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Kalpana Trading Co. Versus Executive Officer, Town Panchayat and Anr.

1999 (2) TMI 693 - MADRAS HIGH COURT

S.A. No. 1263 of 1986 - Dated:- 11-2-1999 - Subbulakshmy, J. For Appellant/Petitioner/Plaintiff: R. Nandakumar, Adv. For Respondents/Defendant: S.R. Sundaram, Adv. JUDGMENT Subbulakshmy, J. 1. Plaintiff is the appellant. 2. The case of the plaintiff is as follows:- The plaintiff is a contractor and the first defendant placed order with the plaintiff for supply of two drainage carts and four rubbish carts and the plaintiff has sent those carts under invoice dated 16-11-1972 to the defendants. As .....

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ount. 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 was decreed by the trial Court, on Appeal, the first appellate Court set aside the judgment and decree of the trial Court dismissing the suit. 5. As against that, the plaintiff has .....

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save limitation? 7. Counsel for the appellant submitted that the defendant has sent a letter dated 26-8-1974 to the plaintiff under Ex. A.21 stating that the amount was paid under three cheques, but the plaintiff did not receive any cheque and the plaintiff has also received the letter Ex. A23 from the first defendant stating that the second defendant has misappropriated the amount and that fraud came to be known to the plaintiff only on 7-10-1976 when Ex. A23 was sent by the first defendant in .....

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ot 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 plainti .....

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no alternative but to lake up the matter through Courts of law for recovery of money. So, after receipt of the letter Ex. A21, the plaintiff sent letter to the defendant on 5-9-1974 demanding payment of the amount from the defendants. The Collector sent letter Ex. A.16 to !he plaintiff on 23-9-1974 directing the defendants to settle the due giving intimation to their office. These letters do not in any way constitute acknowledgment of liability as per Section 18 of the Limitation Act which read .....

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1SCR140 , the Supreme Court lays down that 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 con .....

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ayment is not received within 15 days, they have no other alternative other than to take up the matter through Courts of law for recovery of money. To constitute acknowledgment of liability, there must be acknowledgment of liability made in writing signed by the party and that too must be before the expiry of the prescribed period and only if there is acknowledgment of liability signed by the party against whom such property or right is claimed, a fresh period of limitation starts from the time .....

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dgment of liability by the defendants after Ex. A. 1. So, the limitation period runs from the date of the invoice viz., 16-11-1972. 10. Counsel for the plaintiff submitted that Section 17 of the Limitation Act is applicable to the instant case. As per that Section the date of limitation 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 .....

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ropriation of fund by the second defendant, it was informed to the plaintiff on 7-10-1976 long after the period of limitation. The plaintiff was well aware that the amount due under the invoice Ex. A1 was not paid by the defendants. Even then, the plaintiff has not chosen to file the suit within the period of limitation. The intimation by the defendants that payments were made by three cheques was sent on 26-8 1974. The plaintiff ought to have been diligent enough to file the suit within the per .....

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of that fraud, he has been kept back from the knowledge of his right to institute a suit or make an application against the person guilty of such fraud or accessory thereto." In Chintamoni v. Krushnaprasad Singh, AIR1960Ori75 , it has been held that (at page 76): "A person, who in such circumstances desires to invoke the aid of Section 18, must establish that there has been fraud and that by means of such fraud he has been kept from his knowledge of his right to sue or of the title wh .....

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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) time will be extended under the Section only as against the person guilty of fraud, or who is accessory thereto or who claims through the person guilty of fraud otherwise than hi good faith and for valuable consideration. These three con .....

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