Delhi District Court
M/S K.L Steels Pvt Ltd vs M/S. Job Power Infra Engineering Ltd on 2 February, 2015
IN THE COURT OF MS. VRINDA KUMARI: ADJ-03 :
PATIALA HOUSE COURTS: NEW DELHI
CS NO. 274/14
Unique Id No.
M/s K.L Steels Pvt Ltd,
Z-18, Loha Mandi, Naraina,
New Delhi-28,
Through its Director ......Plaintiff
Versus
M/s. Job Power Infra Engineering Ltd
187 H/5. First & Second Floor,
Jeewan Nagar, Ashram, Opp. Maharani Bagh,
New Delhi-110014.
Through its Managing Director ....... Defendant
Date of institution : 26.03.2014
Date on which reserved for order : 24.01.2015
Date of decision : 02.02.2015
EX-PARTE JUDGMENT
1.Vide this judgment, I shall dispose of the present suit for recovery of a sum of RS. 8,04,220/-.
2. Briefly stated, case of the plaintiff is that the defendant approached plaintiff for purchase of different types & sizes of R.S CS NO. 274/14 Page no. 1 of 7 Joist. The defendants, accordingly, placed a purchase order vide Ref. No- MP/JBL2/ASK/CIS/R-96-2/325 dated 03.12.2008 for total value of Rs. 11,54,220/- with the plaintiff. The plaintiff supplied all the requisite material to the defendant within time and as per the defendant's specifications vide three invoices all dated 13.06.2009. Upon receiving the material, defendant issued two cheques bearing nos. 563040 & 575280 dated 03.08.2009 worth total value of Rs. 11,54,220/- towards payment against above mentioned invoices. On presentation, the above said cheques were returned unpaid on 08.08.2009 by the defendant's banker. Upon repeated requests, the defendant made part payment of Rs. 3,50,000/- on 25.02.2010 towards abovesaid invoices. The defendant also issued a cheque bearing no. 503183 dated 15.03.2010 worth Rs. 2,25,280/- as part payment of above mentioned debt/liabilities. This cheque was also returned unpaid. Defendant, thereafter, approached the plaintiff and requested for some more time to pay the balance/outstanding amount of Rs. 8,04,220/-. Despite repeated demands and service of legal notice dated 10.03.2014, the defendant did not pay the outstanding amount. The plaintiff has prayed for a decree for a sum of Rs.
CS NO. 274/14 Page no. 2 of 7 8,04,220/- alongwith pendente lite and future interest at @ 24% p.a against the defendant.
3. The defendant did not appear despite service of summons. He was, therefore, proceeded against ex-parte vide order dated 02.06.2014.
4. Plaintiff examined Sh. Prithivi Singh, GM/AR of the plaintiff company as PW1. He tendered his evidence by way of affidavit which is Ex.P1. He duly proved Purchase order dated 03.12.2008 issued by defendant including Annexure-A which is Ex.PW1/1 ( 7 pages) (OSR). Office copy of Invoice No. 1403 dt. 13.06.2009 is Ex.PW1/2 (OSR). Office copy of Invoice No. 1404 dated 13.06.2009 is Ex.PW1/3 (OSR). Office copy of Invoice No. 1405 dated 13.06.2009 is Ex.PW1/4 (OSR). Office copy of consignment note No. 5211 dated 13.06.2009 is Ex.PW1/5 (OSR). Copy of weight tickets S.NO. 1649, 1653, 1629, 1647, 1654 dated 13.06.2009 are Ex.PW1/6 (colly.) (4 pages) (OSR). Copies of reminders 03.01.2011 to 27.03.2014 are Mark-1 to Mark-20. Copy of certificate of importer-Exporter Code (IEC) in favour of plaintiff is Mark-
21. Copy of notice dated 09.03.2014 issued to defendant is Ex.PW1/ 6 (3 pages). Computer generated track result of Indian Speed Post services is CS NO. 274/14 Page no. 3 of 7 Mark PW1/7 (original postal receipt not filed). Copy of reply of legal notice dated 12.03.2014 by defendant alongwith postal envelope is Ex.PW1/8 (OSR).
5. Plaintiff also examined his Director Sh. Om Prakash as PW2. He tendered his evidence by way of affidavit which is Ex.P2. He duly proved Memorandum and Articles of Association of plaintiff company which is Ex.PW2/1. Legal notice dated 09.03.2014 is Ex.PW2/2. Original Registered Post receipt dated 10.03.2014 is Ex.PW2/3.
6. Ex-parte final arguments were addressed on 03.01.2015. I have perused the records carefully.
7. It is noted that the name of the defendant company has been mentioned by the plaintiff as 'M/s Job Power Infra Engineering Limited' whereas in the plaint, the name of defendant company is mentioned as 'M/s Jop Power Infra Engineering Limited.'
8. Case of the plaintiff is that the last part payment was made by the defendant on 25.02.2010. The present suit has been filed on 25.03.2014. To bring present suit within the period of limitation, Ld counsel for the petitioner has relied upon the reply dated 12.03.2014 (Ex.PW1/8) of the defendant issued in response to the legal notice of CS NO. 274/14 Page no. 4 of 7 plaintiff. In this reply, the defendant has admitted that it could not make payment of the pending dues of Rs. 8,04,220/- because of financial crises. However, this reply which amounts to written acknowledgment of debt has been issued beyond the limitation period of three years. Assuming that the last part payment was made by the defendant on 25.02.2010, the written acknowledgment of debt should have been made within three years from 25.02.2010 when cause of action to file present suit arose. It is noted that there is no document on record which would prove that the part payment was made by defendant on 25.02.2010 or that the cheques of the defendant were issued and were dishonoured. The petitioner has also relied upon the testimony of PW2. In his affidavit of evidence Ex.P2, para 14, PW2 Sh. Om Prakash has testified that he personally visited defendant's office several times on 28.09.2011, 27.03.2012, 15.12.2012, 13.07.2013 and 24.01.2014. On all these occasions defendant requested for some more time to pay the outstanding amount. It has been argued that this amounts to acknowledgment of debt.
9. Section 18 of the Limitation Act provides as follows-
"Effect of acknowledgment in writing-(1) Where, before CS NO. 274/14 Page no. 5 of 7 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 of 1872), oral evidence of its contents shall not be received.
Explanation -For the purposed 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 set-off, or is addressed to a person other than a person entitled to the property or right;
(b) the word "signed" means signed either personally or by an agent duly authorised 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."
10. The above mentioned provision categorically lays down that the acknowledgment of liability should be in writing and it should CS NO. 274/14 Page no. 6 of 7 have been made before the expiration of the prescribed period for a suit. In the present case where the last part payment is claimed to have been made by defendant on 25.02.2010, the limitation period for filing the present suit for recovery of outstanding dues expired on 26.02.2013. The written acknowledgment (PW1/8) is dated 12.03.2014 which is beyond the period of limitation and, therefore, it does not help the plaintiff.
11. In view of the above mentioned discussion, it is held that the present suit is barred by limitation. It is, therefore, dismissed. Decree sheet be prepared.
12. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON THIS 2ND DAY OF FEBRUARY 2015.
(VRINDA KUMARI)
ADJ-03/PHC/NEW DELHI
02.02.2015
CS NO. 274/14 Page no. 7 of 7