Pradeep Kumar vs M/S. Singh Copper & Brass Place
2010 Latest Caselaw 5358 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI


                RFA No. 617/2005
                         Judgment delivered on: 25.11.2010

Pradeep Kumar                      ..... Appellant
                       Through: Mr. Aseem Mehrotra, Adv.


                       Versus

M/s. Singh Copper & Brass Place      ..... Respondent
                   Through: Mr. Rajinder Mathur, Adv.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR,

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

2. To be referred to Reporter or not?                       Yes

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


KAILASH GAMBHIR, J. Oral:
*

1. By this appeal filed under Section 96 of the Code

of Civil Procedure, 1908 the appellant seeks to set aside the

judgment and decree dated 11.4.2005 passed the court of the

learned ADJ, Delhi whereby the suit for recovery filed by the

plaintiff was dismissed as being not maintainable.

2. Brief facts of the case relevant for deciding the

present appeal are that the appellant started supplying brass,

copper, iron and white metal handicraft goods to the

respondent since 1992-93. As per the case of the appellant,

he maintained a running account in the name of respondent

and the respondent used to make part payment from time to

time. That the last delivery of goods by the appellant was

made on 8.6.1994 and the last part payment of Rs.1,50,000

was made by the respondent on 5.4.95 and thereafter an

amount of Rs.2,41,649.05 was outstanding against the

respondent. A legal notice dated 8.7.1997 was served on the

respondent, but they failed to make the payment and hence

the appellant filed a suit for recovery on 30.7.1997 which was

dismissed by the learned trial ground on the ground that the

suit was barred by limitation and was not maintainable.

Feeling aggrieved with the same, the appellant has preferred

the present appeal.

3. Mr. Aseem Mehrotra, counsel for the appellant

states that the learned Trial Court did not care to take note of

the fact that the respondent plaintiff had admitted in the

written statement that it had paid an amount of Rs. 1,50,000/-

on 5th April, 1995. The contention of counsel is that the

limitation of three years would start from the date of the said

payment lastly made by the respondent to the appellant.

Counsel further submits that the respondent has been

issuing Form H under the Central Sales Tax Act for the goods

supplied by the appellant to the respondent, which were

meant for export, and the said forms were issued on 25th

August, 1995 and were duly proved on record by the

appellant as Ex.PW 1/61, 62 and 63. Counsel also submits

that ledgers of the account of the respondent were placed

on record and were proved as Mark A to D and the said

ledger duly reflects the last payment of Rs.1,50,000/- made

by the respondent on 5.4.1995. Counsel further submits that

the dishonesty of the respondent is duly reflected from the

perusal of copy of the letter dated 17.1.1994 and the

certificate dated 27.9.96 placed on record by the respondent

as in the said letter although the respondent has taken a

stand that the appellant had not supplied the items as per

the samples because of the discrepancy in the height of the

items, but these very items for which complaints were

raised by the respondent were duly exported and in respect

of the same Form H was issued by the respondent on 25.8.95.

Counsel further submits that the certificate dated 27.9.1996,

which was placed on record by the respondent, but was not

proved by it, give strength to the fact that the said certificate

was forged by the respondent. Drawing a distinction

between the two letter heads of the appellant, counsel

submits that in the said certificate dated 27.09.1996 under

the name of the appellant "Manufacturers & Sussliers" is

mentioned and on the other letter head, under which the

invoice bills were raised by the appellant, the words

"Manufacturers & Specialists in" were stated under the

name of the appellant company and also in place of „Artware‟

the word „Vrtware‟ was mentioned in the said certificate

dated 27.9.96.

4. Counsel further states that the trial court framed

Issue No. 4 as „whether the plaintiff has a given a letter dated

27.9.1996 to the defendants‟ but failed to decide the said

issue. Counsel thus submits that once the trial court had

framed the issue at the instance of the respondent, then it

was incumbent on the part of the learned court to have at

least decided the issue.

5. Counsel for the respondent on the other hand,

supports the judgment passed by the learned trial court and

submits that no perversity or illegality can be found in the

same.

6. I have heard learned counsel for the parties at

considerable length and gone through the records.

7. The appellant filed a suit for recovery of

Rs.3,70,000/- against the respondent. The case set up by the

appellant in the plaint was that the appellant was

approached by the respondent in the year 1992-93 for the

supply of certain brass items and as per the appellant the

same were duly supplied to the respondent for a total sum

of Rs.33,862.50/-. In para 3 of the plaint, the appellant has

averred that the appellant was maintaining a running

account in the name of the respondent and in the said

account the balance amount payable by the respondent was

duly reflected. It was further averred that the last supply of

goods made by the appellant to the respondent was vide bill

no. 154 dated 8.6.94 for Rs.36,050/-. It is further stated that

the respondent on their part had paid Rs. 1,50,000/- on

5.4.95 against the outstanding balance and after giving

adjustment of the said amount, the balance amount of

Rs.2,41,649/- was left to be paid by the respondent as on

31.3.96. The appellant has further averred that after making

the said last payment on 5.4.95, the respondent did not care

to pay the outstanding balance amount despite repeated

demands raised by the appellant. In para 11 of the plaint

which relates to cause of action, it has been averred that

cause of action arose on each and every date when the

payments became due and the respondent failed to clear

the outstanding amount despite repeated demands raised by

the appellant and cause of action lastly arose on 5.4.1995

when the last payment was made by the respondent.

8. Based on the aforesaid pleadings of the parties,

the learned trial court framed the following issues.

"1. Whether the suit is not maintainable as the same has not been filed by and through proper person as mentioned in para no. 2&3 of WS? OPD.

2. Whether the plaintiff has supplied the goods as mentioned in the plaint? OPP.

3. Whether the plaintiff has not supplied the complete goods as per specification as claimed in WS? If so, its effect? OPD

4. Whether the plaintiff has given a letter dated 27.9.1996 to the defendants? If so, its effect? OPD

5. To what amount is the plaintiff entitled? OPP

6. Whether the plaintiff is entitled to interest? If so, at what rate, for what period? OPP

9. The appellant had examined two witnesses and

has proved on record photo copies of the bills as Ex. PW1/1 to

PW1/33, and copies of Form S.T. 38 as Ex.PW1/34 to PW1/57.

Copies of the bills of lading were proved on record as

Ex.PW1/64 to PW1/69 and PW-1/71. Also proved were Form

H as Ex.PW-1/58, Ex.PW 1/61 to PW 1/63. The appellant had

produced PW2 Shri Gauri Shanker who was working as

Munim with the appellant. On the other hand, the

respondent has produced the evidence of its sole proprietor

DW 1, Jaswant Singh and also proved on record copy of the

letter dated 17.1.1994 as Ex. DW1/A.

10. The learned trial court decided the issues nos. 5,6

and 7 collectively. It is correct that the Issue No. 4 was not

decided by the learned trial court for which the onus was

placed on the respondent. The said certificate dated

27.9.1996 which was otherwise proved on record as Ex.

DW1/B, was strongly disputed by the appellant before the

trial court as well as before this Court. Undoubtedly, the

learned trial court should have given a separate finding on

the said issue.

11. Be that as it may, the suit filed by the appellant

has been dismissed only on the ground that the same was

barred by limitation. It has not been disputed by the

appellant that the statement of account was not proved on

record by the appellant, although photo copies of the bills

right from the first transaction with the respondent were

being maintained by the appellant in his ledger which were

placed on record. Once the appellant had placed on record

photo copies of the ledger, nothing could have prevented the

appellant to produce the original records to prove the said

statement of account. As per own case of the appellant, the

appellant was maintaining the running account of the

respondent and as per the said running account a sum of

Rs.2,41,649/- was left outstanding against the respondent.

Simply the fact that the respondent had lastly made the

payment of Rs.1,50,000/- would not help the appellant to

claim the alleged outstanding amount. The benefit of the

last payment could have accrued to the appellant had the

appellant successfully proved the said statement of account

to show that there was a running account being maintained

by the appellant and after an adjustment of said amount of

Rs. 1,50,000/-, the said amount of Rs. 2,41,649/- was still left

to be paid by the respondent. Having failed to prove the

same, there was no material before the court based on which

the court could have led to believe that the said amount of

Rs. 2,41,649/- was still outstanding against the respondent.

12. Coming to the issue of the suit being not

maintainable, the learned trial court held that the suit was

barred by limitation. Admittedly, the last delivery by the

appellant was made on 8.6.94 and the last payment was

made on 5.4.95. Legal notice by the appellant was served

upon the respondent on 8.7.1997 and the suit was filed by the

appellant on 30.7.97. The learned trial court has applied

Article 52 of the Limitation Act, 1908 which is synonymous

with Article 14 of the Limitation Act, 1963 and reads as

under:

PART II-SUITS RELATING TO CONTRACTS

Description of suit Period of limitation Time from which period begins to run

14. For the price of Three years The date of the goods sold and delivery of the delivered where no goods.

fixed period or credit is agreed upon

13. It is the case of the appellant that limitation should

be counted from the date of the last payment i.e 5.4.1995,

which is a matter of record. But the appellant has nowhere

proved the fact of the said payment of Rs. 1,50,000 and in

what manner it was made. The appellant has relied upon

bills, Form H and bills of lading for establishing his case, but

has not proved the said documents in accordance with law.

Even otherwise, the appellant has relied upon the admission

of the respondent that the payment of Rs.1,50,000 on 5.4.95

is a matter of record. It is a settled legal position that the

case of the plaintiff has to stand on its own legs and not on

the weaknesses of the case of the defendant. Hence, the trial

court has rightly held that the period of limitation has to be

counted from the date of the last delivery, i.e 8.6.94, and as

per the mandate of Article 14, the suit filed does not come

within the stipulated period of three years.

14. With regards to the contention of the counsel for

the appellant that the certificate dated 27.9.1996 was a

forged document and that issue regarding it was not decided

by the learned trial court, it would be suffice to say that even

if the said document was proved to be fabricated, then also it

would not have helped the case of the appellant as the said

certificate only states that no amount is due towards the

appellant, but does not talk about the payments made by the

respondent.

15. Hence, in the light of the above discussion, this

court does not find any merit in the present appeal and the

same is hereby dismissed.

November 25, 2010                 KAILASH GAMBHIR, J
rkr/mg