Rakesh Kumar Garg, J.
CM No.13322-C of 2013:
For the reasons mentioned in the application which is supported by an affidavit, delay of 8 days in refiling this appeal is condoned. The application is disposed of.
CM No.13323-C of 2013:
For the reasons mentioned in the application which is supported by an affidavit, delay of 2 days in filing this appeal is condoned. The application is disposed of.
RSA No.4959 of 2013 (O&M):
This is defendants’ second appeal challenging the judgment and decree of the first Appellate Court whereby appeal of the plaintiff-respondents against dismissal of their suit by the trial Court was accepted and suit for recovery of a sum of Rs.4,23,905/- along with interest @ 9% per annum from 1.9.2000 till its realization was decreed.
As per for averments made in the suit, the appellants entered into an oral agreement with the respondent-Corporation for milling of 12970 bags weighing 8430.50 Qntls. of paddy of common variety and 5719 bags weighing 3717.35 Qntls. of Grade ‘A’ variety and the appellants stored the paddy for milling and issued receipt dated 22.10.1999 in token of acceptance of quality and quantity of the abovesaid paddy. Appellants further deposited a sum of Rs.50,000/-, as security, with the plaintiff-Corporation for custom milling. As per the Government policy, the appellants were bound to mill the entire paddy by 29.2.2000 which date was extended by the Government upto 31.8.2000. The appellants milled the entire paddy of Grade ‘A’ variety and delivered the resultant rice to the tune of 2465.72 Qntls. but they failed to initiate the milling of common variety of paddy and agreed to deposit the cost of resultant rice at the price of rice fixed by the Government of India. Appellants further deposited provisional cost of rice due towards common variety of paddy to the tune of Rs.51,85,755/-. The appellants further agreed to make payment of the differential cost of finalization of rates and the defendant no.6 i.e. Kuldip Kumar, partner of the appellant-firm also submitted an undertaking by way of affidavit to the effect that the appellant-firm will be liable to pay the differential cost as stated above. The final rates of the crop for 1999-2000 were fixed by the Government of India vide letter dated 1.3.2002 and as per these final rates, a sum of Rs.56,55,861/- became recoverable from the appellants. The appellants had milled Grade ‘A’ variety of paddy to the tune of 3680.18 Qntls., on which milling charges to the tune of Rs.48,578/- became payable @ 13.20 per Qntls. The appellants had retained 3122 empty gunnies during the course of custom milling of Grade ‘A’ variety and thus, as per 60% of levy rates of gunnies, a sum of Rs.47,673/- became recoverable from the appellants along with sales tax of Rs.2,605/-. A sum of Rs.1,069/- on account of TDS became due from the appellant-firm and the security amount of Rs.50,000/- deposited by the appellants was duly credited to their account. The quality cut of Rs.1,030/- of Grade ‘A’ rice delivered by the appellants in PUNSUP Account is also recoverable. Afteradjusting the amount payable to the appellants towards the amount recoverable from the appellants, a sum of Rs.4,23,905/- became recoverable from the appellants being the principal amount and a further, sum of Rs.2,59,642/-, as interest @ 21% per annum on the principal amount for the period w.e.f. 1.9.2000 to 31.7.2003 was recoverable from the appellants, as per the terms settled between the parties. Plaintiff-respondents further claimed a sum of Rs.23,900/- on the delayed payment of provisional cost. As such, a sum of Rs.7,07,447/- became recoverable from the appellants as on 31.7.2003. However, despite several requests of the plaintiffs, the appellants failed to make payment. Hence the suit.
Upon notice, the appellants appeared and filed written statement, raising various preliminary objections and contested the suit on the ground that there was no written agreement between the parties and thus, the appellants were not bound to mill the paddy. It has been further averred that they got the paddy milled from the defendant-appellants under threat of cancellation of their licence. The appellants milled the entire stock but payment was not released to them. They have milled the paddy weighing 3717.35 Qntls. and an amount of Rs.49,069/- was recoverable from the plaintiff-respondents. Moreover, a sum of Rs.51,85,755/- was deposited by the appellants against the resultant value which was recoverable from the plaintiff-Corporation. The appellants were further entitled to recover the security amount of Rs.50,000/- along with interest and thus, the appellants were entitled to recover a sum of Rs.17,94,268/-, as per the details submitted along with reply of notice dated 27.8.2003 and thus, suit was liable to be dismissed.
The plaintiffs filed replication denying the version of the defendants as mentioned in the written statement and reiterated their version made in the plaint.
From the pleadings of the parties, following issues were framed:-
1) Whether the plaintiffs are entitled for recovery of amount of Rs.7,29,702/- from the defendants? OPP
2) Whether the present suit is within limitation? OPP
3) Whether the present suit is not maintainable? OPD
After hearing learned counsel for the parties and appreciating the evidence on record, the trial Court vide its judgment and decree dated 23.8.2010 held that the plaintiffrespondents could not prove on record the recovery of alleged amount due from the defendant-appellants and thus, decided issue no.1 in favour of the appellants. However, under issue no.2, the trial Court held that the appellants were bound to mill the paddy upto 31.8.2000 and as per the acknowledgement Ex.D2 dated 3.11.2000 issued by the appellants, the suit which was filed on 3.11.2003 was well within limitation. Issue no.3 was also held against the appellants. Thus, in view of the findings recorded, the suit was dismissed.
Aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiff-respondents filed an appeal before the first Appellate Court which was accepted and it was held that the plaintiff-respondents were entitled to recover the principal amount of Rs.4,23,905/- along with interest @ 9% per annum w.e.f. 1.9.2000 till realization.
Keeping in view the undisputed facts with regard to quantity and quality of paddy, milling of paddy by the appellants, depositing of provisional cost of rice towards common variety of paddy and agreed terms to pay the differential cost at the rates settled by the Government of India and adjustment of undisputed milling charges, the lower Appellate Court held that the appellants were liable to pay the principal amount of Rs.4,23,905/- to the plaintiff-Corporation, being the difference of costs of common variety of rice, admittedly not returned by the defendants after custom milling. However, the appellate Court held that in absence of any agreement between the parties to pay interest @ 21% per annum, the respondent-Corporation could not be granted interest for the delayed payment at such an exorbitant rate. Thus, keeping in view the prevailing rate of interest in the business transaction, the plaintiff-Corporation were granted interest @ 9% per annum from 1.9.2000 till realization, as the defendant-appellants had illegally retained the amount without any reason.
Aggrieved from the aforesaid judgment and decree of the first Appellate Court, the defendants filed the instant appeal. In the grounds of appeal, the appellants have framed following questions of law for consideration of this Court:-
'a) Whether the affidavit dated 3.2.2000 will bring the suit filed on 3.11.2003 within limitation?
b) Whether the limitation on the basis of acknowledgement/affidavit will start from the date of signing or from the date of attestation?
c) Whether the jural relationship ends between the parties after the NOC issued?
d) Whether the respondent/plaintiffs’ suit is maintainable after the no dues certificate has been issued?
e) Whether there were any subsisting dues at the time of acknowledgement?
f) Whether the affidavit can be used as acknowledgement to recover amount revised/fixed in future?
g) Whether all the partners and firm are bound by the affidavit of one partner without specific authority as required under Section 20 of Limitation Act?
h) Whether the Court was bound to adjust the amount admitted by respondents-plaintiffs to be payable to appellants?
i) Whether the documents beyond pleadings can be considered by the court?
j) Whether the interest of Rs.23,900/- claimed accrued prior to the period of 3 years from the date of filing can be allowed by the court?
k) Whether the interest on the amount claimed can be allowed from 1.9.2000, when the rates were revised on 1.3.2002 and demand was made on 25.7.2003?
l) Whether the affidavit taken under pressure can bind the parties?'
However, learned counsel for the appellants has challenged the findings of the Courts below only on the issue of limitation. According to the learned counsel, the suit filed by the plaintiff-respondents was time barred, as limitation for filing the suit for recovery is three years.
According to counsel for the appellants, in the instant case, the cause of action had arisen in favour of the plaintiffrespondents when the appellants agreed to pay the differential costs vide affidavit dated 3.2.2000 (Ex.P-8), whereas the suit was filed on 3.11.2003. According to learned counsel for the appellants, the date for execution of the aforesaid acknowledgement (Ex.P-8) was 3.2.2000, the same was signed on 3.2.2000 but was attested on 3.11.2000. According to him, as per Section 18 of the Limitation Act, for computing the period of fresh limitation, it has to be from the date of signing on the acknowledgement and not from the date of attestation. If counted from the date of signatures on the acknowledgement i.e. 3.2.2000, the limitation expires on 2.2.2003, whereas the present suit was filed on 3.11.2003 and thus, the suit was liable to be dismissed on this ground.
However, the argument raised is misconceived. Admittedly, the affidavit/acknowledgement (Ex.P8) was attested on 3.11.2000. It was attested by the Notary Public at the instance of the appellants and the deponent of the affidavit himself got it attested from the attesting authority. Learned counsel for the appellants cannot dispute that the affidavit is supposed to be attested by the attesting authority when the deponent of such an affidavit puts his signatures in the presence of such authority by presenting himself before him and in view of the aforesaid fact, it cannot be held that the document Ex.P8 is to be taken to be executed on 3.2.2000 and the same was rightly taken to be executed on the date of attestation.
Faced with this situation, learned counsel for the appellants raised a further argument that Kuldeep Kumar executants of the affidavit had no authority on behalf of the appellant-firm to file such an acknowledgement. He submitted that as per the provisions of Section 20(2) of the Limitation Act, only an agent authorized, can given acknowledgement on behalf of his Principal. Section 20(2) of the Limitation Act, reads thus:-
20(2) Nothing in the said sections renders one of several joint contractors, partners, executors or mortgagees chargeable by reason only of a written acknowledgement signed by, or of a payment made, or by the agent, of, any other or others of them.
Mr. Kataria further placed reliance upon a judgment of Andhra High Court in the case of Musunuri Anjaneyulu & anr. v. Koona Lakshmi AIR 1998 AP 214 in supports of his contention.
At the outset, it may be noticed that the judgment relied upon by counsel for the appellants was passed in a case of joint debtors and one of such debtors had acknowledged the debt which was based on pronote and was not a duly authorized agent of the co-debtor, whereas in the instant case, it cou
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ld not be disputed that the appellant Kuldip Kumar had submitted an undertaking on behalf of the firm being the partner of the said firm. It is well settled that every partner of a firm has a right to act on behalf of the firm and any action taken by one of the partners will be good enough to bind such a firm. In view thereof, the argument raised is liable to be rejected. Not only this, it may be noticed that though the suit was dismissed by the trial Court but the issue of limitation was decided against the appellants, yet the aforesaid findings were not challenged by the appellants by filing an appeal or revision. Not only this, even in the appeal filed on behalf of the plaintiffrespondents before the first Appellate Court, the appellants had an opportunity to defend the judgment of the trial Court in their favour by raising the plea of limitation against the plaintiff-respondents, as provided under Order 41 Rule 22 CPC but they did not avail the opportunity. Thus, having not raised the plea of limitation before the lower Appellate Court, the same would amount to waiver on the part of the appellants. Thus, appellants now cannot raise such plea of limitation by filing this appeal. No other point has been raised. Thus, the substantial questions of law, as framed in the grounds of appeal, do not arise at all. Dismissed.