Delhi District Court
Also At: vs M/S. Anand Interiors on 30 May, 2022
THE COURT OF MS. SHIVALI SHARMA
ADDITIONAL DISTRICT JUDGE03: WEST DISTRICT
TIS HAZARI COURT: DELHI
CS No. 610111/2016
In the matter of:
M/S. OM PRAKASH FATEH CHAND & CO.
7/7, D. B. GUPTA ROAD, PAHAR GANJ,
NEW DELHI 110 055.
ALSO AT:
1/33 & 1/5, W.H.S. (TIMBER BLOCK)
KIRTI NAGAR EXTENSION
NEW DELHI 110 015.
(Through the A/R Sh. PURAN PRAKASH VERMA)
.................PLAINTIFF
VERSUS
M/S. ANAND INTERIORS
(PROPRIETOR: ASHISH ANAND)
B74, OKHLA INDUSTRIAL AREA,
PHASEI, NEW DELHI 110 020.
............DEFENDANTS
DATE OF INSTITUTION : 11.08.2014
DATE OF DECISION : 30.05.2022
SUIT FOR RECOVERY OF 5,71,225/ INCLUDING PRINCIPAL
OF RS. 3,38,316/ AND INTEREST @ 24% PER ANNUM RS.
2,32,909/ UPTO 15.03.2014.
Civ. DJ. No. 610111/2016 Om Prakash Fateh Chand vs Anand Interiors page no:1 of21
JUDGMENT
1. This is a suit for recovery of Rs. 5,71,225/ including principal amount of Rs. 3,38,316/ and interest @ 24% per annum upto 15.03.2014 amounting to Rs. 2,32,909/ .
PLEADINGS:
PLAINTIFF'S CASE:
2. The case of the plaintiff as per plaint is that the M/s. Om Prakash Fateh Chand & Co. is a sole proprietorship concern engaged in the business of supply and trading of the wood, timber, sunmica and other wood products.
3. Defendant is a sole proprietorship concern and Sh. Ashish Anand is the proprietor of the defendant firm. The plaintiff and defendant had business relations with each other. Defendant placed order for purchase of plywood boards, laminated sheets, timber teakwood log etc. for their site on credit basis and the plaintiff supplied the ordered material to the defendant at defendant's site and raised/issued various invoices. The defendant lastly purchased timber teakwood logs vide Tax Invoice No. T3 dated 02.04.2011 for Rs. 8,34,042/ and the said goods were supplied to the defendant against proper bills and delivery challan/delivery note in form DVAT 33 which had been acknowledged by the defendant by putting his signatures on acknowledgement attached to invoice and DVAT 33.
4. As per agreement between the parties, the payment of goods supplied was to be made soon on delivery of goods to the defendant. The plaintiff is maintaining proper books of account in the ordinary and usual course of its business and maintaining an open and running ledger account Civ. DJ. No. 610111/2016 Om Prakash Fateh Chand vs Anand Interiors page no:2 of21 for all the transactions between the plaintiff and the defendant. Some on account payments were made against the goods supplied. In partial discharge of the payment liability the defendant lastly made payment through a cheque bearing no. 862180 dated 25.05.2012 for Rs. 1,99,208/ drawn on HDFC Bank. The defendant promised to make balance payment soon, therefore, the plaintiff gave credit to the defendant in its books of accounts for the same. The amount remaining unpaid against the various invoices issued by the plaintiff is Rs. 3,38,316/. It is worth mentioning the interest has been calculated @ 24% per annum because it was a condition to the sale of material on credit basis, in clause 3 of "Terms and Conditions of Sale" mentioned on invoices which was payable if payment for value of goods was not made within 30 days.
5. The plaintiff supplied the goods/consignment in full satisfaction to defendant vide various bills & the defendant acknowledged & received the same under signatures of its representatives. As per the books of account regularly maintained by the plaintiff, the defendant is in arrears of Rs. 3,38,316 as principal & interest @ 24% per annum which comes to Rs. 2,32,909/ upto 15.03.2014 total amounting to Rs.
5,71,225/.
6. The plaintiff at various instances, demanded the outstanding dues from the defendant and the defendant every time assured plaintiff to make payment soon. Later, the defendant asked plaintiff to furnish statement of accounts to reconcile the matter and assured plaintiff to make the payment. When defendant failed to make payment, the plaintiff demanded the outstanding amount vide letter dated 26.05.2012 and also sent statement of accounts along with letter. Thereafter, legal notice dated 24.10.2013 was sent to the defendant. On receiving the same, the defendant replied to the notice vide reply dated 29.10.2013 and again Civ. DJ. No. 610111/2016 Om Prakash Fateh Chand vs Anand Interiors page no:3 of21 asked plaintiff for the statement of accounts which was already supplied to the defendant along with letter dated 26.05.2013. However, no payment was made. Thereafter, plaintiff issued a final notice dated 15.03.2014 for recovery of the outstanding amount and interest which was duly received by the defendant. But the defendant failed to make the payment. Hence, the present suit.
DEFENDANT'S CASE:
7. Written Statement was filed by the defendant wherein the suit is preliminarily objected to being without any cause of action. It is averred that plaintiff has deliberately concealed from the court that it was doing business with the defendant since 2001. As per the understanding between the parties, the plaintiff used to supply goods to the defendant along with invoices indicating therein the prices of goods unilaterally fixed by him. After acceptance of goods, the parties used to negotiate the final price and payment was made at the price agreed by both the parties. The defendant was paying that amount to the plaintiff as price of supplied goods and correspondingly making entries in the accounts maintained by the plaintiff.
8. There was a running account between the plaintiff and defendant and hence, the plaintiff used to pay the amount as per the understanding between the parties.
9. In the year 2011, disputes arose between the parties as to the payment and price of the goods. On 02.04.2011, the defendant had lastly purchased the goods from the plaintiff amounting Rs. 8,20,805.38/. After that both parties agreed to stop their business dealings with each other and as such both parties settled their accounts and after settlement of accounts, plaintiff was found entitled to get an amount of Rs.
Civ. DJ. No. 610111/2016 Om Prakash Fateh Chand vs Anand Interiors page no:4 of21 13,08,689.59/ from the defendant. Out of total outstanding amount of Rs. 13,08,689.59/ defendant made part payment of Rs. 2,89,240/ on 03.06.2011 to the plaintiff. A voucher dated 02.06.2011 was also prepared in this regard bearing the signatures of the employee of the plaintiff.
10. Defendant subsequently made payment of the remaining amount on 03.09.2011 amounting Rs. 211242/, on 19.10.2011, amounting Rs. 2,00,000/ and the final payment was made on 25.05.2012 of Rs. 1,99,208/. The final amount was duly accepted by the plaintiff. Accordingly, defendant is alleged to have made complete payment to the plaintiff.
11. The suit is also alleged to be barred by limitation. With these contention, the suit has been rebutted.
REPLICATION:
12. Replication was filed by the plaintiff to the written statement filed by the defendant, wherein he reiterated and reaffirmed the averments made in the plaint and denied the averments made in the written statement except the admissions made.
13. It is admitted in the replication that parties were in business dealings since 2001. However, it is denied that price of goods supplied was negotiated after supply of the goods. It is submitted that final price after negotiation was mentioned in the invoice. It is also stated that the defendant had unnecessarily reduced the price of the goods sold to him for Rs. 8,20,805/ for which plaintiff did not agree and this lead to the dispute between the parties.
Civ. DJ. No. 610111/2016 Om Prakash Fateh Chand vs Anand Interiors page no:5 of21 ISSUES :
14. After completion of pleadings, vide order dated 27.03.2015, the following issues were framed:
(i) Whether the suit is liable to be dismissed in view of preliminary objection no. 2? OPD
(ii) Whether plaintiff has not affixed appropriate court fee as per preliminarily objection no. 3? If so, its effect? OPD
(iii) Whether suit is barred by law of limitation as per preliminarily objection no. 4? OPD
(iv) Whether the plaintiff is entitled to relief claimed?OPP.
(v) Relief.
PLAINTIFF'S EVIDENCE:
15. Plaintiff examined his SPA holder Sh. Puran Prakash Verma as PW1 in his evidence. He stated and reiterated on oath the averments made in the plaint in his affidavit Ex.PW1/A. He relied upon the following documents:
(i) Ex. PW1/1 : SPA dated 19.07.2014 executed in his favour by the proprietor of the plaintiff firm.
(ii) Ex. PW1/2: Invoice dated 02.04.2011 for Rs. 8,34,042/.
(iii) Ex.PW1/3: DVAT 33 form qua invoice Ex.PW1/2.
(iv) Ex.PW1/4: Statement of Account of the Civ. DJ. No. 610111/2016 Om Prakash Fateh Chand vs Anand Interiors page no:6 of21 defendant maintained in plaintiff's Books of Accounts.
(v) Ex.PW1/5: Demand Notice dated
26.05.2012.
(vi)Ex. PW1/6: Legal Notice dated 24.10.2013.
(vii)Ex. PW1/7: Final Notice dated
15.03.2014.
(viii)Ex. PW1/8 & Ex.PW1/9: Postal Receipts of Notice Ex.PW1/7.
16. PW1 was duly cross examined on behalf of the defendant. No other witness is examined by the plaintiff.
DEFENDANTS'EVIDENCE
17. Defendant firm examined the sole proprietor Sh. Ashish Anand who stated and reiterated on oath the contents of his written statement vide his affidavit Ex. DW1/A. He relied upon the following documents:
1. Ex.DW1/1 (colly.) : Original invoices since 2011.
2. Ex.DW1/2 (colly.) : Original ledger account of the defendant w.e.f. 01.04.2001 to 14.06.2012 qua the plaintiff.
3. Ex.DW1/3 : Original voucher of the defendant dated 02.06.2011.
4. Ex.DW1/4 A :Original voucher dated 03.09.2011 having signature of employee of plaintiff.
5. Ex.DW1/4B : Original voucher of the defendant dated 19.10.2011 having signature of the employee of plaintiff.
6. Ex.DW1/4C : Original voucher of the defendant dated 02.02.2012 having signature of the employee of the plaintiff.
Civ. DJ. No. 610111/2016 Om Prakash Fateh Chand vs Anand Interiors page no:7 of21
7. Ex.DW1/4D : Original voucher of the defendant dated 25.05.2012 having signature of the employee of the plaintiff.
18. DW 1 was duly cross examined by ld. counsel for the plaintiff.
19. No other witness is examined on behalf of the defendant.
20. Final arguments have been heard and record carefully perused. Written submissions filed by the defendant are also perused.
FINDINGS
21. Now I shall proceed to give my issue wise findings: ISSUE NO. 1:
"Whether the suit is liable to be dismissed in view of preliminary objection no. 2? OPD"
22. The onus to prove this issue was on the the defendant. It is alleged by the defendant in preliminarily objection no. 2 on page no. 4 of his written statement that the plaintiff has been carrying out business with the defendant since 2001 but with malafide intention he has only enclosed books of accounts w.e.f. 01.04.2006 till 30.09.2013 thereby suppressing material facts and the plaint is liable to be dismissed on this ground.
23. In his replication, the plaintiff has admitted that parties had business relations since 2001 but since the suit was filed for a particular outstanding amount only the relevant statement of account has been filed with the plaint. There is no concealment of material facts by the plaintiff.
24. No arguments have been addressed on this issue nor this Civ. DJ. No. 610111/2016 Om Prakash Fateh Chand vs Anand Interiors page no:8 of21 issue has been discussed in the written submissions filed on behalf of defendant. There is no clarity as regards how this concealment is suppression the material facts that goes to the root of the case on the basis of which the suit is liable to be dismissed. The plaintiff has duly explained that the previous statements of accounts were not filed on record because they were not required and did not concern the outstanding amount. Defendant has failed to point out as to how the suppression of previous statement of account is fatal to the case of the plaintiff.
25. In these circumstances, considering the overall evidence on record, I have no hesitation in holding that defendant has failed to discharge the onus upon him to prove this issue.
26. This issue is accordingly, decided against the defendant and in favour of the plaintiff.
ISSUE NO.2:
" Whether plaintiff has not affixed appropriate court fee as per preliminarily objection no. 3? If so, its effect? OPD"
27. The onus to prove this issue was on the defendant. Defendant has alleged in preliminarily objection no. 3 on page 4 of his WS that the plaintiff has not affixed the appropriate court fees. However, no details have been given as to how the court fees affixed on the plaint is not appropriate or what is the amount of appropriate court fees.
28. Per contra, as per paragraph no. 15 of the plaint, the suit has been valued for the purposes of court fees at Rs. 5,75,000/ which is more than the amount of which recovery is sought i. e. Rs. 5,71,225/. The plaintiff has also affixed the requisite ad valorem court fees to the tune of Civ. DJ. No. 610111/2016 Om Prakash Fateh Chand vs Anand Interiors page no:9 of21 Rs. 8,000/ on the valuation of the suit i. e. Rs. 5,75,000/.
29. In the absence of any clear details and submission on behalf of the defendant regarding what is the defect in the court fees affixed on the plaint, the court fees paid by the plaintiff on the valuation of the suit has to be taken as appropriate court fees. This issue has not been argued by the Ld. Counsel for the defendant either in his oral submissions or in his written submissions filed on record. No evidence has also been led by the defendant on this issue.
30. In view of the reasons given above and considering the overall facts of the case and evidence on record, it is held that defendant has failed to discharge the onus upon him qua the present issue. This issue is, accordingly, decided against the defendant and in favour of the plaintiff.
ISSUE NO.3:
" Whether suit is barred by law of limitation as per preliminarily objection no. 4? OPD"
31. The onus to prove this issue was upon the defendant. It is pleaded in preliminarily objection no. 4 at page no. 4 of the WS that the suit of the plaintiff is barred by limitation. However, this objection of limitation is not explained by the defendant in his written statement.
32. Plaintiff, on the other hand, is relying upon the last payment made by the defendant on 25.05.2012 in paragraph no. 13 of his plaint to bring the present suit within the period of limitation as the suit has been filed on 11.08.2014.
Civ. DJ. No. 610111/2016 Om Prakash Fateh Chand vs Anand Interiors page no:10 of21
33. In his written submissions, the defendant has explained as to how he is claiming the suit to be barred by limitation. It is alleged that admittedly the last transaction between the parties took place on 02.04.2011 (as stated in para no. 3 of preliminarily submissions at page 2 of written statement filed by the defendant) and admitted by the plaintiff in his replication. Accordingly, the suit should have been filed within three years from 02.04.2011. Whereas the present suit has been filed beyond the period of three years and accordingly, it is alleged to be barred by limitation. Defendant has relied upon the decisions of Apex court in Shanti Conductors Pvt. Ltd. Vs. Aasam State Electricity Board. cited as AIR 2014 SC 630 and decision of Hon' ble High Court of Delhi in M/s. Discover Prints India Pvt. Ltd. Vs. Aashu Chemical RFA No. 756/2002 order dated 10.01.2012, to support his contentions in this regard.
34. Per contra, it is argued by ld. Counsel for the plaintiff that the plaintiff and defendant were having business relationship on the basis of a running account. Accordingly, the period of limitation has to be considered from the date of last payment made by the defendant which is admittedly 25.05.2012. Thus, the suit is within the period of limitation.
35. I have heard the submissions made and also perused the citations relied upon by the defendant. In the present case, the plaintiff is alleging that his case falls under Article 1 of Schedule to the Limitation Act 1963 while as per the defendant, the suit falls under Article 15 of the Schedule to the Limitation Act. Both the relevant articles of the Limitation Act are reproduced herein under for the sake of clarity:
Description of suit Period of limitation Time from which period begins to run
1. For the balance due on a Three years The close of the year in mutual, open and current which the last item admitted account, where there have or proved is entered in the been reciprocal demands account; such year to be Civ. DJ. No. 610111/2016 Om Prakash Fateh Chand vs Anand Interiors page no:11 of21 between the parties. computed as in the account.
15. For the price of goods Three years When the period of credit sold and delivered to be expires.
paid for after the expiry of a fixed period of credit
36. The case of the plaintiff can fall under Article 1 of the Schedule of the Limitation Act only if the account between the parties was mutual, open and current account where there have been reciprocal demands between the parties. The test for ascertaining the mutual open current account has been laid down by the Apex Court in Hindustan Forest Co. Vs. Lal Chand & Ors. AIR 1959 SC 1349 which is relied upon by our own Hon'ble High Court in Discover Prints India Pvt. Ltd. Case (Supra). The relevant portion of the judgement is reproduced herein under: " Reliance is placed upon Hindustan Forest Company v. Lal Chand & Ors., AIR 1959 SC 1349, and paras 7 to 9 thereto which read as under:
"(7) The question what is a mutual account, has been considered by the courts frequently and the test to determine it is well settled. The cae of the Tea Financing Syndicate Ltd. v. Chandrakamal, ILR 58 Cal 649 : (AIR 1931 Cal 359), may be referred to. There a company had been advancing monies by way of loans to the proprietor of a tea estate and the proprietor had been sending tea to the company for sale and realization of the price. In a suit brought by the company against the proprietor of the tea estate for recovery of the balance of the advance made after giving credit for the price realized from the sale of tea, the question arose as to whether the case was one of reciprocal demands, resulting in the account between the parties being mutual so as to be governed by Art.85 of the Indian Limitation Act. Ranking C.J. laid down at p.688 (of ILR Cal) : (at p.368 of AIR), the test to be applied for deciding the question in these words:
"There can, I think, be no doubt that the requirement of reciprocal demands involves, as all the Civ. DJ. No. 610111/2016 Om Prakash Fateh Chand vs Anand Interiors page no:12 of21 Indian cases have decided following Halloway A.C.J., transaction on each side creating independent obligations on the other and not merely transaction which create obligations on one side, those on the other being merely complete or partial discharges of such obligations. It is further clear that goods as well as money may be sent by way of payment. We have therefore to see whether under the deed the tea, sent by the defendant to the plaintiff for sale, was sent merely by way of discharge of the defendant's debt or whether it was sent in the course of dealings designed to create a credit to the defendant as the owner of the tea sold, which credit when brought into the account would operate by way of setoff to reduce the defendant's liability."
(8) The observation of Rankin C.J. has never been dissented from in our courts and we think it lays down the law correctly. The learned Judges of the appellate bench of the High Court also appear to have applied the same test as that laid down by Rankin C.J. They however came to the conclusion that the account between the parties was mutual for the following reasons:
"The point then reduces itself to the fact that the defendant company had advanced a certain amount of money to the plaintiffs for the supply of grains. This excludes the question of monthly payments being made to the plaintiffs. The plaintiffs having received a certain amount of money, they became debtors to the defendant company to this extent, and when the supplies exceeded 13,000/ the defendant company became debtors to the plaintiff and later on when again the plaintiff's supplies exceeded the amount paid to them,the defendants again became the debtors. This would show that there were reciprocity of dealings and transactions on each side creating independent obligation on the other.
(9) This reasoning is clearly erroneous. On the facts stated by the learned Judges there was no reciprocity of dealings; there were no independent obligations. What in fact had happened was that the sellers had undertaken to make delivery of goods and the buyer had agreed to pay for them and had in part made they payment in advance. There can be no Civ. DJ. No. 610111/2016 Om Prakash Fateh Chand vs Anand Interiors page no:13 of21 question that in so far as the payments had been made after the goods had been delivered, they had been made towards the price due. Such payments were in discharge of the obligation created in the buyer by the deliveries made to it to pay the price of the goods delivered and did not create any obligation on the sellers in favour of the buyer. The learned Judges do not appear to have taken a contrary view of the result of these payments."
37. Now, let us consider facts of the present case in the light of the above stated law. Perusal of the statement of account relied upon the plaintiff (Ex. PW1/4) clearly shows that there were no reciprocal demands between the parties which is a sine qua non for making the account an open, mutual and current account. An account can be said to be an open mutual and current account in terms of Article 1 of the Limitation Act 1963 only one if there exist reciprocal demands i.e. there must be either shifting balances or each of the party should claim from the other amounts with respect to their independent transaction / obligation. However, if there is only one relationship of the parties i.e. of plaintiff as a seller and defendant as a buyer there cannot be reciprocal demands. In the present case there are no reciprocal demands as there is only a single relationship of seller and buyer between the parties. There were no independent obligations for want of existence of other independent relation whereby defendant had to claim money from the plaintiff. Accordingly, the present suit cannot be treated as one under Article 1 of the Limitation Act and has to be treated for the purposes of limitation under Article 15 of the Limitation Act with respect to claim of each bill where each bill represent the price of the goods which were sold and delivered and qua which the period of credit was agreed upon.
38. Admittedly, lastly the goods were purchased by the defendant and supplied by the plaintiff vide Tax invoice no. T3 dated 02.04.2011 with Civ. DJ. No. 610111/2016 Om Prakash Fateh Chand vs Anand Interiors page no:14 of21 due date of 02.05.2011 (Ex. PW1/2). Accordingly, the period of limitation is to be calculated w.e.f. 02.05.2011. As per article 15 of the Limitation Act, this period of limitation expired on 01.05.2014. However, the present suit has been filed only on 11.08.2014 i.e. after the expiry of the period of limitation. The same is accordingly barred by limitation.
39. It has also been argued by ld. Counsel for the plaintiff that it is an admitted case of the defendant that he has made last payment of Rs. 1,99,208/ vide cheque no. 862180 dated 25.05.2012. Accordingly, as part payment was made during the period of limitation by way of a cheque, it resulted in a fresh start of the period of limitation from that date by virtue of Section 19 of the Limitation Act.
40. To counter this argument, Ld. Counsel for the defendant has relied upon the judgment in Shanti Conductor's case (Supra) to stress upon the point that since plaintiff has not specifically pleaded all the facts for claiming start of fresh period of limitation, he is not entitled to the benefit of Section 19 of the Limitation Act. Relevant portion of the citation is reproduced herein under for the sake of clarity:
"10. In the judgment dated 23.01.2019, it has been held that the limitation of the suit filed by the petitioner shall be governed by Article 113 of the Limitation Act, 1963, which is three years from the date when the right to sue accrues. In paragraph 71 of the judgment, it has been held that last supply was completed on 04.10.1993, thus, amount became due on 04.11.1993 and the period of three years shall start running from 04.11.1993 and suit filed was beyond three years. The petitioners on the strength of section 19 contends that since the last payment was made on 05.03.1994, a fresh period of limitation shall begin from the fresh date, i.e. 05.03.1994 and the suit filed on 10.01.19978 was well within time. Section 3 of the limitation Act, 1963 deals which bar of limitation. Section 3(1) is as follows:
Civ. DJ. No. 610111/2016 Om Prakash Fateh Chand vs Anand Interiors page no:15 of21
3. Bar of limitation.(1) Subject to the provisions contained in Section 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.
Xxxxxxxxxxxxxxxxxxxxx
11. The above provision makes it clear that in event, a suit is instituted after the prescribed period, it shall be dismissed although limitation has not been set up as a defence. The Court by mandate of law, is obliged to dismiss the suit, which is filed beyond limitation even though no pleading or arguments are raised to that effect. The provisions of Section 4 to 20 are exceptions when suit beyond the period of limitation as prescribed in the Schedule shall not be dismissed as required by section 3. In this deals with plaint. Order VII Rule 6 of the Code of Civil Procedure. Order VII deals with plaint. Order VII Rule 6 contains a heading ' Ground of exemption from limitation law". Order VII Rule 6 is as follows:
6. Ground of exemption from limitation law. Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed:
Provided that the Court may permit the Plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint.
12. Order VII Rule 6 uses the words "the plaint shall show the ground upon which exemption from such law is claimed". The exemption provided Under Section 4 to 20 the Limitation Act, 1963 are based on certain facts and events. Section 19, with which are concerned, provide for a fresh period of limitation, which is founded on certain facts, i.e. , (I) whether payment on Civ. DJ. No. 610111/2016 Om Prakash Fateh Chand vs Anand Interiors page no:16 of21 account of debt or of interest on legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy, (ii) an acknowledgement of the payment appears in the handwriting of , or in a writing signed by, the person making the payment. We may notice the judgment of this Court dealing with Section 20 of the Limitation Act, 1908, which was akin to present Section 19 of the Limitation Act, 1963.In Sant Lal Mahton V. Kamla Prasad and Ors. MANU/SC/0043/1951 : AIR 1951 SC 477, this Court held that for applicability of Section 20 of the Limitation Act, 1908, two conditions were essential that the payment must be made within the prescribed period of limitation and it must be acknowledged by some form of writing either in th handwriting of the payer himself or signed by him. This Court further held that for claiming benefit of exemption Under Section 20, there has to be pleading and proof. In paragraphs 9 and 10, following has been laid down:
9. It would be clear, we think, from the language of Section 20, Limitation Act, that to attract its operation two conditions are essential: first, the payment must be made within the prescribed period of limitation and secondly, it must acknowledged by some form of writing either in the handwriting of the payer himself which really extends the period of limitation Under Section 20, Limitation Act; but the payment has got to be proved in a particular way and for reason of policy the legislature insists on a written or signed acknowledgment as the only proof of payment and excluded oral testimony.
Unless, therefore, there is acknowledgment in the required from, the payment by itself is of no avail. The Subordinate Judge, however, is right inholding that while the Section requires that the payment should be made within the period of limitation, it does not require that the acknowledgment should also be made within that period. To Civ. DJ. No. 610111/2016 Om Prakash Fateh Chand vs Anand Interiors page no:17 of21 interpret the proviso in that way would be to import into it certain words which do not occur there. This is the view taken by almost all the High Courts in India and to us it seems to be a proper view to take (See Md. Moizuddin v. Nalini Bala MANU/UP/0303/1932 : 55 All 280, Venkata Subbau v. Appu Sundaram 17 Mad. 92, Ram Prasad v. Mohan Lal A.I.R. (10) 1923 Nag 117 and Viswanath v.
Mahadeo 57 Bom. 453.
10.....If the Plaintiff's right of action is apparently barred under the Statute of limitation, Order 7, Rule 6, Code of Civil Procedure makes it his duty to state specifically in the plaint the grounds of exemption allowed by the Limitation Act upon which he relies to exclude its operation; and if the Plaintiff has got to allege in his plaint the facts which entitle him to exemption, obviously these facts must being existence at or before the time when the plaint is filed; facts which come into existence after the filing of the plaint cannot be called in aid to revive a right of action which was dead at the date of the suit. To claim exemption Under Section 20.
Limitation Act the Plaintiff must be in a position to allege and prove not only that there was payment of interest on a debt or part payment of the principal, but that such payment had been acknowledged in writing in the manner contemplated by that section."
41. Perusal of the plaint shows that the plaintiff has not pleaded any exclusion of time or start of fresh period of limitation u/s 19 of the Limitation Act 1963. There is no pleading qua the extension of limitation by running any fresh period of limitation as per provision of Section 19. There is also no pleadings to the effect that the last payment made on Civ. DJ. No. 610111/2016 Om Prakash Fateh Chand vs Anand Interiors page no:18 of21 25.05.2012 was accompanied by any acknowledgment on the part of the defendant which resulted in start of fresh period of limitation. Although, it has been held in various cases that payment of cheque itself is an acknowledgment of the payment in the handwriting of the person giving the cheque. However, in the absence of any specific pleadings claiming start of fresh period of limitation u/s 19 of the Limitation Act, no such benefit can be given to the plaintiff.
42. In view of the discussion and reason given above, I have no hesitation in holding the present suit filed for recovery of dues against the last invoice dated 02.04.2011 is clearly barred by limitation. This issue is accordingly, decided in favour of the defendant and against the plaintiff.
ISSUE NO.4:
"Whether the plaintiff is entitled to relief claimed? OPP.
43. The onus to prove this issue was on the plaintiff.
44. As per the case of the plaintiff, he supplied the goods to the defendant against which there was outstanding amount of Rs. 338316/. Despite repeated demands, amount was not paid by the defendant and accordingly, present suit has been filed for recovery of this amount alongwith interest @ 24% p.a being Rs. 232,909/. In order to prove his case, plaintiff examined the SPA holder as PW1 who relied upon the last bill dated 02.04.2011 in a sum of Rs. 8,34,042/ which is Ex. PW1/2, as well as delivery note DVAT33 (Ex. PW1/3). Plaintiff has also relied upon his ledger account for the period 01.04.2006 to 30.09.2013. As per the statement of account (Ex. PW1/4) this outstanding amount of Rs. 3,38,316/ is due against the tax invoice no. T3 (Ex. PW1/2) which is dated 02.04.2011 and was due on 02.05.2011. Accordingly, as held in my Civ. DJ. No. 610111/2016 Om Prakash Fateh Chand vs Anand Interiors page no:19 of21 findings on issue no. 3 above, this claim of the plaintiff is barred by limitation as the suit has been filed beyond the period limitation of 3 years calculated from 02.05.2011.
45. Even otherwise, the statement of account (Ex. PW1/4) is a computer generated statement and is not supported by any affidavit u/s 65B of the Indian Evidence Act and is thus, not duly proved on record. Even the power of attorney holder who is examined as PW1 has categorically testified during his cross examination that he was not personally involved in the transaction between the parties. His cross examination reveals that he had no personal knowledge about transaction between the parties to the present case. Accordingly, he was not a proper witness to prove the case of the plaintiff.
46. Per contra, as per the case of the defendant, after the last transaction vide tax invoice no. T3 (Ex. PW1/2) the accounts were settled between the parties and full and final payment of Rs. 11,08,690/ was made by the defendant to the plaintiff vide different cheques., These payments are duly reflected in the statement of account of the plaintiff (Ex. PW1/4). Vouchers regarding the payment have also been duly proved as Ex. DW1/4A to Ex. DW1/4D. This fact of reconciliation of accounts between the parties has not been disputed by the plaintiff during cross examination of DW1. Since, the payment made by the defendant after reconciliation of the account are duly reflected in the ledger account of the plaintiff (Ex.PW1/4) and the testimony of DW1 qua the full and final settlement of accounts between the parties has remained unrebutted and uncontroverted, I have no reason to disbelieve the testimony of DW1/Defendant to this effect.
47. In view of the reasons given above and considering the over Civ. DJ. No. 610111/2016 Om Prakash Fateh Chand vs Anand Interiors page no:20 of21 all evidence on record, I have no hesitation in holding that the plaintiff has failed to establish on record his right to claim the suit amount from the plaintiff. Moreover, his claim is barred by limitation as held in issue no. 3 above. This issue is, accordingly, decided against the plaintiff and in favour of the defendant.
RELIEF:
48. In view of my issue wise findings given above, the suit of the plaintiff stands dismissed.
49. No order as to cost.
50. Decree sheet be prepared accordingly.
51. File be consigned to record room after due compliance.
Digitally signed by SHIVALI SHIVALI
SHARMA
Announced in the open court SHARMA Date: 2022.05.30
16:38:38 +0530
on: 30.05.2022.
(SHIVALI SHARMA)
ADJ03/WEST/THC/DELHI
30.05.2022
Civ. DJ. No. 610111/2016 Om Prakash Fateh Chand vs Anand Interiors page no:21 of21