Meena Rai Vs Neeta

The present appeal has been filed against the judgment and decree passed by the VIIIth Additional District Judge, FTC Durg (C.G.) in Civil Suit No.33-B/2003 dated 30.09.2008 wherein and whereby, the civil suit filed by the plaintiff was decreed and the defendant/appellant was directed to make payment of Rs.80,000/- with interest at the rate of 6% per annum. It is also observed that the suit was dismissed for want of prosecution on 25.08.2005 and it was restored on 15.06.2007, therefore, the plaintiff would not be entitled to get interest for that period.

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The plaintiff filed a suit for recovery of Rs.80,000/- with interest @ 18% per annum on the ground that a loan of Rs.1,00,000/- was

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advanced to the defendant and agreement Ex.P/1 was executed between the plaintiff and defendant on 08.09.1995 in presence of two witnesses, namely, Mahipat Singh and D.N. Tiwari. A stamp paper of Rs.10/- was purchased by the defendant herself on 06.09.1995. The agreement would reveal that an amount of Rs.20,000/- was refunded by the defendant to the plaintiff on 25.03.1997. The back-leaf of the stamp paper was signed by the plaintiff in the presence of two witnesses but it does not contain the signature of the defendant. The defendant failed to refund the balance amount, therefore, registered legal notice was sent on 29.10.1998 but when the defendant failed to make payment, a civil suit was filed on 18.01.1999. It is further pleaded that the defendant was indulged in the business of beauty parlour and she was in need of Rs.1,00,000/-. She approached the plaintiff and in turn, the plaintiff requested one Mahipat Singh, who was a moneylender and managed an amount of Rs.1,00,000/-. As per further pleading, Mahipat Singh withdrew Rs.60,000/- from his bank account, took a loan of Rs.20,000/from D.N.Tiwari and Rs.20,000/- cash, a total of Rs.1,00,000/- was given to the defendant by the plaintiff on the date of execution of the agreement. It is further pleaded that an amount of Rs.20,000/- was refunded by the defendant to the plaintiff on 25.03.1997 in the presence of two witnesses, namely, Mahipat Singh and D.N. Tiwari. The defendant filed a written statement and took a specific plea that a stamp paper was purchased by the defendant for the execution of a joint tenancy agreement and no loan was obtained by her. It is further pleaded that the defendant opened a beauty parlour after obtaining a loan from the bank and other sources. It is further pleaded that on 25.03.1997, Rs.20,000/was not refunded to the plaintiff and the entry made in this regard is a

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forged one.

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Learned Trial Court framed issues and held that an agreement was entered into between the plaintiff and defendant on 08.09.1995; Rs.1,00,000/- was advanced as a loan by the plaintiff to the defendant; Rs.20,000/- was refunded by the defendant on 25.03.1997, Ex.P/1 stamp paper is admissible in evidence and suit is within limitation.

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Learned Trial Court vide judgment dated 30.09.2008 directed the defendant to make payment of Rs.80,000/- with interest @ 6% per annum to the plaintiff. The interest would not be payable for the period from the date of dismissal of the civil suit in want of prosecution till the date of restoration.

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Mr. Tiwari, the learned counsel appearing for the appellant / defendant argued that the agreement dated 08.09.1995 Ex.P/1 is a forged document as no loan was obtained by the defendant to open a beauty parlour. He further submitted that the plaintiff and defendant wanted to open a beauty parlour and for tenancy purposes, a stamp paper was purchased and on blank stamp paper, the defendant had put her signature. He also submitted that the plaintiff in plaint has stated that Rs.80,000/- was advanced by Mahipat Singh and Rs.20,000/- was taken as a loan from D.N. Tiwari but no agreement was entered into between D.N. Tiwari, Mahipat Singh and the plaintiff which establishes that a fraud was played against her. He further argued that the defendant had taken loans from the Bank and other sources. He also argued that the backleaf of the stamp paper, wherein it is stated that Rs.20,000/- was refunded by the defendant to the plaintiff on 25.03.1997, does not contain the signature of the defendant and according to the provisions of

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Section 19 of the Limitation Act, 1963, such entry is not admissible. He further contended that an agreement was entered into between the parties on 08.09.1995 and the limitation to file a civil suit for recovery is three years according to the Limitation Act whereas, the suit was filed on 18.01.1999 after the expiry of the limitation period. He further submitted that the entry in the back leaf would not extend the limitation period as it does not contain the signature of the defendant. He also submitted that a legal notice was issued to the defendant and the same was replied to and the allegations made therein were specifically denied. He lastly submitted that the learned Court below has committed an error of law in decreeing the suit.

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On the other hand, Mr. Pandey, the learned counsel appearing for the plaintiff/respondent would oppose the submissions made by Mr. Tiwari. He submitted that the parties entered into an agreement on 08.09.1995 and Rs.1,00,000/- was advanced to the defendant. He further submitted that a stamp paper was purchased by the defendant herself for agreement between the plaintiff and the defendant. He further argued that after receiving Rs.1,00,000/-, the stamp paper was signed by the defendant and she had put her signature on the revenue stamp. It is also argued that the agreement was signed in the presence of two witnesses, namely, Mahipat Singh (PW2) and D.N. Tiwari (PW3), who have supported the case of the plaintiff. It is further argued that Rs.20,000/- was refunded by the defendant herself to the plaintiff on 25.03.1997 in the presence of two witnesses and the same was received by the plaintiff and was signed too. He further submitted that from 25.03.1997, the suit is within limitation as it was filed on 18.01.1999 and therefore, the contention with regard to the delay raised by Mr. Tiwari is

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misconceived. He further argued that the learned Trial Court after appreciating the entire evidence found the agreement valid and genuine and the defendant has not raised any specific ground to presume the agreement Ex.P/1 forged one. He lastly submitted that the appeal deserves to be dismissed.

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I have heard the learned counsel appearing for the parties and perused the record.

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From a perusal of the record, it is quite vivid that an agreement was entered into between the parties on 08.09.1995 vide Ex.P/1 and Rs.1,00,000/- was advanced as a loan to the defendant.

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The stamp paper Ex.P/1 would show that it was purchased by the defendant herself for agreement purposes. The agreement was signed by the defendant in the presence of two witnesses and both the witnesses, namely, Mahipat Singh and D.N. Tiwari have proved the contents of the agreement.

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Mr. Mahipat Singh (PW2) has categorically deposed in his evidence that Rs.60,000/- was withdrawn by him from Bank, Rs.20,000/cash was in his hand and a loan of Rs.20,000/- was taken from D.N. Tiwari and total Rs.1,00,000/- was advanced by the plaintiff to the defendant in the presence of the witnesses. D.N.Tiwrai (PW3) has also supported the contention made by Mahipat Singh.

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From a perusal of the evidence of the plaintiff, Mahipat Singh (PW2) and D.N. Tiwari (PW3), in the opinion of this Court, it cannot be held that the agreement entered into between the parties is a forged document. It can safely be held that the loan of Rs.1,00,000/- was advanced by the plaintiff to the defendant and the findings recorded by

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the learned Trial Court in this regard are correct.

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Now coming to the issue of limitation as raised by Mr. Tiwari, in the back leaf of the agreement dated 08.09.1995, it is endorsed that Rs.20,000/- was refunded by the defendant to the plaintiff on 25.03.1997. The back leaf contains the signature of the plaintiff and two witnesses, namely, Mahipat Singh and D.N. Tiwari. The plaintiff, Mahipat (PW2) and D.N. Tiwari (PW3) have proved the contents of the back-leaf of the stamp paper but it does not contain the signature of the defendant.

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Section 19 of the Limitation Act, 1963 deals with the effect of payment on account of debt or of interest on legacy. According to the proviso appended to this Section, there must be an acknowledgment of the payment in handwriting or writing signed by the person making the payment. Section 19 reads as under:-

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“19 . Effect of payment on account of debt or of interest on legacy -Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorized in this behalf, a fresh period of limitation shall be computed from the time when the payment was made:

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Provided that, save in the case of payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment.

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Explanation.—For the purposes of this section,—

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(a)where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment;

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(b)“debt” does not include money payable under a decree or order of a court.”

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In the present case, the learned Trial Court has found the civil suit within limitation on account of the endorsement made in the back leaf of the stamp paper dated 25.03.1997. According to Section 19 of the

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Limitation Act, it must contain the signature of the defendant and in the absence of her signature, it cannot be held that any payment was made by the defendant to the plaintiff to bring the suit within limitation. The scope of Section 20 of the Limitation Act, 1908 which corresponds with Section 19 of the Limitation Act, 1963 came up for consideration before the Hon’ble Supreme Court in the matter of Sant Lal Mahton Vs. Kamla Prasad, AIR 1951 SC 477 , wherein it was held as under:-

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“9 . It would be clear, we think, from the language of section 20 of the Limitation Act that to attract its operation two conditions are essential: first, the payment must be made within the prescribed period of limitation and secondly, it must be acknowledged by some form of writing either in the handwriting of the payer himself or signed by him. We agree with the Subordinate Judge that it is the payment which really extends the period of limitation under section 20 of the Limitation Act; but the payment has got to be proved in a particular way and for reasons of policy the legislature insists on a written or signed acknowledgment as the only proof of payment and excludes oral testimony. Unless, therefore, there is acknowledgment in the required form, the payment by itself is of no avail. The Subordinate Judge, however, is right in holding that while the section requires that the payment should be made within the period of limitation, it does not require that the acknowledgment should also be made within that period. To interpret the proviso in that way would be to import into it certain words which do not occur there. This is the view taken by almost all the High Courts in India and to us it seems to be a proper view to take.”

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As the back leaf of the stamp paper dated 25.03.1997 does not contain the signature of the defendant, therefore, it has no evidentiary value and endorsement cannot be used against the defendant. The limitation to file a civil suit would start to run from the date of agreement dated 08.09.1995 whereas, on 18.01.1999, the civil suit was filed, therefore, the suit was barred by limitation as it was filed after the expiry of three years and thus, the finding recorded by the learned Trial Court in this regard is erroneous and contrary to law.

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Taking into consideration the above-stated facts, in the opinion of this Court, the judgment passed by the learned Trial Court is not

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sustainable in the eyes of law, therefore, the same is hereby set aside. The appeal is accordingly allowed .

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Mr. Tiwari, the learned counsel appearing for the appellant/defendant submitted that the defendant had already deposited the decretal amount with the Trial Court, therefore, the defendant would be at liberty to move an appropriate application for the release of that amount.

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A decree be drawn accordingly.

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Sd/-

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(Rakesh Mohan Pandey) Judge

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Rekha

Meena Rai v. Neeta

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Meena Rai v. Neeta

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