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2022 DIGILAW 1765 (MAD)

A. Palanivelrajan v. J. Suganthi

2022-06-28

B.PUGALENDHI

body2022
JUDGMENT (Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India to call for the records of the fair and decreetal order dated 06.02.2020 made in I.A.No. 304 of 2019 in O.S.No.224 of 2019 on the file of the Principal District Court, Dindigul, and set aside the same.) 1. The petitioner is the plaintiff in O.S.No.224 of 2019 and he has filed the suit for recovery of money. Pending the suit, the petitioner has also taken out an interlocutory application in I.A.No.304 of 2019 for attachment of property under Order 38 Rule 1 & 5 CPC. The said application was rejected by the trial Court vide order dated 06.02.2020 on the ground that the suit was not filed within the period of limitation. Aggrieved over the same, the petitioner has filed the instant revision petition. 2. Learned Counsel for the petitioner submitted that the petitioner, as a guarantor to the 5th respondent, has paid a sum of Rs.33,00,000/- (approx) to the Tamilnadu Mercantile Bank / 6th respondent. In discharge of that liability, (late) Jeyachandran, Partner of the 5th respondent firm, has paid part amount and for the remaining amount, he has executed six promissory notes, however, he failed to honour the promissory notes and therefore, the suit was filed in the year 2019. 3. According to the learned Counsel for the petitioner, the respondents are attempting to sell the properties to defeat the petitioner's claim and therefore, he has taken out the application under Order 38 Rule 1 & 5 CPC. The said application was rejected by the trial Court stating that there is no acknowledgement of liability in the pronote as required under Section 18 of the Limitation Act and therefore, the basic prima facie is not made out to sustain the suit. 4. Learned Counsel for the petitioner drew the attention of this Court to Sections 18 & 19 of the Limitation Act and for better appreciation, the same are extracted as under:- “18. 4. Learned Counsel for the petitioner drew the attention of this Court to Sections 18 & 19 of the Limitation Act and for better appreciation, the same are extracted as under:- “18. Effect of acknowledgment in writing: (1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person 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. (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872, oral evidence of its contents shall not be received. Explanation: For the purposes of this section, (a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set off, or is addressed to a person other than a person entitled to the property or right, (b) the word “signed” means signed either personally or by an agent duly authorised in this behalf, and (c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right. 19. Effect of payment on account of debt or of interest on legacy: Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made: Provided that, save in the case of payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment. Explanation. Explanation. For the purposes of this section, (a) where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment; (b) “debt” does not include money payable under a decree or order of a court.” By referring the above provisions, learned Counsel for the petitioner submitted that part amount of Rs.15,000/- each in all the six pronotes was made and an endorsement to that effect was also made on 06.11.2016 by the respondents and therefore, the period of limitation has to be reckoned from the date of endorsement as per Section 19 of the Limitation Act. In support of his contention, he has also relied upon the decisions of this Court in (1981) 1 Mad LJ 232 [L.R.M.L.L.Lakshmanan Chettiar v. AR.Alagappa Chettiar and Others] and in (2004) 2 MLJ 380 [V.S.Manickasundaram v. V.S.Ramalinga Gounder & Co., and Others]. 5. Learned Counsel appearing for the first respondent, by referring to the counter affidavit, submitted that neither Sections 18 & 19 of the Limitation Act nor the case laws dealing with the differences between these sections are required to be gone into at this stage of the trial, since the issue available is with regard to attachment before judgment. The principle laid down by this Court as regards attachment is to examine the surrounding circumstances and to draw an inference as to whether the defendant is about to dispose of the property and if so, with what intention. Based on this principle, the trial Court has rightly dismissed the petition for attachment before judgment. He further submitted that there are, in fact, other encumbrances in the suit schedule property and they are not having any intention to flee away from the country and they are very much available. 6. This Court considered the rival submissions made on either side and perused the available materials. 7. The petitioner was a surety for the loan provided by the 6th respondent Bank to the 5th respondent firm, by mortgaging his properties. The defendants 1 to 5 defaulted the loan, hence, the properties of the petitioner were brought for sale. One (late) Jeyachandran, the partner of the firm, came forward to pay the liabilities of the petitioner, paid a part amount and also executed six promissory notes dated 02.01.2014, in favour of the petitioner for a sum of Rs.5,00,000/- each. The defendants 1 to 5 defaulted the loan, hence, the properties of the petitioner were brought for sale. One (late) Jeyachandran, the partner of the firm, came forward to pay the liabilities of the petitioner, paid a part amount and also executed six promissory notes dated 02.01.2014, in favour of the petitioner for a sum of Rs.5,00,000/- each. He made a payment of Rs.15,000/- each in the promissory notes on 06.11.2016 and also made an endorsement. Thereafter, the suit was filed in the year 2019. Pending the suit, the petitioner has also taken out an application for attachment before judgment and the same was dismissed by the trial Court that the suit was not filed within the period of limitation and that there is no prima facie case in favour of the petitioner. 8. In the decision in Lakshmanan Chettiar's case (supra), a Division Bench of this Court has held as follows:- “11. ... ... ... We are clearly of opinion that the view taken by the Subordinate Judge on the question of limitation is patently wrong and manifestly opposed to law. The Subordinate Judge has failed to see that with the creation of the equitable mortgage the debt became a secured one and the two transactions, viz., the acknowledgment of liability under the deposit letter and the creation of the equitable mortgage, became an integrated transaction, and as a result thereof, endorsement of payment contained in Exhibit A-1 will automatically extend the period of the mortgage. There need not be, as the Subordinate Judge has thought, an independent acknowledgment of the mortgage liability.” 9. In the decision in V.S.Manickasundaram's case (supra), yet another Division Bench of this Court has held as follows:- “21.So from the above said decisions, it is clear that even endorsement with respect to the payment of interest has to be taken as an acknowledgment of liability and even if no money is paid but endorsement is made to that effect, the limitation is extended as it is an acknowledgment. In this case, we are having the evidence of the debtor who said categorically that such endorsement was made to extend limitation.” 10. In the case on hand, though the suit was filed in the year 2019, there is an endorsement by (late) Jeyachandran in the six promissory notes on 06.11.2016, by making a part payment of Rs.15,000/- in each pronotes. In the case on hand, though the suit was filed in the year 2019, there is an endorsement by (late) Jeyachandran in the six promissory notes on 06.11.2016, by making a part payment of Rs.15,000/- in each pronotes. Therefore, as per Section 19 of the Limitation Act and in view of the decisions referred to supra, the endorsement made in the year 2016 has to be considered and as such, the suit is maintainable. 11. In fine, the order impugned dated 06.02.2020, passed by the learned Principal District Judge, Dindigul, in I.A.No.304 of 2019 in O.S.No.224 of 2019 stands set aside. The petition in I.A.No.304 of 2019 is remanded back to the file of the learned Principal District Judge, Dindigul, for fresh consideration. The trial Court is directed to dispose of the interlocutory application within a period of two months from the date of receipt of a copy of this order and till the disposal of this interlocutory application, the respondents are restrained from alienating the properties. After the disposal of the interlocutory application, the trial Court shall endeavour to dispose of the main suit as expeditiously as possible, preferably within a period of eight months from the date of receipt of a copy of this order. 12. In the result, this civil revision petition stands allowed. No costs. Consequently, connected miscellaneous petitions are closed.