decree dated 03.01.1998 and 09.01.1998 respectively passed by the learned District Judge, Keonjhar in Money Appeal No. 06 of 1992. The appellant as the plaintiff had filed the Money Suit No. 05 of 1991 in the court of Sub-Ordinate Judge, Keonjhar (as it was then) praying for a decree for recovery of sum of Rs.5,876/-with interest, pendentilite and future @ 12% per annum from the respondent, arraigned therein as defendant. The suit stood dismissed by judgment and decree dated 03.011.1992 and 18.11.1992. The appellant as the unsuccessful plaintiff had filed the above noted appeal under section 96 of the Code wherein the judgment and decree passed by the trial court have been confirmed. 2. For the sake of convenience, in order to avoid confusion and bring in clarity; the parties hereinafter have been referred to, as they have been arraigned in the trial court. 3. The defendant is none other than the brother of the plaintiff. They were residing separately under separate mess but without any division of the ancestral property. Sometime in the year 1986, the defendant approached the plaintiff with a proposal to purchase his self-acquired immovable property measuring Ac.0.66 decimals of land for consideration of Rs.6,000/-so as to enable him to pay the dues towards the loan incurred by him for his daughter’s marriage. The proposal was accepted by the plaintiff with condition that he would pay the consideration money gradually in course of time. It is stated that after few days, the defendant having come to Keonjhar, took some amount towards the expenses for the sale deed. He had then requested the plaintiff to come to Anandapur on 20.10.1986 for execution of the sale-deed. Accordingly on 22.10.1986, the plaintiff went to Anandapur where the deed being scribed was executed by the defendant. It is stated to have been indicated in the said sale-deed that the defendant pursuant to the sale had delivered the possession of the land to the plaintiff. The defendant however, agreed to handover the deed to the plaintiff upon receiving the agreed consideration amount in full within six months. It is stated to have been indicated in the said sale-deed that the defendant pursuant to the sale had delivered the possession of the land to the plaintiff. The defendant however, agreed to handover the deed to the plaintiff upon receiving the agreed consideration amount in full within six months. On 03.11.1986, the defendant coming to Keonjhar had received a sum of Rs.2,200/-from the plaintiff and then again on 19.11.1986, the plaintiff paid a sum of Rs.1000/- to the defendant towards the consideration amount. On both the occasion, the defendant in acknowledgement of receipt of the money had executed documents on revenue stamp. It is the further case of the plaintiff that after all the above developments; he came to know that the land sold to him under the sale-deed was a part of the undivided property of the family falling within the subject matter of the partition suit. It was also learnt that the defendant had mortgaged the said land on two occasion with the Land Mortgage Bank, Anandapur as security for some loans. It was further ascertained that the plaintiff had that the defendant having taken some money had put one Sri Kunja Bihari Pahi in possession of the said land. When the matter stood thus, one day the defendant came to Keonjhar to take the rest consideration amount from the plaintiff. He was then requested by the plaintiff to repay the dues of the Bank and deliver the possession of the said land to him. The defendant however having refused to do so insisted for payment of rest consideration. So, the plaintiff expressed his desire not to proceed further to purchase the land and demanded refund of the part consideration already paid along with the amount given towards expenses for preparing the sale deed with interest from the defendant. It being an unexpected moment for the defendant, he left Keonjhar stating that he would pay back the amount with interest. However, on 14.03.1988, the defendant gave a notice through his Advocate to the plaintiff in demanding payment of rest consideration amount, further stating that in case of failure, he would sale the land to others. The plaintiff had replied to the same on 01.02.1991. In reply, the plaintiff again gave stress upon the fact that he did not want to purchase the land any more. The plaintiff had replied to the same on 01.02.1991. In reply, the plaintiff again gave stress upon the fact that he did not want to purchase the land any more. Finally, the defendant having failed to pay the amount received from the plaintiff i.e., Rs.3200/-towards consideration and Rs.535.50 for expenses; the plaintiff filed the suit for recovery of Rs.5876/-which included interest @12% per annum. 4. The defendant in his written statement having taken the plea that the suit is barred by limitation, has averred that when the defendant gave out to sale the land to clear his loan dues; it is the plaintiff who came forward to purchase the same. So, on 22.10.1988, sale-deed was executed with the condition that only on payment of the consideration in full, said sale deed would be handed over to the plaintiff. But the plaintiff did not clear the consideration amount within the reasonable time. The situation when did not improve even after notice, the defendant being in need of money sold the land in question to one Gobinda Chandra Jena with the full knowledge of the plaintiff. It is stated that the defendant had never issued any document(s) acknowledging the receipt of money towards the consideration amount in part. It is further stated that the receipt(s), if any, are forged and fabricated. 5. On the above rival pleadings, the trial court had framed as many as nine (9) issues. Issue no.3 relates to the limitation in filing the suit for recovery of money said to have been paid by the plaintiff to the defendant. The answer on that issue having been returned against the plaintiff, the suit stood dismissed. The lower appellate court has affirmed the said finding. Having held so, the appeal has ended in dismissal in confirming the judgment and decree passed by the trial court, thereby non-suiting the plaintiff. 6. The answer on that issue having been returned against the plaintiff, the suit stood dismissed. The lower appellate court has affirmed the said finding. Having held so, the appeal has ended in dismissal in confirming the judgment and decree passed by the trial court, thereby non-suiting the plaintiff. 6. By order dated 03.12.1999, this Court while admitting the appeal has framed the followings as the substantial questions of law:- (a) Ext.2, the notice sent by defendant-respondent clearly acknowledges the dues of the plaintiff-appellant before expiry of the period of limitation as envisages under section 18 of the Limitation Act; (b) the plaintiff-appellant after receipt of the Ext.2 for the first time came to know that the defendant-respondent still desires to persist that his illegal sale and still insists on balance payment which gave the cause of action to the plaintiff to sue him for refund of money for his illegal sale; (c) the plaintiff-appellant’s reply under Ext.3 is clear that defendant-respondent had acknowledged his dues and therefore, the plaintiff had made a claim as the defendant-respondent for the first time gave out under Ext.2 that he insisted on balance consideration money thereby acceding to his earlier sale which is illegal; (d) the decision cited by the learned courts below are inapplicable in as much as this is not a case of refund of consideration money on a void sale deed, but a claim made in pursuance of Ext.2; and, (e) as there was no delivery of possession, the suit has been filed within three years of the acknowledgement under Ext.2 under Article-55 of the Indian Limitation Act. Careful reading of all the above noted formulated questions, it is seen that those touch upon the concurrent finding on the issue of limitation which has been answered against the plaintiff by the courts below. 7. Learned counsel for the appellant in assailing the said findings of the courts below on the question of limitation, which has been answered against the plaintiff in non-suiting him submitted that the view so taken are wholly erroneous. 7. Learned counsel for the appellant in assailing the said findings of the courts below on the question of limitation, which has been answered against the plaintiff in non-suiting him submitted that the view so taken are wholly erroneous. He further submitted that in the present case, the suit having been instituted on 15.03.1991, which falls well within a period of three years from the date of notice given by the defendant to the plaintiff insisting payment of balance consideration, indicating therein as to the total agreed consideration, further as regards receipt of part consideration by him from the plaintiff; it is well within period of limitation as prescribed in law. It was submitted that the cause of action for filing of the suit thus having finally arisen on 14.03.1988, i.e. the date of issuance of notice to the plaintiff by the defendant as also on 01.02.1991, the date of issuance of last notice by the plaintiff to the defendant, the finding of the courts below that the suit is barred by limitation is untenable. He also submitted that even assuming that the plaintiff having came to know about the transaction made by the defendant, had opted to withdraw from the proposal of purchasing the land, yet thereafter when the defendant insisted for payment of balance consideration, the said act of the defendant ought to have been taken to be an act of acknowledgement of the amount received by him being paid by the plaintiff and, therefore, the courts below have fallen in error in applying Article 47 of the Limitation Act, 1963 when it is squarely covered under Article 113 of the Limitation Act as the plaintiff’s right to sue accrued from the said act of issuance of notice by the defendant and thereafter. In support of the above contention, he submitted the decision in case of Narayan Nanda Vrs. Sankar Sahoo; (XLI) 1975 CLT, 571 and M/s. Saktibhog Food Industries Ltd. Vrs. Central Bank of India; 2020, SCC Online Supreme Court, Page 482. 8. None appeared on behalf of the respondent despite repeated listing. This was also the situation on prior occasions when the appeal had come on board for hearing. 9. The suit is one for recovery of money paid by the plaintiff to the defendant. Central Bank of India; 2020, SCC Online Supreme Court, Page 482. 8. None appeared on behalf of the respondent despite repeated listing. This was also the situation on prior occasions when the appeal had come on board for hearing. 9. The suit is one for recovery of money paid by the plaintiff to the defendant. The money has been paid by the plaintiff to the defendant in part towards agreed consideration for the purpose of purchase of the land by the plaintiff. The last payment was made on 19.11.1986 and prior to that on 03.11.1986 some amount had been paid. Although, it is stated by the plaintiff that on 22.10.1986, the defendant executed a sale deed in his favour at Anandpur with the help of his scribe, no step has been taken by the plaintiff in seeking a direction from the trial court or the lower appellate court for production of the same by the defendant for at least to know his response. It’s also nobody’s case that the said sale deed had been registered. The case of the plaintiff is that when he came to know that prior to the execution of the said sale deed by the defendant in his favour, the defendant had mortgaged the land with Land Mortgage Bank on two occasions, he asked the defendant to clear the loan dues first. The plaintiff examined as P.W.1 has stated that on 19.11.1986, he paid a sum of Rs.1,000/-He has next stated that later he came to know about the factum of mortgage and that the possession of the land has been given to one Sri Kunja Bihari Pahi. It has been specifically stated by him that Sri Pahi being found to be in possession of the said land, he told the defendant to release the land from the Bank and demanded that the possession of the land be given to him which was not agreed to by the defendant, who on the other hand insisted that he be paid with the rest consideration. It is further stated by the plaintiff P.W.1 that then he asked the defendant to refund the sum of Rs.3,200/-with interest @ 12%. Thereafter on 14.03.1988 the defendant sent the notice asking the plaintiff to pay the full consideration giving further threat therein that on failure he would sale the land to others. It is further stated by the plaintiff P.W.1 that then he asked the defendant to refund the sum of Rs.3,200/-with interest @ 12%. Thereafter on 14.03.1988 the defendant sent the notice asking the plaintiff to pay the full consideration giving further threat therein that on failure he would sale the land to others. Thus, it becomes crystal clear that prior to 14.03.1988, the plaintiff had abandoned the idea of purchasing the land from the defendant and had advanced the demand upon the defendant to pay back the amount of Rs.3,200/-, which he had earlier received towards part consideration. It is his further evidence in clear terms that after about one month of the execution of the sale deed, i.e., after 22.11.1986, he came to know that the land had been mortgaged by the defendant with the Land Mortgage Bank as security for the loan that he had incurred. He further stated that after one month of payment of Rs.1,000/-to the defendant, i.e., after 19.12.1986, he went over the land for taking possession when he found standing crop over there raised by that Kunja Bihari Pahi had raised said crop. Keeping in view the case projected by the plaintiff as also his evidence, the suit in my considered opinion is a simple suit for recovery of money paid by the plaintiff to the defendant. So, its filing on 15.03.1991 is beyond the period of limitation of three years from the date when the right to sue had accrued in favour of the plaintiff. The instant suit is one for recovery of the money payable by the defendant to the plaintiff for the money received by the defendant for the plaintiff’s intended purchase of the land from the defendant for his use which is governed by the Article 24 of the Limitation Act, 1963. Given a careful reading to the decisions (supra) cited by the learned counsel for the appellant, it is seen that those have been rendered in suits of different nature altogether. Therefore, the principles laid down therein are of no assistance to the plaintiff for the suit as founded upon the facts with the reliefs as claimed as there can be no application of the law sans the facts of a case. 10. Therefore, the principles laid down therein are of no assistance to the plaintiff for the suit as founded upon the facts with the reliefs as claimed as there can be no application of the law sans the facts of a case. 10. Taken to the next question as to whether the date of issuance of notice would be taken to have extended the period of limitation by further three years from said date as to have been the acknowledgement of liability by the defendant in writing; the provision of Section 18 of the Limitation Act needs to be given a reading. It says that in a suit or application in respect of any property or right, an acknowledgment of liability in respect of the said property or right if has been made before the expiry of the prescribed period for said suit or application by the party against whom such property or right is claimed or by any persons through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. The demand of payment of balance consideration from the plaintiff made by the defendant in the notice through his lawyer, in my considered view, does not satisfy the requirement of the provision contained in S-18 of the Limitation Act so as to be taken as an acknowledgment of liability in writing in further extending the period of limitation as contained in Article-24 of the Limitation Act. 11. For all the aforesaid, the answers to the substantial questions of law as stated in the aforesaid para-6 which concern with the limitation in seeking the decree for recovery of money from the defendant run favour of affirmation of the concurrent finding of the court below. 12. Resultantly, the appeal stands dismissed. No order as to costs.