TMI Blog1999 (2) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiff received letters from the Divisional Development Officer. Tiruchy stating that the amount has been sent to the plaintiff by means of cheques dated 30-11-1973, 14-3-1974 and 3-7-1974. The plaintiff received that letter on 9-1-1975. The first defendant then sent a letter dated 7-10-1976 stating that the second defendant has misappropriated that amount. In spite of repeated demands, the defendant did not pay that amount. The plaintiff came to know about the fraud only. On 7-10-1976 and so, the suit is not barred by limitation. The plaintiff also claims interest at 9% and so, the plaintiff is entitled to a sum of ₹ 14,462.98. 3. The defendant resisted the suit on the ground that the suit is barred by limitation. 4. The suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of liability by the defendants subsequently and so, the suit ought to have been filed within a period of three years from 16-11-1972 and the period of limitation runs from 16-11-1972 and as the suit has not been filed within the period of limitation it is hopelessly barred by limitation. 9. As per Ex. A1 invoice, the goods were supplied to the defendant on 16-11-1972. The plaintiff takes shelter under the letters dated Exs. A21 and A23 stating that fraud has been played by the defendants and from the date of knowledge of fraud committed by the defendants, the suit is filed within the time and so, it is not barred by limitation. Ex. A21 is sent by the Divisional Development Officer to the plaintiff on 26-8-1981 stating that on verific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the words used in the acknowledgment must indicate the jural relationship of debtor and creditor and it must appear that the statement is given with the intention to admit such jural relationship. In Valliama v. Sivathanu, [1980]1SCR354 , it has been held that. Under Section 18, Limitation Act ( Section 19 of the Travancore Limitation Act) one of the essential requirements for a valid 'Acknowledgment' is that the writing concerned must contain an admission of a subsisting liability. A mere admission of a past liability is not sufficient to constitute such an 'acknowledgment'. The above said principle has also been laid down in L.C. Mills v. Aluminium Corporation of India, AIR 1973 SC 1482. None of the documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n starts only when the plaintiff came to know about the fraud committed by the defendant. In the instant case in Ex. A23 dated 7-10-1976 the first defendant has informed the plaintiff that the second defendant has misappropriated the amount and a complaint has been lodged with the police. Basing upon Ex. A23, counsel for the plaintiff submitted that the period of limitation starts from 7-10-1976 and the suit having been filed within the period of limitation, is not barred by limitation. 11. The supply was made under Ex. A.1 on 16-11-1972, so, the suit ought to have been filed within a period of three years from 16-11-J972. The suit has been filed on 18-11-1979. Even with regard to the case of misappropriation of fund by the second defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amoyee v. Probodh Chandra, AIR1933Cal253 , it has been held that (at page 257): In order to constitute fraud there must be some abuse of confidential position, some intentional imposition, or some deliberate concealment of facts; a designed fraud, by which a party knowing to whom the right belongs conceals the facts, and circumstances giving that right. In the case of In Re Marappa Goundar, AIR1959Mad26 , it has been held that (at page 27): A person desiring to invoke the aid of this section must establish three things viz., (1) that there has been fraud; (2) that by means of such fraud he was kept from the knowledge of his right to sue or apply or of the title on which such right is founded; and (3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g after the period of limitation will not save the period of limitation. Section 17 of the Act supplies only when the plaintiff has been kept from the knowledge of his right to sue. Mere intimation by the first defendant to the plaintiff about the misappropriation of cheques by the second defendant that too long after the period of limitation does not constitute fraud committed by the second defendant. So, the plaintiff is not entitled to take shelter under Section 17 of the Act to compute the period of limitation. The plaintiff ought to have filed the suit within three years from 16-11-1972. The plaintiff has not chosen to do so. So, the suit is clearly barred by limitation. The, view taken by the first appellate Court is perfectly in o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
