In a suit for recovery of money, a running account does not qualify as a mutual account under Art. 1 of the Limitation Act, rendering the residuary Art. 113 applicable; concurrent findings by lower courts regarding the nature of transactions are not subject to interference under S. 100 CPC without perversity.

JUDGMENT :

P.B. BALAJI, J.

The unsuccessful defendant, in a suit for recovery of money, is the appellant herein.

2. I have heard Mr.F.X.Eugene, learned counsel for the appellant/defendant and Mr.M.Thirunavukkarasu, learned counsel for the respondents / plaintiffs.

3. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

4. The respondents / plaintiffs sought for recovery of a sum of Rs.4,07,247.07 together with interest and costs before the trial Court in O.S.No.36 of 2008.

5. The suit was resisted by the appellant / defendant mainly on the grounds that the plaint was not duly verified by an authorized person, who was not empowered to file the suit, representing the plaintiffs. The suit was also resisted on the ground that the claim is time barred and that the account was not continuous, open, mutual and current as alleged by the plaintiff.

6. Based on the pleadings, the trial Court framed the following issues:

7. On the side of the plaintiffs, one Stalin Dhanaraj was examined as P.W.1 and 21 documents were marked as Ex.A1 to Ex.A21. On the side of the defendant, the defendant examined himself as D.W.1 and did not choose to mark any documents.

8. On appreciation of the pleadings as well as the oral and documentary evidence, the trial Court decreed the suit for a sum of Rs. 2,83,217/- together with proportionate interest and costs. The plaintiffs did not choose to challenge the disallowed portion of the suit. However, the defendant preferred an appeal in A.S.No.31 of 2020 before the Additional District and Sessions Court, Srivilliputhur. The said appeal came to be dismissed by the first appellate Court, confirming the findings of the trial Court.

9. As against the concurrent findings of the trial Court as well as the first appellate Court, the defendant filed the present second appeal.

10. The second appeal has not yet been admitted. However, since the respondents / plaintiffs are on caveat, I have proceeded to hear the learned counsel on either side.

11. Mr.F.X.Eugene, learned counsel for the appellant / defendant would firstly contend that the suit is hopelessly barred by limitation. In this regard, he would point out that though the plaintiffs came to Court with a specific case that the suit was not barred by limitation, in view of the acknowledgement of debt by the defendant, the document marked as Ex.A16 dated 29.11.2006, did not in any manner advance the case of the respondents / plaintiffs. Mr.F.X.Eugene, learned counsel would further contend that the plaintiffs had also specifically pleaded in the plaint that the account was a mutual account. Further, relying on the alleged last date of payment having been made by the appellant / defendant on 28.12.2004, the learned counsel for the appellant / defendant, Mr.F.X.Eugene, would contend that admittedly the suit having been filed only on 02.01.2008 was clearly out of time. Additionally, Mr.F.X.Eugene, would also contend that the plaintiffs were sufficiently protected by the Bank Guarantee and instead of invoking the same and without even impleading the bank as a party defendant, the suit filed against the appellant / defendant itself was not maintainable. Taking me through the suggested substantial questions of law, learned counsel for the appellant/ defendant would pray for the second appeal to be admitted and an opportunity to be given to the appellant / defendant to canvass his case in greater detail, after calling for the records from the Court below.

12. Per contra, Mr.M.Thirunavukkarasu, learned counsel for the respondents / plaintiffs would firstly contend that the Courts below, viz., the trial Court as well as the first appellate Court, have rightly appreciated the pleadings, oral and documentary evidence available on records and in fact, they did not even grant relief in entirety, to the respondents / plaintiffs and only proceeded to restrict the entitlement of the respondents/ plaintiffs. Mr.M.Thirunavukkarasu, learned counsel would