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Vinayak Narayan Deshmukh Vs. Kasabai Ramchandra Pokale and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 23 of 1983
Judge
Reported inAIR1985Bom237
ActsLimitation Act, 1963 - Sections 12(1) and 18; Stamp Act, 1899
AppellantVinayak Narayan Deshmukh
RespondentKasabai Ramchandra Pokale and ors.
Appellant AdvocateB.P. Apte, Adv.
Respondent AdvocateV.D. Hon, Adv.
Excerpt:
.....tax act 1961 s.132 - search and seizure--reason to believe--commissioner considering extensive information and anonymous petitions and undertaking detailed scrutiny. income tax act 1961 s.132 - 30, 1978 clearly states that the time for payment is extended, which means that there was a promise to pay the loan. the learned trial judge, therefore, clearly erred in holding that acknowledgment to be inadmissible in evidence on the ground that it is not stamped. 30, 1978 would be clearly in time. in the first place it is clearly a finding of fact based on appreciation of evidence and secondly the trial court was entitled to rely on plaintiff's evidence, though uncorroborated by other evidence......by the defendants in the written statement denying their liability to pay the amount. the learned trial judge rejected the contentions raised by the defendants on merits of the case. he, however, dismissed the plaintiff's suit on the ground of limitation. the plaintiff has, therefore, filed this revision application.2. on the admitted facts of this case, it is obvious that the learned trial judge had erred in holding that the suit is barred by limitation. admittedly the loan was advanced on mar.1, 1973, under a stamped receipt of the same date. there are two acknowledgements, one dt. dec. 30, 1975 and the other dt. dec. 30,1978. the suit is filed on mar. 20, 1981. the contention raised is two-fold. firstly, that the second acknowledgement dt. dec.30, 1978, is unstamped and therefore.....
Judgment:

1. This Civil Revision Application arises out of Small Cause Suit No. 14 of 1981 filed by the petitioner for recovery of Rs.900/- against the respondents in the Court of the Civil Judge, J.D. Jamkhed, Dist. Ahmadnagar. According to the plaintiff, he had advanced a sum of Rs. 900/- by way of loan to Ramchandra Maruti who was the father of defendants 2 to 5 and husband of defendant 1, on Mar. 1, 1973, and in token of having received the said amount. It was his further case that thereafter on Dec. 30, 1975, and on Dec. 30, 1978, the said Ramchandra acknowledged the said debt by making endorsements to that effect on the original document dt. Mar. 1, 1973, and in token of having received the said amount, Ramchandra executed a document on a stamp paper having received the said amount . It was his further case that thereafter on Dec. 30, 1975, and on Dec. 30, 1978, the said Ramachandra acknowledged the said debt by making endorsements to that effect on the original document dt. Mar. 1, 1973. The suit was filed after the death of Ramachandra against the defendants as his heirs. Various contentions were raised by the defendants in the written statement denying their liability to pay the amount. The learned trial Judge rejected the contentions raised by the defendants on merits of the case. He, however, dismissed the plaintiff's suit on the ground of limitation. The plaintiff has, therefore, filed this revision application.

2. On the admitted facts of this case, it is obvious that the learned trial Judge had erred in holding that the suit is barred by limitation. Admittedly the loan was advanced on Mar.1, 1973, under a stamped receipt of the same date. There are two acknowledgements, one dt. Dec. 30, 1975 and the other dt. Dec. 30,1978. The suit is filed on Mar. 20, 1981. The contention raised is two-fold. Firstly, that the second acknowledgement dt. Dec.30, 1978, is unstamped and therefore inadmissible in evidence. Secondly, in any event, the second acknowledgment dt. Dec. 30, 1978, having been made after the expiry of three years, cannot extend the period of limitation.

3. As far as the first contention is concerned, it is seen that the acknowledgment dt. Dec. 30, 1978 clearly states that the time for payment is extended, which means that there was a promise to pay the loan. In Govindram Mithamal v. Chotumal Vallerdas : AIR1970Bom251 , it has been held that in an acknowledgement of ant saving limitation under S. 19 of the Limitation Act. 1908 (which corresponds to S. 18 of the Limitation Act of 1963), the insufficiency or want of stamp is irrelevant and the document would still be admissible for proving the acknowledgment. The learned trial Judge, therefore, clearly erred in holding that acknowledgment to be inadmissible in evidence on the ground that it is not stamped.

4. The next question is whether the acknowledgment dated Dec. 30, 1978 is in time. It is not disputed that a fresh period of limitation started on Ramchandra executing the first acknowledgment dated Dec. 30, 1975. According to the defendants the period commences on the date of the acknowledgment itself and not on the next day and, therefore, the last date on which acknowledgment itself and not on the next day and, therefore, the last date on which acknowledgement could be made would be Dec. 29, 1978 and therefore the acknowledgement made on the next day i.e. on Dec. 30, 1978 is barred by time and cannot save the limitation. A similar question arose before the Judicial Commissioner, Nagpur, in Jainarayan Bapu v. Vithoba, AIR 1923 Nag 143. In that case the plaintiff had filed a suit on July 13, 1920for debts which had been acknowledged in writing on July 13, 1917. The trial Court had held that the provisions of S. 12 of the Limitation act do not apply to the computation of a period starting from the signature of an acknowledgment under S. 19 of the Act, for the reason that the word 'time' is used in the latter section and the word 'day' in the former and, therefore, dismissed the suit. The Court held that the two words 'time' and 'day' used in the two sections had the same meaning and, therefore, the suit is in time. A similar view has been taken by a learned single Judge of this Court in Someshwar v. Nivruti, : AIR1973Bom147 . This Court held that both in view of the provisions of S. 12(1) of the Limitation Act and of S. 9(1) of the General Clauses Act, it is clear that the day on which the acknowledgement is made will have to be excluded in computing the period of limitation of three years.

5. In the instance case, therefore, the first day, viz. Dec. 30, 1975, has to be excluded for the purpose of computing the period of limitation of three years. In other words, the limitation commences on the next day i.e. Dec. 31, 1975, and, therefore, the acknowledgment dated Dec. 30, 1978 would be clearly in time. Mr.Hon, appearing for the defendants, urged that the finding of the trial Court that the plaintiff had proved that he had advanced a loan of Rs. 900/- to deceased Ramchandra is incorrect and should be set aside. He submitted that the learned trial Judge ought not to have relied on the uncorroborated word of the plaintiff regarding the signature of deceased Ramchandra on the receipt dated Mar. 1, 1973. There is no substance in this contention. In the first place it is clearly a finding of fact based on appreciation of evidence and secondly the trial Court was entitled to rely on plaintiff's evidence, though uncorroborated by other evidence.

6. In the result the revision application is allowed, the impugned judgment and order dated Aug. 24, 1982, passed by the Civil Judge, J.D. Jamkhed is quashed and set aside and the plaintiff's suit is decreed in terms of prayer (a) of the plaint together with future interest from the date of the suit till realisation at the rate of 6% per annum and costs of the suit.

The respondent to pay the costs of this revision application.

7. Revision allowed.


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