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Judgment
A.H. Joshi, J.—Appellant plaintiff filed the suit for recovery of money lent.
Plaintiff''s suit was opposed by defendants. Present respondent Nos. 1 and 2 were the defendant Nos. 4 and 5. These defendants filed the written statements.
Defendant Nos. 4 and 5 did not enter the witness box.
The Trial Court has decreed the suit except against the defendant Nos. 4 and 5.
Against the suit dismissal the plaintiff is in appeal before this Court.
Perusal of impugned judgment it is seen that the suit is dismissed on the ground of limitation. The observation in this regard is seen in para 10. Relevant portion is reads as follows:
There is no document whatsoever executed by 2nd and 3rd defendant so also there is no document whatsoever for extension of time sought by defendant nos.4 and 5. The loan sanctioned was on 29.11.94, suit is filed on 9.12.97, it is filed after 3 years 10 days, thus the suit against defendant Nos. 2 to 5 becomes time barred. Suit against defendant Nos. 4 and 5 definitely becomes time barred.
(Quoted from para 10 of judgment dated 29.11.1999 from page 38 of paper book )
Learned Advocate for appellant has pointed out from the written statement filed by the defendant Nos. 4 and 5, a copy whereof is at page 27 of paper book, that the plea relating to bar of suit was not taken. It is however a fact that issue of limitation was framed by the trial Court.
Plaint shows that though loan was sanctioned on 29.11.1994, the term loan agreement is dated 22.12.1994 and agreement of guarantee dated 13.12.1994 and these agreements were delivered to the bank by the guarantors on 22.12.1994.
It is seen that the averments contained in the plaint in paragraph numbers 4 and 5 have not been denied by the defendant Nos. 4 and 5.
In the paragraph No. 10 of judgment quoted in para 6 above, it is seen that the trial Court has reckoned the limitation from 29.11.1994 i.e. from the date of sanction letter and found that suit filed on 9.12.1997 was beyond limitation.
This Court finds that limitation would start from the date of disbursement of loan or on execution of documents whichever later. Admittedly, defendant Nos. 4 and 5 have delivered documents dated 13.12.1994 and 22.12.1994 on 22.12.1994, or thereafter.
As the date of disbursement has not come on record, therefore, in any case limitation would commence on 22.12.1994. The suit filed on 9.12.1997 was perfectly within limitation.
The result that follows is that the decree of dismissal of the suit as against the defendant Nos. 4 and 5 deserves to be set aside and the suit is liable to be decreed.
In the result, appeal succeeds. The impugned judgment and decree is set aside and plaintiff''s suit is decreed against defendant Nos. 4 and 5. Defendant Nos. 4 and 5 shall pay to plaintiff an amount of Rs. 2,77,128/( Rupees Two Lakh Seventy Seven Thousand One Hundred Twenty Eight Only ) with simple interest at the rate of 18.75% per annum from the date of suit till the date of decree. Plaintiff shall be entitled to recover future interest after the date of decree at the rate of 6% per annum. Plaintiff shall be entitled to full costs throughout.