Delhi District Court
M/S Castrol India Limited vs Almora Magnesite Limited on 9 July, 2014
1
In the Court of Shri Rakesh Pandit, Additional District Judge3,
South East, Saket Courts, New Delhi
CS no. 20/14
M/s Castrol India Limited
Having its Registered Office at
Technopolis Knowledge Park,
Opp. Mahakai Caves Road,
Andheri (East) Mumbai400 093
AND its regional office at:
5th Floor, East Tower, NBCC Place,
Pragati Vihar, Bhisham Pitamah Marg,
New Delhi110003.
(Through its authorized signatory) ....... Plaintiff
v e r s u s
Almora Magnesite Limited
Jhiroli Magnesite Mines
Kafligair, Bageshwar
(Uttarakhand)
ALSO AT:
Almora Magnesite Limited
Magnesite House, Ranidhara Road,
Almora-263601 (Uttarakhand)
(Through its Managing Director) .....Defendant
Date of institution : 31.08.2013
Received by this Court : 16.01.2014
Date when judgment reserved : 13.05.2014
Date of Judgment : 09.07.2014
J U D G M E N T
CS no. 20/14 Castrol India Vs. Almora Magnesite page 1/10 2 1 By this order I will dispose of preliminary issue no. 2, 3 and 4.
2 The brief facts of the case to dispose of these issues are that plaintiff is duly incorporated company and deals in the manufacturing and selling a various types of lubricating oils, gears and other specialties. It authorised Sh. Manoj Makhija to represent it in the present case. In and around March/April, 2008 defendant approached the plaintiff and require bulk quantities of lubricants, oils and other specialties sold by the plaintiff. Invoices dated 17.04.2008 of Rs.3,67,165.54/, invoice dated 17.04.08 of Rs.13,524.31/ was raised against the defendant for the products purchased by it. So in all a sum of Rs.3,80,689.85/ is recoverable from the plaintiff on account of those invoices. A legal notice dated 22.05.2009 was issued to the defendant but not payment was made. However, defendant sent a reply dated 10.06.2009. Thereafter again plaintiff gave notices dated 17.08.2009 and 07.09.2009. Notice dated 17.08.2009 was replied back by the defendant vide reply dated 07.10.2009. To this reply, plaintiff issued a reply dated 29.10.2009. Finally, again a legal demand notice dated 26.03.2012 was issued by the plaintiff.
CS no. 20/14 Castrol India Vs. Almora Magnesite page 2/10 3 3 In the written statement defendant has taken preliminary objection that present suit is not maintainable and time barred. It is without any cause of action.
In reply on merits it is stated that plaintiff has a dealer namely M/s Sri Nath Automobiles, near Jakhan Devi Mandir, Almora and defendant was advised by the plaintiff to deal with the said dealer for its requirement. The defendant has paid Rs. 3,72,286/ to the said dealer. This dealer further issued a cheque no. 00314324 dated 09.09.2008 drawn on Punjab National Bank to clear the amount, towards the plaintiff. Rest of the contents of plaint were denied.
4 In replication plaintiff reiterated and reaffirmed the facts of its plaint and denied those of written statement. 5 From the pleadings issues were framed on 11.10.2013. However following issues were treated as preliminary issues: Issue no. 2: Whether the suit of the plaintiff is within limitation? OPP.
Issue no. 3: Whether the written statement filed on behalf of defendant is properly signed and verified? If so, to what effect? OPP.
CS no. 20/14 Castrol India Vs. Almora Magnesite page 3/10 4 Issue no. 4: Whether the plaintiff has no cause of action to file the present suit? OPD.
6 Arguments were heard on all these three preliminary issues.
7 I have gone through the pleadings of the case, documents on record and submissions forwarded by respective counsels.
8 My issue wise finding on preliminary issues are as following: Issue no. 3 Whether the written statement filed on behalf of defendant is properly signed and verified? If so, to what effect? OPP. 9 It is argued by counsel for defendant that this plaint is not properly verified and thus the plaint is liable to rejected. From the perusal of the record it appears that the present suit was filed by the plaintiff through one Sh. Manoj Makhija. The plaint bears his signatures. Similarly, the affidavit bears his signatures. From the perusal of the record it appears that there is a photocopy of General Power of Attorney in his favour. In these circumstances it cannot be said that the suit was not properly signed or verified. CS no. 20/14 Castrol India Vs. Almora Magnesite page 4/10 5 Issue no. 2 & 4: Issue no. 2: Whether the suit of the plaintiff is within limitation? OPP.
Issue no. 4: Whether the plaintiff has no cause of action to file the present suit? OPD.
10 It is argued by counsel for the defendant that the alleged purchased was done on 17.04.2008 and the suit was filed on 31.08.2013, hence, hopelessly time barred. On the other hand, it is stated by counsel for the plaintiff that there were written communication between the parties and the defendant had admitted the debt which extended the period of limitation and thus suit is within limitation.
11 As far as the facts are concerned, both the parties had admitted that the goods were purchased by the defendant through invoice dated 17.04.2008 of Rs.3,67,165.54/, invoice dated 17.04.08 of Rs.13,524.31/, so the cause of action regarding debt is the date of purchase of goods i.e. 17.04.2008.
This is the suit for recovery of money. The same could only be recovered within three years from 17.04.2008 i.e. till 17.04.2011.
12 It is argued by counsel for the plaintiff that plaintiff had CS no. 20/14 Castrol India Vs. Almora Magnesite page 5/10 6 issued a legal demand notice dated 25.02.2009 which was duly replied back by the counsel for the defendant vide reply dated 10.06.2009 and admitted the debt and thus extended the period of limitation.
13 Now the law in this regard is Sec.18 of Limitation Act, 1963 which is as follows: "Effect of acknowledgment in writing(1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. (2)Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 to 1872), oral evidence of its contents shall not be received.
Explanation: For the purposes of this section,
(a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to setoff, or is addressed to a person other than a person entitled to the property or right;
CS no. 20/14 Castrol India Vs. Almora Magnesite page 6/10 7
(b) the word signed means signed either personally or by an agent duly authorized in this behalf; and
(c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right."
14 It is stated by counsel for the plaintiff that though the defendant had refused to pay the debt but he has acknowledged the said debt which further extends the period of limitation. On the other hand, it is stated by counsel for the defendant that there is no unequivocal admittance of the relationship between plaintiff and defendant regarding the creditor/debtor, so it does not extends the period of limitation.
15 From the perusal of the notice dated 22.05.2009, the same was issued to the defendant seeking the recovery of aforesaid invoices. In its reply defendant have denied that they are liable to pay any further amount as they have already paid the said amount to M/s Sri Nath Automobiles. To give force to their arguments defendant has relied on judgment of Hon. Supreme Court i.e. J. C. Budhiraja Vs. Chairman Orissa Mining Corporation, II (2008) SLT
113. As per this judgment, Sec.18 of Limitation Act will be applicable if there exists jural relationship between the parties and there is CS no. 20/14 Castrol India Vs. Almora Magnesite page 7/10 8 conscious affirmation of continuing such relationship in regard of existing liability.
16 I think as per this letter dated 10.06.2009, the period of limitation gets extended. Since it is admitted by defendant in this letter by saying that "that Shri Vikran Vohra who is proprietor of M/s Sri Nath Automobiles, your client's agent, at Almora collected this cheque from my client and instead of making payment to your client he sent to your client a separate cheque of the amount paid by my client. The cheque has as been informed was dishonoured."
So, according to this content of the letter dated 10.06.2009 of defendant, he admitted that its cheque was to be forwarded to the plaintiff. So, by saying so, the defendant had admitted jural relationship of plaintiff as creditor and himself as debtor. Even denial of making payment, in view of the explanation
(a) of Sec.18 of Limitation Act, the period of limitation gets extended. So, now the period of limitation starts from letter dated 10.06.2009 i.e. up to 10.06.2012.
17 It is stated by counsel for the plaintiff that it had issued the last notice dated 26.03.2012 for making the payment i.e. within the period of limitation and since the same has not been replied CS no. 20/14 Castrol India Vs. Almora Magnesite page 8/10 9 back, it is deemed to have been admitted by the plaintiff and thus the suit is within limitation as fresh limitation starts from 26.03.2012. As far as the submissions forwarded by counsel for the plaintiff in this regard, does not appears to be correct as far as the law regarding sec.18 of Limitation Act is concerned. Sec.18 of Limitation Act requires that there should be a written acknowledgment of the debt within the period of limitation. So, there must be an instrument which shows that the defendant has acknowledged the debt towards plaintiff. There cannot be any deemed admission as suggested by counsel for the plaintiff. In the absence of same the period of limitation does not extends.
18 As stated above the period of limitation was extended till 10.06.2012 and thus the suit must have been filed on or before 10.06.2012. This suit has been filed on 31.08.2013 which is clearly beyond the period of limitation and thus time barred. 19 Even though from the facts of the case there was prima facie valid case for recovery of money by the plaintiff towards the defendant. However the remedy to recover the same by way of this suit is time barred and thus the amount was not recoverable. So, the issues no. 2 and 4 are decided accordingly. CS no. 20/14 Castrol India Vs. Almora Magnesite page 9/10 10 20 In view of my discussions on aforesaid issues, especially on issue no. 2, it can be safely said that the suit of the plaintiff is time barred. It is dismissed. Parties to bear their own cost.
21 Decree sheet be prepared accordingly.
22 File be consigned to Record Room.
Announced in the open court (Rakesh Pandit) on 09.07.2014 Addl. District Judge-03, South East, Saket Courts, New Delhi CS no. 20/14 Castrol India Vs. Almora Magnesite page 10/10