1 2025:CGHC:12658 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 81 of 2011 • Madhya Pradesh State Electricity Board, Headquarters, Jabalpur (MP), Chief Engineer (Generation), Korba Thermal Power Station (MPEB), Korba (East), Police Station & Tahsil Korba, District Bilaspur (CG) {wrongly mentioned in the cause title of the impugned judgment and decree, in fact "Chhattisgarh State Electricity Board"} Now being succeeded by Chhattisgarh State Power Generation Company, through Chief Engineer, (Generation) Korba Thermal Power Station, Distt. Korba (CG). ... Appellant/Defendant. versus • Mahesh Kumar Sharma S/o Ramkrishna Sharma, aged about 37 years R/o 54/2, Atera Marg, Bhind MP, Presently Residing At Akaltara Road, Janjgir, Police Station And Tahsil Janjgir District Janjgir Champa, (CG.) .. Respondent/Plaintiff. For Appellant : Shri Ghanshyam Patel, Advocate. For Respondent : Shri Ashish Thawait, Advocate. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board 17.03.2025 1. This First Appeal has been preferred against the judgment and decree dated 05.10.2010 passed by the 2nd Additional District Judge, Korba AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.03.18 18:00:37 +0530 2 (Chhattisgarh) in Civil Suit No.13-B/2007 whereby, suit filed by the respondent/plaintiff for recovery of money (outstanding dues) on account of the vehicle (jeep) hired by the appellant/defendant for the period from 10.04.1991 to 10.03.1992 was partly allowed for Rs.65,794/- along with interest at the rate of 6% per annum from the date of institution of suit i.e. 25.09.2002 till realization of the amount. An amount of Rs.65,794/- was due and Rs.12,222.90/- was the remaining amount of security deposit, which was to be refunded, in aggregate, Rs.78,016.90/-, rounded off at Rs.78,017/-. Respondent/plaintiff has also filed cross appeal for payment of remaining amount of the security deposit i.e. Rs.12,222.90/- along with interest at the rate of 18% per annum for which no decree was awarded by the trial Court. 2. Necessary facts of the case are that respondent/plaintiff filed a suit for recovery of money of outstanding bill and for refund of security deposit, by making averment inter alia, that he is the successor of late Shri Krishna Sharma (henceforth “deceased”) who died on 15.01.1996 (Ex.P/14). Appellant/Defendant issued tender notice on 06.03.1991 calling contractors to supply vehicle (jeep) for the purpose of transportation. The deceased being a successful bidder entered into a contract with defendant on 07.05.1991. Thereafter, there were outstanding dues for the running bills pertaining to the period from 10.04.1991 to 10.03.1992 to the tune of Rs.65,794/- which was not paid by the defendant and there was also a part of the security deposit amount to the tune of Rs.12,222.90/- which was also not refunded. In aggregate, there was recovery of Rs.78,017/- from the defendant. Hence, second civil suit was filed on 25.09.2002. Plaintiff/respondent had earlier filed a civil suit bearing No.3-B/1997 on 3 09.08.1997, as the final payment in favour of the deceased was released on 20.09.1994. The said civil suit was dismissed on the ground that the plaintiff does not fall under the category of legal heir of the deceased and the plaintiff was instructed to institute a fresh civil suit after obtaining a succession certificate. In Miscellaneous Judicial Case No.12/2001, instituted by plaintiff on 19.05.2001, Civil Judge Class-1, Bhind (Madhya Pradesh) issued a succession certificate on 23.09.2002. After obtaining certified copy of the succession certificate, present civil suit was filed. 3. In the written statement filed by the appellant/defendant claim of the respondent/plaintiff was denied and it was further materially averred that the suit has been filed beyond limitation. It has also been materially pleaded that no payment was made on 20.09.1994, however, on such date, only the security deposit which was deposited by the plaintiff was returned and the last payment was done on 15.10.1992. It has also been averred that the earlier civil suit was dismissed and the plaintiff was granted liberty to obtain succession certificate. It has also been averred that for any such ground, the delay could not be condoned. 4. On the basis of the pleadings of both the parties, learned trial Court framed as many as 3 issues and partly decreed the suit in favour of respondent/plaintiff, against which, appellant/defendant preferred an appeal and the respondent/plaintiff also filed cross appeal. 5. Learned counsel for the appellant would submit that explicitly the suit was barred by limitation and in the written statement a specific averment was made, however, the learned trial Court committed illegality in not framing any issue in that regard. Learned counsel further submits that the contract period had expired on 05.03.1992, the running monthly bill was last paid 4 on 15.10.1992, even the security deposit was released on 20.09.1994 and the second civil suit was filed on 25.09.2002, therefore, the suit was barred by limitation. Learned counsel also submits that the trial Court has wrongly recorded the findings and neither acknowledges the liability of right of the plaintiff in terms of Section 18 of the Limitation Act, 1963 (henceforth “the Act, 1963”) nor the plaintiff has proved any acknowledgment of payment in terms of Section 19 of the said Act. Lastly, he would submit that the impugned judgment and decree are not sustainable and prays to allow the appeal. 6. On the other hand, learned counsel for the respondent/plaintiff would submit that the learned trial Court after evaluating the evidence available on record rightly granted decree towards part of running bills for amount of Rs.65,794/- but has erred in not refunding the remaining amount of the security deposit to the tune of Rs.12,222.90/-. Learned counsel prays that cross objection/appeal may be allowed. 7. I have heard learned counsel for the parties and perused the record with utmost circumspection. 8. Admittedly, there was a dispute about the pending running bills pertaining to the period from 10.04.1991 to 10.03.1992 as per the Schedule ‘A’ of the payment annexed with the plaint. The last payment was made by the appellant/defendant on 15.03.1992 and amount due was calculated by the plaintiff on such date was to the tune of Rs.65,794/-. Part of the security deposit amount was refunded on 20.09.1994 to the tune of Rs.17,689/- and the remaining amount was claimed to the tune of Rs.12,222.90/-, in aggregate, Rs.78,016.90, rounded off at Rs.78,017/-, a subsequent civil suit was filed. 5 9. Admittedly, in the Act, 1963 period of limitation for recovery of any money suit is of 3 years. Though the defendants have specifically pleaded in their written statement that the suit is time barred, however, the trial Court had not framed any issue with regard to the limitation, though the same was discussed in para 39 of the impugned judgment, wherein by treating Ex.P/12 as an acknowledgment, benefit of extension of limitation was provided in terms of Section 18 & 19 of the Act, 1963. 10. Ex.P/12 is the reply of legal notice sent by the plaintiff’s counsel namely Shri Awadh Sharma, Advocate to the appellant/defendant on 26.12.1994. In the reply, it has been specifically averred there was no breach of contract by the defendant and in the said reply there was no acknowledgment of any liability in terms of Section 18 of the Act, 1963 nor any payment has been acknowledged in terms of Section 19 of the Act, 1963 whereby a fresh period of limitation to be reckoned, is discussed. The plaintiff in the second civil suit, in para 14, specifically averred that earlier also he had filed a civil suit bearing No.3-B/1997 which was dismissed on 12.04.2001 on the ground that the plaintiff does not fall under the category of legal heirs of deceased, however, plaintiff was instructed that he may file fresh civil suit after obtaining succession certificate. The plaintiff after obtaining succession certificate instituted the present civil suit. 11. The only question before this Court is as to whether any liberty which was extended vide order dated 12.04.2001 (Ex.P/15) will dilute the rigor of the Act, 1963. 12.Section 14 of the Act, 1963 only provides Exclusion of time of proceeding bona fide in court without jurisdiction. The said Section read as under:- 6 “14. Exclusion of time of proceeding bona fide in court without jurisdiction.- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub- section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation.—For the purposes of this section,— (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.” 13.As the plaintiff himself has not filed any material document to prove the relations and he has also not challenged the order passed on 12.04.2001, this Court is of the view that subsequent suit filed for recovery of money is apparently time barred and the trial Court has not appreciated the evidence in its proper prospective. 14.For the foregoing, impugned judgment and decree passed by the trial court are not sustainable and the same are set aside. 7 15. Accordingly, appeal filed by the appellant/defendant is allowed and the cross appeal/objection filed by the respondent/plaintiff is dismissed. 16.There shall be no order as to costs. 17. A decree be drawn accordingly. Sd/- (Deepak Kumar Tiwari) Judge Avinash