* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.828 /2010
% 15th December, 2011
M/S. TBS ENGINEERS PVT. LTD. ..... Appellant
Through: Mr. Vinod K. Singh, Advocate.
Versus
MR. J.P. MISHRA & ORS. ..... Respondents
Through: Mr. Manoj Khanna, Advocate with
Mr. Atul Bansal, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the trial Court dated 7.7.2010 dismissing the suit for recovery of ` 8,47,868/- filed by the appellant/plaintiff against the respondents/defendants. The suit was dismissed although the appellant/plaintiff proved the bills and the supply of engineering valves to the respondents/defendants inasmuch as it was held that the suit was time barred. The suit was held time barred if the limitation is taken from the date RFA No.828/2010 Page 1 of 5 of each of the bills. The five bills in question were dated 3.9.2002, 10.9.2002(2), 8.10.2002 and 21.10.2002 whereas the suit was filed on 8.12.2005. It was therefore held that the suit was filed after three years from September, 2002/October, 2002 and thus time barred.
2. The facts of the case are that the appellant/plaintiff entered into business transactions with the respondents/defendants and thereby engineering goods/engineering valves were sold by the appellant/plaintiff to the respondents/defendants. The business dealings commenced in the year 2001 and continued till September, 2003 when the last cheque was issued by the respondent Nos.1/3 in favour of the appellant/plaintiff. The respondents/defendants are stated to have made payments of different bills but not with respect to five bills which are as under:-
Date Bill No. Amount
03/09/02 TBS/00424/02-03 4211.00
10/09/02 TBS/00432/02-03 4,97,755.00
10/09/02 TBS/00433/02-03 8,102.00
08/10/02 TBS/00500/02-03 12,131.00
21/10/02 TBS/00523/02-03 7,729.00
RFA No.828/2010 Page 2 of 5
TOTAL 5,29,928.00
3. The appellant/plaintiff claimed that an open, mutual and current account was maintained between the parties and therefore the subject suit was filed for the balance due on the foot of the account. The respondents/defendants had first appeared, contested the proceedings, however subsequently they failed to appear and were proceeded exparte on 8.7.2009. On an application, this exparte order was set aside on 15.12.2009 subject to payment of costs. However, neither costs were paid nor any witness was examined by defendants. The evidence of defendants was thus closed on 22.4.2010. In the trial Court therefore there the only evidence which was led was on behalf of appellant/plaintiff and which witness was cross-examined.
4. Learned counsel for the appellant/plaintiff argues that the trial Court has fallen into an error in not looking at the evidence led, and as per which evidence (both oral and documentary) showed that the parties were maintaining an open, mutual and current account. Learned counsel for the appellant has drawn my attention to para 3 of the plaint wherein it is stated that the account between the parties was an open, mutual and current RFA No.828/2010 Page 3 of 5 account and also para 4 of the affidavit filed by way of evidence deposing to this aspect and also exhibiting the ledger as Ex.PW1/B. It is argued that the trial Court therefore ought to have treated the suit as one under Article 1 of the Limitation Act, 1963.
5. I completely agree with the arguments raised on behalf of the counsel for the appellant/plaintiff inasmuch as the appellant/plaintiff proved that the parties were maintaining an open, mutual and current account and which contained entries even after the disputed bills which were of September/October, 2002. The last entry in the account is of 26.9.2003 showing payment by the respondents/defendants of a cheque of ` 27,864/-. The limitation in this case will therefore begin from 1.4.2004 and therefore the suit could have been filed as per Article 1 of the Limitation Act, 1963 upto 31.3.2007, whereas the suit has been filed on 8.12.2005. Once there is an open, mutual and current account, it is Article 1 of the Limitation Act, 1963 which will apply, and not Article 15, the trial Court thus has fallen into an error in taking the limitation from the date of each bill. In the facts of the present case, not only there is no evidence which was led on behalf of the respondents/defendants but in fact in the cross-examination of the only witness of the appellant/plaintiff, there was no cross-examination with RFA No.828/2010 Page 4 of 5 respect to deposition made in para 4 of the affidavit with respect to the account being an open, mutual and current account.
6. I may at this stage note that the suit has been filed, besides against respondent Nos.1 and 3, (who are the sole proprietor and sole proprietorship concern) also against respondent No.2, and who was only dealing with the appellant/plaintiff on behalf of respondent/defendant Nos.1 and 3. Obviously, such dealing cannot fasten any liability upon the respondent No.2/defendant No.2, and the liability can only be of the sole proprietor and the sole proprietorship concern i.e. the respondent Nos.1 & 3. The suit was therefore not maintainable against the respondent No.2/defendant No.2.
7. In view of the above, the appeal is accepted. Impugned judgment and decree dated 7.7.2010 is set aside. The suit of the appellant/plaintiff will stand decreed against the defendant Nos.1 and 3/respondent Nos.1 and 3 for a sum of ` 8,47,868/- alongwith interest @ 9% per annum simple pendente lite and future till realization. Parties are left to bear their own costs. Decree sheet be prepared.
VALMIKI J. MEHTA, J DECEMBER 15, 2011/ Ne RFA No.828/2010 Page 5 of 5