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2019 Supreme(Mad) 2125
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. PONGIAPPAN, J.
S.R. Gopalakrishnan - Appellant
Vs.
G. Vasantha - Respondent
A.S.(MD)No.163 of 2010 and M.P(MD)No.1 of 2010
Decided On : 23-04-2019
For the Appellant : Mr. C. Vakeeswaran
For the Respondent: Mr. Veera Kathiravan Sr. Counsel
Headnote:
Limitation Act - Section 3 - Trial Court - suit for recovery with interest – Bank - Challenged by the defendant on following grounds - Defendant used to pay the interest through husband of plaintiff, at month for some months and then he failed to pay interest from year of - In meantime there was a serious dispute between defendant and eldest son of plaintiff in their business in partnership on the plea that the son of the plaintiff misused a property document of the defendant in obtaining loan, in of one Trading Company from Union Bank of India of Branch, Madurai defendant refused to release deposited money of plaintiff - There was few between the parties for amicable settlement of releasing deposited money but defendant was adamant in releasing money owed to the plaintiff – Held, Now, before trial Court, on side of plaintiff, the carbon copy of the petition in filed by defendant was marked as said petition, there was an express acknowledgement by defendant that he has paid interest - In order to deny the said averment, the defendant has not entered into the box and denied said document. So, it can be presumed that the copy of the petition filed in is a genuine one - In the said circumstances said admission made by defendant is nothing but he admits liability - Even though the contention of the defendant that no amount is due from him to respondent filing of petition for declaration that he has paid more amount towards principal by way of interest and leaving the said petition for dismissal will prove that there is a real valid acknowledgement by defendant in respect to alleged transaction - In said circumstances, as already discussed, the Suit has been filed in Court said circumstances will prove that the Suit is not barred by limitation - It is made clear that in this case no demand was made by plaintiff within period prescribed under Article 60 of the Limitation Act - However, if that was so, the suit was certainly not barred by Law of Limitation - Hobble Apex Court in Judgment in reported in has held that the very institution of the suit itself would tantamount to demand and the defendant cannot plead that the suit is barred by the period of limitation - Accordingly, even though there is no earlier demand Notice was issued by plaintiff to the defendant in respect to the suit claim very institution of the suit has to be taken into account that she made demand only on the date on which suit was filed - Now in said circumstances, Section 60 of Limitation Act is no way helpful to the case of defendant trial Court, on appreciation of above facts came to the correct conclusion that defendant is having the liability to pay the suit amount with interest - For above said reasons, this Court approved the decision taken by the trial Court. Accordingly Point are answered – petition dismissed
JUDGMENT :
The unsuccessful defendant in O.S.No.16 of 2009, on the file of the learned Additional District and Sessions Judge, Fast Track Court No.III, Madurai, is the appellant herein. Before the trial Court, the respondent / plaintiff filed a suit for recovery of Rs.7,50,000/- with interest from the date of plaint till the date of realisation and for costs. By the Judgment and Decree, dated 16.09.2009, the learned Additional District and Sessions Judge decreed the Suit with costs, directing the defendant to pay a sum of Rs. Rs.7,50,000/- with interest at the rate of 12% per annum from the date of filing of the suit till the date of Judgment.
2. For the sake of convenience, the parties are referred to as, as described before the trial Court.
3. The gist of averments made in the plaint, in brief, are as follows:-
(i) The defendant is doing the Jewellery Business, under the name and style of “Jeyalakshmi Jewellery Mart” and was having a close contact with one G.Sivanandam, the plaintiff's eldest son. He requested the members of the plaintiff's family to deposit the money in the account of “Jeyanthi Finance”, his another concern and in response to the request of the defendant, the plaintiff, her son, daughter and daughter-in-law all have deposited a sum of Rs.17,20,000/-, during the period of 2000-2004. Against which, the defendant issued receipts with a chit in his own handwriting in acknowledgement of alleged deposits, in favour of “Jeyanthi Finance”. The plaintiff deposited Rs.4,00,000/- on 01.08.2000, besides a sum of Rs. 3,50,000/-, on 28.01.2003, with the defendant, who issued the deposit receipts in writing respectively.
(ii) The defendant used to pay the interest through the husband of the plaintiff, at the rate of 2% per month, for some months and then, he failed to pay interest from the year of 2005. In the meantime, there was a serious dispute between the defendant and the eldest son of the plaintiff in their business in partnership on the plea that the son of the plaintiff misused a property document of the defendant in obtaining loan, in favour of one “Arasan Trading Company” from the Union Bank of India of Kochadai Branch, Madurai. Therefrom, the defendant refused to release the deposited money of the plaintiff. There was few Panchayats between the parties for the amicable settlement of releasing the deposited money, but the defendant was adamant in releasing the money owed to the plaintiff.
(iii) Based on the complaint given by the plaintiff, a criminal case was registered against the defendant, in Crime No.42 of 2006, by the Inspector of Police, City Crime Branch, Madurai and the same is pending for investigation. The defendant somehow managed on 19.09.2006 to file an anticipatory bail application. After getting the anticipatory bail order, he filed the vexatious petition against the plaintiff in PCEIOP No.1 of 2006, on the file of the learned First Additional District Judge, Madurai. The said petition was dismissed for default on the part of the defendant. In the said proceedings, the defendant has admitted his liability to repay the deposit and he himself alleged in PCEIOP No.1 of 2006 that he has regularly paid interest for the deposit upto May, 2006, as such, the question of Limitation will not arise. Even after registration of the criminal case, the defendant has not realized his moral and legal responsibility to discharge the monetary liability. Hence, the Suit.
4. The gist of the averments made in the written Statement filed by the defendant, in brief, are as follows:-
The defendant had paid the entire principal amount with interest to the plaintiff. Apart from that, the suit is filed after the lapse of statutory period of limitation and hence, the suit is not maintainable. The plaintiff has received 36% of interest per month for the loan amount. A criminal case in Crime No.42 of 2006, registered against the defendant was closed, as a Mistake-of-fact. The Document No.1 filed along with the plaint clearly shows tha
