Delhi High Court
K.C. Astir And Co. vs Shiv Embroidery Manufacturing ... on 11 May, 2006
Author: S Kumar
Bench: S Kumar, S Bhayana
JUDGMENT
Swatanter Kumar, J.
1. This Regular First Appeal is directed against the judgment and decree dated 27.10.84 passed by the Additional District Judge, Delhi vide which the suit of the plaintiff for recovery of Rs. 73,597.25/- was dismissed as being barred by time.
2. The appellant-plaintiff, a partnership concern, filed a suit for recovery of the said amount on the ground that the defendant which is also a partnership concern was carrying on the business of embroidery work on cloth supplied by the plaintiff. The consignment of 1,41,815.05 meters of cloth was sent for embroidery work to the defendant. But the defendant only sent back 1,32,773.55 meters of cloth and the balance cloth of 9041.50 meters was lying with the defendant. In order to ensure return of the consignment, the plaintiff had also accepted certain hundis in anticipation of of the defendant completing the work but the defendant, as already noticed, has not completed the work. When the hundis were sent to Union Bank of India, they were also not accepted. The price of cloth was @ Rs. 5.50 per meter and the plaintiff also claimed and demanded an amount of Rs. 62,914.19/- in relation to a debit note dated 27.5.1981. Having failed to recover the said amount, the plaintiff served a notice upon the defendant on 19.8.1981. Despite this notice, no payment was made and the present suit was instituted. In the suit, the defendant had put in appearance but later on it did not appear as such it was proceeded against ex parte. The learned trial court vide its judgment and decree held as under:
4. I have heard the Ld. counsel for the plaintiff. As the goods were sent in 1980 and admitted in notice Ex.P.W.1/54 that the goods were sent to the defdt. from October, 1980 to January, 1981. Primafacie the suit was barred by time. the Ld. counsel for the plaintiff submits that the suit is within time and he has relied on A.I.R. 1916 Calcutta page ? 869 Head Note-B wherein it has been laid down that:
The plaintiff made over to a gold-smith gold ornaments to be melted and made into new ornaments without fixing the time within which the work was to be furnished and failing to get the ornaments on repeated demands instituted the suit for the return of the gold or its price. It was held that the suit was governed by Article 145 of the Limitation Act and the article corresponding of Limitation Act 1963 is 70 and the Limitation begin to run from the date on which the Gold-smith wrongfully refused to do the work.
5. So the plaintiff admits that as the defdt. did not return the gods in spite of notice on August 1981 so it is presumed that the defdt. Refused to return the goods in sep. 1981 and the suit is within time as the same was filed in April, 1984. I find that that the citation does not apply to the facts of this case. In that case time was not the essence of the contract but Ex.P.W.1/54 shows that time was always the essence of the contract in all the orders sent and delivery time was specifically mentioned. It is also admitted by the pltff. that it was always made clear that the goods were generally for export and delivery was to be given in time. It was on this account that in each the delivery time was specifically mentioned and the defdt. never challenged that the delivery time was not agreeable to him. On this account the plaintiff has suffered a huge loss. As the counsel for the plaintiff has failed to prove that the suit is within time so I dismiss the suit as barred by time. Decree sheet be prepared accordingly and the file be consigned to the record room.
3. The present appeal was filed in the year 1985 and was not listed for a considerable time. When it came up for hearing on 7th March, 2006, the court passed the following order:
This is an appeal of the year 1985 and it has not been listed by the Registry for all this time.
Let the same be listed for final disposal on 02.05.2006.
Issue notice to the counsel appearing for the parties as well as the parties, informing them of the next date of hearing. Notices to be issued, without process fee, within one week from today.
4. Thereafter, it was reported by the Registry that the appellant has been served. Despite such service, neither the appellant nor anybody appeared on its behalf to argue the appeal but the counsel for the respondent was present. We heard the counsel for the respondent. The above finding of the trial court is based upon correct appreciation of law and evidence on record. Admittedly, the goods were sent from the year 1980 to January 1981. The right of the plaintiff to receive or make a recovery on that basis thus had arisen from that period. The suit apparently is barred by time. The contention of the plaintiff that the suit filed within three years from September, 1981 would be within time has rightly been rejected by the trial court. In terms of the documents placed on record, the time was the essence of the contract as well as the cause of action in favor of the plaintiff had accrued in the year 1980. Thus, the suit was filed beyond the prescribed period of limitation.
5. With the above observations, we see no reason to keep this appeal pending and the same is dismissed for default in appearance and non-prosecution while leaving the parties to bear their own costs.
