- (1.) Heard Sri P.K. Singhal, Counsel for the appellant and Sri V.K. Chandel, Counsel for respondent. By means of present appeal, the appellant is challenging the order dated 14.8.2007 passed on application moved in Suit No. 491 of 2001, Syndicate Bank versus C.-Branch, Manager, L.I.C. By Additional District Judge, Court No. 3, Agra. It appears that the appellant has filed a suit No. 491 of 2001 for recovery of amount of Rs. 7,18,578.77/- It appears that there were three current accounts of the L.I.C. in the Bank of the appellant. It is the case of the appellant in the plaint that when all the three accounts at the end of January, 1998 have been reconciled and in tallying a total summation mistake undebited cheque of Rs. 7,18,576.77 were discovered which has been informed to the defendant. In para-9 of the plaint, it is stated that on the first time in the year 1998 it transpired upon a minute and detailed scrutiny of the aforesaid accounts, it appears that on account of bona fide mistake of omission plaintiff's bank inadvertently committed some summation mistakes in total of sum of Rs. 7,18,567.77 during the period of 1984 to 1989 and knowing this fact plaintiff's bank intimated the defendant vide letter No. 111/8610.CA/C/98 on 29th January, 1998 and the same has been served upon defendant on the same day. The defendant being running aforesaid account with the plaintiff's bank expected from defendant to adhere to their reputation for honesty and returned plaintiff's bank by making payments of sum of Rs. 7,18,576.77 alongwith upto date interest thereon as per the plaintiff's letter dated 29th January, 1998 consequent upon this several detailed letters to this effect were submitted with the defendant and same were acknowledged by him. In para-17 of the plaint, it is submitted that cause of action for the suit arose on 29th January, 1998 when the mistake was found and informed to the defendant and on 5th January, 2001 and 10th January, 2001 when the demand was finally made through legal notice at Agra when the plaintiff's bank towards the liquidation of plaintiff's dues from and on behalf of the defendant and defendant failed to pay the same on demand at Agra within the jurisdiction of Hon'ble Court and Hon'ble Court has full jurisdiction to decide the suit.
(2.) It appears that the defendant moved an application, which is marked at 26-Ga, stating that the suit is barred by limitation inasmuch as the recovery relates to period of 1984 to 1989 filed a suit beyond three years. The Additional District Judge, Court No. 3, Agra vide impugned order allowed the application and dismissed the suit under Order VII, Rule 11 of the Code of Civil Procedure being barred by limitation.
(3.) Learned Counsel for the appellant submitted that the application has been decided without framing the issue and without considering the averments made in the plaint that cause of action has arisen from 29th January, 1998 when the mistake has been detected. It is submitted that in view of section 17(1)(c) of the Limitation Act, 1963, the suit was within time. This aspect of the matter has not been examined by the Court below. The Court below instead of deciding the application, ought to have framed the issue relating to the limitation alongwith other issues and after evidences being adduced by both the parties, issue relating to the limitation should be decided. It is, accordingly, submitted that let the impugned order be set aside and the Trial Court be directed to frame the issue relating to the limitation also alongwith other issues and decide the issue relating to the limitation after the evidences being adduced by both the parties.;