TMI Blog2010 (4) TMI 1227X X X X Extracts X X X X X X X X Extracts X X X X ..... six monthly rests. On failure of defendant No. 1 in timely repayment of the instalments with interest and expenditure, notices were served. However, when the defendants failed to repay the installments even after receipt of notices, recovery proceedings were initiated before the Tehsildar in the year 1993 as per provisions of the M.P. Public Money Recovery Act and the same were, subsequently, withdrawn. It was also averred that defendant No. 1 executed a promissory note promising to repay the entire loan amount in lump sum as per loan account acknowledging balance of loan vide acknowledgments dated 14-8-1995, 24-7-1996 and 30-1-1997. Defendant No. 1 had mortgaged her 29.45 acre of agricultural land in favour of the Bank by depositing the documents described in Schedule B annexed with the plaint as additional security against the loan. Defendants Nos. 3 4 had also equitably mortgaged their property described in Schedules C D. Defendant No. 1 had executed an Acknowledgment of Debt at the time of disbursal of loan and renewed the Acknowledgment of Debt in the year 1991 12th May, 1994 and accepted her liability towards the Bank as per her loan account with the Bank. 3. The de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e affirmative. Finding on issue No. 17 is not in accordance with law. From perusal of the loan account statement of the tractor loan No. 110/85, filed and proved by the plaintiff by exhibiting it through the Branch Manager, it would be evident that the defendant No. 1 had deposited various amounts towards repayment of loan in her loan account and thus, on each payment, limitation got extended by three years as per provisions of Article 1 read with Sections 18 and 19 of the Limitation Act, 1963 (in short Act, 1963 ). Article 1 of the Act, 1963 provides that in a suit relating to accounts for the balance due on a mutual, open and current account, where there have been reciprocal demands between the parties, the period of limitation is three years from the close of the year, in which the last item admitted or proved is entered in the account, such year to be computed as in the account. In the instant case, the last payment of ₹ 19,000/- has been made on 16-4-1996 and the suit has been filed on 12-2-1997 and therefore, the limitation for filing the suit got extended for a period of three years from 16-4-1996. It was further argued that the amount of loan is secured by the dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the appellant/plaintiff and perused the oral and documentary evidence available on record, including the impugned judgment of the trial Court. 12. From the pleadings in the plaint and oral and documentary evidence available on record, we find that defendant No. 1 applied for loan of ₹ 1 lac for the purchase of tractor and trolley and other agricultural accessories vide Ex. P. 1. She also submitted Search Report with respect to 29.45 acres of her agricultural land vide Ex. P.2. Revenue papers (copy of B-1 and map) of the land i.e. Ex. P.4, P.5 and P.6, were also filed by the loanee with her application for loan. Her husband had submitted his consent vide Ex. P.7. Defendants Nos. 1 and 2 had executed a deed of hypothecation of standing crops over their agricultural land on 22-7-1985 vide Ex. P. 10. Defendants Nos. 3 and 4 had executed a deed of guarantee to secure the loan advanced to the principal debtor vide P. 12. As per Clause 5 of the Term Loan Agreement of Hypothecation (Ex.P.11), loan of ₹ 1 lac advanced to defendant No. 1 was repayable within seven years in half yearly, instalments of ₹ 7150/- each with interest @ 12.50% per annum or at the rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be computed from the time when the payment was made: Provided that, save in the case of payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment. 15. In the instant case, indisputably, deposits were made by defendant No. 1/loanee as indicated in the document of Ex. P.16 and proved by P.W. 3 and not controverted by the defendants. Entries in the document of Ex. P/16 are duly certified by the Branch Manager and an endorsement to this effect is present at the foot of the statement of account. Certified copy is defined under the provisions of the Banker's Books Evidence Act, 1891 (in short Act, 1891) ), which reads as under: 2(8) Certified copy means a copy of any entry in the books of a bank together with a certificate written at the foot of such copy that it is a true copy of such entry, that such entry is contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business, and that such book is still in the custody of the bank and where the copy was obtained by a mechanical or other process which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12-4-1990 she again deposited ₹ 19,000/- towards repayment of loan; on 30-3-1991, ₹ 10,000/-; on 5-6-1993, ₹ 5,000/-; on 20-1-1994, ₹ 15,000/-; on 31-3-1994, ₹ 4,000/-; and finally, on 16-4-1996, ₹ 19,000/-. Thus, by virtue of Section 19 read with Article 1 of the Act, 1963, fresh extended period of limitation of three years is to be computed from the close of the year in which last item admitted or proved as entered in the account. 18. The learned Additional District Judge, while dealing with issue No. 17 regarding limitation, has not considered the effect of document of Ex. R16, which has not been controverted by the defendants, either by way of cross-examination of the plaintiff's witness, who has proved the said document, or by examining any witness in support of their contention that the suit is barred by limitation. 19. On the basis of aforesaid discussions, we have no hesitation in setting aside the finding recorded by the learned Additional District Judge against issue No. 17 and consequently, dismissing the suit as barred by limitation. Since learned Additional District Judge has already decided the other issues and held th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
