Mr. S. S. Bora, Advocate for v. S. Badakh, AGP for
Legal Reasoning
(1) sa-64-1996.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADSECOND APPEAL NO.64 OF 1996ANDSECOND APPEAL NO.65 OF 1996ANDSECOND APPEAL NO.84 OF 1996M/s. D. V. Save,A Registered partnership firmhaving Head Office at Parbhani byBranch Office at Aurangabadby its partner Shri Moreshwar Dinanath SaveAged 67 years, R/o. Khadkeshwar, Aurangabad..Appellant (Orig. Plaintiff)VersusThe State of Maharashtra throughthe Collector, Parbhani..Respondent (Orig. Defendant) …Mr. S. S. Bora, Advocate for Appellant.Mr. V. S. Badakh, AGP for Respondent-State.… CORAM : S. G. CHAPALGAONKAR, J.Reserved On: 08th MAY, 2025.Pronounced On: 17th JULY, 2025.JUDGMENT :- 1.The appellant (original plaintiff) impugns judgment anddecree dated 25.04.1995 passed by Additional District Judge,Parbhani in Regular Civil Appeal Nos.22/1987, 23/1987 and21/1987 respectively, thereby dismissing plaintiff’s suit byreversing judgment and decree dated 27.04.1984 passed by CivilJudge Senior Division, Parbhani in Regular Civil Suit Nos.29/1973,30/1973 and 25/1973 respectively, by which plaintiff’s suit for (2) sa-64-1996.odtrecovery of amount of Rs.6184.37/-, Rs.9236/- and Rs.3310/-respectively was decreed against State of Maharashtra.2.In nutshell, plaintiff averred that Department of Irrigationhad allotted him work of constructions. He had made deposit ofinitial security deposit. The aforesaid security deposit is adjustedby defendant in other work allotted to him in respect of MileNos.26 and 27. The work of construction has been executed byplaintiff and final bill is paid to him. The plaintiff is entitled forrefund of security deposit. According to plaintiff, forfeiture ofsecurity deposit by defendant is illegal and he is entitled for refundof the same alongwith interest. Hence, he issued legal notice underSection 80 of Code of Civil Procedure, which is served upon DistrictCollector, Parbhani on 23.03.1972. As such, cause of action aroseto file suit.3.The plaintiff’s claim was refuted by defendant contendingthat security deposit of plaintiff has been adjusted, whenrespondent was paid final bill against outstanding amount in workin Mile Nos.26 and 27. It is also contended that suit is barred bylimitation.4.The Trial Court framed issues, recorded evidence of partiesand finally decreed suit holding that plaintiff is entitled forrecovery of amount as claimed alongwith interest @ 6% per annum. (3) sa-64-1996.odtHowever, in Appeal filed by defendant-State of Maharashtra,learned District Judge pleased to set aside judgment and decree ofTrial Court holding that suit is barred by limitation as well asunder Section 69 of the Indian Partnership Act.5.Mr. Bora, learned Advocate appearing for appellant invitesattention of this Court to order of admission of Appeal dated26.02.1996, which reads thus:“This is a group of four second appeals2.There involves substantial questions of law on the point oflimitation as well as effect of non-registration ofpartnership under Section 69 of the Partnership Act.3.Admit.4.Notice.”He would, therefore, urge that Appeal has been admitted onthe point of limitation as well as effect of non-registration ofpartnership under Section 69 of the Partnership Act.6.Mr. Badakh, learned AGP appearing for respondent-Statesubmits that registration of partnership firm is not in dispute. Theissue as to maintainability of suit was never raised in writtenstatement. The defendant had pressed into service only issue oflimitation, apart from contentions on merit of claim. The Appellate
Legal Reasoning
(4) sa-64-1996.odtCourt has accepted defence on the point of limitation. Therefore,present Appeal require to be heard only on the point of limitation.7.The learned Advocates appearing for respective parties,therefore, restricted arguments on the issue of limitation only,particularly on ground no.5 as specified in Appeal Memo, whichreads thus:“That, the learned Judge of the Appellate Court hascommitted an error in holding that provisions of Article 22of the Limitation Act are not applicable in the instantcase.”8.The learned Advocates accordingly substantially arguedmatter on aforesaid questions of law that has been framed at thetime of admission of Appeals and elaborately stated as ground no.5in Appeal Memo.9.Mr. Bora, learned Advocate appearing for appellantvehemently submits that Appellate Court miserably failed toappreciate material on record and apply correct principle of lawwhile concluding that suit is barred by limitation. Relying uponjudgments of Supreme Court of India in case of Shakti BhogFood Industries Ltd. Vs. The Central Bank of India andOrs.1, Union of India and Ors. Vs. West Coast Paper MillsLtd. and Anr.2 and judgment of this Court in case ofShyamkumar Lalaramji Jaiswal and Ors. Vs. Dattatraya1AIR 2020 SC 2721.2AIR 2004 SC 1596. (5) sa-64-1996.odtand Ors.3 Mr. Bora would submit that plaintiff was never servedwith final bill alongwith measurement books and other relevantpapers. The plaintiff had reason to believe that his bills were stillin process. The plaintiff got cause of action when he issued legalnotice dated 23.03.1972, which was not responded. As such, TrialCourt was justified in holding that suit is within period oflimitation. Mr. Bora would further submit that there is basicdifference between language incorporated in Articles 58 and 113 ofthe Limitation Act. The right under Article 113 accrues whendefendant has clearly or unequivocally threatened to infringe rightasserted by plaintiff in suit. Unless particular threat gives rise to acompulsory cause of action, thereby effectively invading orjeopardizing right of plaintiff, cause of action would not arise. Hewould, therefore, urge that concept of first cause of action engraftedunder Article 58 would not apply while interpreting Article 113 ofthe Limitation Act. According to Mr. Bora, Appellate Court hascompletely missed to observe aforesaid difference of language andlanded in grave error while rejecting claim of plaintiff being barredby limitation.10.Per contra, Mr. Badakh, learned AGP appearing forrespondent-State would submit that starting point of limitationshall remain unaffected by conduct of parties or by correspondenceexchanged between them and that mere attempt on the part of a32023 (1) Mh.L.J. 430. (6) sa-64-1996.odtlitigant to persuade authorities to accede to his claim bydispatching letters may not be a ground for claiming extension oflimitation for institution of a suit. According to him, cause ofaction accrued to plaintiff in the year 1966-67. By serving legalnotice in the year 1972, plaintiff cannot claim revival of cause ofaction and seek relief from the Court, which is barred by limitation.11.Having considered submission advanced by learnedAdvocates appearing for respective parties, interpretation of Article113 of the Limitation Act and its application to factual aspect ofmatter are issues posed into service before this Court. Article 113of the Limitation Act reads thus:Description of suitPeriod oflimitationTime from which periodbegins to run113.Any suit for which no period oflimitation is providedelsewherein this Schedule.Three years. When the right to sueaccrues.12.Plain reading of aforesaid provision depicts that limitationperiod shall begin to run when right to sue accrues. It is, therefore,necessary to find out when right to sue accrued to plaintiff in factsof the present case. During execution of said work, plaintiff washeld responsible for delay and penalty was imposed on him, whichwas communicated to him in the year 1966–67. Similarly, byinvoking Clause No.3(a) of the agreement, action of forfeiture ofsecurity deposit and withdrawal of work is taken. It is pertinent to (7) sa-64-1996.odtnote here that plaintiff has never raised any objection in thisregard till issuance of legal notice in the year 1972.13.It is trite that, cause of action would come into existencewhen right is arose in favour of plaintiff and same has beeninfringed or threatened to be infringed. The starting point oflimitation would be decided on the basis of date of cause of action.In facts of present case, when plaintiff seen final bill, he was awareof imposing penalty and forfeiture of security deposit, so alsopayment approved towards execution of work done by him. From1967 onward, plaintiff has not made any correspondence raisinggrievance against imposing of penalty or forfeiture of securitydeposit. Therefore, merely by issuing legal notice in the year 1972,plaintiff cannot assert extension of limitation. The cause of actionto file suit has been rightly taken as preparation of final bill in theyear 1967. The plaintiff cannot justify his non-action till 1973.14.Although it cannot be disputed that there is difference instarting point of limitation period in Article 58 and 113 of theLimitation Act and language is not comparable to each other, evengiving liberal construction to language incorporated in Article 113of Limitation Act, right to sue accrued to plaintiff when he has seenfinal bill or even prior to that action of imposing penalty andforfeiture of security deposit was taken against him andcommunicated to him. In that view of the matter, this Court has (8) sa-64-1996.odtno reason to accede with findings recorded by Trial Court orreverse judgment and decree passed by Appellate Court acceptingcontention of plaintiff on the point of limitation.15.In result, Second Appeals sans merit. Hence, standsdismissed.(S. G. CHAPALGAONKAR)JUDGEDevendra/July-2025