IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.2126 OF 2010 BETWEEN Sri. G.P.Panduranga Shetty, S/o. Late G.Papaiah Shetty, Aged 78 years, No.24, 15th Main, MC Layout, Vijayanagar, Bengaluru-560040.
(By Sri. G.V.Dayananda, Advocate) AND M/s. Ashwini Traders, C/o. Akshay Traders, No.209, G-15 Mysore Road, Bengaluru-560002.
Partnership firm Represented by its partners 1. Sri. K.P.L.Venkatesh (Srinivas) 2. Sri. B.K.Subramanyam.
(R1 – served. Unrepresented, …Appellant …Respondent R2 – Notice held sufficient vide order date 18.01.2019) This RFA is filed under Section 96 of CPC, against the order dated 08.02.2010 passed on issue No.4 in O.S.No.2973/2008 on the file of the XIX Additional City Civil & Sessions Judge, Bengaluru, dismissing the suit for recovery of money.
This RFA coming on for admission, this day, the Court made the following :
JUDGMENT Heard the appellant’s counsel. All the respondents are served, but they have not appeared before the court.
2. The appellant is the plaintiff in O.S.No.2973/2008 on the file of the Addl. City Civil and Sessions Judge, Bengaluru. He instituted the suit for recovery of Rs.1,35,139/- from the defendant. In the plaint it was stated that the plaintiff made a payment of Rs.2,00,000/- to the defendant by issuing a cheque drawn on Tamil Nadu Mercantile Bank. The date of cheque is 27.05.2003. It is also stated that defendant made certain payments on 02.07.2005 and 08.07.2005 to the plaintiff towards repaying the loan amount by issuing cheques and pay orders. Since he did not repay the balance, the plaintiff had to file a suit on 01.02.2008. The trial court held that the suit was time barred. According to it the loan was advanced on 27.05.2002. The suit should have been filed within three years from this date. Any payment made subsequent to 27.05.2005 cannot be considered for the purpose of extension of limitation period. Therefore the trial court came to conclusion that the suit was time barred and the suit was consequently dismissed.
3. The learned counsel for the appellant refers to the impugned judgment itself and argues that certain payments made by the defendant within the limitation period have been mentioned, and the last payment was on 08.07.2005. Therefore the limitation did stand extended from the date of last payment. The suit was not time barred.
4. From plain reading of the judgment itself, it can be said that the trial court has just referred to Section 3 of the Limitation Act to arrive at a conclusion that the suit was time barred, because it was not filed within three years from the date of advancement of the loan. It has not considered the effect of Section 19 of the Limitation Act. This section very clearly says that if any payment is made on account of debt or interest, the fresh period of limitation shall be computed from the time when the last payment was made. According to the plaintiff, the last date of payment through pay order was on 08.07.2005 and therefore it can be said that the trial court has committed an error in taking into consideration the date of advancement of the loan for computing the limitation period. For this reason the impugned order cannot be sustained. It is set aside. Appeal is allowed. The suit is remanded to the trial court for fresh consideration. It is made clear that the trial court has to examine the question of limitation keeping in mind the effect of Section 19 of the Limitation Act. The parties shall appear before the trial court on 5th March, 2019. The trial court shall expedite the disposal of the suit. The trial court may secure the presence of respondents/defendants by issuing court notice if they do not appear on 05.03.2019.
Sd/- JUDGE sd