Delhi District Court
M/S. Inter World Cargo Care (P) Ltd. vs . Shri Nirmal Thakur on 2 January, 2012
M/s. Inter World Cargo Care (P) Ltd. vs. Shri Nirmal Thakur
IN THE COURT OF SHRI INDER JEET SINGH, ADDL. DISTRICT JUDGE03,
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
In the matter of
Suit No. 637/2010
M/s. Inter World Cargo Care (P) Ltd.,
Plot No. 1, Street No. 2, Mahipalpur Extn.,
New Delhi.
(Through its authorized representative)
.....Plaintiff
Versus
Shri Nirmal Thakur, Proprietor
M/s. Thakur Leather House,
E77, Gangotri Enclave Alaknanda,
GK2, New Delhi.
Also alternate address -
A90, Vishwakarma Colony,
M.B. Road, New Delhi110044.
.....Defendant
Plaint Presented on : 29.11.2010
Date of Institution : 30.11.2010
Decision Reserved on : 02.12.2011
Date of Decision : 02.01.2012
CS No. 637/2010 Page 1 of 9
M/s. Inter World Cargo Care (P) Ltd. vs. Shri Nirmal Thakur
JUDGMENT
(on Suit for Recovery of Rs. 9,34,979/ under order XXXVII CPC) 1.1 The plaintiff M/s. Inter World Cargo Care (P) Ltd., a company incorporated under the Companies Act, 1956, filed Suit for Recovery of amount through Shri R.P. Singh, authorized by Resolution dated 12.02.2009, of Board of Directors, to sign, verify and institute the suit. Plaintiff is a member of Inter National Air Transport Association (IATA) and engaged in the business of sending cargo abroad for so many years.
1.2 Defendant M/s. Thakur Leather House, a proprietorship firm is having business relation with plaintiff. The plaintiff company had shipped consignments to various countries for defendant from 19.08.2004 to 10.11.2007, plaintiff sent shipments to Stockhome, Geneva, Singapore, China, Copenhegen and other destinations. The payments made by the defendant company between 19.08.2004 to 10.11.2007, was adjusted in the bills, which have been showing in the books of account. As on 10.11.2007, there was balance / outstanding amount of CS No. 637/2010 Page 2 of 9 M/s. Inter World Cargo Care (P) Ltd. vs. Shri Nirmal Thakur Rs. 6,07,129/, which has accumulated to Rs. 9,34,979/, till filing of the suit by adding interest of Rs. 3,27,850/.
1.3 The defendant, in order to discharge its partial liability, had issued four post dated cheques of Rs 1,02,188/ (i.e. Cheque No. 800531 of 15.10.2007 of Rs. 31,418/, Cheque No. 800538 of 04.11.2007 of Rs. 27,600/, Cheque No. 800539 of 15.11.2007 of Rs. 15,600/ and Cheque No. 800544 of 05.12.2007 of Rs. 27,570/) to plaintiff but on the request of defendant, the plaintiff had not presented / deposited the cheques and after expiry of six months period of the said cheques, the defendant refused to pay the outstanding amount. Thereafter, the plaintiff sent demand notice dated 12.10.2010, by Registered Post and UPC but the defendant failed to clear the amount, despite receipt of notice. The statement of account dated 10.11.2007, is of outstanding amount of Rs. 9,34,979/, that is why, the suit under order XXXVII CPC has been filed.
2. The prescribed summons were sent to defendant (on the both addresses) by ordinary way and registered post but the same was CS No. 637/2010 Page 3 of 9 M/s. Inter World Cargo Care (P) Ltd. vs. Shri Nirmal Thakur received back unserved with report "premises was found locked and he has gone to Bombay" and "refused", respectively. Then summons were also directed by way of affixation. The affixation of summons on both the addresses were carried on 05.02.2011 and 11.02.2011, by process servers Shri Harish Bhiduri and Shri Mahipal, respectively and on 04.03.2011, their statements were also recorded. However, the defendant failed to appear or file his appearance, despite service by such modes. The report of ministerial staff is also perused to this effect.
3. Ld. Counsel for plaintiff argued finally. Ld. Counsel explains that this case is based on the bills, which have been reflected in the ledgers and consequently, in the statement of account, which have been produced before the present Court. The plaintiff has been maintaining books of account and ledger of defendant from time to time, therefore, there is clear liability of defendant. The defendant had issued four cheques in discharge of partial liability, which also establishes that cheques were issued because liability was existing; however, the defendant was prevented by the instructions of CS No. 637/2010 Page 4 of 9 M/s. Inter World Cargo Care (P) Ltd. vs. Shri Nirmal Thakur defendant, not to present the cheque. The defendant is liable to pay the outstanding amount of Rs. 6,07,129/, claimed in the notice dated 22.10.2010, which accumulated to suit amount of Rs. 9,34,979/, which is also liable to be paid with further interest.
(4) FINDINGS 4.1 The contentions of plaintiff are assessed in the light of statutory provisions of law of Code of Civil Procedure, particularly Order XXXVII CPC and the Limitation Act, 1963.
The feature of the case has already been produced in paragraph 1, above, and the plaint is supplemented with computer generated 26 bills (from 15.10.2005 to 10.11.2007), statement of account reflecting the outstanding balance amount, legal notice dated 12.10.2010, besides other documents. The Suit is based upon and plaint is supported by aforementioned four cheques as well as the bills raised, upon the defendants, hence, it is governed by Order XXXVII CPC.
4.2 Summons on prescribed form under Rule 2 of Order CS No. 637/2010 Page 5 of 9 M/s. Inter World Cargo Care (P) Ltd. vs. Shri Nirmal Thakur XXXVII CPC were sent by registered post, by ordinary process and then by way of affixation at both the addresses of the defendant but the defendant failed to appear or to file appearance. The report of the Ministerial Staff is also perused.
4.3 The plaint is accompanying statement of account / ledger from the period 2004 to 2007. It is also accompanying bills from 15.10.2005 to 10.11.2007. To say, last bill is of 10.11.2007 of Rs. 28,137/. There are four cheques of period 05.10.2007 to 05.12.2007 (to total amount of Rs. 1,02,188/) and the face value of cheques do not correspond with face value of any of the 26 bills. As appears, the cheques were issued in discharge of partial liability. In the legal notice dated 12.10.2010, the plaintiff has incorporated dates that between 19.08.2004 to 10.11.2007, the outstanding balance amount as on 10.11.2007 was Rs. 6,07,129/. Paragraph 4 of the legal notice also narrates detail of four cheques and in paragraph 5 of the notice, it has also been explained that cheques were not presented under the instructions of defendant, since payment was going to be paid by way of cash.
CS No. 637/2010 Page 6 of 9 M/s. Inter World Cargo Care (P) Ltd. vs. Shri Nirmal Thakur To say, as on 10.11.2007, there was an outstanding amount of Rs. 6,07,129/. There is an occasion to go through Articles 14, 15 and 26 of Schedule appended with the Limitation Act, 1963. As per Article 14, there is period of limitation of 3 years from the date of delivery of goods and as per Article 15, there is period of limitation of 3 years from the period of credit expires and as per Article 26, in the eventuality, accounts are signed by the defendant, three years period will be commenced from that day. The bills No. 1 to 26, do not prescribe any period of credit. There is also no date / inward entry or acknowledgment, as to when goods were received by the defendant. Therefore, date on the face of invoices is being taken as the date goods were supplied. The last date of invoice is of 10.11.2007 and period of three years expires on 09.11.2010, whereas the plaint has been presented on the filing counter of the Court on 29.11.2010, therefore, from the last bill, the suit is barred by limitation. The other bills No. 1 to 25 are from 15.10.2005 to 24.10.2007, it is apparent, the period for claiming amount of such bills have also been barred by time. 4.4 The statement of account / ledgers do not bear signature CS No. 637/2010 Page 7 of 9 M/s. Inter World Cargo Care (P) Ltd. vs. Shri Nirmal Thakur of defendant or its authorized representative, therefore, Article 26 of Schedule appended with Limitation Act, 1963 does not come into picture.
4.5 There are four cheques from period 15.10.2007 to 05.12.2007, however, the cheques were neither presented and as per plaintiff's notice dated 12.10.2007, these features have been mentioned and the four cheques were stale after six months period from the date on their faces and also at the time when notice was given, they also cannot be considered acknowledgment from the point of view of the Limitation Act, 1963.
4.6 On plain reading of the plaint and the record, it is not the case of plaintiff that the parties to the suit were maintaining their books of account on mutual, open and current account and from that point of view, Article 1 of Schedule appended with the Limitation Act, 1963 does not come into picture.
5. Thus, in view of detailed analysis carried in paragraph 4, CS No. 637/2010 Page 8 of 9 M/s. Inter World Cargo Care (P) Ltd. vs. Shri Nirmal Thakur above, it is held that the plaintiff's suit is barred by Law of Limitation and plaintiff is not entitled for recovery of amount with regard to the claim barred by period prescribed by law. Plaint is dismissed.
Decree sheet be drawn accordingly.
File is consigned to record room.
Announced in the open Court (INDER JEET SINGH)
th
on 12 Pausa, Saka 1933 Additional District Judge 03,
South District, Saket Courts,
New Delhi / 02.01.2012
N
CS No. 637/2010 Page 9 of 9
M/s. Inter World Cargo Care (P) Ltd. vs. Shri Nirmal Thakur CS No. 637/2010 02.01.2012 Present : Counsel for plaintiff.
None for defendant nor appearance has been filed, the suit being under summary procedure of Order XXXVII CPC.
Heard.
The defendant M/s. Thakur Leather House is a proprietorship firm, whereas the proprietorship firm is not a legal entity, the suit is to be instituted in the name of natural person i.e. proprietor of proprietorship firm.
There appears to be an inadvertence, the plaintiff's request is allowed to prefix the name of proprietor Shri Nirmal Thakur before the name of firm M/s. Thakur Leather House.
Vide separate judgment, announced today, the plaintiff's suit is barred by Law of Limitation and plaintiff is not entitled for recovery of amount with regard to the claim barred by period prescribed by law. Plaint is dismissed.
Decree sheet be drawn accordingly.
File is consigned to record room.
(INDER JEET SINGH)
Addl. District Judge03, South District,
N Saket/02.01.2012
CS No. 637/2010 Page 10 of 9
M/s. Inter World Cargo Care (P) Ltd. vs. Shri Nirmal Thakur CS No. 637/2010 Page 11 of 9