Delhi District Court
Colony vs Shri G. Smarjit on 12 March, 2007
1
IN THE COURT OF SHRI D.C.ANAND
ADDL.DISTRICT JUDGE:DELHI.
RCA No.30/04
Shri Vinod Kumar Gupta,
Charge D' affairs Erstwhile
Guptajee Tents, C-7, Nimri
Colony, Ashok Vihar, Phase IV,
Delhi-110052.
.......... appellant
vs
Shri G. Smarjit, Proprietor M/s
Candid Marketing Services, 24,
Adhchini, Aurobindo Marg,
New Delhi-110017.
........... respondent
ORDER
1. This appeal has been directed against the orders dt. 22-3-04 in suit no.655/03 whereby the 2 Ld. Civil Judge dismissed the suit as barred by law of limitation on application under Order 7 R 11 CPC filed by the defendant. It was a suit for recovery of Rs.2,97,195/- filed on 21-10-03 on account of non payment of the bills raised in respect of the work done by the plaintiff of Rs.37,07,059/-. According to the plaintiff, the cause of action arose on 31-3-2000 when the erstwhile partnership firm M/s Guptajee Tents was dissolved and affairs thereof were taken over by the plaintiff. Further cause of action arose on 3-7-2000 when an account payment of Rs.75,000/- was made by the defendant to the plaintiff towards the amount due. The cause of action further arose when the defendant intimated to the plaintiff that in fact excess amount had been paid by the defendant to the 3 plaintiff in August, 2001 and failed to provide any clarification or proof to the plaintiff inspite of assurance. Lastly, it arose on 15-3-2002 when the plaintiff called upon the defendant to pay the amount or face legal action and the defendant maintained silence.
2. The grounds taken to assail the impugned order are that the same is perverse, distortion of entire tenor of submission on application of defendant Under Order 7 Rule 11 CPC and non consideration of cause of action as arose in August, 2001. The finding of the Ld. Civil Judge of over looking falsehood of the defendant in the suit are stated to have resulted in grave miscarriage of justice as the order nowhere reproduces the argument addressed on behalf of the plaintiff in suit to the effect that the 4 accounts were duly stated between the parties and therefore were not barred by limitation and that the period of limitation would run from August, 2001 when the same were so stated. The perversity of facts that has crept into the order has resulted in blacking out of consideration of Article 1 of the Limitation Act wherein an admittedly mutual and current account the limitation runs from the close of the year, the year being as stated in the account. It is stated that it is an admitted fact borne out from the account submitted by the defendant in suit that the year end stated in the account was 30-6-2001 and was admitted to be so in a duly stated account in August 2001 and there was nothing oral about the same.
3. The appellant as such submitted that Ld. 5 Civil Judge committed the error in law in not dealing with the proposition of Article 1, 26 and 18 of the Limitation Act. In the light of above facts cited, two views were possible on application Under Order 7 Rule 11 CPC which only applies where the suit appears to be barred by limitation from a statement in the plaint. Reference is also made to the provisions as contained under Section 17(1)(b) of the Limitation Act which was not answered by the Ld. Civil Judge while passing the impugned order. Although the court below was vehemently apprised of the fraud on the part of the defendant in the suit. The appeal was stated to be within period of limitation which was filed on the basis of uncertified copy and the certified copy thereof was applied on 19-4-04 and was 6 filed on the adjourned date after admission of the appeal subject to just exceptions although the same was ready on 27-4-04.
4. The appeal is contested by the respondent/ defendant as devoid of any merit and substance.
5. I have heard the learned counsel for the parties and have perused the lower court file, impugned order, grounds of appeal. No mutual account so as to apply Article 1 of the Limitation Act is placed on the suit file nor was pleaded and submitted before this court. Similarly no facts so as to apply Article 26 of the Limitation Act are pleaded in the plaint by the plaintiff as accounts are not signed by the defendant or his agent duly authorized nor any agreement in writing of such account payable at a future time is placed on record by the plaintiff. Reference made to the 7 definition of 'mutual account' to the case of Hindustan Forest Company v Lal Chand and others reported in AIR 1959 SC 1349, Attadi Venketi v M/s Bhartam Ramulu and sons reported in AIR 1984 Orissa 226, Koma Haji Hysrose Haji v Moosakutty Bava reported in AIR 1985 Kerala 126, Raju and others v I. Kumaramuthu reported in AIR 1975 Madras 1, Mathura Prasad v Chairman District Board, Sitapur reported in AIR 1928 Oudh 297, The Tea Financing Syndicate Limited v Chandra Kamal Bez Barua reported in AIR 1931 Calcutta 359, Firm Mansa Ram and sons v Hira Lal Sanon and another reported in AIR 1940 Allahabad 209, Smt. Sukhdei and others v 8 M/s Naipal Ram Jagannath Prasad reported in AIR 1974 Allahabad 408, M/s Kesarichand Jaisukhlal v Shillong Banking Corporation Limited reported in AIR 1959 Assam 162, Gordon Woodroffe and Co. Limited v Shaik M.A. Majid and Co.
reported in AIR 1967 SC 181 is held to be not relevant.
6. In fact, the focus of the argument by learned counsel for appellant is of Section 17(1)(b) of the Limitation Act on the pleadings in para 6(a) of the plaint to the effect that in August,2001 the defendant telephonically informed the plaintiff that excess payment over and above the amount of Rs.1,56,419/- had already been made in the said account by way of cheque as was stated by defendant before Income-tax Department. 9 However, when the plaintiff asked the defendant to show proof, the defendant only assured that he would supply the details of the cheque to the plaintiff shortly which he failed to supply intentionally for reasons best known to him since the plaintiff has not received any amount as was telephonically informed by the plaintiff.
7. Firstly, learned counsel for appellant submitted that the facts as above construe fraud so as to extend the period of limitation under Section 17 sub clause (1)(b) of the Limitation Act. Although the facts prima facie do not construe a fraud on the part of the defendant as in the given facts, it could be a case of misstatement of payment of the amount by the defendant but cannot be a case of fraud as the plaintiff can verify that statement from his 10 account with regard to payment by cheque by the defendant over and above of the amount as pleaded in para 6(a) of the plaint and quoted above. Secondly, in term of Order 7 R 6 CPC, the plaintiff in case was seeking the extension of period on the basis of such fraud as was stated in para 6(a) of the plain, there was mandate of law that the plaint shall show the grounds upon which exemption from law of limitation is claimed. It has not been pleaded by the plaintiff that suit has been instituted after the expiry of period prescribed by law of limitation and exemption from thereof is to be granted because of fraud for filing the suit at the stage it was filed. The provisions of Order 7 R 6 CPC when read with proviso thereof also does not support the case of the appellant that the limitation 11 would began with from last week of August, 2001 as was pleaded in para 6(a) as per cause of action clause. The cause of action arose from 31- 3-2000 when the erstwhile partnership firm M/s Guptajee Tents dissolved and again it arose on 3-7-2000 when on an account payment of Rs.75,000/- was made by the defendant to the plaintiff towards the amount due. It is well settled proposition of law that limitation begans on first day of cause of action which according to the plaintiff himself is 31-3-2000 while the suit was filed on 21-10-2003. Ld. Civil Judge dismissed the suit of the plaintiff as barred by limitation with the observations as under:-
'As per the provisions of Indian Limitation Act the suit for the price of work done by the plaintiff for the defendant at his request can be filed 12 within three years of limitation period and the limitation period began to run from the date when the work is done. Further, as per the Section 18 of the Limitation Act an acknowledgment by the defendant before the expiry of limitation period in writing can extend the period of limitation in the case. It is an admitted case of the plaintiff that the defendant has made the last payment on 3-7-2000 of Rs.75,000/- and the suit for recovery by the plaintiff is filed on 21-10-2003 and as per para 10 of the plaint the defendant continue to assure the plaintiff that the balance amount would be paid on 21-12-2001. The said oral assurance made by the defendant cannot be considered as an acknowledgment under Section 18 of the Indian Limitation Act. Moreover, 13 from the perusal of the plaint it is clear that plaintiff no where contended that the defendant acknowledged the debt before the expiry of the limitation period, therefore, in the present facts and circumstances, I am of the considered opinion that the suit of the plaintiff is barred by law of limitation, therefore, the application filed by the defendant under Order 7 R 11 is allowed and the suit of the plaintiff is accordingly dismissed.'
8. The submissions by learned counsel for appellant that when the Ld. Civil Judge was satisfied that on the basis of the documents filed on query as to whether the suit is within limitation before issue of summons to the defendant, those documents should have been 14 considered by the Ld. Civil Judge which are not at all considered.
9. On the face of the discussion as above and no finding by the Ld. Civil Judge before issue of summons that suit was within limitation and no relevancy of documents shown even at the stage of appeal so as to say that fraud was committed by the defendant so as to extend period of limitation and keeping in view the discussion as made above, I do not see any infirmity or illegality in the orders passed by Ld. Civil Judge whereby he dismissed the suit as barred by limitation on the basis of the plea in the plaint wherein there was no plea of filing the suit beyond limitation and seeking exemption from law of limitation under Section 17 sub clause (1)
(b) of the Limitation Act. As already observed, 15 the facts do not construe application of Section 17 of the Limitation Act, 1963. The appeal as such is dismissed on merits. However, considering the observations as under in case of M/s Maha Maya General Finance Co.
Private Limited v Shri Hardit Singh, Liquidator National Planners Limited & another reported in ILR (1972) II Delhi 241, the appeal is held to be not beyond the period of limitation as the certified copy was filed at the first available opportunity i.e on the adjourned date after admission of the appeal subject to just exceptions:-
"that it must be presumed that the exemption applied for was granted by the Court. As the Court did not fix any time limit 16 for filing the certified copies of the judgment, the appellants cannot be restrained from filing the certified copies of the judgment at any time before the hearing of the appeals."
10. File be consigned to Record Room and lower court file be returned back to the concerned court along with copy of this order. Announced in open Court Dated:12-3-07 (D.C.Anand) Addl.District Judge, Delhi.