Sanjay K. Agrawal, J.

1. The substantial question of law formulated and to be answered in this appeal states as under:-

Whether the two Courts below were justified in holding that the suit is barred by limitation on account of the fact that as the condition of payment was on demand and the demand admittedly was made by the plaintiff on 25-4-1995 and, therefore, the period of notice of demand also should have been taken into consideration for the purpose of calculation of limitation part?

In order to answer the substantial question of law following facts in nutshell are required to be noticed as under:-

For sake of convenience, the parties would be referred hereinafter as per their status before the trial Court.

1.1 Plaintiff - Smt. Tulsi Bai filed a money recovery suit against the defendant-Rambagas Singh, later on he died and his legal representatives were substituted in his place, stating inter alia that her husband was earlier in service in Bhilai Steel Plant and defendant was co-employee with him, and defendant being in need of money, advanced Rs. 50,000/- on 3-5-1992 to him, who executed receipt/acknowledgment promising that it will be payable on demand with interest by himself or his legal representatives. It was further pleaded when the money was demanded by the plaintiff on 25-4-1995 by notice, delivered to defendant on 27-4-1995, the amount was not paid resulting into filing of the suit for recovery of aforesaid sum on 3-5-1995.

1.2 During the course of trial, plaintiff filed an application under Section 3 read with Section 5 of the Limitation Act stating inter alia that loan was advanced on 3-5-1992 and period of limitation of three years expired on 2-5-1995 and the suit was filed on 3-5-1995 and, therefore, the delay of one day in filing the suit be condoned.

1.3 Defendants opposed the application stating inter alia that application is not entertainable and, therefore, it be rejected and suit be dismissed as barred by limitation.

2. The trial Court by its order dated 6-9-1999 in Civil Suit No. 4-B of 95 rejected the application holding inter aha that in a duly constituted suit, provisions of Section 5 of the Limitation Act is not attracted and the delay cannot be condoned and, consequently, dismissed the suit as barred by limitation.

3. Plaintiff preferred first appeal there-against. First appellate Court by its order dated 14-2-2003 in Civil Appeal No. 28 of 2001 affirmed the order passed by the trial Court, leading to filing of this Second Appeal under Section 100 of the Code of Civil Procedure.

4. Shri H.B. Agrawal, learned Senior Counsel appearing for the plaintiff would submit both the courts below have committed a legal error in holding that delay of one day in filing the suit cannot be condoned under Section 5 of the Limitation Act. He would further submit that notice of demand was sent on 25-4-1995 to the defendant claiming the amount of Rs. 50,000/- as per condition attached and, therefore, the notice period ought to have been excluded while computing the period of limitation of three years and suit ought to have held within period of limitation by trial Court as well as first appellate Court.

5. I have heard learned counsel appearing for the appellant and perused the records of both the courts below.

6. The plaintiff's case is based on receipt/promissory note dated 3-5-1992, which reads as under:-

(Vernacular matter omitted-Ed)

7. Further, the plaintiff has placed reliance on Article 22 of the Limitation Act, which reads as under:-

8. Admittedly, in the instant case, the money in question was advanced to defendant on 3-5-1992 and the period of limitation prescribed for institution of such money suit expired on 2-5-1995 and the suit was filed on 3-5-1995; and the plaintiff claimed that as per Article 22 of the Limitation Act, he has made a demand by issuing notice to defendant on 25-4-1995, and delivered to him on 27-4-1995 and, therefore, notice period deserves to be excluded while computing the period of limitat