RAVINDRA S. MORE Vs. SUDARSAN CHITS (INDIA) LTD.

JUDGEMENT

(1.) THE respondents in C. C. No. 1009 of 1988 -C in C. P. Nos. 8, 9 and 49 of 1981 are the appellants in this appeal. The claimant is the respondent in this appeal. C. C. No. 1009 of 1988 was filed by the respondent -company against the appellants on the basis of a demand promissory note executed by the appellants on December 4, 1975. The claim filed in this court is dated October 28, 1987. The claim was based on the original consideration and balance of account. The appellants filed a written statement in the claim dated January 22, 1989. Therein, the plea was that they were rendering professional services to the respondent -company, as narrated in the written statement, and which will be substantiated by a reference to the records, which are in the possession of the claimant. It was stated that the understanding between the parties was that no amount was to be repaid to the claimant -company. It was stated that the promissory note was executed only for company records. The appellants also pleaded that as per the rules followed by the claimant -company, when a subscriber defaults three consecutive instalments, the entire amount becomes due and facility of payment by instalments is not available to him and so time for payment starts running from then onwards. It was stated that in this case the time starts from February 5, 1976, and so the claim filed more than three years thereafter is barred by limitation. The date of commencement of winding up of the company is long after the matter is barred, i.e., long after February 5, 1979. The commencement of winding up of the company was only on January 2, 1981. Even before the commencement of the winding up, the claim was barred by limitation. To save limitation, the claimant stated in' the claim petition that a sum of Rs. 500 was paid on December 2, 1978. This was denied by the appellants. No document was produced to show that any such payment was made. On the other hand, the plea of the appellants that Rs. 500 was not paid and could not have been paid was sought to be substantiated by reference to the notice sent by the claimant dated January 22, 1980 (January 20, 1980 ?), showing that the balance principal amount of Rs. 46,500 is payable. A xerox copy of the notice received by the appellants and the postal cover were marked as exhibits 'A' and 'B'.

(2.) ON the above premises, the substantial plea was that the chit liability and the promissory note liability became time barred long before January 2, 1981 - -commencement of the winding up of the claimant -company. The written statement of the appellants is dated January 22, 1989, and is seen filed in court on January 24, 1989. The matter stood posted before court on February 6, 1989. On that day, the court adjourned the matter for reply of the claimant and posted the matter to March 7, 1989. When the matter stood posted again on March 7, 1989, the claimant had not filed any reply then and so the court adjourned the matter to April 3, 1989, Even on that day, the reply was not filed. So, the court adjourned the case to June 20, 1989. The reply is not seen filed even on June 20, 1989, to which date the claim stood posted. On June 20, 1989, the learned single judge, after noticing in brief the contention of the appellants, stated thus :

(3.) WE heard counsel for the appellants Mr. M. C. Sen and counsel for the respondent/claimant Mr. K. P. Dandapani. This appeal came up before other Benches on earlier occasions. As to what happened on those days is the subject -matter of rival pleas by the appellants' counsel and the respondents' counsel. The appellants' counsel has filed a statement dated November 15, 1990 and the respondents' counsel has filed a statement dated November 15. 1990. We do not think that it is either safe or' proper for this court to resolve the controversy raised in the statements filed by the appellant's counsel and the respondent's counsel. Really it is not necessary. This is not a case where the judgment of the learned single judge is based on any concession by the appellants or their counsel or a case where any statement contained in the judgment of the learned single judge is sought to be contradicted, either by affidavits or by way of evidence. The judgment appealed against also does not in terms say that any point or aspect was admitted, or argued, so as to exclude other points from consideration, and so the rule laid down by the Supreme Court in Bank of Bihar v. Mahabir Lal [1963] 33 Comp Cas 783 ; AIR 1964 SC 377, paragraph 5 and State of Maharashtra v. Ramdas Shrinivas Nayak, AIR 1982 SC 1249, at page 1251, para. 4, will not strictly apply. So, we proceed to consider the matter on merits.