Delhi High Court
Fabric Aid India vs Colton India Ltd & Anr. on 3 February, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.145/2001
% 3rd February, 2011
FABRIC AID INDIA ...... Appellant
Through: None.
VERSUS
COLTON INDIA LTD & ANR. ...... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. This case is on the „Regular Board‟ of this court since 3.1.2011. Today,
this case is effective item no.3 on the „Regular Board‟. It is 3.00 P.M. and no
one has appeared for the parties. I have therefore perused the record, and
after perusing the record am proceeding to dispose of the appeal.
2. The challenge by means of this regular first appeal under Section 96 of
the Code of Civil Procedure, 1908 is to the impugned judgment and decree
dated 5.8.2000 whereby the suit of the appellant/plaintiff was dismissed.
The suit was dismissed on the ground that the claim was time barred. There
RFA 145/2001 Page 1 of 5
is also an additional finding with respect to the issue no.1 that the suit is not
properly instituted as no power of attorney in favour of the attorney Sh.
P.B.Jagtiani was proved.
3. The facts of the case are that the appellant/plaintiff alleged that cloth
was supplied to the respondent/defendant vide invoice no.17531 dated
14.2.1994 for Rs.1,37,381.88. It was stated that since the
respondent/defendant failed to pay the amount in spite of repeated letters,
the suit had to be filed. These letters are dated 7.3.1996, 28.3.1996,
2.5.1996, 17.5.1996, 8.11.1996 and 5.12.1996. The suit was filed on
5.6.1997 i.e. 3 years after the invoice dated 14.2.1994 of which, payment
was claimed.
4. The trial court dealt with this issue in para 7 of the impugned judgment
which reads as under:-.
"7.The case of the plaintiff is that goods worth
Rs.1,37,381.88 were supplied to the defendants on
14.2.1994 vide invoice no.17531. The defendant was
asked to make payment of this bill on several
occasions but the defendant took the plea that
reconciliation of statement of account was prepared
by the defendant on 27-6-94 and discrepancy of this
bill was brought to the notice. Several letters were
written to the defendants demanding the payment
hence, the suit was filed. The defence is that the suit
is barred by limitation as it was filed on 6-6-97. In the
plaint, categorically it was stated that goods worth
Rs.1,37,381.88 were supplied to the defendants on 14-
2-97 vide invoice no.17531 but this payment was not
received. The defendants denied to make the
payment of this bill and reconciliation statement was
RFA 145/2001 Page 2 of 5
prepared in June 1994 where under the defendants
categorically stated that it was not liable to make any
payment. The entire statement of solitary witness of
the plaintiff is that they had not received the payment
of bill raised in February 1994. Bill of Rs.1,37,381.88
was duly received by the defendant. Goods were
received vide challan Ex.PW-1/2. Bill is proved as
Ex.PW-1/3. A categorical statement was made that no
payment of goods supplied under this bill was
received. Many letters were written to the defendants.
Not even a single letter has been proved on record.
The plaint as well as evidence led by the plaintiff is to
the effect that payment of a particular bill was not
being made by the defendant. In the replication and
at the time of advancing arguments, an attempt was
made to make out a case that parties were having
mutual, open current account and as there was
dealing in this account up to 30-10-96, hence, suit of
the plaintiff was within time. Whether suit is based on
mutual, open and running account or not in a question
of fact. Merely, if parties are having several dealings
and an account in the account books of the plaintiff is
opened in the name of the defendant firm, it is not
sufficient by itself to hold that suit is based on mutual,
open and running account. This is a fact to be proved
specifically by leading evidence. Though the plaintiff
has proved statement of account Ex.PX but it has
failed to prove that suit is filed on the basis of this
statement of account only. The plaintiff is very
specific in this regard. The case is that only payment
of a particular bill raised on 14-2-94 was only made by
the defendant. Evidence is also led only on this point.
In the plaint, the relief claimed by the plaintiff makes it
abundantly clear. Para 12 of the plaint is relevant in
this regard which reads,
"That the defendants are liable to pay the following
amounts
(a) Rs.1,37,381.88 towards the principal amount of
invoice no.17531 dated 14-2-94,
(b) Rs.96,167.30 towards the interest w.e.f. 14-2-94 to
14-5-97 @ 24% p.a."
RFA 145/2001 Page 3 of 5
There is no ambiguity in the case of the plaintiff that it
is for recovery of goods supplied on 14-2-94. No
reference is made in this par that as per statement of
account maintained by the plaintiff in its books of
account , this amount was due from the defendant on
the date of filing of the suit. Hence, as the claim is
based on a particular bill dated 14-2-94 and plaintiff
has not proved on record that an acknowledgement of
the liability by the defendant, the period of limitation
does not stand extended. Even if, any reconciliation
statement of account was prepared in June 1994, that
does not extend the period of limitation because
plaintiff has not proved on record that he reconciled
the statement on the basis of which any extension in
the period of limitation is claimed by the plaintiff.
Even from the facts and circumstances, it is proved
that even prior to preparation of reconciliation of
statement of account in June 1994, the defendant was
denying its liability to pay ths amount. Hence, unless
any demand and acknowledgement of any liability by
the defendant is proved, limitation starts running
against the plaintiff w.e.f 14-2-94 itself. The suit of the
plaintiff is barred by limitation. Even if, it is presumed
that parties were having mutual, current and open
account the claim of the plaintiff fails, statement of
account Ex.PX starts from 11-4-95 and entries showing
the bill in dispute are not shown in the statement of
account proved by the plaintiff. In the course of
hearing arguments, a specific query was put to the Ld.
Advocate that why entries prior to this period were not
proved, his argument was that those entries were not
necessary as opening balance as on 11-4-95 was
shown in the statement of account. Hence, no
reliance can be placed on this statement on account to
hold that the parties were having any mutual open and
current account. I hold that suit of the plaintiff is
barred by time. Issue is decided against the plaintiff."
5. The conclusions and findings of the trial court are fully justified
because the alleged statement of account was not a regular statement of
account maintained in the normal course of business because it in fact starts
RFA 145/2001 Page 4 of 5
from 11.4.1995 i.e., after 14.2.1994 the date of the impugned bill. Further
the suit of the appellant/plaintiff was found not to be under Article 1 of the
Limitation Act,1963 based on the open mutual and current account because
the suit was based only on one invoice. The trial court was therefore
justified in arriving at a finding that the suit ought to have been filed within
three years from the date of the invoice dated 14.2.1994 i.e., by 13.2.1997,
and therefore, the suit when filed on 6.6.1997 was clearly barred by time.
6. This court is not entitled to interfere with the impugned judgment and
decree unless the findings and conclusions contained in the same are illegal
or perverse. Merely because two views are possible, this court would not
interfere with one view which is taken by the trial court. I, therefore, do not
find any merit in this appeal which is therefore dismissed leaving the parties
to bear their own costs. Trial court record be sent back.
February 03, 2011 VALMIKI J. MEHTA, J.
ib
