IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JANUARY 2017 BEFORE THE HON'BLE MRS. JUSTICE S.SUJATHA C.R.P.No.162/2012 BETWEEN:
LIC Housing Finance Corporation Ltd., Office at 1st Floor, “Presidium”, Ananda Shetty Circle, Attavara, Mangalore-575001, Rep by its Manager (C.M). ... Petitioner (By Sri.Rajesh Shetty, Adv.,) AND:
B.K.Sudhakar Shetty, S/o Krishnappa Shetty, Aged about 61 Years, Teacher at Zilla Panchayath Higher Primary School, Kerady Village & Post, Kundapura Taluk – 576201. ... Respondent (Served & unrepresented) This C.R.P. is filed under Section 115 of CPC against the order dated 02.01.2012 passed in Miscellaneous Case No.3/2006 on the file of the Senior Civil Judge, Kundapura, dismissing the petition filed under Section 151 of CPC.
This petition coming on for Admission this day, the Court made the following:
ORDER This petition is directed against the judgment and order passed by the Senior Civil Judge at Kundapura in Miscellaneous Case No.3/2006 whereby the petition filed by the petitioner herein was dismissed.
2. Briefly stated, the facts are:
The petitioner filed O.S.No.86/1998 which was renumbered as O.S.No.68/1999 against the respondent Sri. B.K.Sudhakara Shetty for recovery of loan dues. The petitioner had filed O.S.No.167/1998 against one Sri.Sudhakara Shetty, Vanajakshi S.Shetty and Vasudeva Kanchan for recovery of loan dues. It transpires that after settlements of loan dues in O.S.No.167/1998, the petitioner informed their counsel that Sri.B.K.Sudhakara Shetty had repaid the loan and accordingly requested the counsel to withdraw the said O.S.No.167/1998. It appears that due to bonafide mistake, O.S.No.68/1999 was withdrawn instead of O.S.No.167/1998. Subsequent to the withdrawal of O.S.No.68/1999, Miscellaneous Case No.3/2006 was filed by the petitioner seeking for restoration of O.S.No.68/1999. The said Miscellaneous Petition came to be dismissed. Hence, this revision petition.
3. Heard the learned counsel for the petitioner and perused the materials on record. Despite, service of notice on the respondent, there is no representation.
4. The learned counsel Sri.Rajesh Shetty appearing for the petitioner assailing the impugned judgment and order, would contend that the trial Court erred in holding that the petition filed by the petitioner was time barred. The trial court ought to have considered the relevant date as 28/02/2004 when the petitioner received reply from the respondent marked as Ex.D-2.
The right to apply accrued on 28/02/2004 in terms of Article 137 of the Schedule to the Limitation Act, 1963 [‘Act’, for short]. The learned counsel would further submit that Section 17 of the Act contemplates the effect of fraud or mistake. As per Clause (c) of Section 17, the suit or application is for relief from the consequence of a mistake. Thus, the learned counsel contends that the trial Court erred in dismissing the petition as barred by limitation contrary to Section 17 of the Act.
5. The admitted facts are that O.S.No.86/1998 was filed against the respondent for recovery of Rs.85,218.50 before the Court of Civil Judge (Senior Division), Udupi by the petitioner on 25/05/1998. The said suit was transferred to the court of Civil Judge (Senior Division) at Kundapura on 18/12/1999 and renumbered as O.S.No.68/1999. O.S.No.167/1998 was filed against one Sudhakara Shetty, Vanajakshi S.Shetty and Vasudeva Kanchan for recovery of Rs.2,01,353/- before the Court of Civil Judge (Senior Division), Kundapura by the petitioner on 01/12/1998. The said loan amount in O.S.No.167/1998 was settled and the same was informed to their counsel that Sri.Sudhakara Shetty has repaid the loan of Rs.2,01,353/- on 22/05/2003. However, the counsel appearing for the plaintiff inadvertently withdrawn the O.S.No.68/1999 instead of O.S.No.167/1998, on 28/05/2003. This was a bonafide mistake. Hence, learned counsel sought for allowing the petition.
6. In the miscellaneous petition, the trial court has framed the following points for consideration namely, (1) Whether the petitioner proves that due to bonafide mistake of their advocate Sri.K.P.Vasudeva Rao, through oversight OS.68/1999 was withdrawn and settled out of court?
(2) Whether the petitioner proves that the petition is within the limitation?
(3) Whether the petitioner has made out sufficient cause to restore OS.68/1999, to the file of this court?
Point No.1 was answered affirmatively. Point Nos.2 and 3 were answered in the negative.
7. The only point that arises for consideration in this petition is:
“Whether the miscellaneous petition No.3/2006 filed by the petitioner before the trial court was barred by limitation?”
8. To answer this point, it is axiomatic to refer to Article 137 of the Schedule to the Act, which reads thus:
137. Any other application for which no period of limitation is provided elsewhere in this division Three years When the right to apply accrues.
9. Now the crucial point is when the right to apply accrued to the petitioner. Indisputably, OS No.68/1999 was withdrawn by the learned Counsel for the petitioner on 28.5.2003. The petitioner has received half of court fee refunded through cheque dated 29.7.2003 and encashed the same within 14 days and original documents were received in the month of August 2003. Misc. Petition No.3/2006 was filed on 17.10.2006.
10. It is the contention of the learned Counsel for the petitioner that the relevant date of the right to apply accrued was on 28.2.2004 when the petitioner received the reply Exhibit.D2 along with the copy of the order sheet and the memo by the respondent.
11. This argument advanced at the hands of learned Counsel for the petitioner cannot be countenanced for the reason that the cheque for refund of half of the court fee dated 29.7.2003 was encashed within 14 days from the date of the cheque and the original documents were received in the month of August 2003. The right to apply accrues from July 2003 or at the most in the month of August 2003. Section 17[c] of the Act provides that in case of any suit or application for which the period of limitation is prescribed by the Act, the suit or application is for the relief from the consequences of a mistake. The consequence of a mistake relates to the date of withdrawal of OS No.68/1999 i.e., 28.5.2003 and subsequently to the date of receipt of half of the court fee refunded from the court through cheque i.e., 29.7.2003 and thereafter the encashment of the said cheque and further the receipt of the original documents in the month of August 2003. The sequence of events as narrated above, clearly demonstrates that the petitioner had the knowledge of withdrawal of OS No.68/1999 when the court fee was refunded and it was encashed i.e., in the month of July and August 2003. As such, section 17 of the Act also would not come to the assistance of the petitioner to contend that 28.2.2004 is the relevant date for filing the petition. The relevant dates shown above indicates that the petition was barred by limitation in terms of the Act. As such, these vital aspects being rightly appreciated by the trial court while dismissing the petition, no infirmity or irregularity can be found in the impugned Judgment.
Petition stands dismissed as devoid of merits.
Sd/- JUDGE RS/* & AN/-