Buddiprakash Sharma Vs. Nagar Palika - Court Judgment

Excerpt:
- indian penal code, 1890.sections 307 & 324: [lokeshwar singh panta & b.sudershan reddy,jj] assault proof - appellant allegedly dealt sickle blow to deceased - testimony of eye-witnesses showed that sudden altercation ensued between appellant and deceased - no evidence to indicate any previous enmity between parties - single blow of sickle had been inflicted by appellant on back of deceased - incised wound allegedly inflicted by appellant - however opinion of doctor proved that deceased had not died due to direct result of said injury held, appellant is therefore liable to be convicted under section 324 of i.p.c., sentence of 3 years imprisonment reduced to period undergone by appellant considering mental agony suffered by him - in its ordinary as well as its legal sense, a debt is a sum of money payable under an existing obligation. ' it was also observed in para 41 that the law is thus well settled that a contingent debt is no debt until the contingency happens.orders.k. dubey, j.1. this first appeal is by the plaintiff aggrieved of the judgment and decree of the trial court (court of third additional judge to the court of district judge, morena), whereby the suit of the plaintiff for recovery of rs. 22,900/- was dismissed.2. the plaintiffs case, in short, is that defendant/municipal council, jaura, by accepting two tenders dated 1-2-1974, and then by order of the chief municipal officer, jaura, contracted with the plaintiff to execute certain construction work. the agreement was entered into in respect of the two tenders but no agreement was entered into in relation to construction of seven roads, which was given to the plaintiff on 15-1-1975 for 6 roads, and on 22-1-1975 for one road. part payments were made from running bills, but when after completion of works, the full payments were not made, the plaintiff after correspondence issued notices, the last of which is dated 14-11-1977. after receipt of the notice a cheque of final payment was issued by the defendant on 26-12-1977. according to the plaintiff rs. 8912.65 p. remained still due; hence, he instituted a suit on 19-12-1980 for recovery of the suit amount which included compound interest of rs. 13988/- claimed at the rate of 1.5% per month on the amount due. the suit was resisted on various grounds. the trial court dismissed the suit holding that as a notice under section 319 of the m. p. municipalities act, 1961 (for short, the 'act') was not served on the defendant/municipal council, the suit was not maintainable. the trial court also held that the constructions were completed in the year 1975 and suit instituted in 1980 was barred by time. it is against this judgment and decree that the plaintiff has preferred this appeal.3. shri j. r. sharma with shri jai prakash sharma, learned counsel for the appellant, and shri r. s. vajpai, learned counsel for the respondent, were heard.4. the contention of the counsel for the appellant, placing reliance on a division bench decision of this court in bhaiyalal v. municipal committee, murwara, 1958 mplj 251, wherein while dealing with a case under section 48 of the c. p. and berar municipalities act, 1922 (for short, the 'act' of 1922), it was held that notice by a plaintiff before suing the municipal council for cost of construction of drain, etc., based on contract was not necessary nor the bar of limitation under section 48 of the act of 1922 arises in such matters, has got a force. the language of section 48 of the act of 1922 is 'pari materia' to that of section 319 of the act, which are quoted juxtaposition as under : -section 48. section 319.'(1) no suit shall be '(1) no suit shall beinstituted againt any instituted against anycommittee or any member, council or any councillor,officer or servant thereof officer or servant thereofor any person acting under or any person actingthe direction of any under the directionsuch committee, of any such council,member, officer or councillor, officerservant for anything or servant for anythingpurporting to be done done or purporting to beunder this act, until done under this act,the expiration of until the expirationtwo months next after of two months next afternotice in writing a notice, in writing,stating the cause of stating the cause ofaction, the name and action, the nameplace of abode of the and place of abodeintending plaintiff of the intendingand the relief which plaintiff and thehe claims, has been, relief which hein the case of a claims, has been,committee, delivered in the case of aor left at its office, council deliveredand, in the case of or left at itsany such member, officer, office; and, inservant or person the case of any suchas aforesaid delivered member, officer,to him or left at his servant or personoffice or usual place of as aforesaid, deliveredabode, and the plaint to him or usual lace ofshall contain a abode; and thestatement that such plaint shall containnotice has been so a statement thatdelivered or left. such notice has(2) every such suit been so deliveredshall be dismissed or left,unless it is (2) every such suitinstituted within shall be dismissedsix months from the unless it isdate of the accrual instituted witinof the alleged cause eight months fromof action. the date of the(3)*******' accrual of thealleged cause ofaction.(3)******'5. a division bench of this court in case of n. k. gupta v. mungaturam bhagwandas (firm), 1969 jlj note 59, while considering a similar provision in section 401 of the m. p. municipal corporation act, 1956, placing reliance on bhaiyalal's case (supra), has held that the special limitation prescribed by section 401 does not apply to claims for recovery of money due on a contract. thus, in view of the settled position, i am of the opinion that the findings arrived by the trial court on issue no. 5(a) and issue no. 6 cannot be sustained and are hereby set aside.6. coming to the question of limitation, for which issue no. 5(b) was framed, shri sharma claimed the benefit of section 19 of the limitation act, 1963, as the suit was instituted on 19-12-1980, on receipt of the cheque dated 26-12-1977. learned counsel contended that the finding of the trial court that it was not a 'debt' as required under section 19 of the limitation act, 1963, is wrong and is rot based on the material on record.7. in my opinion, this contention also deserves consideration. 'debt' is a term of art, which has not been defined in the limitation act, 1963. webster's new lexicon dictionary, 1988 edn., at p. 247, defines 'debt' as 'something, esp. money, owed to another; the state of owing.' in stroud's judicial dictionary of words and phrases, 3rd edn., at p. 733, 'debt' is defined as 'a sum payable in respect of a liquidated money demand, recoverable by action. this word can but seldom be construed to mean damages for breach of covenant.' the sense of a 'debt' is the liability of the obligor which the obligee is entitled to enforce by action. thus, a 'debt' is an obligation to pay a liquidated or certain sum of money. a debt may be present or future, if it is present it is existent or now due or owing. if it is future, it is existent but accruing or payable in the future. (see venkataramaiya's law lexicon with legal maxims, 2nd edn., 1986, p. 606).8. the apex court in case of shanti prasad v. director of enforcement, air 1962 sc 1764, while considering a case under foreign exchange regulations act, 1947, considered the meaning of 'debt' and observed in para 39 as under : -'a contingent debt is strictly speaking not a debt at all. in its ordinary as well as its legal sense, a debt is a sum of money payable under an existing obligation. it may be payable forthwith, solvendum in praesenti, then it is a debt 'due' or it may be payable at a future date, solvendum futuro; then it is a debt 'accruing.' but in either case it is a debt. but a contingent debt has no present existence, because it is payable only when the contingency happens, and ex hypothesi that may or may not happen.'it was also observed in para 41 that the law is thus well settled that a contingent debt is no debt until the contingency happens. (see also a decision of this court in dharamveer v. lala narayandas, 1986 (i) mpwn 211).9. a division bench of this court in c. s. angre v. commissioner of wealth tax, madhya pradesh, nagpur, air 1968 m.p. 168, which was a case under wealth tax act, 1957, has held that a debt is an obligation to pay a liquidated or certain sum of money. if it is present, it is existent or now due and owing. if it is future, it is existent but accruing or payable in future. (see also commissioner of wealth tax, madras v. pierce leslie and co., air 1963 madras 356, and commissioner of wealth tax, kerala v. harrison and crossfield ltd., air 1965 kerala 209).10. according to the plaintiff, there was a practice in the municipal council to make payments by one cheque of all the costs of construction either of running bills or of final payments. therefore, the last payment made by cheque was an acknowledgment of a debt under section 19 of the limitation act, 1963, and, as such, the suit instituted being within three years from 26-12-1977 was within time.11. shri vajpai, learned counsel for the respondent, contended that the municipal council has resisted the claim also on merits and contended that overpayments of rs. 7000/- and odd were made, which the council was to recover from the plaintiff; moreover, the sum claimed as debt by the plaintiff was not an ascertained sum; therefore, it cannot fall within the definition of 'debt', as one of the essentials of debt is an ascertained or readily calculable amount; a claim for an amount which is uncertain and cannot be adjusted in an account, cannot be said to be a 'debt', as all debts are liabilities, but all liabilities are not debts. reliance was placed on two decisions under wealth tax act, 1957, namely, commissioner of wealth tax, madras v. pierce leslie and co. (supra) and commissioner of wealth tax, kerala v. harrison and crossfield ltd. (supra). on the other hand, it is a case of accounts; unless the accounts are settled and the sum is ascertained, the unascertained sum cannot be said to be a 'debt' and, therefore, the trial court rightly dismissed the suit of the plaintiff as barred by time.12. a look to the judgment of the trial court shows that the trial court has not given any finding about the debt nor any issue has been framed by it in this respect. learned counsel for the appellant pointed out that the plaintiff's statement remained unrebutted, as no cross-examination was put to him by the defendant on material particulars, nor the defendant put its case to the plaintiff; therefore, the trial court ought to have held that lump sum payments were used to be made by one cheque and, as such, the payment made by the last cheque on 26-12-1977 gave a fresh cause of action to the plaintiff for instituting the suit.13. after carefully considering the submissions made by the counsel, i am of the opinion that the findings are lacking, as no issue was framed to that effect. unless an issue is framed on which the attention of parties is focused and then they are afforded an opportunity to lead evidence, a finding could not be arrived at. moreover, the trial court has not applied its mind to the case raised in the plaint for giving the benefit of section 19. in the circumstances, the case deserves to be remitted to the trial court for deciding the suit afresh not only on the question of limitation but also on all points of dispute, on merits, of the claim. as the suit is being remitted, it would be open to the parties to amend their pleadings, if so advised, and the court shall then frame necessary issues arising out of the amended pleadings and to decide the questions of limitation and liability. parties shall be afforded an opportunity to lead evidence, but the court shall in any case decide the suit not later than six months from the date of appearance of parties before it. parties shall appear before the trial court on 8-3-1991 for which no fresh notices need be issued by the trial court, as they have been noticed here. let the record of the case be sent to the court concerned immediately so as to reach the court on or before 8-3-1991. the parties agreed that they will not only co-operate with the trial court in early disposal of the suit but will also not seek the assistance of the court to summon the witnesses.14. as the suit was dismissed by the trial court on maintainability and limitation, those findings are set aside and the case is being remitted for deciding the suit afresh in accordance with law, in view of section 13 of the court-fees act, 1870, the appellant/plaintiff is entitled to a certificate, authorising him to receive back from the collector of the district concerned the full amount of fee paid on the memorandum of appeal. the certificate shall be issued to the appellant by the additional registrar.15. in the result, the appeal is allowed; judgment and decree of the trial court are set aside, and the case is sent back to the trial court for its disposal afresh in accordance with law and the directions made hereinabove. parties to bear their own costs.16. a copy of this order be sent to the court concerned for proceeding with the suit in accordance with the directions contained therein.17. c. c. to parties.

Judgment:
ORDER

S.K. Dubey, J.

1. This first appeal is by the plaintiff aggrieved of the judgment and decree of the trial Court (Court of Third Additional Judge to the Court of District Judge, Morena), whereby the suit of the plaintiff for recovery of Rs. 22,900/- was dismissed.

2. The plaintiffs case, in short, is that defendant/Municipal Council, Jaura, by accepting two tenders dated 1-2-1974, and then by order of the Chief Municipal Officer, Jaura, contracted with the plaintiff to execute certain construction work. The agreement was entered into in respect of the two tenders but no agreement was entered into in relation to construction of seven roads, which was given to the plaintiff on 15-1-1975 for 6 roads, and on 22-1-1975 for one road. Part payments were made from running bills, but when after completion of works, the full payments were not made, the plaintiff after correspondence issued notices, the last of which is dated 14-11-1977. After receipt of the notice a cheque of final payment was issued by the defendant on 26-12-1977. According to the plaintiff Rs. 8912.65 p. remained still due; hence, he instituted a suit on 19-12-1980 for recovery of the suit amount which included compound interest of Rs. 13988/- claimed at the rate of 1.5% per month on the amount due. The suit was resisted on various grounds. The trial Court dismissed the suit holding that as a notice Under Section 319 of the M. P. Municipalities Act, 1961 (for short, the 'Act') was not served on the defendant/Municipal Council, the suit was not maintainable. The trial Court also held that the constructions were completed in the year 1975 and suit instituted in 1980 was barred by time. It is against this judgment and decree that the plaintiff has preferred this appeal.

3. Shri J. R. Sharma with Shri Jai Prakash Sharma, learned counsel for the appellant, and Shri R. S. Vajpai, learned counsel for the respondent, were heard.

4. The contention of the counsel for the appellant, placing reliance on a Division Bench decision of this Court in Bhaiyalal v. Municipal Committee, Murwara, 1958 MPLJ 251, wherein while dealing with a case Under Section 48 of the C. P. and Berar Municipalities Act, 1922 (for short, the 'Act' of 1922), it was held that notice by a plaintiff before suing the Municipal Council for cost of construction of drain, etc., based on contract was not necessary nor the bar of limitation Under Section 48 of the Act of 1922 arises in such matters, has got a force. The language of Section 48 of the Act of 1922 is 'pari materia' to that of Section 319 of the Act, which are quoted juxtaposition as under : -

Section 48. Section 319.'(1) No suit shall be '(1) No suit shall beinstituted againt any instituted against anycommittee or any member, Council or any Councillor,officer or servant thereof officer or servant thereofor any person acting under or any person actingthe direction of any under the directionsuch committee, of any such Council,member, officer or Councillor, officerservant for anything or servant for anythingpurporting to be done done or purporting to beunder this Act, until done under this Act,the expiration of until the expirationtwo months next after of two months next afternotice in writing a notice, in writing,stating the cause of stating the cause ofaction, the name and action, the nameplace of abode of the and place of abodeintending plaintiff of the intendingand the relief which plaintiff and thehe claims, has been, relief which hein the case of a claims, has been,committee, delivered in the case of aor left at its office, Council deliveredand, in the case of or left at itsany such member, officer, office; and, inservant or person the case of any suchas aforesaid delivered member, officer,to him or left at his servant or personoffice or usual place of as aforesaid, deliveredabode, and the plaint to him or usual lace ofshall contain a abode; and thestatement that such plaint shall containnotice has been so a statement thatdelivered or left. such notice has(2) Every such suit been so deliveredshall be dismissed or left,unless it is (2) Every such suitinstituted within shall be dismissedsix months from the unless it isdate of the accrual instituted witinof the alleged cause eight months fromof action. the date of the(3)*******' accrual of thealleged cause ofaction.(3)******'

5. A Division Bench of this Court in case of N. K. Gupta v. Mungaturam Bhagwandas (Firm), 1969 JLJ Note 59, while considering a similar provision in Section 401 of the M. P. Municipal Corporation Act, 1956, placing reliance on Bhaiyalal's case (supra), has held that the special limitation prescribed by Section 401 does not apply to claims for recovery of money due on a contract. Thus, in view of the settled position, I am of the opinion that the findings arrived by the trial Court on Issue No. 5(a) and Issue No. 6 cannot be sustained and are hereby set aside.

6. Coming to the question of limitation, for which Issue No. 5(b) was framed, Shri Sharma claimed the benefit of Section 19 of the Limitation Act, 1963, as the suit was instituted on 19-12-1980, on receipt of the cheque dated 26-12-1977. Learned counsel contended that the finding of the trial Court that it was not a 'debt' as required Under Section 19 of the Limitation Act, 1963, is wrong and is rot based on the material on record.

7. In my opinion, this contention also deserves consideration. 'Debt' is a term of art, which has not been defined in the Limitation Act, 1963. Webster's New Lexicon Dictionary, 1988 Edn., at p. 247, defines 'debt' as 'something, esp. money, owed to another; the state of owing.' In Stroud's Judicial Dictionary of Words and Phrases, 3rd Edn., at p. 733, 'debt' is defined as 'a sum payable in respect of a liquidated money demand, recoverable by action. This word can but seldom be construed to mean damages for breach of covenant.' The sense of a 'debt' is the liability of the obligor which the obligee is entitled to enforce by action. Thus, a 'debt' is an obligation to pay a liquidated or certain sum of money. A debt may be present or future, if it is present it is existent or now due or owing. If it is future, it is existent but accruing or payable in the future. (See Venkataramaiya's Law Lexicon with Legal Maxims, 2nd Edn., 1986, p. 606).

8. The apex Court in case of Shanti Prasad v. Director of Enforcement, AIR 1962 SC 1764, while considering a case under Foreign Exchange Regulations Act, 1947, considered the meaning of 'debt' and observed in para 39 as under : -

'A contingent debt is strictly speaking not a debt at all. In its ordinary as well as its legal sense, a debt is a sum of money payable under an existing obligation. It may be payable forthwith, solvendum in praesenti, then it is a debt 'due' or it may be payable at a future date, solvendum futuro; then it is a debt 'accruing.' But in either case it is a debt. But a contingent debt has no present existence, because it is payable only when the contingency happens, and ex hypothesi that may or may not happen.'

It was also observed in para 41 that the law is thus well settled that a contingent debt is no debt until the contingency happens. (See also a decision of this Court in Dharamveer v. Lala Narayandas, 1986 (I) MPWN 211).

9. A Division Bench of this Court in C. S. Angre v. Commissioner of Wealth Tax, Madhya Pradesh, Nagpur, AIR 1968 M.P. 168, which was a case under Wealth Tax Act, 1957, has held that a debt is an obligation to pay a liquidated or certain sum of money. If it is present, it is existent or now due and owing. If it is future, it is existent but accruing or payable in future. (See also Commissioner of Wealth Tax, Madras v. Pierce Leslie and Co., AIR 1963 Madras 356, and Commissioner of Wealth Tax, Kerala v. Harrison and Crossfield Ltd., AIR 1965 Kerala 209).

10. According to the plaintiff, there was a practice in the Municipal Council to make payments by one cheque of all the costs of construction either of running bills or of final payments. Therefore, the last payment made by cheque was an acknowledgment of a debt Under Section 19 of the Limitation Act, 1963, and, as such, the suit instituted being within three years from 26-12-1977 was within time.

11. Shri Vajpai, learned counsel for the respondent, contended that the Municipal Council has resisted the claim also on merits and contended that overpayments of Rs. 7000/- and odd were made, which the Council was to recover from the plaintiff; moreover, the sum claimed as debt by the plaintiff was not an ascertained sum; therefore, it cannot fall within the definition of 'debt', as one of the essentials of debt is an ascertained or readily calculable amount; a claim for an amount which is uncertain and cannot be adjusted in an account, cannot be said to be a 'debt', as all debts are liabilities, but all liabilities are not debts. Reliance was placed on two decisions under Wealth Tax Act, 1957, namely, Commissioner of Wealth Tax, Madras v. Pierce Leslie and Co. (supra) and Commissioner of Wealth Tax, Kerala v. Harrison and Crossfield Ltd. (supra). On the other hand, it is a case of accounts; unless the accounts are settled and the sum is ascertained, the unascertained sum cannot be said to be a 'debt' and, therefore, the trial Court rightly dismissed the suit of the plaintiff as barred by time.

12. A look to the Judgment of the trial Court shows that the trial Court has not given any finding about the debt nor any issue has been framed by it in this respect. Learned counsel for the appellant pointed out that the plaintiff's statement remained unrebutted, as no cross-examination was put to him by the defendant on material particulars, nor the defendant put its case to the plaintiff; therefore, the trial Court ought to have held that lump sum payments were used to be made by one cheque and, as such, the payment made by the last cheque on 26-12-1977 gave a fresh cause of action to the plaintiff for instituting the suit.

13. After carefully considering the submissions made by the counsel, I am of the opinion that the findings are lacking, as no issue was framed to that effect. Unless an issue is framed on which the attention of parties is focused and then they are afforded an opportunity to lead evidence, a finding could not be arrived at. Moreover, the trial Court has not applied its mind to the case raised in the plaint for giving the benefit of Section 19. In the circumstances, the case deserves to be remitted to the trial Court for deciding the suit afresh not only on the question of limitation but also on all points of dispute, on merits, of the claim. As the suit is being remitted, it would be open to the parties to amend their pleadings, if so advised, and the Court shall then frame necessary issues arising out of the amended pleadings and to decide the questions of limitation and liability. Parties shall be afforded an opportunity to lead evidence, but the Court shall in any case decide the suit not later than six months from the date of appearance of parties before it. Parties shall appear before the trial Court on 8-3-1991 for which no fresh notices need be issued by the trial Court, as they have been noticed here. Let the record of the case be sent to the Court concerned immediately so as to reach the Court on or before 8-3-1991. The parties agreed that they will not only co-operate with the trial Court in early disposal of the suit but will also not seek the assistance of the Court to summon the witnesses.

14. As the suit was dismissed by the trial Court on maintainability and limitation, those findings are set aside and the case is being remitted for deciding the suit afresh in accordance with law, in view of Section 13 of the Court-Fees Act, 1870, the appellant/plaintiff is entitled to a certificate, authorising him to receive back from the Collector of the district concerned the full amount of fee paid on the memorandum of appeal. The certificate shall be issued to the appellant by the Additional Registrar.

15. In the result, the appeal is allowed; judgment and decree of the trial Court are set aside, and the case is sent back to the trial Court for its disposal afresh in accordance with law and the directions made hereinabove. Parties to bear their own costs.

16. A copy of this order be sent to the Court concerned for proceeding with the suit in accordance with the directions contained therein.

17. C. c. to parties.