Ved Parkash vs The Food Corporation of India and Others

M.M. Kumar, J.—The only question which requires determination in this revision petition filed u/s 115 of the CPC is whether the suit filed by the petitioner was within the period of limitation prescribed by Article 113 of the Limitation Act, 1963.

Brief facts of the case are that the petitioner filed a suit for recovery of Rs. 1,000/- against respondent No. 1. It was averred in the plaint that the petitioner was a Member of New Pucca Arhtia Association, Bareta (for brevity, NPAA), The NPAA entered into an agreement with the Food Corporation of India, Respondent No. 1 to act as its agent. It was further alleged that the NPAA deposited a security amount of Rs. 3,000/- with respondent: No. 1 in pursuance of contract of agency for the year 1970-71 and respondent No. 1 after the settlement of final accounts for that year failed to repay the amount of the security due of the petitioner alongwith respondents No. 3 and 4. The NPAA having been dissolved on 24.9.1970 or 24.10.1970, the petitioner claimed his share of Rs. 1,000/- alleging that the afore-mentioned amount of Rs. 1,0007- has neither been refunded by respondent No. 1 nor by respondents No. 2 and 3 who were the President and Manager respectively of the dissolved Association.

The suit of the petitioner was decreed by the Sub Judge, IInd Class, Mansa on 17.3.1975. The judgment and decree passed by the Sub Judge, Ilnd Class was challenged before the Additional District Judge, Bathinda. The Learned Additional District Judge vide his order dated 13.10.1978 remanded back the case by framing two additional issues. One of the issue was as to whether the suit was time barred. On remand the learned Sub Judge, 1st Class, Mansa vide his order dated 16.1.1979 held that the suit was time barred.

The order of the Learned Sub Judge, 1st Class Mansa dated 16.1.1979 recorded a finding that the NPAA came to be dissolved in the months of February/March 1970. The suit was filed on 7.11.1973 which was clearly beyond 3 yeaRs. The learned Sub Judge 1st Class in his order dated 16.1.1979 observed as under:

"However, from the statement of DW2 Des Raj who is defendant No. 1, it is ascertainable that the New Pucca Arhtia Association came to an end 3/4 months after document Ex.DA came into being. Ex.DA is that document vide which defendant No. 2 deducted Rs. 30007- deposited by the plaintiff and defendants No. 1 and 3 as security amount against the outstanding amount towards the New Pucca Arhtia Association, Ex. DA was issued on 24.6.1970. If as per the admission of DW2 it is taken that the association above-said came into an end by way of dissolution 3/4 months earlier that 24.6.1970, it would mean that it came to be dissolved either in the month of February or in March, 1970. If that time of dissolution is taken to be correct, the suit, according to Article 113 of the Limitation Act should have been filed within the period of three years with effect from 24.2.1970 or in any case 24.3.1970. The suit having been filed on 7.11.1973 is clearly beyond three years and must be held to be barred by time. That Article 113 of the Limitation Act shall apply to such a dispute is even clear from the ruling of our own High Court given in Zila Parishad, Ambala Vs. Banarsi Dass Kapur, Similar is the consensus of the Hon''ble High Court in Harij Gram Panchayat Vs. Thakkar Lakhiram Ramji and Others, . In view of the above discussion. I hold the suit to be barred by time. This issue is decided in favour of the defendants and against the plaintiff."

The order with this finding was referred to the Ld. Addl. Distt. Judge who concurred with the rinding recorded by Ld. Sub Judge 1st Class, Mansa in his order dated 16.1.1979 and dismissed the suit of the petitioner on that basis. In his order dated 31.10.1980, the Ld. Additional Distt. Judge while dismissing the suit on this issue observed as under:

"The learned counsel for the appellant has then contended that in view of the finding of the trial court on issue No. 6A, the suit of the plaintiff, deserves to be dismissed as the satne has been found to be barred by time. On the other hand, Sh. Singla the learned counsel for the respondent has submitted that the finding on this issue is incorrect and the suit is well within time. I have given my thoughtful consideration to these submissions of the learned counsel for the parties but I am of the considered view that the finding of the learned Sub Judge on issue No. 6A is perfectly correct and the suit deserves to be dismissed on the ground. In para No. 13 of the plaint, it has been alleged by the plaintiff that the cause of action for filing this suit arose on 31.3.71 when the Association was dissolved and also from the refusal of the defendants to pay back the amount in question. In the instant case, there is no evidence on record to show as to when the Pucca Arhtia Association was dissolved and as to when the amount was deposited by the plaintiff. The date of deposit can only be inferred from the agreement dated 5.6.70, which was executed between the parties for the work to be done. The security amount might have been deposited on 5.6.70 when the agreement was executed. Article 113 of the Indian Limitation Act, provides that when there is no specific article for any suit providing the limitation then only the residuary article i.e. Article 113 shall come into operation, According to this Article, the suit should be filed within a period of three years from the date when the right to sue accrues. Though the agreement executed between the parties on 5.6.70 does not provide the period for which it was valid, but it has come in the evidence that the Association was dissolved about 3/4 months after the execution of the agreement Ex. DA is the document vide which defendant No. 2 Food Corporation of India, deducted Rs. 3,000/- deposited by the plaintiff and defendant No. I and 3 as security amount. This document is dated 24.6.70. If the association was dissolved about 3/4 months after the execution of the agreement dated 5.6.70 when it can be safely inferred that the firm was dissolved either in the month of Feb. or March 70. The suit ought to have been filed within three years w.e.f. 24.2.70 or in any case 24.3.7.0. The present suit was filed on 7.11.73. Thus, the suit is clearly barred by time. I do not find any infirmity in the finding on issue No. 6A and therefore, the same is affirmed."

A perusal of the order passed by the learned Sub Judge 1st Class on 16.1.1979 and the judgment and decree passed by the learned Additional District Judge makes it obvious that the basis of finding arrived by both the courts is the statement of Des Raj respondent No. 2, who used to be President of the NPAA. In his statement Des Raj has stated that an amount of Rs. 3,000/- was deducted towards security for the year 1970-71 Vide Ex. DA which is dated 24.6.1970. This witness has further stated that there was no settlement of accounts as the Corporation respondent No. 1 was not inclined to settle it. The NPAA was dissolved 3/4 months after the deduction of Rs. 3,000/- which deduction was made on 24.6.1970. Both the Courts below instead of adding 3/4 months to 24.6.1970 have reduced the period of 3/4 months and have erroneously recorded the date of dissolution as 24.2.1970 or 24.3.1970. On this date obviously no cause of action would arise because the security amount of Rs. 3,000/- by the petitioner alongwith respondents No. 2 and 3 was deposited/deducted on 24.6.1970. Therefore, the dissolution of the NPAA has to be taken by adding 3/4 months i.e. 24.9.1970 or 24.10.1970. This error is apparent on the face of record.

The petitioner has also issued a notice on 16.1.1973 (Ex.P.3) and the Food Corporation of India refused the liability by controverting the contents of the notice vide its reply dated 2.2.1973 which is also exhibited on record as Ex. P.1.

The question which falls for determination as to whether a notice served within the period of limitation and also replied within the period of limitation i.e. 2,2.1973 would give a cause of action or the limitation period will have to be counted from the date of deposit of amount i.e. 24.6.1970 or the date of dissolution of the Association i.e. 24.9.1970/24.10.1970.

I have heard Sh. Sandeep Bansal, Advocate for the petitioner and none has put in appearance on behalf of the respondents.

After hearing Sh. Sandeep Bansal, I am of the view that this petition deserves to be dismissed and the claim of the petitioner has to be held as time barred. The suit was filed on 8.11.1973. The cause of action had arisen to the petitioner on the dissolution of NPAA i.e. 24.9.1970 or 24.10.1970 and the cause of action further arose on 2.2.1973 when respondent No. 1 declined the request of the petitioner to refund the security deposit. If the cause of action is taken from 24.9.1970/24.10.1970 then the period of 3 years would come to an end on 23.9.1973 or 23.10.1973 which would clearly be barred by time. Article 113 of the Schedule appended to the Limitation Act, 1963 applies to this case which provides period of three years from the date when right to sue accrued. In the present case right to sue accrued on 23.9.1970 or 23.10.1970. Hence, suit filed on 8.11.1973 would be beyond three yeaRs. Therefore, the judgment and decree passed by the learned Additional District Judge is upheld.

For the reasons mentioned above, the revision petition fails and is dismissed.