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Punjab National Bank Ltd. Vs. Hind Textile Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberSuit No. 2527 of 1948
Judge
Reported inAIR1969Cal390
ActsLimitation Act, 1908 - Sections 19, 20 and 30 to 32 - Schedule - Articles 136 and 183; ;Code of Civil Procedure (CPC) , 1908 - Order 21, Rule 41; ;Contract Act, 1872 - Section 43
AppellantPunjab National Bank Ltd.
RespondentHind Textile Ltd. and ors.
Appellant AdvocateA.K. Basu, Adv.
Respondent AdvocateG.P. Kar, Adv. (for Jhajharia) and ;Sachindra Kumar Ray, Adv. (for Hind Textile Ltd.)
Cases ReferredRam Kumar Pandey v. Hira Lal.
Excerpt:
- .....december, 1950 an application was made for execution of the said decree by arrest and detention of shri jhajharia. the said application was, however, abandoned. on the 28th september, 1951 a second application for execution of the decree by attachment of shares of shri jhajharia in messrs. hall and anderson was made and a writ of attachment of such shares was issued. the said writ, however, could not be executed for want of particulars. on the 29th of april, 1334 the third application for execution of the decree by arrest and detention of shri jhajharia was made. no order was made on the application except as to costs. shri jhajharia gave an undertaking to pay the decretal amount. this court gave liberty to the decree-holder to make further application, if necessary. on the 2nd of.....
Judgment:

Sabyasachi Mukharji, J.

1. This is an application by tabular statement dated 22nd February 1968 for execution of a decree by sale of certain shares. On 18th of January, 1948 the Punjab National Bank Ltd, herein referred to as the plaintiff, instituted a suit in this High Court against the Hind Textile Ltd., Nanda Kishore Jhajharia and Seth Ramdhondas Jhajharia, inter alia, for a decree for Rupees 3,64.913-8-7, for a declaration that the securities mentioned in para, 11 of the plaint are charged with the repayment with the dues of the plaintiff. On the 16th of February, 1949 a decree was passed by this High Court whereby it was decreed that the defendant. Hind Textile Ltd. and Nanda Kishore Jhajharia should pay to the plaintiff a sum of Rs. 3,64,913-8-9 with an interest therein at the rate of 6 per cent per annum from the date of the decree until realisation and it was further ordered and decreed that the securities mentioned in paragraph 11 of the plaint should be charged with the repayment of the amount payable to the plaintiff. No relief was claimed against the defendant Seth Ramdhondas Jhajharia except that the claim for declaration that the securities mentioned in paragraph 11 of the plaint are charged with the repayment of the amount payable to the plaintiff by the defendant in the said decree.

2. Thereafter it appears that on the 2nd of December, 1950 an application was made for execution of the said decree by arrest and detention of Shri Jhajharia. The said application was, however, abandoned. On the 28th September, 1951 a second application for execution of the decree by attachment of shares of Shri Jhajharia in Messrs. Hall and Anderson was made and a writ of attachment of such shares was Issued. The said writ, however, could not be executed for want of particulars. On the 29th of April, 1334 the third application for execution of the decree by arrest and detention of Shri Jhajharia was made. No order was made on the application except as to costs. Shri Jhajharia gave an undertaking to pay the decretal amount. This Court gave liberty to the decree-holder to make further application, if necessary. On the 2nd of August, 1956 the fourth application for execution was made by the decree-holder for arrest and detention of Shri Jhajharia. The said application was, however, ultimately abandoned. On the 20th of January. 1961 the fifth application was made by the decree-holder under Order 21, Rule 41 of the Civil P. C. for examination of Shri Jhajharia as to his properties and assets. On 20th of July, 1962 payment of a sum of Rs. 20,000 was made. The circumstances under which this payment was made are matters of considerable Importance in this case. It will further be considered in detail later on. On 27th of August. 1962 examination of Shri Jhajharia as a judgment-debtor took, place. This Court directed Shri Jhajharia to give the decree-holder a statement in writing containing detailed particulars of the share-holdings in different companies and also statement showing the particulars of any decree that might have been passed by any Court of law in favour of Shri Jhajharia against any party with the detailed particulars as to the amounts involved. On the 27th of September, 1962 another application was made by the decree-holder for attachment of the shareholdings of Shri Jhajharia and certain decrees obtained by him.

3. On the 14th of March, 1963 an order was made by this Court attaching shares standing in the name of Shri Jhajharia mentioned in the said Tabular Statement and also the said decrees, Shri Jhajharia preferred an appeal from the said order. On the 12th of January, 1965 the decree-holder made an application for sale of the said attached shares. On the 3rd of August, 1965 the said appeal of Shri Jhajharia against the order of this Court dated the 14th March, 1963 was disposed of by the following order;--

'The decree-holder will put to sale the shares mentioned in the decree in the first instance and only when these shares are found unsaleable or inadequate, the decree-holder will proceed to sell the other shares details whereof are set out in the Schedule to the order of attachment dated 14th March, 1963 and take steps for realisation of the decretal amount in the decree mentioned in page 25 of the Paper Book. The attachment will continue. Liberty to apply. The decree-holder will add costs of this appeal to its claim. The appeal is disposed of accordingly'.

4. On the 17th of August, 1965 the said application of the decree-holder for sale of the attached shares came up for hearing before A.N. Ray J., and the following order was passed:--

'Having regard to the Court of Appeal's order dated 3rd August, 1965, the petitioner does hot wish to proceed with the application. No order is made on this application except that the petitioner will pay the respondents the costs of this application. Certified for Counsel. This order is without prejudice to the rights and contentions of the parties including that of the question of limitation'.

5. On the 22nd February, 1968, as mentioned hereinbefore, this application was moved by a Tabular Statement for execution of a decree in terms of the liberty given by the Court of Appeal on the 3rd of August. 1965, as mentioned hereinbefore.

6. Mr. A. K. Basu, learned counsel for the applicant decree-holder contends that his client is entitled to an order as prayed. He urges that in view of the payment made on the 20th of July, 1962, and in view of the provisions of Section 19 and Section 20 of the Limitation Act, 1908, his client's claim is within the period of limitation and his client is entitled to an order. Mr. Basu relies on the provisions of Arts. 182 and 183 of the Limitation Act, 1908. The learned counsel argues that in view of the Bench decision of this Court in Subodh Chandra Mitra v. Kanailal Mukherjee, : AIR1968Cal280 , the provisions of the Limitation Act of 1963 would not stand in his way. Mr. Basu urges that against both the defendants, Mr. Jhajharia and Hind Textile Ltd., his client is entitled to the benefit of the payment made on the 20th July, 1962 and Mr. Basu has relied on the decision of Tugan Mull v. Ladhulal, AIR 1931 Pat 218; Arjee Prabappa Chetti v. K. Deshikchari, AIR 1925 Mad 1131 and the Bench decision in the case of Zeenutinessa Begum v. Nawab Syed Waris AH Mirza Saheb Bahadur, : AIR1965Cal473 .

7. Mr. G. P. Kar, learned counsel for Shri Jhajharia, contends that the present application is barred by limitation. He argues that twelve years from the last payment expired in January, 1965. According to him, Article 183 read with Section 20 of the Limitation Act, 1908 saved the decree till January, 1965 and the said decree cannot be executed after January, 1965. He urges secondly that the Limitation Act, 1908 has been repealed by the Limitation Act, 1963. Article 136 of the Limitation Act of 1963 provides that the decree must be executed within twelve years from the passing of the said decree and part payment under the new Limitation Act does not save the decree for the purpose of limitation. He argues that the circumstances under which the payment was made on the 20th July, 1962 clearly established that it was an involuntary payment made pursuant to an order of this Court. Mr. Kar urges that payment of this type would not save limitation. He relies on the decision of Ramdas v. Kanshiram (1912) 14 Ind Cas 335 at p. 339 (Lah).

8. Mr. Sachindra Kumar Ray, learned counsel for the Hind Textile Ltd. adopts the argument of Mr. Kar. He further argues that whatever view the Court might take about the payment of Rupees 20,000 by Nanda Kishore Jhajharia on the 20th of July, 1962 that payment does not in any event save limitation as against Hind Textile Ltd. He relies on the decisions reported in 0065/1935 : AIR1935Cal648 ; : AIR1939All230 .

9. Before the rival contentions of the respective parties are considered, it is necessary to examine the circumstances under which payment was made on the 20th July, 1962 as mentioned hereinbefore. On the 20th of January, 1961 an application was made by the decree-holder under Order 21, Rule 41 of the Code of Civil Procedure for examination of Shri Jhajharia. It appears that Shri Jhajharia wanted time. Time was granted to him by A, N. Ray, J., upon certain conditions. His Lordship made the following order : 'Upon the judgment-debtor's undertaking to Court through his counsel to pay to Mr. Basu's client, the sum of Rupees 20,000 by 4 p. m. today, the matter is adjourned till 17th August .1962. In default of payment as aforesaid within the time aforesaid, liberty to mention on 21st July, 1962 at my residence on previous appointment being obtained through the Court Officer. If the payment is made by cheque and the cheque is dishonoured, the same liberty to mention.'

10. It appears that after that on 20th of July, 1962 Shri Nanda Kishore Jhajharia made payment of Rs. 20,000 to the plaintiff decree-holder.

11. The question that arises for consideration in this case is whether the payment made on the 20th of July, 1962, under the circumstances mentioned hereinbefore amounts to a payment which would save limitation in this case,

12. It appears from the order A. N. Ray. J., that the judgment-debtor gave an undertaking to the Court to pay Rs. 20,000. Pursuant to that undertaking the sum of Rs. 20,000 was paid. It has been urged that to be a payment under Article 183 of the Limitation Act 1908 it has to be a voluntary payment. It has further been argued that a payment made pursuant to an order of the Court is not such a payment as contemplated under Article 183 of the Limitation Act of 1908. I am unable to find such a restriction in the language of the Statute. It has to be a payment no doubt. It must not be so involuntary as to cease to be a payment and become 'an exaction' to use the expression of White, J. In (1880) ILR 6 Cal 504 at p. 506. But beyond this there is no further requirement. In this connection it is important to bear in mind the difference in language between Section 20 and Article 183 of the Limitation Act of 1908.

13. In the decision in the case of AIR 1925 Mad 1131 (supra) the Division Bench of the Madras High Court has held that under Article 183 payment is not required to be made either by a debtor or some other person acting on his behalf for the purpose of saving limitation. Payment for judgment-debtor or to hie account is sufficient. Their Lordships of the Madras High Court considered the difference in language between Section 20- and Article 183 of the Limitation Act, 1908. In the case of AIR 1931 Pat 218 (supra) the Division Bench of the Patna High Court has held that provision of Article 183 regarding acknowledgments as well as payments are self-contained and must be read Independently of Ss. 19 and 20 of the Limitation Act. Their Lordships of the Patna High Court were of the opinion that the word payment' has been used in Article 183 in a wider sense than in Section 20. The expression 'payment' in Article 183 is not qualified in any way as to the mode in which payment is to be made. Their Lordships further held that payment by one judgment-debtor would save limitation against other judgment-debtor. In the decision of 0065/1935 : AIR1935Cal648 R. C. Mitra, J., was considering Section 20 of the Limitation Act, 1908. His Lordship was not concerned with Article 183. Under Section 20, His Lordship held that payment by one debtor would not save the limitation against the other debtor unless the person making payment was authorised by the other debtor. The Division Bench of the Allahabad High Court in the case of Ram Kumar Pandey v. Hira Lal. : AIR1939All230 was considering the provisions of Article 182 read with Section 20 of the Limitation Act of 1908. Their Lordships were of the opinion that the payment made by one judgment-debtor independently of the other judgment-debtor does not interrupt the running of the period of limitation as against the other nor can it operate to save limitation as against the other judgment-debtor. In the decision in the case of 1965 Cal 473 (supra), the Division Bench of this Court was not actually concerned with the issues involved in the present application.

14. Mr. Kar strongly relied on the decision in (1912) 14 Ind Cas 335 (Lah) (supra). There is an observation of Rattigan, J., that payment made in obedience to an order of the Court would not be a part payment for the purpose of Section 20. The decision however, had no occasion to consider the difference in the language between Article 183 and Section 20 of the Limitation Act of 1908.

15. In view of the language of Article 183 of the Limitation Act in contradistinction to the language of Section 20 I am of the opinion that a payment made even in pursuance to an order of the Court in the facts and circumstances of this case would save limitation. I am further of the opinion that payment for, or on account of the one of the joint-debtors would save limitation against other under Article 183 of the Limitation Act, 1908. In that view of the matter I am of the opinion that the payment made in this case on 20th of July, 1962 is a payment covered by Article 183 of the Limitation Act.

16. I am further of the opinion that the circumstances under which the payment was made in this case indicate that it was a voluntary payment. The Court did not direct a payment. It was only to get an adjournment of the examination of judgment-debtor that Shri Jhajharia undertook to make payment. He was quite free not to give that undertaking. Sree Jhajharia knew that payment made would go towards liquidation of the decretal dues. In these circumstances I am of the opinion that the payment of 20th July. 1962 was a voluntary payment.

17. The next point that requires consideration in this case is whether in view of the coming into operation of the new Limitation Act of 1963 the claim of the applicant has become barred. That point would have required serious consideration and in view of the language of Sections 30, 31. 32 and Article 136 of the Limitation Act of 1963 it is a matter of some doubt whether the applicant's claim has not become barred. But the principle which would guide a situation like this has been laid down in the Bench decision of this Court in the case of : AIR1968Cal280 (supra) by which I am bound. On the authority of that decision I hold that the claim is not barred even after coming into operation of the new Limitation Act.

18. Further matter that requires consideration is whether the applicant is entitled to execute the decree against Nanda Kishore Jhajharia as well as the Hind Textile Ltd. I am of the opinion that in view of language of Article 183 the claim has not become barred as against Hind Textile Ltd. This is precisely the point which has been decided in the case of AIR 1931 Pat 218 (supra) and I respectfully agree with the principles laid down in the said decision.

19. Apart from the question of limitation no other point was urged before mein this application. In the premises therewill be an order as prayed for in Column10 of the Tabular Statement. The applicant is entitled to add the cost of this application to its claim. Certified forCounsel.


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