Tax Management India. Com
                        Law and Practice: A Digital eBook ...

Latest Cases

TMI - Tax Management India. Com
Case Laws Acts Notifications Circulars Classification Forms Manuals SMS News Articles
Highlights
D. Forum
What's New

Share:      

        Home        
 

TMI Blog

Home List
← Previous Next →

2000 (2) TMI 862

..... the appellant submitted that there is no need to file paper book in this case as the decision of the appeal may hinge on a short point as to whether the plaintiff/appellant in R.F.A. No. 479 of 1997 had been entitled to the interest keeping in view the order of this Court in Writ Petition No. 15705 of 1988 decided on 7th August, 1989 and whether the Court below was justified in passing that decree for the sum in question. The learned Counsel further contended whether the plaintiff is entitled for future interest or not, the learned Government Counsel submitted that so far as Government's appeal is concerned, Government has already filed paper book. Both the learned Counsel wanted that appeals may be disposed of at the earliest. Appellant's Counsel in Appeal No. 479 of 1997 said that the matter has been pending since 1993 in the Civil Court and as earlier amount has been kept in the custody of the Government since 1983. Looking to the circumstances, I called upon the learned Counsel for appellant in both appeals to make submissions. 2. The facts of the case in the nutshell are that, the plaintiff who is appellant in Appeal No. 479 of 1997 had filed this suit for recovery of .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... est to the plaintiff as per the directions of the Hon'ble Court. But according to the plaintiff, inspite of the order of the Deputy Commissioner, the Tahsildar, Srinivasapur Taluk, paid only a sum of ₹ 1,03,000/- on 27-12-1989 and did not pay the amount of interest which deposit would have earned in the State Bank of Mysore. The plaintiff's case is that plaintiff issued a legal notice on 3-5-1990 through his Counsel and on 18-7-1990, the second defendant replied that they have paid a sum of ₹ 1,03,000/-. In the reply dated 18-7-1990, the defendants stated that as it was in revenue deposit, the plaintiff/appel-lant is not entitled for any interest. After having received the reply the plaintiff filed a suit for the amount of interest whatever accrued on the sum of ₹ 1,03,000/- from 1-7-1983. The plaintiff claimed interest on that amount of ₹ 1,03,000/- at the rate of 11% p.a. compounded quarterly and the rate alleged to be the rate prevailing in 1983. The plaintiff also claimed future interest on that amount. 3. The defendant filed their written statement. There is no dispute that plaintiff participated in the auction. Defendant admit that plaintiff ha .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... at the cause of action for the suit arose on 18-7-1990 and suit filed on 5-7-1993 has been within time. The Trial Court considered this question keeping in view the provisions of Section 3 of the Limitation Act and it held that Article 55 of the Schedule to Limitation Act is applicable. 6. Feeling aggrieved from the judgment and decree of the Trial Court, the plaintiff has come up in appeal on the question whether plaintiff is entitled to future at the rate of 24% and that the defendants have come up in appeal challenging the entire decree on various grounds including that of limitation. The plaintiff's appeal is R.P.A. No. 479 of 1997 and the defendants' appeal is R.F.A. No. 660 of 1997. As both the appeals arise from the common judgment both the appeals are being disposed of by the common judgment. 7. In Appeal No. 479 of 1997, Sri K. Prabhakar contended that in view of the judgment of this Court dated 7th August, 1989, the plaintiff is entitled to interest on the amount deposited in the State Bank of Mysore that would have earned. It is submitted that on the amount paid by the plaintiff to the tune of ₹ 1,03,000/- he has been entitled to interest thereon at the rat .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... suit within three years from 27-12-1989. The suit having been filed in the month of July, 1993, the learned Government Counsel contended, had been barred by limitation as three years had already passed. The learned Government Counsel therefore contended that the decree passed by the Court below is illegal and is based on inadmissible piece of evidence namely Ext. P-9 as its execution has not been proved. He further contended that amount having been deposited in the revenue deposits accounts, no interest was payable by the Bank. He contended that amount which plaintiff had deposited towards the auction sale money was deposited under the head of revenue deposits account and so no interest was payable and plaintiff is not entitled for decree. The learned Government Counsel submitted, as such the Trial Court decree decreeing the suit is illegal. He submitted that the G.O. was not summoned by the plaintiff and therefore no adverse inference should have been raised against the defendant under Section 114 of the Evidence Act on account of failure to produce the G.O. 8. In the rejoinder to the arguments of the learned Government Counsel and the reply to arguments made by the Government Cou .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... mount as well interest such deposits would have earned. It means deposit made in the bank it is expected to have earned interest and whatever interest would have been earned on the deposits at the rates prevalent, the plaintiff had been entitled to payment thereof and the defendant was bound to pay that amount. It is to be held that plaintiff is entitled for interest over the amount of ₹ 1,03,000/- from the date of deposit till the date of its actual refund at prevalent bank rate and it would be immaterial if that amount had been kept by Government in revenue deposit. That after the refusal of the plaintiff/appellant highest bid the defendants i.e., Government should have returned the sum of ₹ 1,03,000/- to the plaintiff/appellant instead of keeping it in its coffer for good long years, causing loss to plaintiff, as the plaintiff could have been earned thereon interest at the bank rate had it been returned or refunded to him at the earliest; by depositing in his own name in the Bank. The next question is whether the plaintiff would be entitled for a decree for the amount claimed, even if it is found that he (the plaintiff) has been entitled to the interest on amount of .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... s not been set up as a defence". In view of provisions to Section 3(1) itself as it imposes the duty of the Court to dismiss the suit appeal as an application which is time barred, even though plea of limitation has not been raised before Court, the Trial Court did not commit any error when it heard defendant on the question if the suit was within time. It is well settled principle of law as laid down in the case of P.K. Ramachandran v State of Kerala and Another, that law of limitation has to be stringently followed, in view of the mandate to Section 3(1). Section 5 does not apply to suits, therefore there cannot arise any question of condonation of delay in filing the suit and further in view of Supreme Court decision, the equity can have no consideration in the matter where there is no power to condone the delay. In my opinion, the Trial Court erred in law in applying of Article 55 of the Schedule to the case. It will be profitable at this stage to refer the Articles 25, 55 and 113 of the Schedule to Limitation Act, 1963. Description of suit Period of limitation Time from which period begins to run 25. For money payable for interest upon money due from the defendant to the .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... to which was given by the Government on 18-7-1990. In my opinion, Article 113 of the Limitation Act would apply to a case like the present one which is not covered by any other article. Article 113 provides three years period which starts to run from the date when right to suit accrues. The right to file the suit when did accrue. The suit could not be instituted except after serving notice under Section 80 of the Civil Procedure Code when the demand has been rejected. That Section 80 of the Civil Procedure Code required two months notice should be given before filing the suit. It means until then suit could not be instituted, so cause of action for the suit even for the first time might have accrued on 27-12-1989. But the right to sue can also be said to have arisen only when on 18-7-1990 reply to notice was given by defendants with clear denial. There is a difference in phraseology of Article 58 and Article 113. The language used in Article 113 if compared with Article 58 indicates the difference. In Article 113, the language used is 'when the right to sue accrues', while Article 58 which is also residuary article with respect to suit for declaration covered by it period o .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... ndent's suit was time barred has to be rejected as being without any substance. 11. The learned Counsel for the appellant in Appeal No. 660 of 1997 contended with respect to prevalent rate of interest, that Ext. P-9 the alleged letter dated 15-2-1990 alleged to have been written and addressed to plaintiff's Counsel by bank and on which reliance has been placed by the Trial Court as well as plaintiffs Counsel, is by itself not admissible in evidence to prove the rate of interest prevalent. It has not been proved by the plaintiff in accordance with law by producing any witness to prove its execution by the Bank Manager. The plaintiff should have examined the necessary witness to prove that document and to prove the rate of interest. It appears that plaintiff has only produced a letter purporting to be on the letter-pad of the State Bank of Mysore. Plaintiff has only appeared in the witness box and not produced any other witness to prove this document. The document by itself will not be proof by itself. Somebody else has to be produced as witness to prove it. Therefore, for the purpose of rate of interest at relevant period this cannot be taken into consideration as admissible .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... 3,475/- in place of decree for ₹ 1,10,000/- as passed by Trial Court, would just and proper as beyond any doubt the plaintiff is entitled to interest that would have been payable on sum of ₹ 1,03,000/- which was in deposit with the defendants. To avoid further delay, I am of the view, Trial Court decree which has been passed on the basis of the inadmissible evidence for a sum of ₹ 1,10,000/- should be set aside in part and be modified as suggested instead of remanding or dismissing the suit. It is, as such, hereby the Trial Court's decree is being modified and it is held that plaintiff is entitled to get decree for a sum of ₹ 33,475/- as amount due towards interest plus 250/- the charges of the notice. Thus, in total, the plaintiff is entitled for a decree of recovery of a sum of ₹ 33,725/- to interest on deposit of ₹ 1,03,000/- plus ₹ 250/- the charge of notice with pendente life future interest at the rate of 6% p.a. on the above amount till the date the above amount is paid to the plaintiff. Thus the plaintiffs appeal with regard to future interest is allowed awarding pendente lite future interest at the rate of 6% p.a. on the sum of .....

X X X X X X X

Full Text of the Document

X X X X X X X

 

 

← Previous Next →

 

 

|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || Database || Members || Refer Us ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.
|| Blog || Site Map - Recent || Site Map ||