2025:CGHC:54514 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 88 of 2010 Pardeshi, S/o A.Appanna, r/o Qtr. No. 6-G, Block No.6, Sector-4, Street No.22, Occupation-Service At Bhilai Steel Plant, Personal No.143555, Tokan No.19515, Pay Bill No.5365, Bhilai Nagar, District-Durg ... Appellant /Defendant versus Chimta Buchamma W/o C.H.Lachhaiya, aged about 45 years, r/o Near Wine Shop, Camp-1, Bhilai Nagar, District- Durg ... Respondent /Plaintiff (Cause title is taken from the CIS) ------------------------------------------------------------------------------------------------------------------ For Appellant : Shri Anand Shukla, Advocate For Respondent : None appears ------------------------------------------------------------------------------------------------------------------ Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 07.11.2025 1. This appeal arises out of the impugned judgment and decree dated 25.02.2010, passed by the learned Additional District Judge, Durg, in Civil Suit No.34B of 2009, whereby, a decree has been passed in favour of the plaintiff/respondent for recovery of Rs.34,000/- along with the interest @ 6% per annum from the date of filing of the suit, till its realization. Appellant herein was defendant in the suit, and status of the parties is being taken as shown in the suit of the respective parties. 2. The plaintiff had filed a Civil suit on 13.08.2008 against the appellant/defendant for recovery of Rs.56,000/- with the pleading that plaintiff and defendant were well acquainted with each other, as they were resident of the same vicinity, and belongs to same Community. On 20.10.2001, defendant Digitally signed by V PADMAVATHI Date: 2025.12.17 12:25:55 +0530 Fa 88 of 2010 2 borrowed an amount of Rs.35,000/- from the plaintiff for his domestic purpose, and executed a promissory note, which was scribed by late Shri MVS Rao. Defendant also agreed to pay interest on the borrowed amount. However, he could only repay two installments of Rs.500/- each, in between 20.10.2001 till 19.07.2008. It was also pleaded in the plaint that on 05.08.2004, the defendant assured the plaintiff that he would repay the entire amount along with interest, and on that day, he repaid Rs.500/- as part payment of the loan. On 28.08.2007, plaintiff served a legal notice to the defendant through his counsel but it was not claimed by him, and the said notice was returned back. Defendant also assured that he would repay the entire amount along with interest, up to the month of July, 2008, and on 19.07.2008, he paid Rs.500/- and acknowledged the document. It is also pleaded in the plaint that defendant had assured that he would repay the entire amount up to 1st August, 2008, and when the amount had not been repaid, plaintiff filed a Civil Suit for recovery of Rs.56,000/-. 3. On being served the summons, defendant filed his written statement, denied the plaint averments, and his liability. It was pleaded that there was no any promissory note in lieu of any borrowed amount of Rs.35,000/- executed by him. He specifically denied the execution of any promissory note on 20.10.2001. He also denied the presence of witnesses, or giving any assurance that he would repay the amount of Rs.35,000/- with interest. He also denied repayment of two installments of Rs.500/- each, up to 19.07.2008. Defendant also denied specifically, that on 05.08.2004, he repaid Rs.500/- and made any promise for repayment of entire borrowed amount. It was also denied by him that service of any legal notice, or any notice being not claimed. He further denied the payment of Rs.500/- on 19.07.2008, or execution of any Fa 88 of 2010 3 acknowledgment in any document with that respect. It was also pleaded that no cause of action arose in favour of plaintiff on 01.08.2008, he further pleaded in written statement that he being an illiterate person, except making his signature, he is unable to read or write anything. He admitted that he borrowed only Rs.2,000/- from the plaintiff, and as security of its repayment, he purchased stamp of Rs.50/-, and then the plaintiff has sought his signature over the blank stamp paper, and thump impression of his wife had also been taken on the said stamp paper. Plaintiff herself, by misusing the said blank stamp paper, got promissory note prepared fraudulently. Defendant had already repaid the entire amount of Rs.2,000/- to the plaintiff. On 05.08.2004, when the defendant had repaid Rs.500/-, plaintiff got his signature on the blank stamp paper but had not returned his document. Objection has also been raised by the defendant that the plaintiff has filed the suit on 12.08.2008, claiming that the transaction was made on 20.10.2001. He also pleaded that to bring the suit within the limitation, plaintiff has prepared forged signature of the defendant over the xerox copy of the alleged promissory note. He raised objection that the suit itself is beyond limitation, and is not maintainable. 4. Based on the pleadings made by the parties, learned trail Court has framed the following issues: okniz’u fu"d"kZ 1& D;k izfroknh us okfnuh ls fnukad 20@10@01 dks 35]000@&:i;k dtkZ ysdj opu i= fu"ikfnr fd;k Fkk \ gk¡ 2&D;k izfroknh us okfnuh dks 500@&500@& 500@&djds ‘’ks"k jkf’k C;ktlfgr 1@8@08 rdvnk djus dk opu fn;k Fkk \ fdUrq ckn esa badkj dj fn;k \ izekf.kr ugh 3&D;k okfnuh izfroknh ls 56]000@&:i;s olwy ikus dh vf/kdkfj.kh gS \ 34]000 : pkSrhl gtkj :- Fa 88 of 2010 4 ikus dh vf/kdkfj.kh gS 4&D;k okfnuh dk nkok vof/k ckf/kr gS \ ugha 5&vuqrks"k ,oa O;; \ ckn va’kr% Lohd`rA 5. Plaintiff-Chimta Buchamma has examined herself as PW1, and one Musalayya, as PW2. She relied upon the documents Ex.P1, which is promissory note, Ex.P2- copy of legal notice dated 28.02.2007, Ex.P3-postal receipt, and Ex.P4- Acknowledgment. 6. Defendant has examined himself as DW1, K Ramu as DW2, and has relied upon the document Ex.D1, xerox copy, acknowledged by him. 7. After considering the evidence available on record, learned trial Court has passed the decree in favour of plaintiff for recovery of Rs.34,000/- along with interest, by holding that the promissory note Ex.P1 was executed by the defendant on 20.10.2001, defendant repaid Rs.1,000/- to the plaintiff in two installments of Rs.500/- each, and the suit is within limitation. The decree is under challenge in the present appeal. 8. Learned counsel for the appellant/defendant would submit that learned trial Court has erred by not considering the issue-4, and it should have held that the suit was beyond the limitation, and not maintainable. The promissory note was alleged to be executed on 20.10.2001, and the legal demand notice was given on 28.02.2007, and the suit was filed on 13.08.2008, after about 7 years of execution of alleged promissory note. He would further submit that cause of action is to be counted from the date of execution of said promissory note. Though the defendant denied execution of said promissory note, and Fa 88 of 2010 5 by giving the legal demand notice to the defendant, limitation period to file the suit cannot be extended. He would also submit that the plaintiff could not prove that on 20.07.2008, defendant had executed the acknowledgment, by which the limitation period to file the suit may extend further. The plaintiff has admitted in her evidence that an endorsement in the document Ex.D1, was made by a person of Camp-1. He would also submit that as per Article 35 of the Limitation Act, 1963, limitation to file a suit for recovery of amount under a promissory note should be filed within three years from the date of its execution. He would further submit that even if it is taken to be true, that on 05.08.2004, defendant had paid Rs.500/- to the plaintiff, and executed an acknowledgment in the said promissory note Ex.P1, even then, the suit which was filed on 13.08.2008 is after four years of the said acknowledgment, which is apparently, barred by limitation. Learned trial Court, while deciding the issue-4, considered that the signature of defendant over the document Ex.P1 has been admitted by him that it was made on 05.08.2004, notice Ex.P2 was served on 28.02.2007, and the suit has been filed on 13.08.2008, which is within the limitation period, is completely erroneous, in view of Article 35 of the Limitation Act, 1963. It is also submitted that the appellant is an illiterate person, and the alleged promissory note is written in English, that too, it was not readable, and the same has been written in cursive writing. Further, plaintiff could not explain as to how, and why, the thumb impression of wife of the defendant has been taken in the said promissory note. Therefore, plaintiff could not establish the transaction between the parties, yet, learned trial court has proved the transaction of Rs.35,000/- between them, and decreed the suit in favour of plaintiff/respondent, which is liable to be set aside. 9. No one appears on behalf of the plaintiff/respondent though served. Fa 88 of 2010 6 10. Heard learned counsel for the appellant, and perused the record of the trial Court. 11. The question for determination in the present appeal would be, whether learned trial Court has rightly considered that the suit is within limitation period. The suit is based on alleged promissory note, Ex P1, and the endorsement made in the document Ex.D1, which is claimed to be made by the defendant. Promissory note appears to be executed on 20.10.2001, which bears signature of the defendant, and his wife. The said promissory note was not readable properly, due to its cursive writing. In the plaint, plaintiff has not averred conditions of its repayment under the promissory note, and it is only pleaded in the plaint that on 20.10.2001, defendant borrowed an amount of Rs.35,000/-, and executed the promissory note in presence of witnesses. However, no mode of its repayment was pleaded by the plaintiff. From perusal of document Ex.P1, it transpires that the stamp paper of the said document was purchased by the defendant on 16.10.2001. Defendant, in his written statement, admitted that he borrowed only Rs.2,000/- from the plaintiff, and purchased stamp paper of Rs.50/-, at the instance of the plaintiff, and gave it to her. Defendant in his written statement, has specifically pleaded that plaintiff has got signature of the defendant, and his wife over the blank stamp paper. However, plaintiff could not plead in her plaint as to why the thumb impression of wife of the defendant was taken in the said promissory note, Ex P1. When the transaction was allegedly made with the defendant, there was no reason to obtain the thumb impression of his wife, that too, when the said note is in English, and the defendant and his wife are illiterate, and completely unable to understand the contents of said promissory note, there is no condition of its repayment. Fa 88 of 2010 7 12. Plaintiff relied upon the acknowledgment made at backside of said promissory note, Ex.P1, which disclosed that on 05.08.2004 Rs.500/- was paid by the defendant. Though it was not in clear terms that Rs.500/- was repaid by the defendant, but it can be considered that payment was made by the defendant on 05.08.2004, in view of his admission made in the written statement that on that day, he repaid Rs.500/- and the plaintiff has obtained his signature over the said document, Ex.P1. Plaintiff has further stated in her evidence that she served legal demand notice to the defendant on 28.02.2007, however, the notice was not claimed by him, and it was returned back. In the notice, plaintiff averred that on 09.08.2004 (as per document Ex.P1, it is 05.08.2004) when the defendant repaid Rs.500/-, with an assurance that he would repay the entire amount within three years. Even when this statement of the plaintiff is to be taken as it is, limitation starts from 05.08.2004, and the plaintiff was required to file the suit within three years, if the said promise was not fulfilled. From 05.08.2004, till 28.02.2007, except from self served statement that plaintiff demanded her money back from the defendant, no other notice, or any other proceeding was drawn by the plaintiff. Even after issuance of notice on 28.02.2007, the plaintiff has not filed the suit within the prescribed period of three years from 05.08.2004. 13. Plaintiff has further claimed that in the deed, Ex.D1, the defendant has paid Rs.500/- on 20.07.2008, and acknowledged it over the xerox copy of the promissory note, which further extended the period of limitation to file the suit. This endorsement in Ex.D1 has been denied by the defendant, for which the plaintiff could not make any effort to prove the signature of the defendant over the document Ex.D1. Further, the plaintiff in para-13 of her evidence, has admitted that the endorsement of A-A part of document Ex.D1 was written by a Fa 88 of 2010 8 person of Camp-1, and it was not stated that it was written by the defendant himself. One more reason for doubt on the document Ex.D1 is that, if the plaintiff was in possession of the original promissory note Ex.P1, there was no reason to get the said endorsement obtained on 20.07.2008 on its xerox copy, Ex.D1. Plaintiff could have obtained very well the said acknowledgment in the original deed of promissory note Ex.P1, apparently, this might have been the reason the learned trial Court has not considered the document Ex.D1, while considering the issue of limitation to file the suit in the case. The plaintiff has further admitted that after one year of the alleged transaction, when the defendant could not repay the amount, she immediately not served any notice upon him. It is further admitted that she served notice upon the defendant after 7 ½ years, and filed the suit after about 8 years. 14. Article 35 of the Limitation Act is reproduced here under for ready reference: Description of suit Period of limitation Time from which period begins to run 35. On a bill of exchange or promissory note payable on demand and nto accompanied by any writing restraining or postponing the right to sue. Three years The date of the bill or note. 15. In the present case, the promissory note Ex.P1 is alleged to be executed on 20.10.2001. As per the admission made by the defendant in his written statement, he repaid an amount of Rs.500/- on 05.08.2004, though there is no any endorsement in the said promissory note, which postponing the right to issue of acknowledging the liability, however, even the said endorsement dated 05.08.2004 is to be taken as the acknowledgment of liability against the Fa 88 of 2010 9 defendant, there is no postponement of right to issue, and as per Article 35 of the Limitation Act. The limitation to file the suit starts from the date of bill or note, meaning thereby, the limitation to file the suit starts from 05.08.2004, which is of three years from the date of 05.08.2004. Plaintiff could not prove the fact that the defendant has also paid Rs.500/- on 20.07.2008. It can further be considered for postponement of right to sue and thus the plaintiff was required to file the suit up to 04.08.2007, i.e within three years from 05.08.2004. However, the present suit has been filed on 13.08.2008, which is apparently barred by limitation. Learned trial Court has held that notice Ex.P2 was served on 28.02.2007, and the suit has been filed on 13.08.2008, which is not barred by limitation is erroneous, and the said finding is liable to be set aside. 16. Since the issue-4 has been decided in favour of the defendant, that the suit is barred by limitation, this Court is not required to deal with the merits of the case, as the suit itself is barred by limitation, and not maintainable. 17. Accordingly, appeal filed by the appellant/defendant is allowed. Impugned judgment and decree passed by the learned trial Court is set aside, and the suit of the plaintiff is hereby dismissed holding that the same is barred by limitation. 18. Parties to bear their own costs, and decree be drawn accordingly. Sd/- (Ravindra Kumar Agrawal) JUDGE padma