UCO BANK Vs. MITTAL BROS

JUDGEMENT

(1.) THE appellant Bank filed suit for the recovery of Rs. 2,61,255. 10 with interest @ 14% per annum with quarterly rests. The suit was decreed by the trial court. The defendants filed an appeal. It was accepted on the ground that the suit was barred by limitation. As a result, the judgment and decree passed by the trial court was reversed. The Bank has now filed this second appeal.

(2.) THE solitary contention raised by Mr. Ashok Aggarwal, counsel for the appellant is that only three issues had been framed. There was no issue with regard to limitation. As such, the appellant had no occasion to adduce any evidence to prove that the claim was within limitation. Learned counsel has further pointed out that an application under Order 41 Rule 27 has also been filed to produce additional evidence which would clearly show that the defendants had acknowledged their liability on different dates. If this evidence was to be taken into consideration, the finding that the suit is barred by limitation cannot be sustained. On the other hand, learned counsel for the respondents have submitted that the parties were alive to the issue and it is after consideration of the evidence that the lower appellate court has dismissed the suit on account of limitation.

(3.) PRIMA facie, it appears that respondent No. 1 had made deposits even on May 28,1984 and May 31, 1984. If that be so, it may be possible to conclude that the respondents were acknowledging their liability to pay the money to the Bank. In the circumstances of the case, it does not appear to be proper to express any definite opinion. Suffice it to say the appellant is justified in contending that on account of the failure of the court to frame a specific issue with regard to limitation, it was precluded from adducing specific evidence to establish that the claim was within limitation. That being so, the judgment and decree by which the suit has been dismissed on the ground that it was barred by limitation, cannot be sustained. It is, accordingly, set aside. The case is remanded to the trial court with the direction that it shall frame a specific issue with regard to limitation; give the parties an opportunity to adduce such evidence as they may wish to and then proceed to decide the suit afresh. The parties through their counsel are directed to appear before the trial court on March 17, 1997. The Registry shall transfer the record to the trial court immediately. The costs shall abide by the ultimate decision of the case.