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1997 Supreme(HP) 390
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Hon'ble Judges: Surinder Sarup, J.
C.M. Auto Stores and Ors. – Appellants
Vs.
Union Bank of India – Respondent
R.S.A. No. 193 of 1997
Decided On: 11.11.1997
For Appellant/Petitioner/Plaintiff: R.L. Sood, Adv.
For Respondents/Defendant: L.C. Sood, Adv.
A suit for recovery of money is barred by limitation if the Plaintiff has not pleaded the question of limitation specifically, as required under Order 7 Rule 7 Code of Civil Procedure.
Headnote:
LIMITATION - SUIT FOR RECOVERY OF MONEY - OVERDRAFT FACILITY - BANKING - EVIDENCE ACT - BANKERS' BOOK EVIDENCE ACT - CIVIL PROCEDURE CODE - INTERPRETATION OF STATUTES - SUBSTANTIAL QUESTION OF LAW - POWER OF ATTORNEY - AUTHORISATION - EXECUTION OF DOCUMENTS - ADMISSIBILITY OF EVIDENCE - LIMITATION ACT - PLEADING - AMENDMENT OF PLEADINGS - DELAY - CONDONATION OF DELAY - JURISDICTION - APPELLATE COURT - DUTY OF APPELLATE COURT - JUDICIAL MISCONDUCT - BIAS - PERFUNCTORY APPROACH - LACK OF KNOWLEDGE OF LAW - ADVERSE COMMENTS ON JUDICIAL OFFICER.
Fact of the Case:
The Plaintiff-Respondent, being the Union of India, filed a suit against the Defendants-Appellants on the pleadings that the Defendant Nos. 2 and 3, on 30.9.1978 had been granted overdraft facility in the sum of Rs. 50,000/ by the Plaintiff-bank. They had agreed to pay interest @ 6% over and above the bank rate with minimum of 15% per annum with quarterly rests. The operation of their accounts by the Defendants was stated to be unsatisfactory. Hence a sum of Rs. 71,865.10 p., inclusive of interest was outstanding against them till the institution of the suit. Hence the suit for recovery of the said amount.
Finding of the Court:
The suit was barred by limitation as the Plaintiff had not pleaded the question of limitation specifically, as required under Order 7 Rule 7 Code of Civil Procedure. The suit was not maintainable as it had not been filed by a duly authorised person. The statement of account produced by the Plaintiff-Respondent, which was not certified properly under the Bankers Book Evidence Act, could not be read in evidence. The alleged hypothecation agreement, which had not even been exhibited in evidence, could not be relied upon. The lower appellate Court had erred in relying on unexhibited documents and in not noticing the objection that the document, which had not been exhibited in accordance with law as enshrined in Section 67 of the India Evidence Act, could not be read in evidence. The lower appellate Court had also erred in not deciding the issue regarding limitation and in holding that the suit was within limitation. The lower appellate Court had erred in not considering the argument of the Defendants-Appellants that there had been interpolation in the agreement of hypothecation. The lower appellate Court had erred in not considering the argument of the Defendants-Appellants that the non-filing of the documents, on which the claim of the Plaintiff rested in the suit, would make the suit liable to be dismissed.
Issues: 1. Whether the suit was barred by limitation? 2. Whether the suit was maintainable as it had not been filed by a duly authorised person? 3. Whether the statement of account produced by the Plaintiff-Respondent, which was not certified properly under the Bankers Book Evidence Act, could be read in evidence? 4. Whether the alleged hypothecation agreement, which had not even been exhibited in evidence, could be relied upon? 5. Whether the lower appellate Court had erred in relying on unexhibited documents and in not noticing the objection that the document, which had not been exhibited in accordance with law as enshrined in Section 67 of the India Evidence Act, could not be read in evidence? 6. Whether the lower appellate Court had erred in not deciding the issue regarding limitation and in holding that the suit was within limitation? 7. Whether the lower appellate Court had erred in not considering the argument of the Defendants-Appellants that there had been interpolation in the agreement of hypothecation? 8. Whether the lower appellate Court had erred in not considering the argument of the Defendants-Appellants that the non-filing of the documents, on which the claim of the Plaintiff rested in the suit, would make the suit liable to be dismissed?
Ratio Decidendi: 1. A suit for recovery of money is barred by limitation if the Plaintiff has not pleaded the question of limitation specifically, as required under Order 7 Rule 7 Code of Civil Procedure. 2. A suit is not maintainable if it has not been filed by a duly authorised person. 3. A statement of account produced by the Plaintiff-Respondent, which is not certified properly under the Bankers Book Evidence Act, cannot be read in evidence. 4. An alleged hypothecation agreement, which has not even been exhibited in evidence, cannot be relied upon. 5. The lower appellate Court erred in relying on unexhibited documents and in not noticing the objection that the document, which had not been exhibited in accordance with law as enshrined in Section 67 of the India Evidence Act, could not be read in evidence. 6. The lower appellate Court erred in not deciding the issue regarding limitation and in holding that the suit was within limitation. 7. The lower appellate Court erred in not considering the argument of the Defendants-Appellants that there had been interpolation in the agreement of hypothecation. 8. The lower appellate Court erred in not considering the argument of the Defendants-Appellants that the non-filing of the documents, on which the claim of the Plaintiff rested in the suit, would make the suit liable to be dismissed.
Final Decision: The appeal was allowed and the judgments and decrees of both the Courts below were set aside. The suit of the Plaintiff-Respondent was dismissed with costs.
Surinder Sarup, J.
1. The present appeal has been filed by the Defendants-Appellants against the concurrent judgments and decrees of the two Courts below whereby a decree for recovery of Rs. 71,865.10 p. has been passed in favour of the Plaintiff-Respondent along with future interest at the agreed rate.
2. The Plaintiff-Respondent, being the Union of India, filed the suit against the Defendants-Appellants on the pleadings that the Defendant Nos. 2 and 3, on 30.9.1978 had been granted overdraft facility in the sum of Rs. 50,000/ by the Plaintiff-bank. They had agreed to pay interest @ 6% over and above the bank rate with minimum of 15% per annum with quarterly rests. The operation of their accounts by the Defendants was stated to be unsatisfactory. Hence a sum of Rs. 71,865.10 p., inclusive of interest was outstanding against them till the institution of the suit. Hence the suit for recovery of the said amount.
3. The Defendants in their written statement took up the preliminary objections that the suit was barred by limitation; that the suit was barred by misjoinder of parties and that the suit was not maintainable. It was also pleaded that the Plaintiff had not filed the documents in support of its claim along with the suit. Hence the suit was not maintainable and was liable to be dismissed. Since no plea regarding limitation was made, therefore, the suit was time-barred. On merits, the overdraft facility in question was admitted to have been sanctioned to Defendant Nos. 1 and 2 on 30.9.1978, while the suit had been instituted on 18.8.1986. The Plaintiff was required to state as to how it was within limitation. It was also pleaded that the suit had not been instituted by a duly authorised person, therefore it was incompetent and merited dismissal.
4. On merits, it was pleaded that Defendant No. 1 was the sole proprietorship concern of Defendant No. 2, while Defendant No. 3 had nothing to do with Defendant No. 1. The Defendant Nos. 1 and 2 had admitted having availed of overdraft facility in the sum of Rs. 50,000/- from the Plaintiff-bank on 30.9.1978. According to them, they had not agreed to pay interest at the rate of 6% over and above the bank rate with a minimum of 15% per annum with quarterly rests.
5. On the pleadings of the parties, the trial Court framed the following issues:
1. Whether the Plaintiff is entitled to the suit amount. If so, with what rate of interest ? OPP.
2. Whether the suit is not maintainable as having not been signed and instituted by authorised person as alleged? OPD.
3. Whether the suit is within limitation? OPP
4. Whether the plaint is not properly verified as alleged? OPD.
5. Whether the plaint is bad for misjoinder of Defendant No. 3? OPD.
6. Whether the suit is not maintainable in view of the preliminary objection No. 5 of the written statement ? OPD
6-A. What is the effect of the absence of averments regarding limitation in the plaint? OPD.
7. Relief.
6. All the Issues were decided in favour of the Plaintiff resulting in the suit being decreed by the trial Court, i.e. the Court of Shri R.L. Raghu, Senior Sub-Judge, Shimla by its judgment and decree dated 13.7.1989. The appeal by the Defendants-Appellants having been dismissed by Shri Shamsher Singh, the then Additional District Judge, Shimla on 31.8.1996 has given rise to the present second appeal.
7. I have heard the learned Counsel for the parties and have examined the record. It has first been submitted by Shri R.L. Sood, learned Counsel for the Appellants that the substantial question of law, as framed vide serial No. 11 to the effect as to what is the effect of non-production of the sanction/ authorisation by the bank in favour of the Manager of the branch to file the suit and whether the suit was bound to be dismissed in the absence of the same, stands established from the cross-examination of PW-1 Shri Anil Kapur. Therefore, I have proceeded to examine the statement of PW-1. He has categorically admitted that the power of Attorney Ex. P-1 is
