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CALCUTTA HIGH COURT
Dipankar Datta, J.
Mamata Ghosh Petitioner
versus
Tapas Kumar Ghosh —Respondent
C.O. No. 2015 of 2010
Decided on 12.4.2011
Key Points: - The judgment holds that Sant Lal Mahton requires a signed acknowledgment of payment to extend the period of limitation, and such acknowledgment must exist on the date the suit is instituted (!) (!) (!) . - If there is no signed acknowledgment by the payer, the requirement of Section 19 (and its proviso) for extending the period of limitation is not fulfilled, rendering the suit time-barred (!) (!) . - The Trial Court’s view that mere statements in the plaint could override the lack of written acknowledgment is rejected; only statements in the plaint are to be considered for rejection under O7 R11, and if those do not show valid exemption, the suit can be time-barred (!) (!) . - The appellate court grants relief under Order 7, Rule 11, and dismisses Money Suit No. 945/2007 as time-barred due to lack of signed acknowledgment (!) . - The decision references the necessity of a written or signed acknowledgment of payment to extend the limitation period, and clarifies that mere oral testimony or written statements without proper acknowledgment are insufficient to extend time (!) (!) (!) . - The judgment notes that an acknowledgment in a written statement is not sufficient to extend the period of limitation; it must exist on the date of institution of the suit (!) . - The Supreme Court interpretation cited clarifies that the payment must be acknowledged in writing in the prescribed form to extend limitation, and such acknowledgment must be proven; not merely evidenced by statements in pleadings (!) (!) . - The revisional application is allowed, and the suit is dismissed as time-barred; order for costs is not awarded (!) . - The case reiterates that Section 3 of the Limitation Act binds courts to dismiss suits filed after the statutory period, and exemptions must be pleaded with facts showing qualifying payments and written acknowledgments (!) . - The last payment date acknowledged by plaintiffs (April 8, 2005) is used to determine limitation but is insufficient without a signed acknowledgment (!) (!) (!) .
Dipankar Datta, J.— Money Suit No.945/2007 has been instituted by the opposite party against the petitioners claiming a decree for Rs.49,000 together with interest @ 12% p.a. for Rs.64,390 and further interest @ 12% p.a. till realization of the entire amount.
2. The plaint reveals that the petitioners approached the opposite party on diverse dates for loan to help them tide over financial crisis. In pursuance thereof they were advanced loan in phases totalling Rs.70,000 (approx.), the last of which was Rs.10,000 on December 6, 2000. However, only Rs. 21,000 had been repaid in instalments by the petitioners. In paragraph 38 of the plaint, it has been averred that the petitioners made the last payment of Rs.3,000 on April 8, 2005. Repeated persuasions on the part of the opposite party having failed to yield any result, the suit was presented in December, 2007.
3. The petitioners after entering appearance in the suit had filed a petition under Order 7, Rule 11 of the Code of Civil Procedure (hereafter the Code) read with Section 151 thereof. It was contended therein that the opposite party had never advanced any loan and the plea that he lent money is absolutely vexatious. It was also contended that the claim is barred by limitation and, therefore, the plaint ought to be rejected.
4. The opposite party opposed the petition by filing a written objection.
5. The petition for rejection of plaint was considered by the Trial Court on contest. By its order dated May 25, 2010, the Trial Court rejected the petition. It correctly expressed that while considering a petition for rejection of plaint, only the statements made in the plaint are to be looked into. Treating the said statements as correct, the suit cannot be held to be time-barred, since on April 8, 2005 the petitioners repaid Rs.3,000 for the last time. In holding so, the Trial Court overruled the objection of the petitioners that absence of any material evidencing payment made to the opposite party by the former in their own handwriting is fatal for the suit.
6. This order of the Trial Court is under challenge in this application under Article 227 of the Constitution of India dated June 23, 2010.
7. I have heard Mr. Mazumder, learned Senior Advocate for the petitioner and Mr. Biswas, learned Advocate for the opposite party.
8. The issue raised in this application is not res integra. The suit, on the authority of the decision of the Supreme Court in Sant Lal Mahton v. Kamla Prasad & Ors. AIR 1951 SC 477 does appear to be barred by limitation. The facts giving rise to the appeal before the Supreme Court are discussed in paragraph 2 of the decision and read as follows:
The appellants before us are the first party defendants in a suit, commenced by the plaintiff/respondents, for enforcement of a simple mortgage bond, by sale of the mortgaged property. The Trial Judge, while deciding all the other issues in favour of the plaintiffs, held on the evidence on the record, that the bond sued upon was not legally attested and hence could not rank as a mortgage bond. On this finding he refused to make a decree for sale of the mortgaged property in favour of the plaintiffs and passed a money decree, for the amount due on the bond, personally against the defendants first party. According to the Subordinate Judge, although suit was instituted more than 6 years after the date fixed for payment in the bond, yet the claim for personal relief against the mortgagors did not become time-barred by reason of the fact that there were several payments made by the defendants towards the satisfaction of the debt, which attracted the operation of Section 20 of the Indian Limitation Act. Against this decision an appeal was taken by the defendants mortgagors to the High Court of Patna, but no appeal or cross-objection was filed by the plaintiffs against the refusal of the Trial Court to make an order for sale of the mortgaged property in their favour. The appeal was heard by a Division Bench of the Patna H
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