Shri Sanjeev Behl vs M/S Silvertone Motors Pvt. Ltd.
2010 Latest Caselaw 5833 Del

          THE HIGH COURT OF DELHI AT NEW DELHI
%             Judgment Reserved on: 14th December, 2010
              Judgment Pronounced on: 22nd December, 2010
+      I.A. No.5613/2010 (O.II R. 2 & O.VII R. 11 CPC) IN
       CS(OS)    No. 1520/2009.
SHRI SANJEEV BEHL                                 .....Plaintiff
                            - versus -
M/S SILVERTONE MOTORS PVT. LTD.                   .....Defendant
Advocates who appeared in this case:
For the Plaintiff: Mr. Sameer Dewar, Advocate.
For the Defendant: Mr. Vijay Kumar Singh, Advocate.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1.

Whether Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to the Reporter or not? Yes

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

V.K. JAIN, J

This is a suit for recovery of Rs.28,74,316.24p.

The case of the plaintiff is that he has been selling

material to the defendant, on credit, since 2nd August, 2003

and the defendant company has been making payment in

account to him. A sum of Rs.25,84,708.14p is alleged to be

due from the defendant company towards balance price of the

goods sold to it by the plaintiff. The plaintiff has claimed that

amount from the defendant along with interest thereon @12%

p.a. amounting to Rs.2,89,608.10p.

2. Before filing this suit, the plaintiff had filed a suit against

the defendant before the learned District Judge, Delhi for

recovery of price of the goods sold by him to the defendant

during the period from 20th March, 2008 to 29th June, 2009.

The case of the defendant is that since the present suit is

based on invoices for the period from 2nd August, 2003 to 30 th

June, 2009, it is barred under Order II Rule 2 CPC. It is

further alleged that the amount alleged to be overdue since the

years 2003-04 to 2006-07 is barred by limitation since Article

14 of the Limitation Act provides a limitation of 3 years from

the date of delivery of the goods.

3. The application has been opposed by the plaintiff. It is

alleged in the reply that the suit filed before the learned

District Judge was with respect to price of the goods supplied

to the defendant at its Gurgaon (Haryana) unit/showroom

whereas the present suit pertains to price of the goods

supplied to the defendant at their Okhla unit. It is also alleged

that the dealings between the parties with respect to Okhla

and Gurgaon units were distinct, separate and independent,

orders on the plaintiff used to be placed by Gurgaon office as

well as by Okhla office and separate accounts were maintained

by him with respect to the supply made to Gurgaon office and

the supply made to Okhla office. As regards limitation, it is

alleged that there was a running account between the parties

and in any case, part payment or payment in account was also

made by the defendant to the plaintiff, which saves the period

of limitation.

4. Order II Rule 2 CPC to the extent it is relevant provides

that every suit shall include the whole of the claim which the

plaintiff is entitled to make in respect of the cause of action

and where he omits to sue in respect of, or intentionally

relinquishes, any portion of his claim, he shall not afterwards

sue in respect of the portion so omitted or relinquished. The

explanation below this Rule to the extent it is relevant provides

that successive claims arising under the same obligation shall

be deemed to constitute one cause of action.

5. The expression 'cause of action', in the context of Order II

Rule 2 of CPC would mean all those facts which the plaintiff in

order to obtain judgment will have to prove, if disputed by the

defendant. In order to succeed in a suit for price of goods sold

and delivered, the plaintiff will have to prove (i) the order

placed by the defendant with him for supply of goods, (ii)

delivery of the ordered goods to the defendant, (iii) the price of

the goods sold to the defendant and (iv) failure of the

defendant to make payment of the price of the goods. When

different orders are placed from time to time and the goods are

supplied pursuant to those different orders, each order for

supply of goods and delivery of those goods by the plaintiff to

the defendant would constitute a distinct and separate cause

of action. If, however, the goods are supplied on different

dates but under a common/umbrella contract/order for

supply of goods, all the supplies pursuant to that

contract/order may constitute a common cause of action

despite the goods being delivered on different dates. But,

where the orders are distinct, it cannot be said that all of them

constitute a common cause of action. In order to succeed in

this suit, the plaintiff will be required to prove each and every

order placed by the defendant with him for supply of goods

from time to time as also the supply of goods to the plaintiff

pursuant to those different orders. In a given case, the parties

may agree that despite distinct orders being placed on

different dates and goods against those orders being supplied

on different dates, all the supplies will constitute one common

cause of action or will be deemed to be part of a one unified

contract for supply of goods. However, in the present case,

this is not the case of the parties that either goods supplied by

the plaintiff to the defendant on various dates were supplied

under a common contract/order placed by the defendant on

the plaintiff nor do they claim they had agreed to treat the

orders placed on different dates as a common/unified

contract, thereby converting it into a common cause of action.

6. The case of the plaintiff is that it was maintaining two

separate accounts in its ledger, one for the goods supplied to

Gurgaon unit/showroom and the other pertaining to Delhi

units/showrooms of the defendants. The plaintiff has placed

on records the copies of two separate accounts which were

being maintained by him, one with respect to the goods

supplied to Gurgaon unit and the other with respect to the

goods supplied to Okhla unit. Thus, this is not a case where

the parties decided to treat the goods supplied on different

dates as one common transaction of supply of goods.

Maintenance of two separate ledger accounts rather indicates

that the parties were treating the goods supplied to Gurgaon

unit altogether distinct from the goods supplied to Okhla unit

of the defendant Company. Had the plaintiff not been

maintaining two distinct accounts one with respect to goods

supplied to Okhla unit and the other with respect to Gurgaon

Unit even that could not have made any difference since the

supply of goods by the plaintiff to the defendant on different

dates and against different orders constitute distinct causes of

action and, therefore, the bar of Order II Rule 2 of CPC does

not apply to the present suit.

7. In K.E.A.K. Ahmed Sahib & Co. v. M.K. Pakir

Mohamed Rawther, 1924 Rangoon 145, a Division Bench of

the High Court was of the view that each order and delivery of

goods is a separate transaction and a separate cause of action,

unless they are successive claims arising under the same

obligation within the explanation at the end of rule 2 of Order

2. It was further observed that the question is really

dependent on the contract between the parties. If all the goods

were supplied under a single contract, it would be within the

explanation, unless there was an express stipulation that each

delivery or each month's deliveries should be deemed to be a

separate contract. It was also observed that it was possible

that in a particular case, there may be either a contract, or a

course of dealing from which an implied contract might be

inferred to the effect that the entire series in a particular

month or for other specific period should be treated as a single

cause of action. However, in the case before this Court,

neither there is any contract between the parties to treat all

the transactions as a single contract giving rise to single cause

of action nor is it the case of the parties that the goods were

supplied by the plaintiff to the defendant on different dates

under a single contract.

8. In Star Paper Mills Ltd. v. Behari Lal Madan Lal

Jaipuria and others, 2007 (95) DRJ 723, the plaintiff used

to sell papers to defendant No.1. The plaintiff supplied goods

to the defendant No.1 under different consignments. The

goods were supplied to defendant No.1 from Delhi as well as

Saharanpur. One suit was filed with respect to the supplies

made from Delhi whereas the other suit was filed with respect

to the supplies made from Saharanpur. The defendants took

the plea that the suit was barred by Order II Rule 2 CPC. One

of the grounds on which the plea of the defendant was

negatived by this Court was that the supplies originated from

two different places. In the case before this Court, though the

supply has originated from one source, the points of supply

being different and different accounts being maintained by the

plaintiff, one with respect to the supplies made to Gurgaon

unit of the defendant and the other to Okhla unit, this is yet

another reason why the supplies made to Okhla unit

constituted all together different cause of action. I, therefore,

hold that the suit is not barred under Order II Rule 2 CPC.

9. With respect to the plea of limitation, a perusal of the

statement of account filed by the plaintiff would show that the

defendant has been making part payments from time to time.

I will refer only to certain lump sum payments made by the

defendant. The statement of account would show that one

payment of Rs.30,000/- was made on 5th January, 2005 vide

Cheque No.956364. Section 19 of the Limitation Act, to the

extent it is relevant, provides that where payment on account

of debt or interest is made before the expiry of the prescribed

period, by the person liable to pay the debit or by his duly

authorized agent, fresh period of limitation shall be computed

from the time when the payments were made. Hence, a fresh

period of limitation commenced from 5th January, 2005 with

respect to the amount, which had fallen due by that date.

Another payment of Rs.80,000/- is stated to have been made

on 14th September, 2007 vide cheque No.974807. A fresh

period of limitation commenced from that date with respect to

the amounts which had become payable on that date. There

are further part payments also. Rs.1,00,000/- are stated to

have been paid on 3rd June, 2008. Rs.15,412/- were paid on

12th June, 2008, Rs.1,00,000/- were paid on 21st July, 2008.

Rs.1,00,000/- were paid on 16th October, 2008. Rs.

1,50,000/- were paid on 8th November, 2008. Rs. 2,00,000/-

were paid on 17th December, 2008. Rs.1,50,000/- were paid

on 27th December, 2008. Rs.1,00,000/- were paid on 29th

December, 2008. Rs.1,00,000/- were paid on 30th January,

2009. Rs. 1,00,000/- were paid on 16th February, 2009 and

Rs.2,00,000/- were paid on 18th April, 2009. All these

payments have been made by cheques which amounts to

payment in writing. Computed in terms of these payments,

the suit is well within the prescribed period of limitation.

10. For the reasons stated in the preceding paragraphs, I find

no merit in the application and the same is, accordingly,

dismissed.

(V.K. JAIN) JUDGE

DECEMBER 22, 2010 VK/SN