Delhi District Court
M/S Milhard Sales Pvt. Ltd vs M/S Engineering Tools Centre on 28 January, 2011
IN THE COURT OF SH. GAGANDEEP JINDAL, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No. 505/10
IN THE MATTER OF:
M/S Milhard Sales Pvt. Ltd.
having its registeered Officer at :
4772, Hauz Kazi ( Inside Ajmeri Gate),
Delhi110006
Through its Auth. Representative
............................Plaintiff
VERSUS
M/S Engineering Tools Centre
Through its Partner/Prop./principal Officer,
55,PhaseII, Industrial Area,
56,Chandigarh. ....................Defendant
Date of Institution: 21.12.2006
Date of Reserving for Judgment: 20.01.2011
Date of Judgment : 28.01.2011
SUIT FOR RECOVERY OF RS. 19,724.40 P (RUPEES NINTEEN
THOUSANDS SEVEN HUNDRED AND TWENTY FOUR AND
FOURTY PAISA ONLY)
Suit No. 505/10 Page No. 1 of 6
EXPARTE JUDGMENT:
1.Vide this judgment, I shall dispose of the suit of recovery of Rs. 19,724.40/ filed by the plaintiff.
2. Brief facts of the case are that, It is submitted that plaintiff is a Private Ltd. Company registered under the Indian Companies Act and deals in manufacturing and trading of tools and equipments and also deals in imports and exports through code No. 0591047977. It is further submitted that the defendant company through its agent/representative/director used to place order for supply of various equipments/ goods on the plaintiff. It is submitted that the defendant used to purchase the good on credit basis as well as on cash basis and some time used to make the part payment against bill/s so issued by the plaintiff. It is further submitted that the plaintiff maintains a current, running and opening account of all the purchase made by the defendant, payments made to the plaintiff and the balance amount outstanding from time to time and payable by the defendant. It is further submitted that the defendant lastly made the translation Suit No. 505/10 Page No. 2 of 6 with the plaintiff for Rs. 1638/ and made the payment of the same in cash for the financial year ending 31032004 and thereafter the defendant stopped the transaction with the plaintiff. It is further submitted that as per the statement of account maintained by the plaintiff company the defendant is still liable to pay a sum of Rs. 19,724.40 towards the outstanding amount for the financial year ending 2004. It is further submitted that a legal notice dt. 1002 2005 was sent to the defendant to clear the outstanding amount but despite the same defendant has failed to repay the outstanding amount . Hence this suit is filed.
3. Defendant was duly served but despite service defendant did not appear before the court and was proceeded exparte on 0705 2007.
4. To prove his case the plaintiff has examined witness Sh. Dhanraj Singh S/o Sh. Tara Chand as PW1 C/o M/S Milhard sale Pvt. Ltd being the authorized representative of the plaintiff company. PW1 Sh. Dhanraj Singh has put reliance on the following document:
(i) Extract of meeting dt. 23102006 passed by the board of Resolution of the company is Ex. PW1/1 Suit No. 505/10 Page No. 3 of 6
(ii) Copy of statements of account is Ex. PW1/2 ( colly)
(iii) Copy of Legal Notice dt. 10022005 is Ex. PW1/3
(iv) Copy of Original receipt and A.D. Card is Ex.PW1/4 ( colly)
5. I have heard the counsel for the plaintiff and have gone through the record carefully.
6. There is no reason to disbelieve the deposition made by the witness PW1 as his testimony is remained uncontested and unrebutted .
7. The Hon'ble Supreme Court in Kesharichand v. Shillong Banking Corporation, AIR 1965 SC 1711 has observed that: "There has to be mutual dealings between the parties on each side creating independent obligation and not merely transactions which create obligations on one side. Only such a (sic) would attract the application of Article
1. It is further required to be shown that the suit has been filed within three years of the close of the year of the last such transaction."
In the present case, the plaintiff used to sell goods to defendant for which plaintiff maintains an account. But it can not be said that this account is maintained on the basis of receprocal demand . There is obligation only on the part of defendant to pay the price of goods . Therefore, Article 1 of Limitation Act is not Suit No. 505/10 Page No. 4 of 6 applicable.
8. Section 59.
Application of payment where debt to be discharged is indicated: "Where a debtor, owing several distinct debts to one person, makes a payment to him, either with express intimation, or under circumstances implying that the payment is to be applied to the discharge of some particular debt, the payment, if accepted , must be applied accordingly."
In the present case, as per statement of accounts Ex. PW1/2 ( Colly), the plaintiff had sold goods twice in the financial year 20032004 i.e. on 19052003 against the sale document No. 57273 for which the payment is received on 20052003 and another transaction took place on 14082003 vide sale document No. 60792 for which the payment is is received on 14082003.
In view of the section 59 of the Contract Act, the payment made on 20052003 and 14082003 can only be adjusted towards the sale on 19052003 and 14082003 respectively. Suit No. 505/10 Page No. 5 of 6 Article 14 of Limitation Act: Limitation period to recover the price of goods sold is three years from the date of delivery of goods. According to statement of accounts Ex. PW1/2 (Colly.) the last transaction of sale was made on 07122002 for which the payments are not made. But the suit is filed on 21122006 which is clearly barred by the limitation period as the same has to be filed on and before 06122005.
9. Relief The plaintiff has failed to discharge the onus to prove his case . Therefore, the suit of the plaintiff is dismissed. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Announced & signed in the ( Gagandeep Jindal ) open court on 28012011. Civil Judge/Central05 Delhi Suit No. 505/10 Page No. 6 of 6 Suit No. 505/10 Page No. 7 of 6