Judgment:
P.S. Narayana, J.
1. Heard Sri M. Rama Mohan, learned Counsel representing the appellant and Sri V.V.L.N. Sarma, learned Counsel representing respondents.
2. On 20.2.1998 this Court made the following order:
Admit. Ground No. 6(a)(b) and (c) raised in the memorandum of grounds of appeal is formulated for adjudication in the appeal.
3. The Counsel on record pointed out to the respective pleadings of the parties, the evidence available and also the findings recorded by the Court of first instance and also by the appellate Court. The learned Counsel for the appellant had pointed out to the relevant dates and would maintain that the Courts below totally erred in arriving at the conclusion that the suit is barred by limitation.
4. On the contrary, the Counsel representing respondents in the second appeal would maintain that in the light of the clear findings recorded on question of limitation, the other questions need not be dealt with in elaboration and the findings recorded by both the Courts below to be confirmed.
5. The substantial questions of law specified in ground No. 6(a), (b) and (c) are as hereunder.
(a) Whether on the facts and in the circumstances of the case, the plaintiffs suit is barred by limitation?
(b) Whether the Courts below are justified in construing Ex.A-4 as demand and the consequent inaction of the defendant as refusal to hold that the suit is barred by limitation reckoning Ex.A-4 as starting point of limitation?
(c) Whether on the facts and the circumstances of the case, the case of the defendant that he returned the pledged goods is consistent with the finding of the Court below that there was refusal on the part of defendant to the demand of the plaintiff to return the pledged articles?
6. The unsuccessful plaintiff in both the Courts below in O.S. No. 143 of 1983 on the file of I Additional Subordinate Judge, Kakinada, in A.S. No. 110 of 1992 on the file of IV Additional District Judge, Kakinada, is the appellant in this second appeal. The appellant-plaintiff instituted the said suit praying for recovery of the plaint schedule silver articles or the value thereof. Before the Court of first instance, on the respective pleadings of the parties, the issues had been settled. P.W.I and D.W.I were examined; Exs.A-1 to A-11 and Exs.B-1 to B-5 were marked. The Court of first instance recorded certain reasons and came to the conclusion that in view of the fact that the suit is barred by limitation the same to be dismissed. The matter was carried by way of appeal A.S. No. 110 of 1992 on the file of IV Additional District Judge, East Godavari at Kakinada, and the appellate Court also had confirmed the same. Hence, the present second appeal.
7. Before taking up further discussion, it may be appropriate to have a look at the respective pleadings of the parties. The parties hereinafter would refer to as plaintiff and defendant as shown in O.S. No. 143 of 1983. However, the sole defendant died during pendency of A.S. No. 110 of 1992 and respondents 2 and 3 were brought on record as legal representatives by order dated 14.8.1996 in I.A. No. 1618 of 1996 and the said legal representatives are shown as respondents in the present second appeal.
8. It was pleaded in the plaint that the plaintiff borrowed an amount of Rs. 400/- on 19.5.1971 by pledging 1150 grams of silver plate (Vendi Tamaraku) under pledge chit No. 2179 and Rs. 350/- on 28.5.1971 by pledging 1130 grams of silver (Vendi Ginnelu) under pledge ticket No. 2255 and again on 11.6.1971 the plaintiff borrowed Rs. 250/- under pawn ticket No. 2376 by pledging silver plate of 925 grams and all the above three pledged articles contain gold flowers weighing 8 annas. It is further averred that inspite of plaintiffs approach several times to redeem the pledged articles, the defendant was postponing the same on some pretext or the other. The plaintiff got issued a notice on 24.10.1979, but the defendant neither issued any reply nor delivered the articles. Again, a notice was issued on 19.11.1982 and the defendant received the same on 22.11.1982. Since there is no refusal by the plaintiff, the plaintiff apprehends that the defendant would not deliver the articles and hence the suit.
9. The plaintiff got amended the plaint by orders in LA. No. 3240 of 1986 dated 14.8.1989 pleading that the amount payable to the plaintiff from the defendant would be many more times than the amounts payable by the plaintiff towards the redemption of the pledge and hence a request was made to pass a decree after deducting the amount payable by the plaintiff to the defendant for redemption of the pledge. The plaint also was further amended relating to raising the plea of Act 7 of 1977.
10. The defendant filed written statement and additional written statement with the following averments:
The defendant admitted about the borrowing of Rs. 400/- on 19.5.1971; Rs. 350/- on 28.5.1971 and Rs. 250/- on 11.6.1971 by pledging silver articles mentioned in the plaint. But the defendant resisted that the pledged silver articles do,, not contain any gold flowers weighing 8 annas gold. It is further averred that the plaintiff redeemed the articles from the defendant on 5.4.1978 and later disputed with the defendant for payment of some amount stating that he over paid the dues. In fact, the plaintiff did not make any over payment. When the plaintiff got issued a registered notice, the defendant raised a dispute before the mediators wherein the plaintiff promised no action and hence he did not issue any, reply. The defendant could not obtain the signature of the plaintiff in token of redeeming the articles on 5.4.1978 as the plaintiff evaded to sign the documents stating that he misplaced the pawn tickets in his house and that he would bring them to the shop of the defendant at a later stage and wanted to sign the account, but he did not turn up inspite of several requests made through the mediators. Taking advantage of the fact that he did not sign the accounts and pawn tickets in token of redeeming the articles, the plaintiff got filed the suit to cause wrongful gain to himself and wrongful loss to the defendant. As the defendant redeemed the articles on 5.4.1978, there is no question of further redemption. There are no bona fides on the part of the plaintiff in filing the suit. The claim of the plaintiff for recovery of the pledged articles without paying or depositing the amount due by him is not tenable under law. The calculation memo filed by the plaintiff was not correct and the suit was not maintainable as barred by limitation.
11. An additional written statement was filed to the amended plaint taking specific stand that the plaintiff is not entitled to claim the decree after deducting the amount payable by the plaintiff for redemption of the pledge and farther specific stand was taken that the plaintiff is not entitled to the benefits of Act 7 of 1977. The defendant also amended the written statement by orders dated 25.2.1991 in I.A. No. 3311 of 1990 stating that the plaintiff obtained pawn release chits from the defendant at the time of releasing the articles on 5.4.1978 and subsequently return the same in token of redeeming the articles without signing the accounts and the defendant did not sign in the account books.
12. The plaintiff also filed rejoinder denying such pleas.
13. In the light of the said pleadings, the Court of first instance settled the following issues and additional issues.
(1) Whether the plaintiff had redeemed the ornaments on 5.4.1978 as pleaded by the defendant?
(2) Whether the claim is barred by limitation?
(3) To what relief the plaintiff entitled?
As per orders in LA. No. 2965 of 1985 dated 29.11.1985 the following additional issues were settled.
(1) Whether the silver articles pledged contains gold flowers weighing 8 annas gold, as pleaded by the plaintiff?
(2) Whether the suit is maintainable for recovery of the plaint schedule articles without the plaintiff depositing or paying back the loan amount due to the defendant?
The following additional issues were framed on 18.12.1989:
(1) Whether the plaintiff is a small farmer and the debt due by the plaintiff to the defendant was deemed to have been abated is true?
(2) Whether the plaintiff is owning Ac.6-57 cents of wet land in Penuguduru Village and some more lands in the neighbouring village and not a small farmer is true?
The following additional issue was framed on 17.6.1991.
1. Whether the documents filed by the defendant into Court are fabricated and concocted by him for the purpose of this suit is true
14. The evidence of P.W. 1 and D.W. 1 had been recorded and Exs.A-1 to A-11, Exs.B-1 to B-5 were marked.
15. No doubt, the Court of first instance recorded certain positive findings while answering certain issues in favour of the plaintiff and recorded adverse findings relating to certain issues. But predominantly, both on the strength of oral and documentary evidence came to the conclusion that the suit is barred by limitation and the same was dismissed. The matter was carried by way of appeal A.S. No. 110 of 1992 on the file of IV Additional District Judge, East Godavari at Kakinada, and the appellate Court at Para 9 framed the point for consideration and commenced discussion from Paras 10 to 16, arrived at the conclusion that the appeal being devoid of merit the same to be dismissed and accordingly dismissed the appeal with costs. Aggrieved by the same, the present second appeal is preferred.
16. Though the trial Court recorded certain findings in favour of the plaintiff while answering certain issues, the appellate Court had not considered the said aspects. But the only point, which had been decided by the appellate Court, is the question of limitation. It is not in controversy that to a suit of this nature Article 70 of Limitation Act, 1963, would be applicable. Article 70 of the said Act reads as hereunder.
--------------------------------------------------------------------------Description of suit Period of Time from which period limitation begins to run--------------------------------------------------------------------------70. To recover movable Three The date of refusal property deposited or years after demand.pawned from a depositary or pawnee.--------------------------------------------------------------------------
As can be seen from the Article 70 specified above, the question to be decided is whether the suit can be said to be within limitation.
17. Certain contentions had been advanced in relation to demand and refusal. The plaintiff pledged the articles on 19.5.1971, 28.5.1971 and 11.6.1971 under Exs.A-1 to A-3 and he filed the suit on 5.3.1983. Ex.A-4 is the notice issued at the earliest point of time dated 24.10.1979. The defendant received the same, but had not chosen to give any reply. The second notice was issued on 19.11.1982 under Ex.A-6. In Ex.A-4 it is clearly mentioned that the defendant represented that the account books were not available and he would look into the same and again it was stated that books were not available. When the plaintiff rushed to redeem the same, the silver had been sold away. Ex.A-4 shows both the demand and as well as refusal. The refusal may be either express or implied and the refusal always necessarily need not be in writing. When the defendant himself had stated that the articles already had been sold, how it can be said that he would return the articles. Hence, the Courts below reckoned the period of limitation from the date of said notice taking into demand and refusal and came to the conclusion that the suit is barred by limitation.
18. The question of limitation also is a mixed question of fact and law. Concurrent findings had been recorded by both the Courts below on the aspect of question of limitation on appreciation of the oral and documentary evidence available on record. In the light of the concurrent findings which had been recorded by both the Courts the Court of first instance and also the appellate Court, this Court is not inclined to disturb the said findings relating to the limitation. The other questions need not be considered at length in the light of the finding, which is being recorded by this Court on question of limitation confirming the concurrent findings of the Courts below.
19. Accordingly, the second appeal being devoid of merit, the same shall stand dismissed. No order as to costs.