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2020 DIGILAW 2261 (MAD)

Elavarasan v. Sakthivel

2020-11-30

R.SUBRAMANIAN

body2020
ORDER : R. Subramanian, J. 1. This revision is at the instance of the defendant in O.S. No. 98 of 2017. The challenge is to the order of the learned Subordinate Judge, Neyveli, returning the counter claim filed by the petitioner on the ground that it is barred by limitation. 2. The suit was laid by the plaintiff for redemption of mortgage dated 30.09.2013 for a sum of Rs. 3 lakhs. The defendant namely the mortgagee filed a counter claim contending that the plaintiff had borrowed a further sum of Rs.2,70,000/- from him under a document titled “Other Language” on 06.10.2013 and therefore he would be entitled to the said sum before the decree for redemption is granted. The said counter claim was returned by the trial Court on the ground that the claim, prima facie, appears to be barred by limitation. The 4th return made by the Court reads as follows: Other Language The plaint was represented with the endorsement that Other Language This endorsement was not accepted and the learned Subordinate Judge returned the plaint again stating that "Previous return No. 4 dated 8.6.2018 still holds good. Time one month" 3. I have heard Mr. M. Selvam, learned counsel appearing for the petitioner and Mrs. S.R. Sumathy, learned counsel appearing for the respondent. 4. Mr. M. Selvam, learned counsel appearing for the petitioner would vehemently contend that the document that is sought to be enforced is the under which the plaintiff had agreed to repay the debt at the time of discharging the mortgage. Therefore, the limitation for suing upon the said instrument would not commence on the date of the execution of the instrument but on a subsequent date which is the date on which the plaintiff offers to pay the mortgage money due under the mortgage. Therefore, the limitation for the suit based on this instrument would commence only on the date of the institution of the redemption of the suit. The Cross objections that has been filed three months from the date of institution of the suit is well within time. Therefore, according to him, the learned trial Judge was not right in returning the plaint for the second time on the same reason. 5. Contending contra, Mrs. S.R. Sumathy, learned counsel appearing for the respondent would vehemently argued that the claim is barred by limitation and that the very cross objection is not maintainable. Therefore, according to him, the learned trial Judge was not right in returning the plaint for the second time on the same reason. 5. Contending contra, Mrs. S.R. Sumathy, learned counsel appearing for the respondent would vehemently argued that the claim is barred by limitation and that the very cross objection is not maintainable. She would further contend that if the document is to be treated as a bond, it should be sufficiently stamped. Since it is insufficiently stamped it is not admissible in evidence. I have considered the rival submissions. 6. No doubt, the Court is bound to look into the question of limitation prior to numbering the plaint/Counter claim. Section 3 of the Limitation Act casts a duty on the Court to look into the question of limitation even if it is not raised. At the same time, the Court cannot keep on returning the plaint seeking response on the same question again and again. As already noted in the 4th return, that the suit is not within time. A plausible explanation is given by the defendant while representing. He wants the document to be treated as a bond. No doubt, as rightly pointed out by the learned counsel for the respondent, if the document is to be treated as a bond, it has to be stamped in a manner known to law. The stamps that are already affixed will be insufficient. All these questions will have decided at the time of trial or when the document is sought to be tendered in evidence. The Court refuses to number the counter claim on the ground of limitation only. 7. I find that the defendant has given a plausible explanation for the questions raised by the Court regarding limitation. Once such explanation is offered by the defendant, the Court cannot go into further examination, which has to be done at the time of trial. 8. In view of the above, the order dated 29.06.2018 is set aside. This Civil Revision petition is allowed. The trial Court is directed to number the counter claim. All the questions of law and facts raised by the parties are left open to be decided at the relevant point of time and the trial Court will decide on the same without being influenced by any of the observations made in this order. No costs.