9911796707
TMI Blog1999 (8) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in this appeal before this Court by the defendants. 2. The brief facts on which the plaintiff went before the lower court seeking the decree are as follows: One of the incidents of the business of the plaintiff is waste paper, which he has been selling to third parties for price. The defendants have been purchasing waste papers from the plaintiff. The plaintiff and the defendants had a running account in respect of such dealings. The account maintained between the parties would contain a debit entry against the defendants and when payments come from the defendants, there will be credit entry in their favour. The defendants were making payments for the bills of the plaintiff with reasonable regularity. However from 16.10.1981 the defendants stopped their transaction with the plaintiff including purchase of waste papers. As on 1.12.1981 according to the accounts, a sum of ₹ 65,551.74 in due and payable by the defendants to the plaintiff in respect of the dealings referred to above. In spite of the demands the defendants did not clear off their outstandings. The plaintiff sent a notice dated 7.12.1981 to the defendants demanding payment of money due with interest. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff is not in possession of any sum as claimed by the defendants on the sales tax account. The transactions between the parties are commercial in nature and the plaintiff is entitled to claim the market rate of even 21% interest in respect of the money due. However they have restricted their claim for interest only to 18%. The relief claimed in the plaint is within the period of limitation. 4. On the side of the plaintiff two witnesses were examined as P.Ws.1 and 2 and as many as 41 exhibits were marked as Exs. A.1. to A. 41. On the side of the defendants no oral evidence was let in and one exhibit was marked as Ex.B.1 series. On the materials available on record, the learned trial Judge framed the following issues: (a) Whether the suit claim is barred by limitation? (b) What is the amount due to the plaintiff from the defendants? (c) Whether the plaintiff is entitled to interest and if so, at what rate and from which date? (d) To what relief the plaintiff is entitled to? On issue Nos. 2 and 3 the learned trial Judge found that the defendants are liable to pay the sum as claimed in the plaint and the defendants are liable to pay interest at the rate of 18% p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff had filed application before this Court seeking an amendment setting out the grounds to save the suit from the law of limitation), cannot be allowed since it will change the entire cause of action. The learned counsel for the defendants would also contend that the acknowledgments relied upon by the plaintiffs are not acknowledgments in the eye of law and in any event it not having been given by the defendants to the plaintiff, cannot be acted upon at all as acknowledgments of liability. Lastly the learned counsel for the defendants would contend that the acknowledgments of liability having been not set out in the plaint and having not been proved to have been signed by the defendants, they carrot he relied upon at all. 6. The learned counsel for the plaintiff would contend that the stringent requirement of pleading the saving grounds from the law of limitation as originally contemplated under Order 7, Rule 6 of the C.P.C. had been mellowed down by adding the proviso to that Section by amending Act 104 of 1976. Therefore according to him the court's power to permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, so long ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /1/78 To B.No.238 dated 11. 1.78 50,297.60 -- By Balance C/D 76,609.90 Total 76,609.90 76,609.90 To Balance b/d 76,609.90 Date Particulars Dr. Cr. 1978 To Opening Balance 76,609.90 29/08 By cheque received towards account 10,000.00 31/10 To sale of waste as per B. No. 130 dated 20.10.78 19,783.00 06/11 By Cheque received towards account 19,783.00 The last transaction between the parties is dated 16.10.1981. During the period namely, from 30.12.1978 to 16.10.1981, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of creditors. In each of these documents a sum of ₹ 79,807.39, ₹ 732.29, ₹ 73,923.97. ₹ 63,923.97, ₹ 93.924.47, ₹ 93,924.47 and ₹ 63,924.47 are shown as the respective amounts due and payable to the plaintiff by the defendants. As already stated the acknowledgments are available continuously for the period from 31.3.1976 to 31.3.1982. The suit admittedly was filed on 29.3.1982. 9. It is no doubt true that these acknowledgments are not addressed to the plaintiff. But however a reading of section 18 of the Limitation Act 1963 would make it abundantly clear that a statement containing acknowledgments need not be necessarily addressed to the creditor. In this case admittedly the documents referred to above are part of the return of income submitted by the defendants to the Income Tax Department. The documents consist of return of income, the balance sheet and the list of sundry creditors. In a case reported in Raja of Vizianagaram v. Official Liquidator, AIR1952Mad136 it has been held as follows: Debt due to certain creditor included in the item relating to sundry creditors as contained in the balance-sheet of the company - Balance Shee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years from 1975-1976 till 1982-83. It is no doubt true that in Exs. A. 15, A. 16, A. 19, A. 20, 1st page in A. 23, A. 27, A. 28. A. 31 and A. 32 the second defendant had not signed. Ex.A. 15 is the balance sheet as on 31.3.1977; Ex.A. 16, is the list of creditors annexed to Ex.A. 15; Ex. A. 19 is the balance sheet as on 31.3.1978; Ex.A. 20 is the list of creditors annexed to Ex.A. 19; Ex.A. 23 is the balance sheet as on 31.3.1979; Ex.A.27 is the balance sheet as on 31.3.1980; Ex.A. 28 is the list of creditors annexed to Ex.A. 27; Ex.A. 31 is the balance sheet as on 31.3.1981 and Ex.A. 32 is the list of creditors annexed to Ex.A. 31. In as much as the income tax returns have been signed and the documents referred to above are enclosures to the income tax returns, I am of the opinion that the fact that the defendants have not signed in the specified exhibits referred to above, would not by itself lead this court to hold that those documents would not constitute acknowledgments of liability. 11. In a case reported in Somanna v. Subba Rao, MANU/AP/0077/1957MANU/AP/0077/1957 : A.I.R. 1958 A.P. 200 certified copied of income tax returns are held to be public documents. It has been hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the pendency of appeal. Since this is no one of those provisions mentioned in S. 97 of the Amendment Act of 1976 as not applicable to pending proceedings and since generally amendment to procedural rules shall to be taken to be retro-active applicable to all pending proceedings, the appellant is entitled to rely on the proviso. The plain language of the proviso shows that if there are materials, by way of documentary or other evidence to show that there was an acknowledgment of liability which could save the suit that could be relied on by the plaintiffs, subject, however, that such ground is not inconsistent with the grounds set out in the plaint. The amendment of plaint would not be needed only to cover a case permitting the plaintiff to rely on some ground which is not set out in the plaint or by way of evidence or other material before the court. The words may permit in the proviso indicate that the court has got a discretion either to permit or not to permit the appellant-plaintiff to claim exemption having regard to the facts and circumstances of each case and the plaintiff shall not be treated as having an absolute right to claim exemption on any material which is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation to the case on hand since I have already held that the amendment sought for disclosing the ground on which the exemption is claimed, is wholly unnecessary inasmuch as the evidence in regard thereto had already been placed before the lower court. 15. One other question that has been argued by the learned counsel for the defendants is that the learned trial Judge erred in awarding interest at 18% p.a. on the amount found due. According to the learned counsel for the defendants, inasmuch as the transactions are governed by the Sale of Goods Act, the plaintiff would not be entitled to interest at any rate higher than 6%. I heard the learned counsel for the plaintiff on that aspect and I am inclined to agree that the plaintiff is entitled to interest only at 6% p.a. from 1.12.1981 on the amount found due by the learned trial Judge. Accordingly that portion of the decree relating to interest and as modified alone is set aside. In all other aspects the appeal stands dismissed without costs. It is on record that the acknowledgments of liability were brought on record only for the first time during trial. Had they been disclosed in the plaint, it is not possible to decide as to wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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