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2001 Supreme(Mad) 965
IN THE HIGH COURT OF JUDICATURE AT MADRAS
K.Govindarajan, J.
Nachimuthu Gounder alias Duraiyan
Versus
Ganthimathi and others
S.A.No.1708 of 1988
Decided On : 29 August 2001
T.M.Hariharan, for Appellant.
M.M.Sundaresh and S.Vaithyanathan, for Respondents.
Plaintiff not entitled to take benefit of the extended period of limitation.
Headnote:Limitation Act, 1963-Section 5-Tamil Nadu Debt Relief Act, 1980-Suit by plaintiff on the basis of pronote-Suit filed beyond period of limitation contending that the defendants were agriculturists entitled to benefits of the Debt Relief Act-In the same Paras averring that defendants being owner of extensive lands not entitled to the benefit of Act 1980-Such averments has been made with dishonest intention-Plaintiff held not entitled to for extended period of limitation.
2. The plaintiff filed a suit in O.S. No.487 of 1981 on the file of the District Munsif Court, Dharapuram for recovery of a sum of Rs.7,475 on the basis of a pronote Ex.A-1 dated 3.7.1974, executed by the first defendant. On 2.7.1977 an amount of Rs.25 was paid towards the said pronote, which has been endorsed on the promissory note and marked as Ex.A-2. To recover the said amount, the plaintiff filed the suit on 2.1.1981, stating that she could not file the suit within the period of three years of limitation, as the moratorium was in force. The promisee, the first defendant died. So, his legal representatives were impleaded as defendants 2 to 5.
3. The 2nd defendant filed a written statement, and the other defendants adopted the same. According to the defendants, the amount had already been discharged, and the suit is barred by limitation.
4. The trial Court though held that the suit is not barred by limitation, dismissed the suit holding that the defendants had established the discharge of the suit debt. So, the plaintiff filed appeal in A.S. No.8 of 1988 on the file of the Sub Court, Dharapuram. The lower appellate Court found that the defendants had not established the discharge of the suit debt, and the suit is not barred by limitation. On the basis of the abovesaid findings, the lower appellate Court decreed the suit by allowing the appeal. Hence, this second appeal.
5. The substantial questions of law that were formulated in this second appeal are:
(1) Whether on the admission of P.W.1 about the wealth and resources of the defendants, the suit could be held to be in time on the fact of the Moratorium Acts particularly when the specific plea of extension of limitation under the Act is not raised?
(2) Whether the finding against the plea of discharge by payment to the plaintiff is sustainable when D.Ws. have given positive evidence and the plaintiff has not entered the witness-box?
6. The learned counsel appearing for the appellant has submitted that since the plaintiff has come forward with the specific plea in the plaint itself that the defendants are having extensive properties and earning enormous income, the plaintiff is not entitled to extend the period of limitation on the basis that the moratorium period under the Debt Relief Act was in force. In the present case, the pronote was executed on 3.7.1974 and an endorsement for payment of Rs.25 towards the pronote was made on 2.7.1977. So, the plaintiff ought to have filed the suit on or before 2.7.1980, but the same was filed on 2.1.1981.
7. In paragraph 5 of the plaint, the plaintiff has stated, to get the period of limitation extended, as follows:
“5. The defendants are agriculturists entitled to the benefits of the Moratorium Acts applicable to the agriculturists. So even though three years have elapsed from the date of the endorsement viz., 2.7.1977 the suit is in time. Since the defendant owns extensive lands and gets enormous income he is not entitled to the benefits of Act 13 of 1980. So the suit lies against the defendants.”
8. To get the limitation extended, the plaintiff has come forward with the plea that the defendants are agriculturists entitled to the benefits of the Moratorium Acts applicable to the agriculturists, and so the plaintiff has filed the suit in time. But, at the same time, the plaintiff has come forward with the further plea that the defendants own extensive lands and get enormous income, and so they are not entitled to the benefit of the Act 13 of 1980. So, now, it has to be decided, can the plaintiff sustain the suit as it has been filed beyond the period of limitation contemplated under the Indian Limitation Act. As stated already, the suit has to be filed on or before 2.7.1980. But it was filed only on 2.1.1981.
9. To claim that the suit is in time, the plaintiff is trying to take advantage of the currency of Temporary Debt Relief Acts under whi
