Delhi High Court
National Small Industries Corp. ... vs M/S Metalloid Trading Co. & Ors. on 26 April, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 26.4.2011
+ R.S.A.No.83/2007
NATIONAL SMALL INDUSTRIES CORP. LTD ...........Appellant
Through: Mr.Sanat Kumar & Ms.Poonam
Solanki, Advocates.
Versus
M/S METALLOID TRADING CO. & ORS. ..........Respondent
Through: Mr.Chetan Sharma, Sr. Adv. with
Mr.Sunil Mani, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This appeal has impugned the judgment and decree dated
4.9.2006 which had endorsed the finding of the trial judge dated
24.5.2003 whereby the suit filed by the plaintiff National Small
Industries Corporation Ltd. had been dismissed.
2. The parties had entered into a hire purchase agreement dated
26.8.1986. The plaintiff had agreed to supply machines fixed at the
rate of `1,91,432/- to the defendants. After adjusting the earnest
money of `14,897/- defendants were required to pay the balance
amount in 13 half yearly installments; `13587/- was the first
installment payable on or before 01.5.1988 and thereafter the balance
12 installments were payable at the rate of `13579/-. Contention of the
plaintiff is that the defendant had availed all the facilities under the
said agreement he but did not adhere to the financial discipline; he did
not pay the installments in time. This was in spite of reminders. Suit
was accordingly filed.
3. In the written statement, the defence of the defendant was that
the suit is barred by limitation; besides the other defences which may
not be relevant for the disposal of this appeal.
4. Trial judge had framed various issues; issue no.3 related to the
question of limitation. Trial judge held that the suit of the plaintiff
filed on 22.11.2994 is barred by limitation; he could not claim the
amounts as detailed by him in terms of the hire purchase agreement
dated 26.8.1986.
5. This was endorsed in the first appeal.
6. This is a second appeal. It had been admitted and on 16.3.2007
the following substantial question of law was formulated:
"Whether the suit filed by the appellant is barred by time.?"
7. On behalf of the appellant, it is pointed out that the judgment of
the trial court suffers from a perversity. Reliance has been placed
upon 2005 VI AD (Delhi) 106 National Small Industrial Corporation Ltd
Vs. Sh.Takdir Singh to support a submission that cause of action would
accrue separately with regard to each and every installment as and
when a particular installment fell due.
8. This argument has been rebutted. It is pointed out that the
cause of action has to read in terms of the specific averments made in
the plaint. The impugned judgment has correctly endorsed the finding
of the trial judge dismissing the suit on account of limitation.
9. Be that as it may, the perusal of the impugned judgment shows
that the judge has adopted a cursory approach. The finding on
limitation is contained in the last three lines only which reads as
under:
"However, I agree with the learned trial court that suit filed by
the appellant was clearly barred by period of limitation because the
appellant totally failed to place on record any documents which
extended the period of limitation by way of acknowledgment made on
behalf of the defendants. I have gone through the evidence and the
impugned order which does not suffer from any infirmity or perversity."
10. There is no other discussion. To state that this approach is
cursory is in fact an understatement; it is more than cursory; such
an approach is deprecated. The first appellate court is the last
court of fact and law. While disposing of a first appeal it is the
bounden duty of the first appellate court to deal with all issues
raised before it and given detailed findings on each of them. This
duty has been faulted with. This is a fit case for remand.
Counsel for the respondent has also conceded to this position.
11. In view thereof the matter is remanded back to the learned
District and Sessions Judge (Central) who shall assign the case to
the concerned first appellate court to given its finding on the
question of limitation after hearing the respective parties and if
need be after scrutiny of the facts as also the law. For the said
purpose parties are directed to appear before District and
Sessions Judge (Central) on 10.5.2011 at 10.30 AM.
12. The first appellate court shall endeavour to dispose the
case within the outer limit of four months of receipt of this order.
Substantial question of law is answered accordingly.
13. Appeal is disposed of in the above terms.
INDERMEET KAUR, J.
APRIL 26, 2011
nandan
