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2022 (5) TMI 1582 - ANDHRA PRADESH HIGH COURTRecovery of suit amount - suit debt is barred by limitation or not - part payment made under Ex. A-9 receipt can be termed as agreement under Section 25(3) of Indian Contract Act or not. Whether the limitation to institute suit for recovery of amount, starts from the date of default or termination of chit is to be considered? - HELD THAT:- The Division bench of composite High Court in Jillelamudi Dhanalakshmi Vs. the Union Bank of India [1992 (2) TMI 384 - ANDHRA PRADESH HIGH COURT] while dealing with Article 37 of the Limitation Act held that the period of three years begins to run when the default is made unless the payee or obligee waives the benefit. It was further held that when the first installment fell due on 30-6-1976, the limitation began to run from 30-6-1976 and the suit filed beyond three years is held to be barred by limitation. The case on hand indicates that the chit transaction commenced on 21-4-1997; defendant No. 1 became successful bidder on 4-7-1997; amount was paid to successful bidder on 15-9-1997 on which date defendants executed promissory note and agreement of guarantee and defendant No. 1 committed default in payment of installments from 4-4-1998. In this case after the default, the prized subscriber did not pay a single instalment and hence the limitation to recover the amount reckons from 4-4-1998. However, an amount of Rs. 5,000/- was paid on 29.04.2002 under Ex. A-9 i.e. after expiry of three years from the date of default - Since the appellants committed default in payment of installments from 4-4-1998, the suit is to be filed within three years from the date of default. However, the plaintiff presented the suit on 29-4-2005 seeking recovery of amount beyond the period of three years prescribed under Article 37 of the Limitation Act. It is settled principle of law that when the pleadings of both parties are available and each party knows about the case of other and adduces evidence in support of the same, non-framing of an issue, is of no consequence. The very purpose of framing the issue is to know as to what is the lis involved in the suit. The parties went to trial knowing fully well what they were required to prove. Thus, the position of law is well settled that where parties adduce evidence in respect of a matter for which an issue has not been framed and both sides are well aware of the dispute which relates to the issue, the defect of non-framing of the issue is cured. There will be no inherent lack of jurisdiction in the Court to go into that question and decide that aspect of the matter. It is clear from perusal of Ex A-9 that it doesn't contain any specific promise as mandated under Section 25(3) of Contract Act. It is only a simple receipt evidencing making of payment of Rs. 5,000/-. There is no separate agreement between the parties in connection with payment of balance amount. Thus, even the part payment made under Ex A-9 without any specific agreement may not be useful to the plaintiff in saving limitation - this Court came to conclusion that the suit filed for recovery of amount is barred by limitation and hence is liable to be dismissed. The appeal filed by defendants in the suit deserves to be allowed by setting aside the judgment and decree passed by the Lower Court - Appeal allowed.
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