Shri Mahinder Kumar vs Shri Anil Kumar
2009 Latest Caselaw 626 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

      +             IA.No.5256/2008 & I.A.No.5255/2008 in
                              CS(OS)1278/2007


%24.02.2009                      Date of decision: February 24, 2009

SHRI MAHINDER KUMAR                                      .......         Plaintiff
                            Through: Mr. Parveen Chauhan, Advocate

                                     Versus

SHRI ANIL KUMAR                                              ...... Defendant
                            Through: Mr. Rakesh Kaushal, Advocate


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.     Whether reporters of Local papers may No
       be allowed to see the judgment?

2.     To be referred to the reporter or not?           No

3.     Whether the judgment should be reported
       in the Digest?                                          No


RAJIV SAHAI ENDLAW, J.

1. The defendant in this suit instituted under Order 37 of the

CPC, besides applying for leave to defend (I.A.No.5256/2008) has

also applied for rejection of the plaint (I.A.No.5255/2008) on the

ground of the claim in suit as per the averments in plaint itself being

barred by time.

2. The plaintiff as proprietor of M/s Kalu Ram Mahinder Kumar

claims that the defendant between 1st April, 2002 and 31st March,

2003 purchased goods from the plaintiff of the total value of

Rs.57,49,414.20p. The details of the 41 bills i.e the date, bill number

and the amount, by which the plaintiff claims to have supplied goods

to the defendant are set out in para 4 of the plaint. The last bill of

the plaintiff is dated 25.11.2002. It is further the case of the plaintiff

that the defendant has made payment of the total sum of

Rs.33,64,453.60p till 31.3.2003 to the plaintiff. The details of the

said 35 payments, i.e. the cheque number, date and amount are set

out in para 5 of the plaint. The dates of the cheques commence from

9th August, 2002 till 15th March, 2003. The plaintiff has also shown a

payment of Rs.1,22,401.60p on 29th March, 2003 but neither any

cheque number has been given thereof nor the mode of payment

thereof has been disclosed. It is further the case of the plaintiff in

para 6 of the plaint that even thereafter, the defendant made

payments to the plaintiff on 27.9.2003 of Rs.25,000/- and on

10.7.2004 of Rs.1,50,000/- by two cheques of Rs.75,000/- each. A

perusal of the amount of the said payments would show that they

are all in round figures, save for payments of Rs.62,032/- on 15th

March, 2003 vide cheque No. 470757 and Rs.1,22,401.60p aforesaid.

On the contrary, the amounts of the bills are not in round figures.

3. This suit for recovery of the balance amount of Rs.

22,09,980.60p together with interest accrued thereon of

Rs.21,97,340/- i.e. for a total sum of Rs.44,07,320/- has been filed.

4. The defendant in his application for leave to defend besides

challenging the maintainability of the suit under Order 37 of the CPC

has denied delivery of goods/sale transactions under as many as 23

out of the 41 bills relied upon by the plaintiff in the plaint. It is

alleged that no goods under the said bills were delivered to the

defendant and the said bills are forged and fabricated. The

defendant admitted only 17 bills and claimed to have made the

payment thereof. In the application under Order 7 Rule 11 of the

CPC, it is merely stated that even as per the plaintiff no sale of

goods, had taken place after 25th November, 2002 and thus, the suit

filed on 7th July, 2007 was barred under the Limitation Act. It is

significant that the defendant neither in the application under Order

7 Rule 11 CPC nor for leave to defend denied the payments as set

out by the plaintiff in the plaint.

5. To take up the application under Order 7 Rule 11 CPC first,

since if the plaint from the averments therein, itself is barred by law

of limitation the need for considering the application for leave to

defend will not arise.

6. As per the averments in the plaint, the goods were sold vide

bills from 20th May, 2002 to 25th November, 2002. The plaint

nowhere states any agreed period of credit between the parties.

Article 14 of Schedule 1 to the Limitation Act applicable to suits for

the price of goods sold and delivered where no fixed period of credit

is agreed upon, provides for a limitation of three years commencing

from the date of delivery of goods. Since the plaint nowhere specifies

the date of delivery of the goods, the same has to be presumed to be

the same as the date of the bill. Undoubtedly, the said period of

three years has expired from the date of each of the bills.

7. However, the plaint also sets out the payments made by the

defendants to the plaintiff and which are from 9th August, 2002 till

10th July, 2004, always, save twice, in round figures of 50,000/-,

60,000/-, 70,000/-, 1,00,000/- etc. This part, as aforesaid is not

disputed.

8. The plaint claims the cause of action to have accrued to the

plaintiff last on 10th July, 2004, i.e., on the date of the last payment.

Section 19 of the Limitation Act provides that where payment on

account of a debt is made before the expiration of the prescribed

period by the person liable to pay the debt, a fresh period of

limitation shall be commuted from the time when the payment was

made. Similarly, Article 1 of Schedule 1 of the Limitation Act, for a

suit for the balance due on a mutual open and current account where

there have been reciprocal demands between the parties provides

for a limitation of three years from the close of the year in which last

item admitted or proved is entered in the accounts, such year to be

commuted as in the account.

9. Though, undoubtedly, there is no express averment in the

plaint that the payments were on account or that there was any such

mutual open and the current account having reciprocal entries

between the parties, but in my view, in the face of the defendant

neither disputing the said payments nor explaining as to why, if the

supplies ceased on 25th November, 2002, the defendant continued to

make payments till 10th July, 2004 in round figures from a reading of

plaint, it cannot be definitely said that the claim is barred by time. I

may notice that the defendant has in his application for leave to

defend also claimed to have made the payments for the bills

admitted, together with interest at 24% per annum. This seems to

indicate that the defendant is claiming payments of amounts more

than the amount of the bills admitted.

10. Pleadings are drafted by advocates. The drafting of the plaint

in the present case does not appear to be astute. However, it does

certainly convey that payments on account were being made by the

defendants to the plaintiff. If that be the position, then the plaintiff

cannot be non-suited in the summary manner for the lack of

astuteness in drafting of his advocate. If, ultimately, the plaintiff is

able to prove that the payments were on account, since they were

admittedly in writing by cheque, then the plaintiff may be able to

establish that the claim in suit is within time. I, therefore, do not

find that the plaint, from the averments therein can be said to be

barred by the law of limitation. I.A.No. 5255/2008 of the

defendant under Order 7 Rule 11 of the CPC is thus rejected.

11. I, however, find that the suit to be not maintainable under

Order 37 of the CPC. Though undoubtedly, the suit under Order

37 of the CPC has been held by this court to be maintainable on

the basis of bills but the present is not a suit for recovery of the

amount of any bill. The present is a suit for a balance due on a

running account between the parties. Except for repeating

parrot like, the requirements of order 37 of the CPC, the plaint

does not disclose as to how it is maintainable under Order 37 of

the CPC. It is nowhere even stated that the bills are signed by

the defendant or by anyone on his behalf in acknowledgement

of supply of goods there under. The plaintiff has in the very

first paragraph of plaint claimed to be registered with the sales

tax laws but no proof of transactions alleged with the defendant

with reference to sale tax also is pleaded or filed. The

defendant as aforesaid has denied 23 out of 41 bills. In the said

circumstances, not only do I find, the suit to be not

maintainable under Order 37 of the CPC but also I am of the

opinion that the defendant has disclosed such defence as to

entitle him to unconditional leave to defend.

12. Thus, I.A.No. 5256/2008 of the defendant for leave to defend is

allowed. Unconditional leave to defend is granted to the defendant

to contest the suit.

RAJIV SAHAI ENDLAW (JUDGE) February 24, 2009/ib