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2007 Supreme(AP) 475
Andhra Pradesh High Court
VISWANADHA VENKATA YEGNESWARA SASTRY - Appellant
Versus
SAIT DINESH KUMAR JAIN - Respondent
Decided On : 04/25/2007
Advocates Appeared :
M.RAM MOHAN, M.S.R.Subrabmanyam, V.V.L.N.SARMA
Headnote:
Limitation Act, 1963 – Article 70 – Suit is barred by limitation – Suit for recovery of plaint schedule silver articles or value – Appellant-plaintiff instituted said suit for recovery of plaint schedule silver articles or value thereof – Court of first instance recorded certain reasons and came to the conclusion that in view of the fact that the suit is barred by limitation same to be dismissed – The matter was carried by way of appeal a. S. and appellate Court also had confirmed the same – Hence present second appeal – Whether plaintiffs suit is barred by limitation – Whether Courts below are justified in construing Ex. A-4 as demand and consequent inaction of defendant as refusal to hold that suit is barred by limitation reckoning Ex. A-4 as starting point of limitation – Whether on case of defendant that he returned pledged goods is consistent with finding of Court below that there was refusal on the part of defendant to the demand of the plaintiff to return the pledged articles – Held, Contentions had been advanced in relation to demand and refusal plaintiff pledged the articles and he filed the suit is the notice issued at the earliest point of time e defendant received the same but had not chosen to give any reply second notice was issued it is clearly mentioned that the defendant represented that the account books were not available and he would look into the same and again it was stated that books were not available when the plaintiff rushed to redeem the same, the silver had been sold away shows both the demand and as well as refusal refusal may be either express or implied and the refusal always necessarily need not be in writing when the defendant himself had stated that the articles already had been sold how it can be said that he would return the articles Courts below reckoned the period of limitation from the date of said notice taking into demand and refusal and came to the conclusion that the suit is barred by limitation question of limitation also is a mixed question of fact and law concurrent findings had been recorded by both the courts below on the aspect of question of imitation on appreciation of the oral and documentary evidence available on record – In the light of the concurrent findings which had been recorded by both the courts the Court of first instance and also the appellate Court is not inclined to disturb the said findings relating to limitation – Appeal dismissed.
( 2 ) ON 20. 2. 1998 this Court made the following order:
"admit. Ground No. 6 (a) (b) and (c) raised in the memorandum of grounds of appeal is formulated for adjudication in the appeal. "
( 3 ) THE Counsel on record pointed out to the respective pleadings of the parties, the evidence available and also the findings recorded by the Court of first instance and also by the appellate Court. The learned counsel for the appellant had pointed out to the relevant dates and would maintain that the Courts below totally erred in arriving at the conclusion that the suit is barred by limitation.
( 4 ) ON the contrary, the Counsel representing respondents in the second appeal would maintain that in the light of the clear findings recorded on question of limitation, the other questions need not be dealt with in elaboration and the findings recorded by both the Courts below to be confirmed.
( 5 ) THE substantial questions of law specified in ground No. 6 (a), (b) and (c) are as hereunder.
(a) Whether on the facts and in the circumstances of the case, the plaintiffs suit is barred by limitation? (b) Whether the Courts below are justified in construing Ex. A-4 as demand and the consequent inaction of the defendant as refusal to hold that the suit is barred by limitation reckoning Ex. A-4 as starting point of limitation? (c) Whether on the facts and the circumstances of the case, the case of the defendant that he returned the pledged goods is consistent with the finding of the Court below that there was refusal on the part of defendant to the demand of the plaintiff to return the pledged articles?
( 6 ) THE unsuccessful plaintiff in both the Courts below in O. S. No. 143 of 1983 on the file of I Additional Subordinate Judge, kakinada, in A. S. No. 110 of 1992 on the file of IV Additional District Judge, kakinada, is the appellant in this second appeal. The appellant-plaintiff instituted the said suit praying for recovery of the plaint schedule silver articles or the value thereof. Before the Court of first instance, on the respective pleadings of the parties, the issues had been settled. P. W. I and d. W. I were examined; Exs. A-1 to A-11 and Exs. B-1 to B-5 were marked. The court of first instance recorded certain reasons and came to the conclusion that in view of the fact that the suit is barred by limitation the same to be dismissed. The matter was carried by way of appeal a. S. No. 110 of 1992 on the file of iv Additional District Judge, East Godavari at Kakinada, and the appellate Court also had confirmed the same. Hence, the present second appeal.
( 7 ) BEFORE taking up further discussion, it may be appropriate to have a look at the respective pleadings of the parties. The parties hereinafter would refer to as plaintiff and defendant as shown in O. S. No. 143 of 1983. However, the sole defendant died during pendency of A. S. No. 110 of 1992 and respondents 2 and 3 were brought on record as legal representatives by order dated 14. 8. 1996 in LA. No. 1618 of 1996 and the said legal representatives are shown as respondents in the present second appeal.
( 8 ) IT was pleaded in the plaint that the plaintiff borrowed an amount of Rs. 400/-on 19. 5. 1971 by pledging 1150 grams of silver plate (Vendi Tamaraku) under pledge chit No. 2179 and Rs. 350/- on 28. 5. 1971 by pledging 1130 grams of silver (Vendi Ginnelu)under pledge ticket No. 2255 and again on 11. 6. 1971 the plaintiff borrowed Rs. 250/-under pawn ticket No. 2376 by pledging silver plate of 925 grams and all the above three pledged articles contain gold flowers weighing 8 annas. It is further averred that inspite of plaintiffs approach several times to redeem the pledged articles, the defendant was postponing the same on some pretext or the other. The plaintiff got issued a notice on 24. 10. 1979, but the defendant neither issued any reply no
