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Brij Mohandas Gokulchand Vs. Narsinghdas Manoharilal and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial;Limitation
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 30 of 1965
Judge
Reported inAIR1971MP243
ActsLimitation Act, 1963 - Sections 14 - Schedule - Article 22; Code of Civil Procedure (CPC) , 1908 - Sections 34 - Order 7, Rule 10
AppellantBrij Mohandas Gokulchand
RespondentNarsinghdas Manoharilal and ors.
Appellant AdvocateJ.M. Anand and ;B.L. Agarwal, Advs.
Respondent AdvocateB.D. Gupta, Adv.
DispositionAppeal allowed
Cases ReferredRamchandra v. Union of India
Excerpt:
- - 10000/- for being honoured by the defendant, but he failed to do so. gupta, learned counsel for the respondents, however, urged that under section 14 of the limitation act time could be excluded only if the plaintiff was prosecuting 'with due diligence' another civil proceeding and that e was prosecuting the said proceeding 'in good faith'.he urged that neither the plaintiff prosecuted the proceedings with due diligence; nor were the proceedings prosecuted in good faith. he urged that the burden of proving due diligence and good faith is on the plaintiff and that the said burden was not discharged by him. if the plaintiff thought that the shivpuri court had jurisdiction, it cannot be said that the presentation of the plaint before the shivpuri court was not in good faith......district judge, shivpuri, for recovery of rs. 10,343-14-6. 3. during the pendency of the suit, manoharilal died and proceedings were taken to bring his legal representatives on record. apart from the present respondents, who are the legal representatives of manoharilal, the plaintiff had proposed addition of one more son of manoharilal as a defendant. his addition was objected to on the ground that he was given in adoption and ceased to be the legal representative of manoharilal. after enquiry, the court found that he was, in fact, given in adoption. all this took considerable time. when the legal representatives were substituted, they filed fresh written statements and denied their personal liability. they also totally denied the suit transaction with manoharilal and also.....
Judgment:

Bhave, J.

1. This is plaintiff's appeal.

2. The plaintiff's case was that he had deposited Rs. 10,500/- with Manoharilal, the original defendant, on condition that the defendant shall pay out of the said amount any sum required by the plaintiff from time to time and on the amount lying in deposit with the defendant the plaintiff shall get interest. On 2-10-1951 the defendant had sent a note of account under his own signature to the plaintiff in which it was admitted that Rs. 8,449/- were in deposit with him as also the interest due on the said sum. On 12-7-1953 the plaintiff sent a Hundi for Rs. 10000/- for being honoured by the defendant, but he failed to do so. This made the plaintiff suspicious about the intentions of the defendant. He, therefore, sent a notice dated 29-9-1954 demanding the return of the amount together with interest. In reply to that notice the defendant admitted the deposit but put forth certain objections for not satisfying the demand. The plaintiff, therefore, filed the present suit in the Court of Additional District Judge, Shivpuri, for recovery of Rs. 10,343-14-6.

3. During the pendency of the suit, Manoharilal died and proceedings were taken to bring his legal representatives on record. Apart from the present respondents, who are the legal representatives of Manoharilal, the plaintiff had proposed addition of one more son of Manoharilal as a defendant. His addition was objected to on the ground that he was given in adoption and ceased to be the legal representative of Manoharilal. After enquiry, the Court found that he was, in fact, given in adoption. All this took considerable time. When the legal representatives were substituted, they filed fresh written statements and denied their personal liability. They also totally denied the suit transaction with Manoharilal and also pleaded that the Shivpuri Court had no jurisdiction, as the cause of action arose at Gwalior.

4. The Shivpuri Court thereafter framed a preliminary issue on jurisdiction and held by its order dated 18-3-1963 that the said Court had no territorial jurisdiction and directed the plaint to be returned to the plaintiff. On 22-4-1963 the plaintiff applied to the Court for the plaint being returned and the same was returned on that very day after the necessary endorsements were made thereon. On 23-4-1963 the plaint was presented before the Gwalior Court. The plaintiff claimed that the time spent before the Shivpuri Court be excluded from computation under Section 14 of the Limitation Act.

5. When the plaint was presented at Gwalior, the defendants urged that no period spent before the Shivpuri Court could e excluded. In any case, it was urged that the period between 18-3-1963 to 22-4-1963 could not be excluded and that the suit was thus barred by time.

6. The trial Court held that the plaintiff had deposited Rs. 10,500/- with the original defendant Manoharilal in the year 1950 and that after taking into account the withdrawals made by the plaintiff, the defendant's liability came to Rs. 10,318.44p. inclusive of interest till the date of the suit. The trial Court also held that the plaintiff was entitled to deduct the period from the date of the suit--28-9-1954--to 18-3-1963, the date of the order of the Court directing the return of the plaint. The trial Court, however, held that the plaintiff was not entitled to deduct the period between 18-3-1963 to 22-4-1963 as that period could not be held to be the period during which the plaintiff was bona fide prosecuting his suit in that Court. The trial Court held that the cause of action arose on 2-10-1951 and as such the suit was barred by limitation. Thus, though the trial Court held on merits in favour of the plaintiff, the suit was dismissed on the ground of limitation. The plaintiff has, therefore, preferred this appeal.

7. Shri J.M. Anand, learned counsel for the appellant, urged that the trial Court overlooked the provisions of Order 7, Rule 10 of the Code of Civil Procedure wherein it is enjoined on the Court to make certain endorsements before the plaint is returned to the plaintiff. He urged that the proceedings before the Court do not come to an end as soon as the order is passed holding that the Court has no jurisdiction and that the plaint should be returned. The proceedings come to an end when the necessary endorsements are made. Shri Anand, therefore, urged that the trial Court was in error in assuming that the proceedings came to an end before the Shivpuri Court on 18-3-1963. It is not disputed that till 22-4-1963 no endorsement was made on the plaint by the Shivpuri Court and thus the plaint was not ready for being returned to the plaintiff. Shri Anand urged that there is no rule making incumbent on the plaintiff to apply to the Court for making the necessary endorsements. The plaintiff cannot, therefore, be held guilty of laches if he does not move the Court immediately for that purpose.

In support, Shri Anand relied on the decision in Fatehlal v. Fulchand, 1961 Jab LJ 1412 wherein it was held that the proceedings do not end on the date on which an order for return of the plaint is passed either by the trial Court or by the appellate Court but continue till the endorsement required under Order 7, Rule 10 has been made by the Court; and that if for any reason, the Court delays the making of the endorsement the plaintiff is not to blame for it and he is entitled to exclude the time so taken by the Court. It was observed in that case that if the plaint is ready for return after the necessary endorsement has been made and the plaintiff does not take it back, he cannot be considered to have prosecuted the proceedings with due diligence and would not be entitled to any exclusion of time after the plaint was ready for return.

Similar view was taken in Ram Naresh Sharma v. Ram Siya Shivhare, Civil Revn. No. 455 of 1969, decided on 3-2-1970 = (1970 Jab LJ (SN) 121). The decision in Ramchandra v. Union of India, AIR 1961 Raj 162, relied on by the trial Court, also takes the same view. But in that case it was held that the plaintiff was guilty of certain laches and the period during which the plaintiff was guilty of not carrying out his obligations could not be excluded. In that case the plaintiff was directed to file a true copy of the plaint for the purposes of record before the plaint could be returned- The period during which the copy was not supplied by the plaintiff was, therefore, held to be not available to the plaintiff under Section 14 of the Limitation Act. That is not the case here. No order was passed by the Shivpuri Court giving any direction to the plaintiff to act in any particular manner. On the contrary, it was the plaintiff who moved the Court on 22-4-1963 to return the plaint. The necessary copy was also filed by him on that very date and the plaint was returned. Thus, there were no laches on the part of the plaintiff and he was entitled to the period upto 22-4-1963 when the plaint was returned as till that date no endorsement was made by the Court on the plaint and the proceedings had not come to an end in that Court. On behalf of the respondents no decision was cited before us taking any contrary view.

8. Apart from this, we find that the trial Court was in error in holding that the cause of action arose on 2-10-1951. Admittedly, this was a case of deposit by the plaintiff of certain amount with the defendant. The cause of action in case of deposits arises when a demand for the return of the deposit is made. That demand was admittedly made in 1954 when the plaintiff sent the notice to the defendant to return his amount. If the limitation is calculated from that date, the suit would be very much in time even if the period between 18-3-1963 to 22-4-1963 is not excluded.

9. Shri B.D. Gupta, learned counsel for the respondents, however, urged that under Section 14 of the Limitation Act time could be excluded only if the plaintiff was prosecuting 'with due diligence' another civil proceeding and that e was prosecuting the said proceeding 'in good faith'. He urged that neither the plaintiff prosecuted the proceedings with due diligence; nor were the proceedings prosecuted in good faith. He urged that the burden of proving due diligence and good faith is on the plaintiff and that the said burden was not discharged by him.

Shri Gupta, therefore, attacked the finding of the trial Court that the period between the filing of the suit and the order of the Court for return of the plaint could be excluded. In support of his contention he pointed out that the plaintiff had unnecessarily proposed the name of one of the sons of Manoharilal who had gone in adoption. The period spent in the enquiry over that matter could not, therefore, be excluded, the prosecution of the case not being with due diligence. Shri Gupta also urged that the explanation given by the plaintiff as to why he filed the suit before the Shivpuri Court was not at all satisfactory. It cannot, therefore, be said that the plaintiff was prosecuting the case with due diligence.

We do not find any substance in this contention. The adoption in question was not witnessed by any registered document. The plaintiff was not likely to know that there was, in fact, any adoption. It was his duty to propose all the heirs of Manoharilal as proposed legal representatives. If any time was spent on the enquiry over that matter, the plaintiff cannot be blamed for it. Similarly, it cannot be held that the plaintiff had presented the plaint before the Shivpuri Court without any justification whatsoever. We have already pointed out that it was a case of deposit. The relationship of creditor and debtor had come into existence. In such cases it is the duty of the debtor to find the creditor and return the amount to him. The plaintiff was admittedly living at Shivpuri. If the plaintiff thought that the Shivpuri Court had jurisdiction, it cannot be said that the presentation of the plaint before the Shivpuri Court was not in good faith.

10. For the aforesaid reasons, it must be held that the plaintiff was entitled to exclude all the period from 28-9-1954 to 22-4-1963, the date on which the plaint was returned after due endorsements, and that the suit was not barred by limitation.

11. On merits, the decision of the trial Court is based on the statement of accounts sent by the original defendant and his other letters acknowledging the deposit with him, supported by the evidence of the plaintiff. As already indicated, the trial Court has held that the present defendants are liable to pay the amount due from the original defendant Manoharilal to the extent they are in possession of the assets of the said Manoharilal and that they are not personally liable for the claim of the plaintiff. Shri Gupta, in face of the overwhelming evidence did not seriously challenge the findings of the trial Court on merits. The same are confirmed by us.

12. Shri Gupta, however, urged that the defendants are not responsible for all the time that was taken up in the Shivpuri Court and they should not, therefore, be made liable for interest during that period. We do not find any substance in this submission. In our opinion, the suit was properly filed before the Shivpuri Court. It was because of the objection of the defendants themselves that the wrong decision was reached by the Shivpuri Court and the plaint was returned. The defendants have retained the amount without any justification. The plaintiff is entitled to interest for all this period.

13. In the result, the appeal is allowed and the decree of the trial Court dismissing the plaintiff's suit on the ground of limitation is set aside. The plaintiffs claim in the sum of Rs. 10,318.44 p. is decreed. The plaintiff shall also be entitled to interest at the rate of 6 per cent. per annum on the decretal amount from the date of the suit, i.e., the date on which plaint was represented at Gwalior till realisation. The defendants shall be liable to pay the decretal amount to the extent of the assets in their hands of the original defendant, late Manoharilal. The plaintiff shall also get costs throughout. A decree be drawn accordingly.


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