Delhi High Court
National Small Industries ... vs M/S.Satish Embroidary Works & ... on 31 January, 2012
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.852/2003
% 31st January, 2012
NATIONAL SMALL INDUSTRIES CORPORATION LTD.
..... Appellant
Through : Mr. A.K.Thakur with
Mr. Aqib Ali, Advs.
versus
M/S.SATISH EMBROIDARY WORKS & ORS. ..... Respondents
Through : None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This matter is on the Regular Board of this Court from
16.1.2012. Today, it is effective item no. 13 on the Regular Board. No one
appears for the respondents although the matter is called in the post-lunch
session. I have therefore heard counsel for the appellant and after perusing
the record am proceeding to dispose of the matter.
2. The challenge by means of this Regular First Appeal filed
RFA No.852/2003 Page 1 of 5
under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the
impugned judgment of the Trial Court dated 5.12.2002. The impugned
judgment dismisses the suit of the appellant/plaintiff/ National Small
Industries Corporation Ltd. on the ground that the same is barred by time.
The Trial Court has held that the acknowledgments of debts are not given in
a conterminous stream within a period of 3 years from each other, and
therefore, the suit is barred by time.
3. Learned counsel for the appellant argues that the Trial Court
has misdirected itself in holding the suit to be time barred on the ground of
their not existing the requisite stream of acknowledgments, each within the
limitation period, inasmuch as, the appellant/plaintiff was basing its suit
claim under Section 25(3) of the Indian Contract Act, 1872 as per which,
when a promise to pay a time barred debt is made, the same constitutes an
agreement and a fresh cause of action.
4. Learned counsel for the appellant has also placed reliance upon
the judgment in the case of Syndicate Bank vs. R.Veeranna & Ors., 2003
(2) SCC 15 in support of the proposition that an unqualified
acknowledgment of liability gives a fresh period of limitation so as to file a
suit thereupon.
RFA No.852/2003 Page 2 of 5
5. Learned counsel for the appellant/plaintiff in further support of
his arguments has referred to Ex.PW1/45 and which document reads as
under:-
"THE TRANSLATION FROM HINDI TO ENGLISH OF
THE LETTER FROM DEF. NO.2 TO THE PLAINTIFF
DATED 14.9.1999
To,
THE BRANCH MANAGER
NSIC. LTD., LUDHIANAF
Sir,
It is prayed that the I had taken the machines in 1988 on hire
purchase. In the beginning I had deposited some money according
to the installments, but I could not submit the rest installments in
time due to, not proper running the work. After that because of the
total stop of work, I had closed the factory and I had joined the
service outside, on those days I could arrange hardly to maintain
my family. In this position of helplessness I could not made any
payment to the corporation. For this I want apology, now anyhow
with the help of the friends, I have started the work. By in any way
I could not pay your full payment which is `3,02,824/- (Rupees
Three Lacs two thousand Eight hundred twenty four only) cannot
pay. So humbly pray to you that grant me sometime and the part of
the interest money be waive off. I promise to you to deposit
`5,000/- up to dated 30.9.1999 and then at the least `1,000/- per
month, I will deposit by myself. Let me so, the machines in this
same week. I again pray to you that allow me sometime.
Thanking You,
(Signature)
SATISH KUMAR
For M/S Satish Embroidery
B-IInd-99,Chhawani Mohalla
Ludhiana."
Learned counsel for the appellant argues that the aforesaid
RFA No.852/2003 Page 3 of 5
document clearly amounts to an agreement within the meaning of the term
as found in Section 25(3) of the Indian Contract Act, 1872 inasmuch as, all
the ingredients of a contract and a promise to pay the debt are found in this
document.
6. I agree with the submissions as made by counsel for the
appellant inasmuch as the document, Ex.PW1/45 above clearly shows that
the defendants admitted their liability, and promised to pay the amount due.
Therefore, I find that the said document fulfils the requirement of Section
25(3) of the Indian Contract Act, 1872 which reads as under:-
"25........
(1).........
(2).........
(3) It is a promise, made in writing and signed by the
person to be charged therewith, or by his agent generally
or specially authorized in that behalf, to pay wholly or in
part a debt of which the creditor might have enforced
payment but for the law for the limitation of suits."
7. Accordingly, it is held that the suit of the appellant/plaintiff
was not barred by limitation. The appellant/plaintiff has in the Trial Court
proved and exhibited the requisite documents including the hire purchase
agreement as also the other acknowledgments as Ex.PW1/1 to Ex.PW1/58
and Ex.PW2/1 to Ex. PW2/3. Therefore, the fact that the machine was
RFA No.852/2003 Page 4 of 5
taken on hire purchase by the defendants cannot be disputed, it cannot be
disputed that the necessary installments were not paid and therefore
amounts became due to the appellant/plaintiff, it further cannot be disputed
that there was a promise to clear time barred debts vide Ex.PW1/45 dated
14.9.1999. The suit having been filed on 30.7.2002 was therefore within
limitation.
8. Accordingly, appeal is allowed. The impugned judgment and
decree dated 5.12.2002 is set aside. Suit of the appellant/bank for recovery
of `2,89,824 is decreed along with pendent lite and future interest at 9 %
per annum simple. Parties are left to bear their own costs. Decree sheet be
prepared. Trial Court record be sent back.
VALMIKI J. MEHTA, J.
JANUARY 31, 2012
ak
