Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2125 OF 2009
TOPLINE SHOES LIMITED
AND ANOTHER APPELLANT(S)
VERSUS
PUNJAB NATIONAL BANK RESPONDENT(S)
J U D G M E N T
B.R. GAVAI, J.
th
The appeal challenges the judgment dated 7 July 2008
1.
passed by the Division Bench of the High Court of Bombay
thereby dismissing the Writ Petition Nos.207 and 1490 of
2005, filed by the present appellants arising out of the
concurrent orders passed by the learned Mumbai Debts
Recovery Tribunal1 (for short “DRT”) in O.A. No.948 of 2000
st
dated 31 October 2002 and the learned Debts Recovery
Signature Not Verified
Digitally signed by Dr.
Mukesh Nasa
Date: 2022.07.28
17:10:44 IST
Reason:
Appellate Tribunal at Mumbai (for short “DRAT”) in Appeal
1
th
Nos.152 of 2002 and 43 of 2004 dated 24 November 2004.
2. The respondent–Bank had filed an O.A. No.948 of 2000
against the present appellants raising certain claims. In the
said proceedings, the appellants filed a counterclaim
claiming therein that certain amount deposited in the
current account opened by them with the respondentBank,
was illegally withheld by the respondent–Bank. The learned
st
DRT vide order dated 31 October 2002 dismissed both, the
claim of the bank as well as the counterclaim of the
appellants. Being aggrieved thereby, both the respondent
Bank as well as the appellants had preferred appeals before
the learned DRAT. Both the appeals were dismissed. Being
aggrieved thereby, two writ petitions were filed, one by the
respondentBank and the other by the appellants. As far as
the writ petition of the respondentBank is concerned, the
same was disposed of as withdrawn since the respondent
Bank did not press the same. The writ petition of the
appellants was, however, dismissed vide the impugned
judgment. Being aggrieved thereby, the present appeal.
Mr. S. N. Bhat, learned Senior Counsel appearing on
3.
behalf of the appellants submitted that both the DRT and the
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DRAT as well as the High Court have grossly erred in arriving
at the conclusion that the claim of the present appellants
was covered under Article 113 and not by Article 22 of the
Schedule to the Limitation Act, 1963 (for short “the
Limitation Act”).
3.1. Mr. Bhat further submitted that though the amount
deposited by the appellants was not a security or a fixed
deposit, still it was an amount which belonged to the
appellants and was illegally withheld by the respondent
Bank. He therefore submitted that in view of Article 22 of the
Limitation Act, the cause of action to file a counterclaim
would begin from the date on which a notice was sent by the
appellants to the respondentBank, i.e., from September,
1999. He has submitted that since the counterclaim was
filed in the year 2000, i.e., within a period of three years from
the date of issuance of notice, the same was within
limitation.
3.2. Mr. Bhat submitted that in the present case, a clear
question of law has arisen as to whether in the facts of the
present case, Article 22 or Article 113 of the Limitation Act
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would be applicable for consideration. He submitted that the
High Court, the DRT as well as the DRAT have erroneously
held that in the present case Article 113 of the Limitation Act
would be applicable and not Article 22 of the Limitation Act.
Mr. S. N. Bhat relies on the judgment of this Court in
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the case of Jammu and Kashmir Bank Ltd. v. AttarUl
1
.
Nissa & Others
5. Mr. Rajesh Kumar Gautam, learned counsel appearing
on behalf of the respondent–Bank has submitted that no
error could be noticed in the concurrent orders passed by the
DRT, the DRAT and the High Court. He submitted that in the
facts of the present case, the DRT, the DRAT as well as the
High Court have rightly held that the counterclaim would be
governed by Article 113 of the Limitation Act.
6. By now, it is a settled principle of law that the issue of
limitation is a mixed question of law and fact. The issue of
limitation cannot be decided by ignoring the factual scenario.
7. It will be relevant to refer to paragraph 41 of the order
st
dated 31 October 2002 in O.A. No.948 of 2000 passed by
the learned DRT:
“ 41. It is not the case of the Defendants that they
1 [1967] 1 SCR 792
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had paid the amount to the Applicants by way of
deposit as securities till the account was finally
settled. On the contrary it is their case that the
Applicant Bank had extracted the amount from
them by exerting undue influence etc. While
narrating their case the Defendants have specifically
pleaded that in the Board Meeting, the possibility of
approaching the Court against the Applicant Bank
was also contemplated and considered. However,
they thought it better not to drag the Applicant
Bank to the court to avoid adverse publicity and
mar their chance of receiving the loan even from
other Banks. It is thus obvious that a conscious
decision was taken by Defendant No.1 Company to
pay off whatever demanded by Applicant Bank
without joining the issue and they had accordingly
paid the amount maybe much against their wishes.
Subsequently if the Defendants wanted to recover
the said amount they ought to have taken out
proper proceedings before proper forum within the
statutory period of three years. This was admittedly
not done. The said amount cannot be recovered by
filing a counter claim after the period of six years.”
8. It could thus clearly be seen that in the factual position
as apparent in the present matter, the specific case of the
defendantsappellants was that the respondentBank had
extracted the amount from them by exerting undue
influence. It could further be seen that the Board of Directors
of the Appellant had contemplated and considered the
possibility of approaching the Court against the respondent–
Bank. However, it was thought fit not to drag the
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respondentBank to the Court to avoid adverse publicity and
mar their chances of receiving loans from other banks. It
could thus be seen that the learned DRT has come to a
finding of fact that it was the conscious decision of the
appellants to pay off whatever amount was demanded by the
respondent–Bank without joining the issue and they had
accordingly paid the amount, may be much against their
wishes.
Admittedly, the said amount, which according to the
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appellants, was paid under undue influence in the year
1994.
10. It appears that after waiting for a period of five years,
the appellants woke up from their deep slumber and issued a
nd
notice on 22 September 1999.
11. The DRT, the DRAT as well as the High Court have
concurrently held that the counterclaim of the appellants
was based upon the amount deposited in the year 1994,
which according to the appellants was paid under undue
influence. If that be so, no error could be noticed in the
finding of the fact as recorded by the DRT, the DRAT and the
High Court that the counterclaim was squarely covered
under Article 113 and not under Article 22 of the Limitation
6
Act.
We, therefore, find no merit in the appeal. The appeal is
12.
dismissed.
...................J.
(B.R. GAVAI)
………………………………...................J.
(PAMIDIGHANTAM SRI NARASIMHA)
NEW DELHI;
JULY 20, 2022.
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