Delhi High Court
M/S. Tbs Engineers Pvt. Ltd. vs Mr. J.P. Mishra & Ors. on 15 December, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.828 /2010
% 15th December, 2011
M/S. TBS ENGINEERS PVT. LTD. ..... Appellant
Through: Mr. Vinod K. Singh, Advocate.
Versus
MR. J.P. MISHRA & ORS. ..... Respondents
Through: Mr. Manoj Khanna, Advocate with
Mr. Atul Bansal, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this Regular First Appeal under
Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned
judgment of the trial Court dated 7.7.2010 dismissing the suit for recovery of
` 8,47,868/- filed by the appellant/plaintiff against the
respondents/defendants. The suit was dismissed although the
appellant/plaintiff proved the bills and the supply of engineering valves to
the respondents/defendants inasmuch as it was held that the suit was time
barred. The suit was held time barred if the limitation is taken from the date
of each of the bills. The five bills in question were dated 3.9.2002,
10.9.2002(2), 8.10.2002 and 21.10.2002 whereas the suit was filed on
8.12.2005. It was therefore held that the suit was filed after three years from
September, 2002/October, 2002 and thus time barred.
2. The facts of the case are that the appellant/plaintiff entered into
business transactions with the respondents/defendants and thereby
engineering goods/engineering valves were sold by the appellant/plaintiff to
the respondents/defendants. The business dealings commenced in the year
2001 and continued till September, 2003 when the last cheque was issued by
the respondent Nos.1/3 in favour of the appellant/plaintiff. The
respondents/defendants are stated to have made payments of different bills
but not with respect to five bills which are as under:-
Date Bill No. Amount
03/09/02 TBS/00424/02-03 4211.00
10/09/02 TBS/00432/02-03 4,97,755.00
10/09/02 TBS/00433/02-03 8,102.00
08/10/02 TBS/00500/02-03 12,131.00
21/10/02 TBS/00523/02-03 7,729.00
TOTAL 5,29,928.00
3. The appellant/plaintiff claimed that an open, mutual and current
account was maintained between the parties and therefore the subject suit
was filed for the balance due on the foot of the account. The
respondents/defendants had first appeared, contested the proceedings,
however subsequently they failed to appear and were proceeded exparte on
8.7.2009. On an application, this exparte order was set aside on 15.12.2009
subject to payment of costs. However, neither costs were paid nor any
witness was examined by defendants. The evidence of defendants was thus
closed on 22.4.2010. In the trial Court therefore there the only evidence
which was led was on behalf of appellant/plaintiff and which witness was
cross-examined.
4. Learned counsel for the appellant/plaintiff argues that the trial
Court has fallen into an error in not looking at the evidence led, and as per
which evidence (both oral and documentary) showed that the parties were
maintaining an open, mutual and current account. Learned counsel for the
appellant has drawn my attention to para 3 of the plaint wherein it is stated
that the account between the parties was an open, mutual and current
account and also para 4 of the affidavit filed by way of evidence deposing to
this aspect and also exhibiting the ledger as Ex.PW1/B. It is argued that the
trial Court therefore ought to have treated the suit as one under Article 1 of
the Limitation Act, 1963.
5. I completely agree with the arguments raised on behalf of the
counsel for the appellant/plaintiff inasmuch as the appellant/plaintiff proved
that the parties were maintaining an open, mutual and current account and
which contained entries even after the disputed bills which were of
September/October, 2002. The last entry in the account is of 26.9.2003
showing payment by the respondents/defendants of a cheque of ` 27,864/-.
The limitation in this case will therefore begin from 1.4.2004 and therefore
the suit could have been filed as per Article 1 of the Limitation Act, 1963
upto 31.3.2007, whereas the suit has been filed on 8.12.2005. Once there is
an open, mutual and current account, it is Article 1 of the Limitation Act,
1963 which will apply, and not Article 15, the trial Court thus has fallen into
an error in taking the limitation from the date of each bill. In the facts of the
present case, not only there is no evidence which was led on behalf of the
respondents/defendants but in fact in the cross-examination of the only
witness of the appellant/plaintiff, there was no cross-examination with
respect to deposition made in para 4 of the affidavit with respect to the
account being an open, mutual and current account.
6. I may at this stage note that the suit has been filed, besides
against respondent Nos.1 and 3, (who are the sole proprietor and sole
proprietorship concern) also against respondent No.2, and who was only
dealing with the appellant/plaintiff on behalf of respondent/defendant Nos.1
and 3. Obviously, such dealing cannot fasten any liability upon the
respondent No.2/defendant No.2, and the liability can only be of the sole
proprietor and the sole proprietorship concern i.e. the respondent Nos.1 & 3.
The suit was therefore not maintainable against the respondent
No.2/defendant No.2.
7. In view of the above, the appeal is accepted. Impugned
judgment and decree dated 7.7.2010 is set aside. The suit of the
appellant/plaintiff will stand decreed against the defendant Nos.1 and
3/respondent Nos.1 and 3 for a sum of ` 8,47,868/- alongwith interest @ 9%
per annum simple pendente lite and future till realization. Parties are left to
bear their own costs. Decree sheet be prepared.
VALMIKI J. MEHTA, J
DECEMBER 15, 2011/ Ne
