Final Order 1

Order Details: Copy of Judgment
Pdf Text: Sum. Suit No.760/2021 1 Judgement
MHCC010034412021
Presented on : 30032021
Registered on : 08092021
Decided on : 01.02.2024
Duration : YY:MM:DD
02: 10: 06
IN THE BOMBAY CITY CIVIL COURT, MAZGAON AT BOMBAY
SUMMARY SUIT NO. 760 OF 2021
EXHIBIT NO.19
Mrs. Manjula Nitin Chheda
Age:67 years,
Residing at: 31, Ganesh Baug, Jawaharlal
Nehru Road, Mulund West, Mumbai 400080 ... Plaintiff.
V/s
Mr. Harakchand Ratanshi Sangoi
Age: Adult,
Residing at: C/o. M/s. Jyoti Textiles, 4,
Union Mansion, Opposite Hindmata Cinema,
Dr. Ambedkar Road, Dadar, Mumbai
400014. ... Defendant.
CORAM: HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(INCHARGE OF COURT ROOM NO.83)
DATE : 01st DAY OF FEBRUARY, 2024
: Appearances:
Ld. Adv. Vaishali Sharma i/b. Harakchand and Co. for the plaintiff.
Defendant Exparte.
JUDGMENT
The plaintiff has filed the present suit for recovery of the
principal amount of Rs.2 Lakhs plus arrears of interest amounting to
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Rs.89,500/ from 1 st April 2018 till 24 March 2021 i.e., till filling of the
suit @ 15% per annum on the said principal amount of Rs.2 Lakhs and
aggregating to Rs.2,89,500/ and further interest from the date of the
filling of the suit, till its full realization.
2. In short, facts of the case are as under:
On 03.01.2014, the defendant had received a sum of Rs.2 Lakhs
on interest, thereby promising to the plaintiff of repay of said amount @
15% p.a., as and when demanded by the plaintiff by executing a
writing/ Demand Promissory Note. The plaintiff paid said amount vide
cheque bearing no.000000716324 dated 03.01.2014 drawn on HDFC
Bank, Mulund West Branch, encashed on 06.01.2014.
3. It was mutually agreed in between the plaintiff and the
defendant that if the defendant would be regular in payment of interest,
then the plaintiff would give the rebate/ concession in the rate of
interest from 15% to 12% per annum. The defendant has paid regularly
interest amount from 31 March 2014 till 28.03.2018, as per the table
shown in para 5 of the plaint.
4. It is submitted that, thereafter, the defendant has failed and
neglected to pay the interest amount on the principal amount of Rs.2
Lakhs from 01.04.2018. The defendant is in arrears of interest amount
from 01.04.2018. In spite of repeated requests and demand made by
the plaintiff, the defendant has failed and neglected to pay the said
amount. Therefore, the plaintiff has issued notice dated 27.02.2021,
thereby called upon the defendant, to repay the principal amount of
Rs.2 Lakhs alongwith interest accrued and due thereon @ 15 % per
annum from 01.04.2018 till 31.01.2021. In spite of receiving notice, the
defendant neither replied nor complied the same. Hence, the present
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suit.
5. In spite of service, the defendant failed to appear, hence, matter
proceeded Exparte against the defendant vide order dated 15.03.2022.
6. The plaintiff has filed claim affidavit of Nitin Talakshi Chedda,
Constituted Attorney of the plaintiff at Exh.3. The plaintiff relied on the
documents filed alongwith list Exh.4.
7. Heard the Ld. Advocate for the plaintiff. Perused the record.
8. Following points arise for my determination, to which I have
given my findings with reasons as follows:
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled for
recovery of principal amount of Rs.2
Lakhs plus interest thereon amounting
to Rs.89,500/ from 01.04.2018 to
24.03.2021 @ 15% per annum and
further interest from the date of filing of
the suit, till its full realization as
claimed?
No.
2. What Order and Decree? As per final
order.
REASONS
As to Point No.1:
9. The plaintiff has filed claim affidavit of Nitin Chedda, who
deposed as per the contents of the plaint averments; hence, I do not
want to reproduce the same to avoid the repetition. The plaintiff has
filed the copy of Power of Attorney (Exh.5 and Exh.6 respectively). The
plaintiff has filed Original Copy of Promissory Note alongwith its
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translation in English Language supported by affidavit of Namit Karani
(Exh.7 and 16 respectively). Upon perusal of the same it reveals that
the defendant has taken loan of Rs.2 Lakhs on 03.01.2014 @ 15%
interest per annum with promise to repay same amount as well as
interest accrued thereon as and when demanded by the plaintiff. The
plaintiff has filed copy of Original Passbook of the Saving Account with
HDFC Bank containing relevant entries pertaining the suit transactions
as regards payment of sum of Rs.2 Lakhs to the defendant (Exh.8). The
plaintiff has also filed Copy of Original Passbook containing the relevant
entries of the receipt of interest by the plaintiff from the defendant
(Exh.9 and Exh.10 respectively). Upon perusal of same it reveals that
the defendant had paid interest from 27.03.2014 till 28.03.2018 by
cheques. The plaintiff has also filed Original Counter Foil of pay slips of
the plaintiff's Saving Bank Account with HDFC bank and Central Bank
of India (Exh.11). The Copy of Notice dated 27.02.2021 alongwith
Postal receipt and acknowledgment are at Exh.12 to 14 respectively.
10. It is contention of the plaintiff that the defendant has paid
interest to the plaintiff till 31.03.2018 by issuing cheques. The last
payment of interest by cheque was on 31.03.2018 and fresh period of
limitation is computed from the time the last payment of interest was
made i.e., since 31.03.2018 u/sec.19 of the Limitation Act. Thus, the
suit is will within limitation.
11. Herein it is to be seen that as per the plaintiff himself the
principal amount of Rs.2 Lakhs was handed over to the defendant on
03.01.2014 upon executing demand promissory note by the defendant.
As per plaintiff's himself the last payment of interest was made by the
defendant on 28.03.2018 by issuing cheque bearing no.322721 drawn
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on Central Bank of India, Naigaum Branch.
12. As per Article 21 of the Limitation Act, Limitation of three years
is provided for money lent under an agreement that it shall be payable
on demand, when the loan is made. As per Article 35 of the Limitation
Act, the limitation of three years provided for a due amount on a bill of
exchange or promissory note payable on demand and not accompanied
by any writing restraining or postponing the right to sue from the date
of the bill or note.
13 The Hon'ble Bombay High Court in the case of Central Bank of
India V/s. Ali Mohammad and Anr., decided on 04.03.1992 at para
no.56 observed that, “Even if the word has been used in articles 21 and
35 that the amount shall be payable on demand, the time will not run
from the date of demand because statues provide that time begins means
cause of action begins from the date of the execution of the agreement,
deed or note. It means, creditor has made the demand within the
prescribed period of three years. No other contrary view possible in view of
specific provision. Supposed if a demand of loan amount is made on last
day of the specified period of limitation of three years, and if it is
construed that time will begin from the date of demand, which is against
the statutory provisions and such extension would be even in absence of
and acknowledgement of earlier dues, time would be extended from that
date. If such view is taken then the statutory provisions of limitation to
institute the suit, to prefer an appeal and to file an application will be
redundant. It is no doubt, the article 22 of the Limitation Act deals with
the money deposited under an agreement that it shall be payable on
demand, including money of the customer in the hands of his banker so
payable. Under this article also the limitation prescribed is of three years
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and time begins from the date of demand is made. This case is applicable
in the case where the customers used to deposit money or articles in the
banks and there is specific agreement that on demand, the money or
articles shall be payable and returnable on demand. For Example:
Customer deposit money in the bank and wants to withdraw either by
cheque or by draft and presents the same instrument, the bank is liable to
pay on demand. If there is refusal, from the date of refusal the period of
Limitation begins to run. But it will not applicable in case of fix deposits,
because no customer is expected to demand and returned of his amount
kept in fixed deposit for certain period, as well as the banker is not obliged
to return the said on the demand of the customers. Therefore, there is
difference and distinction between the deposit and loan.’
The Hon'ble Bombay High Court further at para no.57 held that, “In
view of these provision if the fresh limitation is to begin from the date of
demand, extending statutory provision of limitation, the statutory
provision of limitation would be redundant and thereby it will be contrary
and violative to the provisions of law”.
14. As the defendant has executed the promissory note on
03.01.2014, the limitation for institution of suit is of three years from
the said date i.e., till 03.01.2017. In view Section 18 of the Limitation
Act, the acknowledgement is in writing, signed by the party against
whom such property and right is claimed, or by any person through
whom he derives his title or liability, then and then fresh period of
limitation shall be computed from the time when the acknowledgement
was so signed. Here it is to be seen that admittedly, the defendant had
acknowledged and paid the amount of Rs.15,167/ on 28.03.2018 by
cheque bearing no.322731, thus, suit is to be filed from the date of
acknowledgement within three years i.e., till 28.03.2021. However, the
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suit was lodged on 30.03.2021, hence, in my humble opinion the suit is
hopelessly barred by limitation. Hence, my answer to point no.1 is in
negative.
AS to Point No.2.
15. In view of my above discussion, I pass the following order;
ORDER
1. Summary Suit No.760 of 2021 is dismissed with Cost.
2. Decree be drawn up accordingly.
3. Summary Suit No.760 of 2021 disposed of.
(Virendra D. Kedar)
Judge, City Civil & Sessions Court,
Date:.01.02.2024 Mazgaon, Gr. Mumbai
(C.R. No.14)
Dictated on : 01.02.2024
Transcribed on : 01.02.2024
Signed on : 01.02.2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 02.01.2024 NAME OF STENOGRAPHER
TIME: 01.15 p.m. Mr. Ashok Sudhakar Patil
Name of the Judge (With Court
room no.)
HHJ Shri Virendra D.Kedar
(Court Room No.14)
Date of Pronouncement of
JUDGEMENT/ORDER
01.02.2024
JUDGMENT/ORDER signed by
P.O. on
01.02.2024
JUDGEMENT/ORDER uploaded on 02.02.2024
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