Delhi District Court
M.S. British Motor Car Company (1934) ... vs M/S Neeta Enterprises on 4 October, 2010
:1:
IN THE COURT OF SH. JAY THAREJA, CIVIL JUDGE-I,
NEW DELHI DISTRICT, DELHI
Civil Suit No: 03/10
M.S. British Motor Car Company (1934) Ltd
A Public Limited Company Duly Incorporated,
Under the Provisions of Companies Act,
Having its Registered Office At
Pratap Building, N- Block, Connaught Place,
New Delhi
Through Shri S.K Joshi
Dy. Manager (Sales) ... Plaintiff
Versus
M/s Neeta Enterprises,
Through its Partner
Shri Sharvesh Kumar,
Behind Hind Cinema,
Jawahar Park Market,
Civil Line,
Bareilly (UP) ... Defendant
SUIT FOR RECOVERY OF RS. 20,173/- (RUPEES
TWENTY THOUSAND ONE HUNDRED AND
SEVENTY THREE ONLY) ALONGWITH PENDENTE
- LITE AND FUTURE INTEREST
DATE OF INSTITUTION : 13.3.2009
DATE OF ARGUMENTS : 30.9.2010
DATE OF DECISION : 04.10.2010
JUDGMENT
1. The plaintiff has filed the present suit praying for a decree of a sum of Rs. 20,173/- alongwith pendente-lite and future interest at the rate Civil Suit No.03/10 :2: of 18% per annum with cost of the suit in favour of the plaintiff and against the defendant.
2. In brief, the case of the plaintiff is that the plaintiff is a Public Limited Company incorporated under the provisions of Companies Act having its registered office at Pratap Building, N Block, Connaught Circus, New Delhi, and Branch Office at Kanpur (UP) and Sh. S.K Joshi, Deputy Manager (Sales) of the plaintiff company is duly authorized vide Resolution passed on 21.12.2005 and further on 20.10.2006 by the Board of Directors of the plaintiff company to institute, sign and verify the present suit for and on behalf of the plaintiff company and to do all other necessary and things in this behalf.
3. According to the plaintiff, the defendant is a partnership firm, M/s Neeta Enterprises having its office behind Hind Cinema, Jawahar Park Market, Civil Lines, Bareilly (UP). The plaintiff has sued the defendant through its partner, Sh. Sarvesh Kumar.
4. It is alleged by the plaintiff that the plaintiff, apart from various other business, deals into the business of selling automobiles spare parts and the defendant approached the plaintiff from time to time for purchase of motor parts of different specifications and placed orders for the same with the plaintiff. The plaintiff supplied the motor parts / goods to the defendant vide various bills and various GRS from time to time against the different orders placed by the defendant.
5. According to the plaintiff, the defendant during the course of the business accepted the motor parts/ goods supplied and invoices thereof issued by the plaintiff and never raised any objections with Civil Suit No.03/10 :3: respect to the same. The bills as and when issued were duly received by the defendant alongwith the motor parts/ goods from the plaintiff in usual course of business and are as per statements of accounts from 31.3.2004 to 31.3.2009. It is stated in the plaint that during the course of business, the plaintiff maintained a running account of the defendant and all the motor parts / goods supplied and the payments received by the plaintiff were duly incorporated in the said account.
6. It is alleged by the plaintiff that after adjustment of the motor parts/ goods purchased and payments made by the defendant, a total of Rs. 20,173/- (Rupees Twenty Thousand One Hundred and Seventy Three Only) is outstanding and payable by the defendant to the plaintiff against the aforesaid supply of motor parts/ goods to the plaintiff.
7. The plaintiff has also alleged that the plaintiff through its various letters/ reminder requested the defendant to make the payment of outstanding amount of a sum of Rs. 20,173/- (Rupees Twenty Thousand One Hundred and Seventy Three Only). But inspite of the aforesaid repeated requests and demand, the defendant failed and neglected to make the payment to the plaintiff. Thereafter, plaintiff served a legal notice dated 05.11.2007 through registered post, upon the defendant calling upon the defendant to pay a sum of Rs. 20,173/- (Rupees Twenty Thousand One Hundred and Seventy Three Only), the amount due towards the supply of goods.
8. According to the plaintiff, apart from the principal amount of 20,173/- (Rupees Twenty Thousand One Hundred and Seventy Three Only) the defendant is liable to pay interest at the rate of 18% per annum pendente-lite and future interest till the realization of the said amount.
Civil Suit No.03/10 :4:9. A perusal of the order-sheets reveal that the summons for settlement of issues were issued against the defendant on 03.8.2009. Vide Order dated 17.9.2009, the defendant was taken to have been served on the basis of courier report with the endorsement 'refuse to accept' and an affidavit of Sh. S.K Joshi, authorized representative of the plaintiff company stating that the defendant had been served on 9.9.2009. The affidavit was accompanied with a photocopy of the summons, which had signatures of Sh. Sarvesh Kumar, partner in the defendant partnership firm. After waiting sufficiently for the appearance of the defendant on 17.9.2009, the defendant was proceeded ex-parte and suit was fixed for final hearing.
10. On 12.12.2009, the date of final hearing of the suit, Sh. S.K Joshi, the authorized representative of the plaintiff company tendered his evidence by way of an affidavit dated 28.8.2009. In support of his affidavit, Sh. S.K Joshi relied upon certain documents including statement of accounts. However, it was found that statement of account EX.PW1/3 (Colly) did not reflect certain bills on the basis of which the suit had been filed. In order to rectify the error, Sh. S.K Joshi filed an additional affidavit dated 23.1.2010 and the said affidavit was tendered in evidence before this Court on 25.1.2010.
11. Thereafter, the case was taken up for final arguments on 29.1.2010. On this date, it was found that there is an inconsistency in the case of the plaintiff with respect to the nature of juristic personality of the defendant. In the title of the suit and in the deposition of Sh. S.K Joshi, the defendant was stated to be a partnership firm, however, in paragraph 2 and 4 of the plaint, the defendant was stated to be a sole proprietorship firm.
Civil Suit No.03/10 :5:12. On the next date of hearing i.e. 3.3.2010, Sh. S.K Joshi clarified that the defendant is a partnership firm. In order to rectify the error in the plaint, an application under Order 6 Rule 17 of CPC was filed by the plaintiff on 25.5.2010 and it was allowed on the same day. After filing of the amended plaint, a fresh affidavit, dated 28.8.2010, of Sh. S.K Joshi, AR of the plaintiff was tendered in evidence on 30.8.2010. On the same day, the plaintiff evidence was closed as no other witness was sought to be examined by the plaintiff.
13. I had heard Sh. Aadarsh Ganesh, Ld. Advocate for the plaintiff on 30.9.2010. The Ld. Advocate had submitted that the case of the plaintiff stands duly proved on the judicial file by virtue of the deposition made by PW-1, Sh. S.K Joshi, Authorized Representative of the plaintiff through his affidavit tendered on 30.8.2010. During the course of final arguments, the following two questions had arisen for consideration :-
(1) How is the claim of Rs.20,173/- based on eight bills dated 31.3.2004, 20.12.2004, 20.12.2004, 23.4.2005, 24.4.2005, 22.8.2005 and 24.10.2005 within limitation on the date of filing of the suit i.e. 12.3.2009 ? Which Article of the Schedule to the Limitation Act, 1963, is applicable to the present case ?
(2) What is the evidence on record to show that the goods representated by eight bills had been delivered to the defendant ?
14. With respect to the first question, the Ld. Advocate for the plaintiff had submitted that the present suit is based on a running account and the period of limitation of such suit is reckoned from the date of last transaction entered into the account. The Ld. Advocate, Civil Suit No.03/10 :6: however, did not specify as to which Article of the Schedule to the Limitation Act, 1963 is applicable to the present case. Further, the Ld. Advocate had cited the judgment of the Hon'ble High Court of Delhi in Rajesh Kumari v Prem Chand Jain, 67(1997) DLT 502. In the said judgment, R.C. Lahoti J. after referring to Balchand Bhandari v India Pictures and Ors, AIR 1967 MP 280, Mauris Mayahas v W. Morley and Ors., AIR 1925 Cal. 937 and Jiwan Lal Acharya v Rameshwar Lal Aggarwala, AIR 1967 SC 1118 has made the following observation, "13. I may illustrate. The loan is dated 1.3.1981, the limitation for suit for recovery expired on 1.3.1984. On 28.2.1984 the debtor delivers a cheque in part payment of principal or in payment of interest duly signed by him. The plaintiff files a suit on 7.3.1984 seeking extension in limitation relying on payment dated 28.2.1984. The suit will be within limitation though the cheque may bounce during the pendency of the suit. The bouncing of the cheque will not undo the advantage of extension in the period of limitation earned by the plaintiff and his validly instituting the suit on 7.3.1984. Thus, dishonouring of the cheque results in not extinguishing the liability of the debtor to the extent of the amount of the cheque; nevertheless the chequ remains an effective payment for the purpose of Section 19 of the Limitation Act, 1963. "
Placing reliance on the aforesaid observation, the Ld. Advocate had submitted that the entire claim of the plaintiff is within limitation as the defendant had issued two cheques dated 23.5.2006 and 31.3.2007 and the present suit has been filed on 12.3.2009 i.e. within 3 years from 31.3.2007.
15. With respect to the second question, the Ld. Advocate for the plaintiff had submitted that the plaintiff has placed on record transport Civil Suit No.03/10 :7: receipts (biltis) issued by Lakshmi Transport Co. as proof of delivery and in addition to them, there is the uncrossed/ unchallenged testimony of Sh. S.K Joshi, authorized representative of the plaintiff company wherein the said witness has testified that the goods were delivered to the defendants. The Ld. Advocate for the plaintiff had further submitted that since the testimony is uncrossed/ unchallenged, it should be believed to be true.
16. After hearing the Ld. Advocate for the plaintiff and perusing the record of the Court file, my findings are as follows :-
17. The plaintiff has filed the present suit on the basis of a 'running account' and supported it with aforesaid bills. Nowhere in the plaint, has the plaintiff alleged that there was a 'mutual open and current account' between the plaintiff and the defendant. That being the case, the plaintiff cannot take benefit of Article 1 of Schedule I, Limitation Act, 1963 and claim that the period of limitation would run from the close of the year in which the last admitted or proved entry is entered in the account maintained by the plaintiff.
18. Instead, in such a scenario, the case of the plaintiff is liable to be judged on the basis of individual bills whose period of limitation would be governed individually by Article 14 of the Schedule I, Limitation Act, 1963. In other words, every bill would constitute a separate cause of action and its limitation would be three years from the date of its issuance. In taking this view of the matter, I am supported by the judgment of the Hon'ble High Court of Orissa in Attadi Venketi v M/s Bharatam Ramulu and Sons, reported in AIR 1984 Orissa 226.Civil Suit No.03/10 :8:
19. In the present case, the following chart depicts the details of various bills and the date of expiry of their limitation :
Details of Bill Date of Expiry of Limitation 1. EX.PW1/2A dated 31.3.2004 1. 30.3.2007 2. EX.PW1/2B dated 20.12.2004 2. 19.12.2007 3. EX.PW1/2C dated 20.12.2004 3.19.12.2007 4. EX.PW1/2D dated 20.12.2004 4. 19.12.2007 5. EX.PW1/2E dated 23.4.2005 5. 22.4.2008 6. EX.PW1/2F dated 24.4.2005 6. 23.4.2008 7. EX.PW1/2G dated 22.8.2005 7. 21.8.2008 8. EX.PW1/2H dated 24.10.2005 8. 23.10.2008
20. Ex -Facie, the entire claim of the plaintiff being based on the aforesaid bills is barred by law of limitation on the date of filing of the suit i.e. 12.3.2009. However, the plaintiff had received following cheques which in view of Rajesh Kumari v Prem Chand Jain (supra) and Section 19 of the Limitation Act, 1963 can be taken to have extended limitation of any two of the aforesaid individual bills :
a) Cheque dated 23.5.2006 of Rs.3000/- which
bounced on 17.6.2006.
b) Cheque dated 31.3.2007 of Rs.3000/-.
21. The Ld. Advocate for the plaintiff had submitted that the benefit of Section 19 of the Limitation Act, 1963 would also be available on account of payment of Rs. 500/- vide receipt EX.PW 1/4 dated 24.12.2008 bearing signatures of Sh. Sarvesh Kumar, partner of the defendant. In my view, the said payment cannot extend the limitation of any of the aforesaid bills as they had all become time barred by Civil Suit No.03/10 :9: 23.10.2008 i.e. two months before the date of said payment.
22. During the course of final arguments, the Ld. Advocate was asked to choose any two of the aforesaid bills. The Ld. Advocate for the plaintiff had chosen EX.PW1/2A dated 31.3.2004 of Rs. 7749/- and EX.PW1/2G dated 22.8.2005 of Rs. 4688/-.
23. The limitation of the bill, EX.PW1/2A dated 31.3.2004 of Rs.7749/- is taken to be extended to 22.5.2009 by cheque dated 23.5.2006 of Rs3000/- which bounced on 17.6.2006 and the limitation of bill, EX.PW1/2G dated 22.8.2005 of Rs.4688/- is taken to be extended to 30.3.2010 by cheque dated 31.3.2007 of Rs.3000/-.
24. Consequently, in view of the aforesaid, only the bills, EX.PW1/2A and EX.PW1/2G can be taken to be within the period of limitation and as such, the plaintiff can only be entitled to Rs.12,437/- as the principal amount.
25. With respect to proof of delivery by the plaintiff to the defendant, I find that the transport receipts (biltis), placed on record by the plaintiff state that the plaintiff, "BMC" is the consignor and "Self" is the consignee. In respect of these entries in the transport receipts (biltis), the Ld. Advocate for the plaintiff had submitted that it is customary to have the word 'Self' written as the name of the consignee and despite such entries, the goods were actually delivered to the defendant. Further, the Ld. Advocate had submitted that in fact if no goods were delivered to the defendant, no payment would have been made by the defendant in 2006 and 2007. On preponderance of the probabilities, I find myself to be in agreement with the Ld. Advocate for the plaintiff and in view of the Civil Suit No.03/10 :10: unchallenged testimony of PW-1, Sh. S.K Joshi and the fact that defendant had made payments in the year 2006 and 2007, I hold that indeed the goods were delivered to the defendant.
26. As a net result of the aforesaid discussion, I decree the suit in favour of the plaintiff. The plaintiff shall be entitled to a decree of Rs.
12,437/- alongwith pendente-lite and future interest at the rate of 8% per annum. Also, the plaintiff shall be entitled to costs of the suit, quantified at Rs. 2000/-.
The Decree sheet be prepared, accordingly.
File be consigned to record room.
Announced in the Open Court (Jay Thareja)
On 4.10.2010 Civil Judge-I, New Delhi District
New Delhi
Civil Suit No.03/10