M/S. Durham Careline India ... vs M/S. Studio Line And Others
2009 Latest Caselaw 532 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                CS(OS) No.24/2004 & IA No.10765/2007
            (u/S. 5 of Limitation Act filed by defendants)

%                      Date of Decision: February 13, 2009


# M/s. Durham Careline India Pvt. Ltd.             ..... Plaintiff
! Through its Managing Director
   Mr.Swantantre Bharat Sharma
          Through: Mr.Rajiv Kapur with Ms.Kiran Bairwa, Adv.

                                Versus

$ M/s. Studio Line & Ors.                                .....Defendant
^          Through: Mr.R.M.Bagai, Advocate


CORAM:
HON'BLE MR. JUSTICE S.N. AGGARWAL

1.

Whether reporters of Local paper may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether the judgment should be reported in the Digest?

S.N.AGGARWAL, J (ORAL)

1. The plaintiff has filed this suit against the defendants for

recovery of Rs.20,57,350/-. The suit was filed on 18.12.2003. The

defendants have filed an application being IA No.10765/2007 for

dismissal of the suit being barred by limitation.

2. Heard.

3. Briefly stated, the facts of the case are that the plaintiff

is a company incorporated under the Indian Companies Act, 1956

and it runs its business of restaurants under the name and style of

Copper Dome and a Pub under the name and style of Nevilles Cross

Free House at Nevilles Cross Complex, Darlington Road, Durham

City, County; Durham, London (U.K.).

4. The plaintiff wanted furniture to renovate its restaurant

at London. The defendants are stated to be manufacturer of

furniture in India. The plaintiff in order to renovate its restaurant at

London placed purchase order on the defendants for purchase of

some furniture. The purchase order was placed in November, 1999.

The terms and conditions of supply of furniture by the defendants

to the plaintiff were reduced in writing and are contained in

document annexed as Annexure-A at page 20 of the paper book.

The furniture was supplied by the defendants as per order

contained in the purchase order of November, 1999. The

defendants raised a bill being Bill No.265 dated 3.3.2000 for

Rs.12,94,200/- which the plaintiff is stated to have paid and cleared

to the tune of Rs.12,32,350/- after retaining the amount equivalent

to 5% retention amount in terms of the purchase order. The said

payment was made by the plaintiff to the defendants on 10.3.2000.

The defendants thereafter sent legal notices dated 5.7.2002 and

10.07.2002 asking it to give ST-49 forms or in the alternative to pay

Rs.1,49,634/- on account of sales tax liability in respect of furniture

supplied to the plaintiff. Since neither ST-49 forms were given by

the plaintiff nor amount of Rs.1,49,634/- asked for on account of

sales tax liability was given, the defendants filed a recovery suit for

recovery of Rs.1,49,634/- against the plaintiff under Order XXXVII

CPC and that suit of the defendants filed against the plaintiff is

stated to be pending before the Civil Judge, Delhi.

5. The present suit seeking recovery of Rs.20,57,350/- has

been filed by the plaintiff against the defendants on account of

return of amount of Rs.12,94,200/- paid by the plaintiffs to the

defendants against defendant's bill No.265 dated 03.3.2000 and

also on account of alleged damages suffered by the plaintiff

because of alleged defective supplies of the furniture.

6. Para 29 in the plaint deals with cause of action and gives

various dates on which cause of action allegedly arose to the

plaintiff for filing of this suit.

Para 29 of the plaint is extracted below:-

"29. That the cause of action arose to the petitioner in November 1999, when the petitioner placed the order with the defendant, thereafter it arose on 3.3.2000 when the defendant raised the bill no.265, then again arose on 10.01.2000 when the defendant sent the e-mail regarding the material attaching the pictures etc. of the furniture, it

again arose when the defective material was received by the petitioner at London, thereafter, it arose in September 2000 when the petitioner obtained the first opinion from the expert at London and arose again on or around September/October 2000 when the defendants handed over the drawings to the petitioner on CD-Rom, it again arose on when the petitioner had to air-freight the chair and the drawings for opinion to Great Britain, it again arose on or around 27.01.2000 when the petitioner had a meeting regarding the defective furniture with the defendants and handed over the photographs to the defendants on its arrival to India, it again arose when the petitioner had obtained the estimate for the repairs of the furniture at London, it again arose on 05.07.2002 and 10.07.2002 when the defendants got issued a legal notice to the petitioners through its advocate and it arose also on 31.07.2002 when the petitioner served the reply notice through its advocate upon the defendants demanding the relief, it again arose on or around 05.08.2002 when the defendants approached the petitioner for settlements in response to the said reply notice but failed to arrive at any suitable and mutually acceptable settlement, it again arose on 29.07.2002 when the petitioner gave the Bank Guarantee to the Sales Tax Authorities regarding the said bill of defective furniture. The cause of action is still subsisting on each and every passing day as the defendants have till date neither rectified the defects nor refunded the money."

7. The grievance of the plaintiff in the suit is that the

furniture supplied by the defendants to it was of defective quality.

As per para 29 of the plaint extracted above, the plaintiff is relying

on a date some time in September/October, 2000 when the

defendants allegedly handed over the drawings to the petitioner on

CD-Rom. The plaintiff further relies on date of 5.8.2002 as

according to it cause of action also arose in its favour on that date

when a meeting between the parties was held and in that meeting

the defendant allegedly agreed to the defects pointed out in the

supply of furniture made to the plaintiff.

8. The last date of alleged cause of action pleaded by the

plaintiff in the plaint is of 5.8.2002. Mr.Rajiv Kapur, learned counsel

appearing on behalf of the plaintiff has contended that the

limitation for the purpose of filing of this suit should be reckoned

from 5.8.2002 when the defendants had acknowledged that the

furniture supplied by them to the plaintiff was defective. On being

asked, Mr.Rajiv Kapur, learned counsel appearing on behalf of the

plaintiff fairly stated that there is no document on record to show

that the defendants had acknowledged their liability that furniture

supplied by them to the plaintiff was defective. He has further

admitted that the minutes of alleged meeting of 5.8.2002 were not

recorded in writing and is not there on record.

9. The limitation for filing of this suit had started when the

furniture was supplied by the defendants to the plaintiff and the

payment of such supply was made by the plaintiff on 10.3.2000.

The alleged meeting of 5.8.2002 in which the defendants are

alleged to have acknowledged their liability by admitting the defect

in the supply of furniture cannot be used for extending the period of

limitation in view of provisions contained in Section 18 of the

Limitation Act which mandates that the acknowledgment in order to

extend limitation must be in writing.

10. Even if for a moment the plea of the plaintiff that the

meeting had taken place between the parties on 5.8.2002 in which

defendants had allegedly acknowledged their liability is accepted,

still it would not save the present suit from limitation because the

minutes of meeting of 5.8.2002 were not reduced into writing and,

therefore, the same cannot be used for giving the benefit of the

same to the plaintiff. No useful purpose is going to be served by

keeping this suit alive because the alleged acknowledgment is not

in writing so as to bring the suit within the purview of Section 18 of

the Limitation Act.

11. In my opinion, this suit filed by the plaintiff on

18.12.2003 with regard to cause of action that allegedly arose prior

to three years of filing of the suit, is liable to be dismissed as barred

by limitation.

12. In view of the above and having regard to the

submissions made by the counsel for the parties, IA No.10765/2007

filed on behalf of the defendants is allowed and the main recovery

suit of the plaintiff is hereby dismissed as barred by limitation

leaving the parties to bear their own costs.

13. Any observations in this order will not influence the

decision of the suit pending before the Civil Judge, Delhi.

February 13, 2009                              S.N.AGGARWAL
'vg'                                              [JUDGE]