* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 33/2018
% 16th January, 2018
XS INFOSOL PVT. LTD. ..... Appellant
Through: Mr. Saurabh Upadhyay and
Mr.Vipul Sharma, Advocates.
versus
M/s GLS TECHNOLOGIES PVT. LTD. & ORS. ..... Respondents
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL) C.M. Appl. No. 1439/2018 (for exemption) Exemption allowed, subject to all just exceptions. C.M. stands disposed of.
RFA No. 33/2018 and C.M. Appl. No. 1440/2018 (for delay)
1. This Regular First Appeal is filed under Section 96 of the Civil Procedure Code, 1908 (CPC) impugning the judgment of the trial court dated 10.7.2017 by which the trial court has rejected the plaint on account of being barred by limitation. The suit filed was a RFA No.33/2018 Page 1 of 5 suit for recovery of money for balance payment due with respect to services performed.
2. The facts of the case are that appellant/plaintiff filed the subject suit for recovery of an amount of Rs.2,35,398/- on the basis that appellant/plaintiff did work of DNS configuration and Reporting for the respondents/defendants and had raised a bill dated 7.11.2012 for an amount of Rs.9,85,398/-. Out of this total amount of the bill a sum of Rs.2,00,000/- was paid in advance prior to the bill and thereafter after payments of Rs.1,00,000/- and Rs.2,00,000/- were made on 12.1.2013 and 13.2.2013. Appellant/plaintiff ultimately served a legal notice dated 13.8.2014 and thereafter filed the subject suit for recovery on 16.5.2017.
3. Trial court has held the suit to be barred by the limitation as filed on 16.5.2017, inasmuch as admittedly the only payment which is admitted to be made by the respondents/defendants is on 13.2.2013, and hence the suit filed beyond three years from 13.2.2013, i.e on 16.5.2017, was barred by limitation.
4. The subject suit is a suit for services provided by the appellant/plaintiff and with respect to which the Bill dated 7.11.2012 RFA No.33/2018 Page 2 of 5 was raised and last payment under which was made on 13.2.2013. If the suit was a suit for recovery of price of goods not paid for then the suit would have been governed by Article 14 of the Limitation Act, 1963 and which provides limitation to be three years from the date of delivery of goods. The present suit would be governed by Article 113 of the Limitation Act and because there is no Article provided for sale of services, however, when we have to apply Article 113 of the Limitation Act in the facts of the present case the same will have to be on the same principles contained in Article 14 of the Limitation Act with respect to providing for sale of goods because sale of goods and services more or less stand on the same footing.
5. Since the admitted position is that the bill was raised on 7.11.2012, last payment of which was made on 13.2.2013 therefore subject suit for recovery could have been filed till 13.2.2016, but the same was filed on 16.5.2017, and therefore the trial court committed no error in holding that the suit is time barred.
6. Learned counsel for the appellant/plaintiff has sought to place reliance upon a judgment of the Supreme Court in the case of Major (Retd.) Inder Singh Rekhi Vs. Delhi Development Authority, RFA No.33/2018 Page 3 of 5 (1988) 2 SCC 338 to argue that cause of action arises when a legal notice is served. Reliance placed by counsel for the appellant/plaintiff on the judgment in the case of Major (Retd.) Inder Singh Rekhi (supra) is misplaced because the judgment in the case of Major (Retd.) Inder Singh Rekhi (supra) was dealing with the legal position as to when is a petition under Section 20 of the old Arbitration Act, 1940 to be filed with respect to work done under a works contract, and in this regard the Supreme Court has observed that on disputes arising would the cause of action arise for filing of a petition under Section 20 of the Arbitration Act for reference of the disputes to arbitration, and that such petition under Section 20 of the Arbitration Act for reference of the disputes to arbitration should be filed within three years of arising of disputes. Clearly therefore the judgment of the Supreme Court in the case of Major (Retd.) Inder Singh Rekhi (supra) has no application to the facts of the present case, inasmuch as, the cause of action with respect to sale of goods and services are governed by Article 14 read with Article 113 of the Limitation Act which would have the effect that limitation would commence from the date of providing of goods and/or services or if any payment is made under RFA No.33/2018 Page 4 of 5 the said contract within the scope of Sections 18 and 19 of the Limitation Act then within three years of the last date of payment.
7. In view of the aforesaid discussion, the trial court has committed no error in rejecting the plaint as being time barred. There is no merit in the appeal and the same is hereby dismissed.
JANUARY 16, 2018 VALMIKI J. MEHTA, J
AK
RFA No.33/2018 Page 5 of 5