Judgment:
Jawahar Lal Gupta, J.
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. In the plaint, it had been inter alia stated that the cause of action had accrued on January 9, 1986 when commercial transactions had taken place between the parties. In the written statement filed on behalf of respondent Nos. 1 and 2, while raising various preliminary objections, it had been stated at the end of para 9 that 'the suit of the plaintiff is not within time.' Respondent Nos. 3 and 4 who were the guarantors for the loan advanced to respondent Nos. 1 and 2 had not taken any such plea. However, in spite of this specific plea, the trial court did not frame any issue with regard to limitation. Resultantly, it appears that the plaintiff-Bank did not lead any evidence specifically with the object of proving that the claim was within limitation. Mr. Aggarwal, has contended vehemently and it appears rightly that if a specific issue had been framed, the appellant could have led evidence to prove that the suit was within limitation. He points out that even the documents, copies of which have been attached with the application for additional evidence, prima facie indicate that the respondents had acknowledged their liability inasmuch as they had been depositing part of the amount which was due from them. Even other evidence could have been adduced to conclusively establish that the suit was not barred by limitation. In the circumstances of this case, the contention appears to be well merited.
4. 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.