Arun Trading Company vs Indian Overseas Bank

A.A. Desai, J.—Original defendants by this appeal have challenged judgment and decree, dated 24.7.1985 passed in Special Civil Suit No. 211 of 1977, by the Civil judge junior Division, Nagpur, on the ground that the suit claim was beyond the period of limitation.

Late Subhash Samarth was the proprietor of defendant NO. 1 Company which was subsequently re-named as defendant No. 2 M/s. Anurag Trading Company. Late Mr. Samarth in 1973 availed cash credit facility from the plaintiff-bank by executing requisite document such as Pro-Note etc. Respondent No. 5 - Shri V.D. Samrath stood as a guarantor by deposit of title-deed with the Bank. Late Subhash Samarth died on 11.6.1976 in an accident.

The plaintiff bank on 2.7.1977 filed a Civil Suit for recovery of Rs. 202,458.12 p. as a balance outstanding against the defendant No. 1 as on 30.6.1977. The plaintiff Bank for the purposes of limitation in para 14 of the plaint pleaded the cause of action which reads as under:

The cause of action for the suit arose at Nagpur where the defendants reside and carry on their business and also where the properties mortgaged by the deposit of title-deeds are situated within the jurisdiction of this Court. The cause of action arose on 13.11.1973 when the title deeds were deposited and on 30.10.1973 and 27.11.1973 when guarantee and other documents were executed and on 30.6.1975 when confirmation was signed and on subsequent dates of demand.

Taking into consideration the cause of action as pleaded on 13.11.1973, 30.10.1973 and 27.11.1973, the suit filed on 2.7.1977 for recovery of money claim was admittedly beyond the period of limitation. The plaintiff bank, however, did not file on record the document of confirmation, dated 30.6.1975 as pleaded in para 14 of the plaint. According to the pleading on 30.6.1975 the confirmation was signed.

This document was filed by defendant No. 5 on 31.1.1980. On 12.2.1980 this document was admitted by the plaintiff. However, this document was not exhibited. This document is at page 55 of the record of trial court (File C). The debtor has not signed the document as a token of confirmation of the balance outstanding against the company as on 30.6.1975.

The trial court after evidence closed the case and fixed for argument on 12.2.1980. On this date, the plaintiff filed application for amendment of plaint to correct the date (Exh.78). It was alleged due to oversight the date of confirmation was shown as 30.6.1975 instead of 5.12.1975. The plaintiff, therefore, sought amendment in para 14 of the plaint. This application was signed by the counsel. However, it was without any verification. The counsel did not press the said application. The counsel thereafter moved another application on the same day (Exh.79) seeking the same amendment. This was verified by the counsel. The plaintiff did not verify the same. This application was opposed by the defendant. The Learned trial court, however, allowed the amendment.

The defendant No. 5 challenged order, dated 12.2.1980 allowing the amendment by presenting Civil Revision Application No. 93 of 1980. The Learned Single Judge has observed, "as per Order VII Rule 1 of the CPC the plaint shall contain amongst other all the facts constituting the cause of action and when it arose". ...These particulars of the plaint is not a mere formality, but they are very necessary that all the facts constituting the cause of action must necessarily be stated in the plaint. The Learned Single Judge further observed, "As per Order VI Rule 15 of the Code, every pleading must be verified in a manner prescribed." The Learned Single Judge reached the conclusion that the impugned order allowing the amendment was per se illegal." It is also observed, "By the said amendment the date of cause of action has been advanced by six months and further the application itself was not signed and verified by the party". The Learned Single Judge allowed the revision and set aside the order passed by the Learned trial Court on 12.2.1980 and further struck down the amendment as incorporated. The Learned Single Judge, however, observed in para 13 that the parties are at liberty to address on the question of limitation.

The question of limitation was neither framed nor was raised in the written statement. The Learned trial Judge, however, considered, the question of limitation in para 12 of the impugned judgment. The Learned trial court after perusing para 14 of the plaint, has observed.

It is thus clear that the plaintiff had in very clear terms referred to the limitation having been extended upto 30.6.1975 by virtue of the confirmation letter that was signed obviously by deceased Subhash and it cannot be said that there is no pleading whatsoever regarding the manner in which the limitation was extended in the present case.

The Learned Judge further observed:

If this date of confirmation on 30.6.1975 is taken into account it clearly follows that the suit filed by the plaintiff is well within the period of limitation.

Mr. Bobde, the Learned Counsel appearing for the appellants-original defendants, severely assailed the findings as recorded by the trial Court. Mr. Bobde has rightly pointed out that no confirmation of the balance was signed on 30.6.1975 by any of the defendants or by deceased Samarth. Mr. Bobde invited our attention to a decision reported in Shri H.D. Vashishta Vs. Glaxo Laboratories (I) (P) Ltd., , where their Lordships of the Supreme Court have laid down that suit is liable to be dismissed if the material facts constituting cause of action have not been averred. Mr. Bobde, therefore, submitted that the confirmation which alleged to have been signed on 30.6.1975 and which has been pleaded very specifically was non-existent. This document was not produced by the plaintiff. The same as discussed earlier was produced by the defendant and admitted by the plaintiff. This document is without any signature as a token of confirmation. ,

Mr. Padhye, the Learned Counsel for the respondent, invited our attention to Exh.48 dated 5.12.1975 showing the balance as on 30.6.1975 and which has been signed by deceased Samarth. Mr. Padhye, submitted that the date of the confirmation of balance by deceased debtor being 5.12.1975, the suit filed on 2.7.1977 is within the period of limitation. However, the confirmation signed on 5.12.1975 has not been pleaded. Even otherwise, the amendment as sought on 2.12.1980 has been rejected by this Court in the Civil Revision Application. The plaintiff, therefore, cannot base his cause of action on this document. Mr. Padhye made a submission that this document Exh.48 has been proved on record and as such, the same cannot be ignored for the purposes of suit claim of the plaintiff. Unfortunately, the plaintiff has neither pleaded this document nor he has based his cause of action on the same. Mr. Padhye then invited our attention to revival letter, dated 27.2.1976 signed by Late Shri Samarth and Exh.51 - reply, dated 21.3.1977 given by the defendant No. 5 Mr. Padhye invited our attention to para 3 of the reply. The defendant 5 therein offered to liquidate the Bank liability in full and final by disposing his property. Mr. Padhye submitted that this is an acknowledgement of the outstanding by the defendant No. 5. Mr. Padhye, therefore, made a submission that acknowledgement, dated 27.2.1976 by the original debtor late Samarth and Exh.51 which is also an acknowledgement by defendant No. 5 extends the period of limitation and, therefore, the civil suit filed on 2.7.1977 is within limitation. With the assistance of the Learned Counsel, we have gone through the pleading. The plaintiff has not pleaded this acknowledgement which according to the counsel extended the period of limitation, in the plaint. No cause of action has been founded even on these documents styled as ''acknowledgements''. As such, for want of specific pleadings as required by Order VI of the Code, the plaintiff cannot be permitted to lay his claim and bring action within limitation.

Mr. Padhye then invited our attention to para 14 and submitted that his cause of action is also based on subsequent dates of demand, as averred at the close of para 14. The averments made as such are delight vague, which do not disclose any date as to when the cause of action arose on the subsequent dates of demand. For want of specific pleadings, the plaintiff is not entitled to sue for this claim. The suit claim for a transaction entered into in 1973 is thus beyond the period of limitation. The suit is, therefore, liable to be dismissed. The Learned trial Court has not taken into account the particular aspect. The impugned judgment and decree have, therefore, resulted in miscarriage of justice.

In the result, the appeal is allowed. The impugned judgment and decree, dated 24.7.1985 of the Learned trial court passed in Special Civil Suit No. 211 of 1977 is hereby set aside. The suit is, dismissed. The cross- objections of the plaintiff are also hereby dismissed. However, no order as to costs. Leave to appeal to Supreme Court is orally prayed.

Rejected.