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Commercial and Industrial Bank Ltd., Gunfoundry Through Manager Viswanath Rao, Bilurgikar Vs. J. Kanakachalam and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberC.C.C. Appeal No. 10 of 1957 and Cross objections
Judge
Reported inAIR1966AP246
ActsLimitation Act, 1908 - Sections 19 - Schedule - Article 85; Limitation Act, 1963 - Schedule - Article 1; Code of Civil Procedure (CPC) , 1908 - Sections 96 - Order 20, Rule 19(1)
AppellantCommercial and Industrial Bank Ltd., Gunfoundry Through Manager Viswanath Rao, Bilurgikar
RespondentJ. Kanakachalam and anr.
Appellant AdvocateY. Sivarama Sastry, Adv.
Respondent AdvocateT. Veerabhadrayya and ;Valluri Venkateswarlu, Advs.
Excerpt:
limitation - recovery of amount - article 85 and explanation 1 to section 19 of limitation act, 1908 and order 20 rule 19 (1) and section 96 of code of civil procedure, 1908 - respondent had current account with appellant - respondent given facility to overdraw amounts on depositing shares as security with appellant - appellant had right to sell shares and apply proceeds to overdraft account - last entry made on 28.01.1946 - appellant filed suit for recovery of balance amount on 25.07.1949 - whether suit barred by limitation - article 85 applied - period of limitation would be three years from close of year 31.12.1946 - held, suit was not barred. - - no doubt it has been established that the disputed shares have not been returned to them and the plaintiff's suit is time barred, but.....chandrasekhara sastry, j.1. the above appeal and the memorandum of cross-objections are filed against the judgment and decree in o. s. no. 58/1 o( 1955 on the file of the second additional judge 'city civil court, hyderabad.2. the plaintiff, the commercial and industrial bank ltd.. is the appellant in this ap peal. the suit was filed to recover i. g. rupee 5,078-0-7 equivalent to h. s. rs. 5,927-6-0 from the defendants. the plaintiffs case is shortly as follows. the plaintiff is a limited bank the defendants dealt in shares for which they required money from time to time. they arranged for overdraft accounts in i. g. and h. s currency in the plaintiff-bank agreeing to pay interest at 6 per cent per annum on the overdraft amounts.as security for the amounts thus drawn, the defendants used.....
Judgment:

Chandrasekhara Sastry, J.

1. The above appeal and the Memorandum of cross-objections are filed against the judgment and decree in O. S. No. 58/1 o( 1955 on the file of the Second Additional Judge 'City Civil Court, Hyderabad.

2. The plaintiff, the Commercial and Industrial Bank Ltd.. is the appellant in this ap peal. The suit was filed to recover I. G. Rupee 5,078-0-7 equivalent to H. S. Rs. 5,927-6-0 from the defendants. The plaintiffs case is shortly as follows. The plaintiff is a limited bank The defendants dealt in shares for which they required money from time to time. They arranged for overdraft accounts in I. G. and H. S currency in the plaintiff-bank agreeing to pay interest at 6 per cent per annum on the overdraft amounts.

As security for the amounts thus drawn, the defendants used to deposit shares of differed companies from time to time and also used to take back the shares by making payments. On 28-1-46, the defendants paid the balance due under the O. S, overdraft account and took a return of all the shares which were kept with them in the plaintiff-bank as security. The also executed a receipt specifying therein that all the entries made in the pass-book relating to the deposit and withdrawal of shares were cancelled.

On 28-1-46, an amount of Rs. 4,129-15-3 was outstanding against the I. G. overdraft ac count which they orally promised to pay in a few days. When subsequently they were asked to pay the amount due under the I. G. overdraft account also, objection was taken on behalf of the defendants that a few shares were still in deposit with the plaintiff-bank and that the amount could not be paid unless the shares were returned. The defendants in their letter dated 6-2-46, showed their readiness to pay the amount due in respect of the I. G. overdraft account. provided the shares specified in that letter were returned by the plaintiff-bank .

Again on 25-7-46, the defendants advocate wrote to the plaintiff-bank acknowledging the defendants' liability. The 2nd defendant filed a written statement. He stated that the plaintiff promised to pay the defendants by way of overdraft to the extent of Rs. 50,000 on the security Sf shares. According to their necessity, the de-fendants were sometimes drawing the amounts in O. S. currency and sometimes in I. G. currency for which one O. 8. current account and one

I. G. current account were maintained in the plaintiff-bank on behalf of the defendants.

On 28-1-46, shares of different kinds belonging to the defendants were in deposit with the plaintiff-bank as security. But on that date, only four kinds of shares mentioned in the written statement were returned to the defendants and three items consisting of 300 shares of Taj Glass Works, 100 shares of Biochemicals and Synthetic Products Ltd. and 2 shares of Hyderabad Construction Co., were retained by the plaintiff-bank. It was admitted that, on' that date, a sum of Rs. 4,129-15-3 was due from the defendants to the plaintiff in I. G. account.

The plaintiff stated that the said amount could be paid only when the shares arc returned. The defendants, by their letter dated 6-2-46, asked the plaintiff to return the shares. The value of those sharps which the plaintiff-bank still kept with it as security for the loan is I. G. Rs. 5,175 on 28-1-46 and if this amount is given credit to, the plaintiff-bank itself will be owing to the defendants a sum of I. G. Rupees 1,585-0-9. It was also pleaded that the suit is barred by limitation. The 1st defendant adopted the written statement of the 2nd defendant.

3. The plaintiff-bank, in its rejoinder, stated that all the shares were returned to the defendants on 28-1-46 on which date an amount of Rs. 19,572-7-o was paid by the defendants and O. S. currency account was Closed. It was pleaded that, unless Gourt-fee was paid by the defendants on the amount claimed by them, their plea was inadmissible, because to the extent of that claim, it amounts to a cross-suit which, according to the plaintiff, is untenable.

4. In view of the objection taken on behal of the plaintiff-bank in the rejoinder that the defendants' claim with respect to I. G. Rs. 5,715 representing of the then market value of the shares alleged to be still retained by the plain-tiff cannot be entertained unless the defendants pay the Gourt-fee thereon, the Court passed an order that the defendants shall pay the Court-fee on that amount and the Court-fee was accordingly paid by them.

In support of its case that all the shares deposited with it as security were in fact returned to the defendants, the plaintiff-bank relied upon a receipt, Ex. 2 dated 28-1-46. The receipt itself was type-written. Il specifically acknowledges receipt of four kinds of shares on that dale. The last two lines in the said receipt are as follows;

'Please note that this receipt cancels all the entries in the Pass-Book relating to shares.'

The defendant's case in the lower Court was that these two lines in receipt were subsequently interpolated by the plaintiff for the purpose of the suit,

5.It is necessary to refer to the following issues framed by the lower Court for the purpose of deciding this appeal and the Memorandum of cross-objections.

'3. Is the suit within Limitation?

6. Is the last portion in receipt dated 28-1-46 (Ex. 2) forged as alleged in paragraph 3 of the written statement and was subsequently added

7. If issue No. 6 found in the affirmative, what is its effect on this suit?'

(6) An additional issue was framed by the lower Court in the following terms:

'Whether the disputed shares have not been returned to the defendants?'

The lower Court held, on the additional issue, that the disputed shares were not returned by the plaintiff to the defendants. It also held, on Issue No. 6, that the last portion of the receipt dated 28-1-16 is forged. On the question of limitation, which is covered by Issue No. 3, the plaintiff relied upon two letters, Ex. B. 1 dated 6-2-46 and Ex. 3 dated 23-9-46 written by the defendants to the plaintiff as constituting acknowledgment of liability. The suit was filed on 25-7-1949. The lower Court held that these letters did not constitute acknowledgments of liability within the meaning of Section 19 of the Indian Lim. Act and that, therefore, the suit is barred by limitation.

At the same time, it observed as follows;

'Finding regarding issue No. 6 is that the last portion in receipt, dated 28-1-40 is forged. The effect of this finding when considered with other material is that the disputed shares have not been returned to the defendants. Now it remains to be considered as to what relief either of the parties is entitled. As the plaintiffs suit is time barred no relief can be granted to it. Nor can any relief be given to the defendants. No doubt it has been established that the disputed shares have not been returned to them and the plaintiff's suit is time barred, But is well established that the rules of limitation pertain to the domain of adjectival law and that they operate only to bar the remedy but not to extinguish the right.

According to Section 171 of the Indian Contract Act, the plaintiff has a right to retain the shares as a security for the amount due. According to Section 176 of the Indian Contract Act the plain-lift has a right to sell the shares on giving the defendants reasonable notice of sale. The effect of the plaintiff's suit being time barred is that remedy but the above said right is not extinguished. Therefore, the defendant also are not en titled in any relief '

In the result, the plantiffs suit was dismissed. The parties wen: directed to bear their own costs. Hence, the plaintiff filed the above appeal praying for a decree as claimed, in the plaint and the defendants filed the memorandum of cross-objections, claiming the value of the three kinds of shares as pleaded in the written statement.

7. The first question that arises for determination in this appeal is whether the suit is barred by limitation Firstly it is argued by Mr. Sivarama Sastry. the learned Counsel for the plaintiff-appellant that the overdraft loan account between the plaintiff and the defendants is a mutual, open and current account within the meaning of Article 85 of the First Schedule to the Indian Lim. Act and that the period of limitation is three years from the close of the year in which the last item admitted or proved is enter-ed in the account.

It is pointed out that the year in the present case is from 1st January to 31st December thatthe last payment, which is admitted and which is entered in the account, is dated 28-1-1946 and that, therefore, the suit, which is filed within three years from 31-12-1946 is in time. In support of this argument, reliance is placed upon the decision in R. N. Kapur v. T. N. and Q. Bank, AIR 1945 Mad 487. In that case, the question was whether Article 85 of the Indian Lim. Act applies to a case where a customer of a bank has a current account which at times is in credit and at other times is in debit, the bank having granted to the customer the right to overdraw.

The defendants in that case opened an account with the plaintiff-bank, which agreed to allow them to overdraw on the furnishing of collateral security. As security, the defendants executed promissory notes in favour of the bank and deposited shares which they held in limited liability companies, the share certificates being accompanied by transfer forms signed in blank and letters authorising the bank to sell the securities should they so desire. The bank had the right of calling in the overdraft at any moment. The question that arose for decision was whether Article 85 of the Lim. Act applied to the case. Leach, C. J., delivering the judgment of the Bench held as follows:

'When a person opens a current account with a bank and pays money into it, the money goes into the general funds of the bank which uses it for the purposes of its business. While the account is in credit the bank is a debtor to the customer. The customer can demand payment in whole or in part by drawing on the account. If the bank allows the customer to overdraw the account and he does so, he becomes a debtor to the bank and the bank in its turn is entitled to demand repayment of the overdraft without closing the account. Where the balance is a shifting one, the bank is under an obligation to the customer when the account is in credit and must meet his demand for payment; likewise when the account is overdrawn the customei is under an obligation to the bank and in law is bound to comply with the bank's demand for payment, when made. It seems to us that in these circumstances the account can only be regarded as a mutual account fulfilling the test laid down in 6 Mad I1CI1 142 Hirada Basappa v. G. Muddappa.'

As the account was an open and current account and as there was mutuality, the learned Judges held that Article 85 of the Lim. Act applied to the case. In the present case also, the account is an open and current one, the plaintiff bank al-lowed the defendants to overdraw to the extent of Rs. 50,000. The defendants were depositing with the plaintiff-bank shares as security for the amounts thus overdrawn. The shares were being deposited together with blank transfer forms It is also admitted by the 1st defendant in his evidence that the agreement signed by the defendants contained the term that the bank could sell the shares and apply the proceeds to the overdraft account.

Thus, the facts in this case are very similar lo the facts in the case in AIR 1945 Mad 467. In my view, the account between the plaintiff and the defendants is a mutual, open and current account where there have been reciprocal de-mands between them within the meaning of Article 85 of the Indian Lim. Act, The last payment admitted and entered in the account is dated 28-1-1946. That year closed on 31-12-1946. Hence, the suit filed on 25-7-19 i.e., within three years from the close of that year, is in time.

8. But it is contended by Mr. Venkateswarlu, the learned Counsel for the respondents that the suit is virtually one on a settled account as is clear from the allegations in the plaint and the rejoinder and is governed by Article 57 of the Indian Lim. Act and that, unless the plaintiff proves that the liability is acknowledged within three years from the date of the suit, it must be held to be barred by limitation. No doubt, in paragraph 4 of the plaint, it is alleged that, on 28-1-46, a balance of Rupees 4,129-15-3 was outstanding against the I. G. overdraft account of the defendants which they orally promised to pay off in a few days. Again in paragraph 6 of the plaint, it is stated that the defendants in their letter dated 6-2-10. have admitted owing Rs. 4,129-15-3 and that, apart from it, Mr. E. Venkateswara Rao, their advocate had admitted, in his notice dated 25-7-46, the fact of the defendants owing the said amount and that, in view of this, the suit is in lime.

These allegations do not necessarily lead to the conclusion that the account was finally settled on 28-1 -46 and that the suit is one based on a settled account. No doubt it does not appear that it was suggested on behalf of the plaintiff in the lower Court that the proper Article of limitation to be applied is Article 85 of the Lim. Act. But, if, on the facts of the case, it is clear to my mind that the proper Article is Article 85 that applies to this case, I do not find any difficulty at all in applying it.

9. Even assuming that the proper Article applicable is Article 57 of the Indian Lim. Act. still in my view, the letters, Ex B. 1 dated 6-2-16 written by the defendants to the plaintifl and Ex. 3 dated 25-7-46 written by their Advocate, Mr. E. Venkateswara Rao, contained acknowledgments of liability within the meaning of Section 19 of the Lim. Act. In Ex. B. 1 dated 6-2-46, a list of shares lodged with the plaintifl and still outstanding undelivered as on 26-1-46 was given. Next, it was stated that a sum oi O. S. Rs. 19,475-5-4 and I. G Rs. 4,129-15-3 with subsequent interest was payable to the plaintiff against the respective overdraft accounts Then, it is alleged in that letter that the plaintiff found that two shares of the Hyderabad Construction Co., under item 5 and the shares of Taj Glass Works and Biochemicals and Synthetic Products Ltd., under items 6 and 7 were missing. Therefore, the other four items and one share in item 5 were returned to the defendants and the 0 S. current account was closed.

Then, by that letter, the defendants lequest-ed the plaintiff to deliver without further delay the shares under items 5, 6 and 7 still remaining with the plaintiff-bank. The letter ended with the following request:

'On hearing from you, the amount due to you on our B. G. rupee account will be paid by us against delivery of the said shares and the D. P. note lodged with you as already stated,'

Mr. Venkateswara Rao, writing on behalf of his clients, the defendants stated that the defendants do not deny that their B. G. overdraft account with the plaintiff shows a debit balance of Rs. 4,129-15-3 as on 28-1-46 secured by the shares which were still with the plaintiff. The plaintiff was called upon lo arrange to deliver the outstanding undelivered shares and the two promissory notes held by the plaintiff as cot-lateral security and receive the balance outstanding on the said B. G. overdraft account of the defendants with the plaintiff bank.

In the alternative, it was stated that, if the plaintiff admits the loss of the said shares, it has to pay O. S. Rs. 1500, being the value of the

and shares less the amount outstanding on the

said B. G. overdraft account and also return the said two promissory notes executed by the defendants.

In my opinion, these two letters contain acknowledgments of liability within the mean-ing of Section 19 of the Indian Lim. Act. It was urgued in the lower Court and again before me that those arc not unconditional acknowledgments of liability and that, therefore, fresh period of limitation cannot be computed from hose dates, Reliance is placed upon the decision in Arunacbella Row v. Rangiah Appa How, 1906) 1LR 20 Mad 519 wherein it was held that an acknowledgment of a conditional liability will not, under Section 19 of the Lim. Act, give fresh start as long as the condition remains unfulfilled and that there must be an unqualified admission or an admission qualified by a condition which is fulfilled to save the suit from the bar of limitation

That decision cannot apply to the present case because in Ex.s. B. 1 and 3, the defendants clearly acknowledged their liability for the amount due on the B. G. account. After admitting their liability for the amount due, they claimed that certain shares given as security were still with the plaintiff-bank and a return of the same was demanded. The1 liability itself was not slated to depend upon the fulfilment of any particular condition. In this context, reference may also be made In Expl. 1 to Section 19, which is us follows:

For the purposes of this section, an acknow-edgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come, or is accompanied by a refusal to pay, deliver, perform or permit to enjoy is coupled with a claim to a set-off, or is addressed to a person other than the person entitled to the properly or right'

In view of this explanation, I do not find any difficulty at all in holding that the two letters, Exs. B-I and 3 contained acknowledgments of liability within the meaning of Section 19 of the Indian Limitation Act. The suit is, there-tore, in time.

10. The next question that arises for determination in this appeal is whether the plaintiff returned to the defendants the shares, which, the defendants alleged, arc still with the plaintiff. They are: (1) 300 shares of Taj Glass Works,

(2) 400 shares of Biochemicals and Synthetic products Ltd., and (3) 2 shares of Hyderabad Construction Co. The lower Court, on a review of the evidence, found that those shaves were not returned by the plaintiff to the defendants. Reliance is placed on behalf of the plaintiff upon the receipt, Ex. 2 and the shares register. Ex. D. 49. The lower Court held that the share register, Ex. D. 49 was not kept in the regular course of business.

The plaintiff's case is that these shares were returned on 28-5-45 and 14-6-45. A pass-book is issued to the defendants which contains entries regarding the deposits and withdrawals of the shares from time to time. The last entries therein were made on 28-5-45. This pass-book is marked as D. 50- Ex. D. 49 shows that two shares of Hyderabad Construction Co., and 15o) shares of Hyderabad Chemicals and Fertilisers Ltd., and others were returned; but in the pass book, Ex. D. 50 the return of the two shares of the Hyderabad Construction Co.. was not noted on that date while it contains entries relating to the other shares returned. If the two dis pitted shares were also returned on 28-5-45. there is no acceptable explanation as to why the were also not entered in the pass-book. Ex. D. 50

The explanation given by P. W 1 that the two shares were returned late in the after-noon and that, at that time, the pass-book was not brought by the defendants was rightly rejected by the lower Court. There is no receipt signed by the defendants acknowledging receipt of these disputed shares

It is suggested on behalf of the plaintiff that if was not the practice to take receipts from the defendants whenever the shares arc returned to them But this suggestion does not accord with Ex 2. the receipt 'dated 28-1-46 in which the defendants acknowledged the receipt of four kinds of shares When the defendants them selves were depositing the shares with the plain tiff, the plaintiff was giving receipts. Further the plaintiff would either have entered the return of the shares in the pass-book, Ex. D. 50 or would have taken an independent receipt like Ex. 2 if Ex. D, 50 was not available at the time. The lower Court also pointed out that all the entries did not find a place in the shares register. Ex. D. 49 and that it was not a register kept in the regular course of business It has given good reasons for coming to that con clusion and I do not see sufficient reason for differing from it. Entries of different dates clearly appear to have been written at the same time in Ex. D. 49. The lower Court, in my opinion, is right in rejecting it

I also agree with the view of the lower Court that the last two lines in Ex. 2 are a sub sequent interpolation made without the defendants knowledge and consent. Further, 1 cannot believe that the plaintiff would have returned the disputed shares on 28-1-46 when an amount oi about Rs. 4,000 was still due from the defendants in the I. G currency account and thus give up the security for the loan. I agree with the finding of the lower Court that the plaintiff did not return to the defendants 300 shares of Taj Glass Works, 400 shares ofBiochemicals and Synthetic Products Ltd.. and 2 shares of Hyderabad Construction Co., Ltd. The plaintiff is, therefore, liable to return the same to the defendants on the debt being discharged or in default to pay thee value of the same to the defendants.

11. It is in this view that it is necessary now to consider the claim made by the defendants in the written statement, which is the subject matter of memorandum of cross objections. It is argued by Mr. Sivarama Sastry, the learned counsel for the plaintiff-appellant that the claim made by the defendants in the written statement is not a set off within the meaning of Order 8, Rule 6 C. P, C. and that, therefore it cannot be entertained in this suit. It is further pointed out that under Section 176 of the Indian Contract Act, the plaintiff may bring the suit against the defendants upon the debt and retain the shares pledged as collateral security and that, therefore, the defendants are not entitled to claim the value of the shares in this suit.

No doubt, under Order. 8, Rule. 6(1) C. P. C. a set-oil could be claimed only with respect to any ascertained sum of money legally recoverable by the defendant from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff's suit. In support of this argument, reliance is placed upon the decision in Rarnbala Mulaswarni v. Sreerema Murti, AIR I960 Andh Pra 520. But that decision does not really support the contention of the learned counsel for the appellant.

In the present case, the claim made by the defendants in the written statement is in the nature of a counter-claim and on objection taken by the plaintiff in the rejoinder, the Court-fee prescribed was paid and therefore, the Court has to consider the truth and tenabllity of that claim in this suit. Under Order 20, Rule 19(1) C. P. C.

'Where the defendant has been allowed a set-off against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount is due to the defen dant and shall be for the recovery of any sum which appears to be due to either party.'

The next question that arises for consideration is whether the claim for the value of the securities made in the written statement is tenable in this suit, as a counter-claim or as a set-off to the plaintiff's claim. Mr. Venkateswarlu the learned counsel for the cross-objector relied upon the decision in Ramaswamy Chetty v. Pafaniappa Chettiar, 30 Mad LW 898: (AIR 1930 Mad 364). That was also a case of pledge. It was held therein that:

'In cases where the pledgee must either have the pledged property in his possession or must have improperly disposed of it. on the pledgee's default to produce the property which should be in his possession, the Court has to come to a conclusion about its value on the best materials available.'

That case arose, no doubt, out of a suit to redeem jewels, which were pledged for a loan and the pawnee already obtained a decree for the amount lent by him. While obtaining such a decree, he alleged that only two jewels werepledged and that he sold them tor a certain amount and obtained a decree for the balance-The pledgor's claim was that 11 jewels were pledged and that the sale alleged by the pledgee was fictitious. It is on these allegations that the suit for redemption of 11 jewels was filed. It was found that the 11 jewels were pledged and that the sale of the jewels alleged by the pledgee was a fictitious one. On that finding, the learned Judges, on the evidence on record, ascertained the value of the jewels and gave a decree for the amount setting it off against the amount decreed in the pledgee's favour in the prior suit. Mr. Sivarama Sastry rightly pointed out that the claim made by the pledgor in that case was by way of an independent suit brought by the pledgor to redeem the jewels pledged.

12. In the present case, the definite stand taken by the plaintiff is that the disputed shares were returned to the defendants on 28-1-46. But this is found against by the lower Court and I also held above that the finding of the lower Court is correct. As the claim made by the defendants in this suit is in the nature of a counter-claim and the necessary Court-fee has been paid on that claim and as the plaintiff has put it out of its power to return the disputed shares to the defendants I think it is just and proper to ascertain the value of the disputed shares and pass a decree in this suit itself in the terms of Order 20, Rule 19(1) C.P.C. In this context, I may mention that the case of the defendants that the plaintiff is not able In trace the shares even from January 1946 is true Therefore, in my opinion, it will be an idle formality to insist on the defendants filing a separate suit for redeeming the disputed shares and for possession or for their value in the alternative.

13. The next question that arises for de termination is what is the value of the disputed shares, which the plaintiff was bound to return to the defendants when they offered to redeem them by paying off the loan by their letter Ex. B. 1 dated 6-2-46. By that letter, the defendants offered to pay the entire balance of the debt due and asked for the return of the disputed shares. There was no reply at all to this This request was repeated by the defendants by their letter, Ex. B. 2 dated 17-4-46. The same offer was made by the defendants again under Ex. 3 dated 25-7-46.

It follows that there was a valid tender of the amount due even on 6-2-46 and it was on that date that the plaintiff should have accepted the amount due and returned the shares, but it failed to do so. Therefore in my opinion, the value of the shares has to be determined as on that date.

The lower Court fixed the value of the shares at Rs. 3,090. It appears that the defendants filed Exs. D-5 and D-12 which were said to be true copies of the Hyderabad Stock Exchange Ltd., quotations as on 28-1-46 and other dates. The lower Court, in paragraph 18 of its judgment, slated that the plaintiffs did not object to these documents being put in evidence and that, therefore, the question of proof was waived by them. Still, the lower Court did not place any reliance upon them because someperson from the Hyderabad Stock Exchange ought to have been produced as a witness to prove the facts disclosed in Exs. D. 5 and D. 12. The further comment made by the lower Court on this aspect is that the value disclosed in Exs. D. 5 and D, 12 exceeds the value given by the defendants themselves.

Next reference is made to a statement made by P. W. 1 that the value of the disputed shares was Rs. 3,090 and on that basis, it was found that the value of the shares was Rs. 3,090. It appears that on 7-12-1955 an application was made on behalf of the defendants to examine the Secretary, Hyderabad Stock Exchange Ltd., with his original register; but that application was dismissed by the lower Court by its order dated 11-1-56. But the suit itself was finally disposed of on 17-8-56.

In my view, the lower Court should have allowed the said application and given sufficient opportunity to the defendants to adduce evidence about the value of the disputed shares between 28-1-46 and 6-3-46. Therefore, I am constrained to remand the case to the file of the Lower Court for ascertaining that value and for passing a proper decree in terms of Order 20 Rule 19 C. P. C. The decree shall state what amount is due to the plaintiff as claimed in the plaint upto the date of the decree and what amount is due to the defendants and shall be for the recovery of any sum which appears to be due to either party.

14. The lower Court will give an opportunity to the parties to adduce evidence regarding the value of the disputed shares between 28-1-46 and 6-2-46.

15.I must refer to the objection taken by Mr. Sivaramasastry that the value of the memorandum of cross-objections is restricted to only Rs. 1,585 and that the Court-fee was paid only on that amount. This, in my opinion, is due to an error in the method of valuing the cross-objections because that was the amount which was claimed by the defendants after setting off their claim against the plaintiff's claim.

Mr. Venkateswarlu stated before me that he committed a mistake in valuing the cross-objections in that manner and that his client will pay the deficit court-fee of Rs. 335-8-0 if his client is given some time. I would have given him time to pay the deficit court-fee, but it is not necessary to do so because I am setting aside fhe judgment and decree of the Court below and remanding the case to the lower Court and I am directing the Court-fee paid on the appeal and the Memorandum of cross-objection to be refunded to the appellant and the cross-objector respectively.

It will be an idle formality to direct the cross-objector to pay the deficit Court-fee and then order its refund. The Court-fee paid on the memorandum of appeal will be refunded to the appellant and the Court-fee already paid on the memorandum of cross-objections will be refunded to the cross-objector. The parties will bear their own costs in the appeal and the memorandum of cross-objections The costs in the trial Court incurred by the parties and after this remand will be in the discretion of the lower

Court which will pass a decree after this remandin terms of Order 20. Rule 19 C.P.C.Appeal and Cross-objections remanded.


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