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Judgment
P.G. Agarwal, J.—This civil appeal has arisen out of the judgment and decree dated 9.2.96 and 29.2.96 respectively passed in M.S. No. 24/84 by Shri D.K. Mahanta, Assistant District Judge No. 2, Kamrup, Guwahati.
The Plaintiff-Appellant, Food Corporation of India, hereinafter referred to as ''FCI'' instituted Money Suit No. 24/84 against the Respondent Defendant, Assam State Co-operative Marketing Consumers Federation Ltd., hereinafter referred to as ''STATFED'', for realisation of a sum of Rs. 79,82,105.44 paise.
The case of the FCI in brief is that on the instruction/intervention of the Govt. of India and the Govt. of Assam, FCI agreed to purchase 20,000 MT of paddy from the Defendant STATFED for the Kharip Sessions-1975-76 and the FCI also agreed to pay a sum of Rs. 1.8 crores as advance instalment. However, the FCI inadvertantly paid a sum of Rs. 2 crores to the STATFED during the period from 16.2.76 to 27.2.76. The rate/price of the paddy was settled between the parties and the representatives of the Union of India and the State Govt. on 20.9.76. However, the STATFED did not supply the entire quantity and supplied only 16,724 MT of paddy, the price of which according to FCI comes to Rs 1,60,63,190/-. As the STATFED refused to refund the balance amount, the Appellant instituted the suit for refund of the balance amount amounting to Rs 39,36,810/- and a sum of Rs. 7,03,541/- towards quality cut and a sum of Rs. 33,41,754.44 towards interest.
The STATFED contested the suit by filing a written statement averring, inter alia, that there is no cause of action, that the suit is barred by limitation. The Defendant admitted receipt of Rs. 2 crores but disputed the rates as fixed by the Govt. of India and according to them the total price for the paddy supplied by them pomes to Rs. 1,77,64,923.89 p., leaving a balance of Rs. 22,35,075.11 paise.
On the pleadings of the parties, the learned trial Judge framed, as many as, 9 issues. During trial the Plaintiff examined 3 witnesses and the Defendant examined 1 witness.
The learned trial Judge vide impugned judgment dismissed the suit holding that the same was barred by limitation.
The only issue that has been raised before us in this appeal is also regarding limitation. Issue No. 2 reads as follows:
Whether the suit is barred by limitation.
The learned Counsel for the STATFED has submitted that a plain reading of the plaint itself would show that the suit is barred by limitation. Learned counsel has drawn our attention to paragraph 9 of the plaint, which reads as follows:
That the cause of action for this suit arose on 16.2.76 and all other subsequent dates on which the payments by cheques were made and on various other dates when the Defendant No. 1 delivered paddy in terms of the agreement, on 20.9.76 when the price of paddy and other terms regarding delivery of paddy were settled in the meeting held on 20.9.76 at New Delhi, and on 26.2.1980, that is, the date of notice u/s 80, CPC and on 26.3.80, i.e. the date on which the Defendant No. 1 denied the claim of the Plaintiff as mentioned above, within the jurisdiction of this Court.
There is no dispute at the Bar that the payment of Rs. 2 crores by the FCI, the delivery of paddy by the STATFED and the fixation of price/rate etc. were all completed on 20.9.76. It is therefore submitted that the suit for realisation of money should have been filed within a period of 3 years from the above date, i.e. on or before 19.9.79. Apparently the suit was instituted on 13.5.80. Para 9 of the plaint, as referred above, shows that a notice u/s 80 CPC was issued by the FCI to the STATFED on 26.2.80 and, as such, according to the learned Counsel for the Appellant the Appellant is entitled to another period of two months from 26.2.80. The plea of the STATFED is that it is a co-operative organization and as such no notice u/s 80 CPC is required to be given under the law and the Appellant is not entitled for additional two months as the period of limitation. Learned counsel for the Respondent has further submitted that the Plaintiff remained silent altogether regarding the grounds of exemption from limitation, as required under Order 7 Rule 6 Code of Civil Procedure, which reads as follows:
Grounds of exemption from limitation law:- Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed:
On reading of para 9 of the plaint, as referred above, we find that the last date for cause of action arose on 20.9.76 and thereafter on 26.2.80. In between the two dates more than 3 years have elapsed and issuance of notice u/s 80 CPC whether required or not after the expiry of the period of limitation, cannot extend the period of limitation. Shri Goswami, learned Counsel for the FCI has submitted that non-mention of the date of cause of action in the plaint is not fatal and in support of his submission has referred a decision of the Apex Court in the case of Kuldip Singh v. Ganpat Lal and Anr. reported in (1986) 1 SCC 243, wherein it was held:
Any error on the part of the Plaintiff in indicating the date on which the cause of action arose, would be of little consequence. The cause of action has arisen on the date on which the suit was filed and the suit was within limitation from the said date.
The FCI has prayed for exemption from limitation law on the basis of two letters, marked as Exts. 8 and 9, stating that there was acknowledgment of the liability by the STATFED. Ext. 9 is dated 26th March, 1977 and Ext. 8 is dated 30th July, 1977. In the plaint there is no whisper about Exts. 8 and 9 and, as such, the claim of exemption on the ground of acknowledgement and the law of limitation is altogether a new ground and the proviso to Rule 6 of Order 7 CPC is not applicable, as no ground has been set out in the plaint.
Shri Deka appearing for the STATFED has submitted that the plea of acknowledgement was not pleaded in the plaint and, as such, there was no occasion to controvert it in the written statement although the STATFED took the plea that the suit was barred by limitation. Learned counsel therefore submits that even if the evidence had been adduced regarding acknowledgement, the same cannot be considered. In support of his submission, the learned Counsel cited a decision of the Hon''ble Supreme Court in the case of Sri Venkataramana Devaru and Others Vs. The State of Mysore and Others, wherein it was held:
The object of requiring a party to put forward his pleas in the pleadings is to enable the opposite parry to controvert them and to adduce evidence in support of his case. And it would be neither legal nor just to refer to evidence adduced with reference to a matter which was actually in issue and on the basis of that evidence, to come to a finding on a matter which was not in issue, and decide the rights of parties on the basis of that finding.
This Court also took a similar view in the case of Mrs. Tazabannisa and Ors. v. Sadaruddin Ahmed and Ors. (1989) 2 GLR 261, when it held:
The object and purpose of pleadings is to enable the adversary party to know the case it has to meet in order to have a fair trial. No party can go beyond the pleadings. In the absence of pleadings, evidence, if any, produced by the parties, cannot be considered.
Shri Goswami has submitted that Exts. 8 and 9 were admitted in evidence without objection and, as such, this was considered by the trial court and, as such, no objection can be raised regarding the admissibility of the document. Shri Deka, on the other hand, submits that the Exts. 8 and 9 were merely marked as exhibits through P.W.-1 Madan Chandra Pathak, but these were not proved as required under the law, and as such, these cannot be considered in evidence. The relevant portion of P. W.-1 ''s evidence regarding Exts. 8 and 9 reads as follows:
Ext 8 and 9 are the letters given to us by Defendant No. 1.
The witness has not stated anything about the nature or description of the letter. The date of the letter, the name and description of the person who sent the same was not proved. Section 61 of the Evidence Act provides for the mode for proof of contents of document. In the case of Sait Tarajee Khimchand and Others Vs. Yelamarti Satyam alias Satteyya and Others, , the Apex Court held, "The mere marking of Ext. does not dispense with the proof of document". The above proposition was relied on by this Court in the case of P.G. Dombrain and Ors. v. Collector of Kamrup AIR 1980 Gau 55.
On perusal of the evidence of P.W.-l we find that not to speak of the contents of Ext. 8 and 9, even the signatures of the author of the documents were not identified and proved. Hence we have no hesitation to hold that Exts. 8 and 9 were not proved as required under the law and the contents of the documents cannot be read in the evidence. We are fortified by the latest decision of the Apex Court in the case of U.P. State Road Transport Corporation, Aligarh Vs. State of U.P. and others, wherein the Hon''ble Supreme Court refused to consider the sale deeds marked as Exts. on the ground that neither the Vendor nor the Vendee has been examined to substantiate those documents which is not the evidence to be legally admissible nor to be considered.
Learned counsel for the FCI has submitted that in view of the admission, no evidence was required to be led as per provision of Section 18 read with Section 58 of the Evidence Act. As stated above, there was no pleading regarding acknowledgement vide Exts. 8 and 9 in the plaint and, as such, there was no scope for admission of the same in the written statement and in fact, there is no such admission in the written statement filed by the STATFED. What was admitted by the STATFED was the receipt of Rs. 2 crores from the Appellant but the liability to pay/repay was stoutly denied. This is crystal clear from the Plaintiffs own pleadings in para 8, wherein it was stated that in pursuance of the notice u/s 80 CPC the Defendant sent a reply admitting the receipt of a sum of Rs. 2 crores as advance payment but denied the claim of the Plaintiff and, as such, the Plaintiff has no other alternative but to file the present suit. Thus this is not a case of admission of liability by the STATFED.
In view of our aforesaid decision, Exts. 8 and 9 were not duly proved and as such these are not legal evidence. However, we have perused the same and constrained to find that these two documents are not acknowledgement of any existing and subsisting liability by the STATFED as provided u/s 18 of the Limitation Act. The only words which could be of some help to the Appellant are:
...The statement herein before mentioned will show that according to the price suggested by State Govt. we have already covered a sum of Rs. 1,77,64,923.89 being a balance of only Rs. 22,35,876.11.
The aforementioned words do not and cannot in law be termed as an acknowledgement of the subsisting liability. The words are specific and pertain to some past event. Moreover, in the letter a claim has been made upon the Union of India and, therefore, by no stretch of imagination the documents can be interpreted to mean that any subsisting and existing liability was acknowledged.
For the reasons recorded above, the decision of the trial Court dismissing the suit as barred by time is affirmed.
In the result, the appeal is dismissed on contest without costs.