M/S Hit Ads Pvt. Ltd. vs M/S. J D & R Communication Pvt. Ltd.
2012 Latest Caselaw 916 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            RFA No.191/2000

%                                                         9th February, 2012

        M/S HIT ADS PVT. LTD.                                 ..... Appellant
                      Through :          Mr. Ashok Bhasin, Sr. Advocate
                                         with Ms. Deepti Dogra, Advocate.
                    versus
        M/S. J D & R COMMUNICATION PVT. LTD.                  ..... Respondent
                        Through : Nemo.

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 (RFA) filed

under Section 96 of Code of Civil Procedure, 1908 (CPC) is to the

impugned judgment of the trial Court dated 17.1.2000 dismissing the suit

of the appellant/plaintiff, inasmuch as, the same was held to be barred by

time.

2. The facts of the case are that the appellant/plaintiff raised several

bills in September and October, 1993 for various jobs done for the

respondent/defendant towards production, publicity and issue of

advertisements. With respect to the work done for the respondent/defendant

an amount of ` 70,635.09/- was outstanding. It is to claim this outstanding

amount, that the subject suit was filed along with the claim for interest.

3. Admittedly, as per the statement of account filed by the

appellant/plaintiff, exhibited as Ex.PW1/17, the payment with respect to

the bills of September and October, 1993 were lastly made by means of

two amounts of Rs.6,000/- and Rs.1687.16/- on 4.3.1994 and 31.5.1994,

respectively. As per the principles contained in Section 61 of the Contract

Act, 1872, once there is no specific appropriation by the

appellant/plaintiff/creditor, appropriation of payments has to be by

adjusting the payment made to the bill which is earliest in point of time.

The payments of Rs.6,000/- and Rs.1687.16/- made on 4.3.1994 and

31.5.1994 are adjusted against the bill No. 7013 dated 21.10.1993 which

was of Rs.28,840/-. In fact, even after adjusting the amount of

Rs.7687.16/- out of the bill of Rs.28,840/-, amount of about Rs.20,000/-

would remain payable qua this bill dated 21.10.1993. Consequently, with

respect to three other bills, one of the same date i.e. 21.10.1993 and other

two dated 23.10.1993 and 25.10.1993, claim under such bills would

become barred by time at the very best by 25.10.1996. The subject suit

was filed on 21.1.1997 and therefore is clearly barred by time, inasmuch as,

it is not disputed that the suit is not filed on the basis of an open, mutual

and current account. In fact, even if the suit was filed alleging that the

running account was an open, mutual and current account, this Court would

have had to hold that the account is not an open, mutual and current

account, inasmuch as, there are no shifting balances, and which is sine qua

non for an account to be an open, mutual and current account in terms of

the ratio of a judgment of the Supreme Court reported as Hindustan Forest

Company v. Lal Chand & Ors., AIR 1959 SC 1349.

4. The only issue remains is as to whether the suit can be said to be

within limitation, inasmuch as, it is pleaded that there is an

acknowledgment of debt in terms of a letter dated 27.6.1994 issued on

behalf of the respondent/defendant to the appellant/plaintiff. Firstly, I must

state this letter dated 27.6.1994 has not been exhibited before the trial

Court. Secondly, even if we read this document, the same by no stretch of

imagination can be said to be an acknowledgment of liability because this

letter in fact disputes the liability and denies that anything at all was

payable to the appellant/plaintiff. This letter dated 27.6.1994 reads as

under:-

"jDER Communications Pvt Ltd.

JUNE 27, 1994 Dear Mr. Bhasin, I am surprised to hear from Gulshan that you have sent a letter claiming an outstanding of Rs.72,323-05 which is quite surprising for me. In this connection I would like to recall the meeting which we had regarding these release wherein you had agreed that for the releases made by us through you, you would give us a commission of 11%. Thus according to our books the outstanding in your credit is Rs.1,687-16 for which we have already sent you our cheque no. 171896

dated 31.5.1994 for the said amount. I am sure this clarifies the situation. Regards, Sincerely yours,

Dheeraj Kapuria.

Mr. Rakesh Bhasin, Chief Executive, Hitads Advtg. & Mktg Pvt Ltd, 102 Gagan Deep, Rajindra Place, New Delhi-110008"

5. A reading of the aforesaid letter leaves no manner of doubt that the

respondent/defendant specifically stated that nothing was due to the

appellant/plaintiff after payment of Rs.1687.16/- vide cheque No. 171896

dated 31.5.1994. The trial Court has also held that this letter dated

27.6.1994 cannot be said to be an acknowledgment as per Section 18 of the

Limitation Act, 1963.

6. In view of the above, I do not find any merit in the appeal. The trial

Court has rightly held that the suit was barred by limitation. The present

appeal is accordingly dismissed, leaving the parties to bear their own costs.

Trial Court record be sent back.

VALMIKI J. MEHTA, J.

FEBRUARY 09, 2012 AK