Faced with this situation, learned counsel for the
appellants raised a further argument that Kuldeep Kumar executant 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 could 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.
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
RSA No.4959 of 2013 (O&M)
Date of decision: 14.01.2014
M/s Dharam Rice & Oil Mills & others
-----Appellant(s)
Vs.
Punjab State Civil Supplies Corporation Limited, Chandigarh
& others.
-----Respondent(s)
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
Citation;AIR 2014 P&H 44
RAKESH KUMAR GARG, J.
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.
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. After
adjusting 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
4) Relief.”
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 plaintiff-
respondents 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
7
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
acknowledgement
to
can
be
used
recover
as
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 plaintiff-
respondents 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.
appellants,
the
According to learned counsel for 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 executant
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 could 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 plaintiff-
respondents 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.
January 14, 2014
[RAKESH KUMAR GARG]
JUDGE
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