Tripura High Court
Smti. Soma Saha vs The Global Educational Net (Genet) on 22 January, 2020
Author: S. Talapatra
Bench: S. Talapatra
HIGH COURT OF TRIPURA
AGARTALA
RFA 09 of 2019
Smti. Soma Saha,
Proprietor,
Saha Drug Distributor,
Wholesale Medicine Distributor,
Masjid Road, Agartala
P.S. East Agartala, District : West Tripura
----Plaintiff-Appellant(s)
Versus
1. The Global Educational Net (GENET),
represented by its General Manager,
Local Office at :
Dr. P.B. Das Memorial Diagnostic Centre
Building, Bidurkarta Chowmohani,
Jagannath Bari Road, Agartala,
P.S. West Agartala, District : West Tripura.
Registered Office at :
PB No.11, Thamath Bhavan,
Ambalapuzha, Alleppey-688561.
2. The Chief Executive Officer,
Society for TMC and Dr. BRAM Teaching
Hospital, Hapania, Amtali, P.S. Amtali,
District : West Tripura.
3. The General Manager,
Society for TMC and Dr. BRAM Teaching Hospital,
Hapania, Amtali, P.S. Amtali, District : West Tripura.
4. The Medical Superintendent,
Society for TMC and Dr. BRAM Teaching
Hospital, Hapania, Amtali, P.S. Amtali,
District : West Tripura.
5. The Purchase Officer,
Society for TMC and Dr. BRAM Teaching
Hospital, Hapania, Amtali,
P.S. Amtali, District : West Tripura.
6. The State of Tripura,
represented by the Secretary,
Department of Health & Family Welfare,
Government of Tripura,
New Capital Complex,
Secretariat Bhavan,
P.S. New Capital Complex,
District : West Tripura.
---- Defendant-Respondent(s)
Page 2 of 5
For Appellant(s) : Mr. S.M. Chakraborty, Sr. Adv.
Mr. K.K. Pal, Adv.
For Respondent(s) : Mr. K. Bhattacharjee, Adv.
Date of hearing : 27.11.2019
Date of delivery of
Judgment & Order : 22.01.2020
Whether fit for
reporting : YES
BEFORE
THE HON'BLE THE CHIEF JUSTICE
THE HON'BLE Mr. JUSTICE S. TALAPATRA
Judgment & Order
This is an appeal under Section 96 of the CPC from the judgment dated 22.01.2019 delivered in Money Suit No.50 of 2015 by the Civil Judge, Senior Division, Court No.1, West Tripura, Agartala.
2. The suit was instituted by the appellant for realization of a sum of Rs.32,24,964/-, the outstanding against the supply of medicines made by the plaintiff to the defendants [the respondents herein] in compliance of the purchase orders issued with effect from 08.09.2005 to 30.04.2009. Out of the total amount due i.e. Rs.1,006,69,326/-, the defendants made payment admittedly of an amount of Rs.74,44,359/-. The plaintiff has asserted that despite several demands made to the defendants, the said outstanding was not paid. On 13.11.2013, the plaintiff sent a demand notice to the defendants for payment of the said outstanding with interest at 9% per annum within a period of fifteen days from the date of receipt of the said notice. The defendants did not pay the said outstanding and hence, the suit for realization being Money Suit No.50 of 2015 was instituted.
3. The defendants No.2 to 5 have contested the suit by filing the written statement. In the written statement, those defendants Page 3 of 5 challenged the maintainability of the suit on the ground of limitation. The defendants No.2 to 5 stated further that with effect from 23.05.2009, the management of the defendant No.1 namely Global Education Net (GENET) was taken over by the respondent No.6. Thus, the respondents No.2 to 5 cannot be saddled with any liability. The defendant No.6 by submitting a separate written statement raised the question of maintainability of the suit as well as according to them, the suit is clearly barred by limitation.
4. On perusal of the pleadings, the court of the Civil Judge, Senior Division, Court No.1, West Tripura, Agartala framed the following issues :
"i. Is the suit is maintainable in its present form and nature?
ii. Has the plaintiff any cause of action to file the instant suit?
iii. Is the plaintiff entitled to get a sum of Rs.32,24,967/- from the defendants ? If so, is the plaintiff entitled to get any interest thereon?
iv. Is the plaintiff entitled to the decree as prayed for? v. What other relief/reliefs the plaintiff is entitled?"
5. The plaintiff [the appellant herein] examined two witnesses and admitted several documents in support of her claim. But the trial court, on inquiry, in respect of issue of limitation held that the suit is barred by limitation, inasmuch as, there was no delivery of goods or payment of money after 30.04.2009. As per Article 14 of the schedule to the Limitation Act, 1963, period of limitation for the suit for realizing the price of goods sold and delivered where no fixed period of credit is agreed upon is three years and from the date of delivery of the goods, the period of limitation begins to run. As consequence of that finding, the trial court held that there was no cause to institute the suit. Further, while deciding the other issues it has been held that the documents as admitted in the evidence are liable to be treated as the document beyond Page 4 of 5 pleading. Thus, no finding can be returned based on those documents on holding that the plaintiff was entitled to the money as claimed. In the result, suit was dismissed with cost.
6. Mr. S.M. Chakraborty, learned senior counsel appearing for the appellant has submitted that finding on limitation and the finding on the value of the documents as admitted in the evidence have been challenged in this appeal. Mr. Chakraborty, learned senior counsel has made an endeavour to impress on us to waive the bar of limitation on considering the substantive cause as unfolded in the suit.
7. The solitary question, in our considered view, is whether the suit is barred by limitation and if so, whether the court can take any different view from the view that has been taken by the trial court. In respect of the transaction of supply of the indented medicine and payment of a substantive sum as their price, the trial court has determined the related issues on the basis of the pleadings as supported by evidence. Mr. Chakraborty, learned senior counsel could not show us any pleading or evidence in that respect that there was any delivery of goods after 30.07.2009 or there was any fixed period of credit by agreement. Hence, rigours of Article 14 of the schedule of the Limitation Act, 1963 will apply in the fact-situation of the suit, inasmuch as the suit was instituted on 18.11.2015 much beyond the period of limitation. No court therefore can waive the bar of limitation as Section 3 of the Limitation Act clearly provides that the subject to the provisions contained in Sections 4 to 24 (inclusive) every suit made after the prescribed period shall be dismissed even though limitation has not been set up as a defence. In terms of Article 14, the period of Limitation is three years from the date of delivery of the goods realization of price of which is the subject matter of the suit. Section 2(j) of the Limitation Act, 1963 defines "period of limitation" as under :
Page 5 of 5
"2. In this Act, unless the context otherwise requires,-
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(j) "period of limitation" means the period of limitation prescribed for any suit, appeal or application by the Schedule, and "prescribed period" means the period of limitation computed in accordance with the provisions of this Act."
Thus, there cannot be any amount of confusion that the words "the prescribed period" appearing in Section 3 of the Limitation Act, 1963 is the period of limitation as provided under the schedule to the Limitation Act, 1963.
8. It is the duty of the court to inquire into, at the threshold, whether the suit is barred by limitation or not. This duty remains inalienable even if, no defence in that regard is taken. The court cannot waive rigours of limitation. On the contrary, Section 3 of the Limitation Act, 1963 enjoins duty to the court, to dismiss any suit instituted after the period of limitation as prescribed irrespective of the fact whether the opponent has set up the plea of limitation or not.
In Manindra Land and Building Corporation Ltd. versus Bhutnath Banerjee and Others reported in AIR 1964 SC 1336 the apex court has observed that it is the duty of the court not to proceed with the suit if it is instituted beyond the period of limitation as prescribed. A court has no choice in such situation but to dismiss the suit.
Having observed thus, we find no merit in the appeal. In the result, the appeal stands dismissed with costs. Draw the decree accordingly.
JUDGE CHIEF JUSTICE Sabyasachi B