Delhi High Court
M/S Jay Shree Tea & Industries Ltd. vs Mrs. Dropti Devi (Proprietor) & Anr on 3 September, 2009
Equivalent citations: AIR 2010 (NOC) 220 (DEL.), 2010 AIHC (NOC) 372 (DEL.)
Author: Rekha Sharma
Bench: Rekha Sharma
REPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RFA No. 174/99
Date of Decision :September 3, 2009
M/S JAY SHREE TEA & INDUSTRIES LTD.
..... Appellant
Through : Mr. Nitin Gupta and Ms. Kiran
Dharam, Advocates
versus
MRS. DROPTI DEVI (PROPRIETOR) & ANR
..... Respondents
Through None
CORAM:
HON'BLE MISS JUSTICE REKHA SHARMA
1. Whether the reporters of local papers may be allowed to see the
judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported in the 'Digest'? Yes
REKHA SHARMA, J. (Oral)
The short question which arises for consideration in this appeal is whether the suit filed by the appellant for the recovery of Rs. 4,16,081.07 paise was barred by the law of limitation. The learned Additional District Judge who tried the suit has held the same to have been instituted after the expiry of the period of limitation. The appellant feels it was filed within the period of limitation.
Before I come to the point in issue it is necessary to refer to a few facts:
RFA No. 174/1999 Page 1 of 7
The appellant company grows, processes and sells tea throughout India. It has been supplying the same to respondent No.3 also which is a sole proprietorship concern of respondent No.1 against orders placed on it through respondent No.2 who is the attorney of respondent No.1 and 3. The appellant says that till December 1997 it has been receiving payments from the respondents but thereafter no payment was received. Hence, a legal notice dated March 17, 1998 was sent to the respondents demanding outstanding payment to which no response was received. That led the appellant to file the suit for the recovery of the aforementioned sum of Rs.4,16,081.07 paise alongwith interest @ 18% per annum. The respondents were served with the summons of the suit but they chose not to respond to the suit as well.
The appellant in support of its case had filed affidavit of its Vice President Shri O.P.Kedia and had also relied upon four documents which were proved as Ext.PW1/3 to PW1/6.
The document Ext.PW1/3 is a letter dated April 9,1997 from the Manager of the respondents to the appellant. It was accompanied by a demand draft of a sum of Rs.1 lac and contained the details of the accounts indicating that as on April 9,1997 the balance due to the appellant from the respondents was Rs.9,80,012/-. The document Ext.PW1/4 is also a letter from the respondents. This letter begins with an acknowledgement from the respondents that as on May 13, 1997 a sum of Rs.7,30,012/- was due to the appellant from them. The RFA No. 174/1999 Page 2 of 7 document Ext.PW1/5 is again a letter from the respondents and with it also was sent a demand draft of Rs.50,000/-. This letter also contained the details of the accounts showing an outstanding balance of Rs.4,80,012/- as on August 6, 1997. As regards Ext.PW1/6, it is a 'Statement of Account' maintained by the appellant in the regular course of its business. The first entry in the `Statement of Account' is of April 1997 and the last of March 2,1998. It also contains an entry of April 10,1997 showing that as on April 9,1997 the balance amount due to the appellant was Rs.9,80,012/-. This entry corresponds to the contents of letter Ext.PW1/3, wherein as noticed above, the respondents had acknowledged that a sum of Rs.9,80,012/- was due from them as on April 9,1997. The `Statement of Account' also contains another entry of May 15,1997 indicating that as on May 13,1997 the amount due was Rs.7,30,012/-. This entry corresponds to the contents of letter Ext.PW1/4 wherein the respondents had admitted that as on May 13,1997 a sum of Rs.7,30,012/- was due to the appellant from the respondents. The last entry of March 2, 1998 showed an outstanding balance of Rs.4,03,962.20paise and this exactly was the principal amount claimed in the suit besides interest. The suit was filed on June 1,1998. RFA No. 174/1999 Page 3 of 7
As noticed above, none had appeared for the respondents in the trial Court. Even before me none has appeared. Hence, I have proceeded to hear the matter in the absence of the respondents.
It is submitted by learned counsel for the appellant that in view of 'Statement of Account' Ext.PW1/6 read alongwith Ext.PW1/3,PW1/4 & PW1/5, the Article of limitation which is attracted to the case was Article 1 of the Limitation Act 1963 and that if the limitation is computed on the basis of entries made in the 'Statement of Account', Ext.PW1/6, then the suit was within limitation.
The aforementioned submission of the appellant did not find favour with the trial Judge. He has held that it is not Article 1 but Article 14 of the Limitation Act which is applicable to the facts of the case.
Before I proceed further let me reproduce the said two Articles of the Limitation Act.
Description of Suit Period of Time from which period
Limitation begins to run
1. For the balance due on Three The close of the year in
a mutual, open and year which the last item admitted
current account, where or proved is entered in the
there have been account; such year to be
reciprocal demands computed as in the account.
between the parties.
14. For the price of goods Three The date of the delivery of
sold and delivered years the goods.
where no fixed period
of credit is agreed upon
It has been held by the trial court that the appellant was claiming the price of goods sold and delivered and therefore its case was RFA No. 174/1999 Page 4 of 7 covered not by Article 1 but by Article 14 of the Limitation Act as per which the period of limitation is three years from the date of delivery of goods. The trial court has further held that the appellant in its plaint gave no details of when the goods were delivered and that in the absence of those details the suit could not be said to be within limitation. As regards Ext.PW1/3, PW1/4 and PW1/5 which as noticed above were acknowledgments from the respondents, the trial court has observed that those acknowledgments were of no help to the appellant because acknowledgment of a debt in view of Section 18 of the Limitation Act has to be before the expiry of the period of limitation and as the appellant furnished no dates of when the goods were delivered, mere reference to acknowledgments made by the respondents was of no consequence. As regards Ext.PW1/6 the trial Judge declined to place reliance on the same on the ground that it was not a complete 'Statement of Accounts'.
Having heard learned counsel for the appellant I am of the view that the learned Additional District Judge went wrong in invoking Article 14 of the Limitation Act. I see no reason why Article 1 of the Limitation Act was not attracted to the facts of the case. The `Statement of Account' Ext.PW1/6 on the basis of which the appellant filed the suit cannot be said to be an incomplete statement. It contains all the entries from the year the respondents stopped making payment to the appellant till the filing of the suit. And what is of significance is RFA No. 174/1999 Page 5 of 7 that the `Statement of Account' contains entries which corresponds to the acknowledgments of debt by the respondents vide Ext.PW1/3, PW1/4 and PW1/5 referred to hereinabove. There could be no better proof of the authenticity of the 'Statement of Accounts' maintained by the appellant than the fact that the entries made therein were in consonance with the letters containing acknowledgments of debt by the respondents and those were letters which were received by the appellant along with the demand drafts prior in point of time than the dates on which the entries were made. Even otherwise, owing to the absence of the respondents there was no challenge to the correctness of the documents Ext.PW1/3 to PW1/6 and yet the learned Additional District Judge chose to discard the said documents. It is true that the appellant in effect was claiming the price of goods delivered by it to the respondents but as per paragraph 10 of the plaint it had based its case on the books of accounts being maintained by it on the basis of mutual open and current account and I see no reason why the appellant could not rely on the `Statement of Account' maintained by it and invoke Article 1 of the Limitation Act.
In view of the above, I hold that the suit filed by the appellant before the Additional District Judge was within limitation.
In so far as the merits of the case are concerned as already noticed above, the appellant had filed affidavit by way of evidence of Shri Om Prakash Kedia. It has through his affidavit proved the RFA No. 174/1999 Page 6 of 7 contents of its plaint. As there is no opposition from the respondents to the case set up by the appellant, I accept the correctness of the averments made in the plaint which have been authenticated by Sh.Om Prakash Kedia and accordingly pass a decree for a sum of Rs.4,16,081.07 paise in favour of the appellant and against the respondents. The appellant shall also be entitled to interest @6% per annum from the date of the suit till realisation.
The appeal is disposed of. No order as to costs.
REKHA SHARMA,J SEPTEMBER 03, 2009 mr RFA No. 174/1999 Page 7 of 7