Delhi High Court
Mrs Veena Jain vs Sunil Sood on 23 July, 2012
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No.1177/2003
% 23rd July, 2012
MRS VEENA JAIN ...... Plaintiff
Through: Mr. Mohan Vidhani, Advocate with Mr.
Rahul Vidhani, Advocate and Mr. Vinod
Khera, Advocate.
VERSUS
SUNIL SOOD ...... Defendant
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
1. The present suit for recovery of ` 51,80,772/- is filed by the plaintiff
against the defendant for the balance due on a running account from the
relationship which arose on the plaintiff providing various services to the
defendant for telecast of various episodes of serial „School Days‟ on Doordarshan
T.V. Out of the aforesaid amount, principal amount due is of ` 27,84,947.50/- and
the balance amount claimed is of interest @ 24% per annum simple.
2. The facts of the case are that defendant was successful in obtaining a
contract from Doordarshan for telecasting of various episodes of a serial „School
CS(OS) No. 1177/2003 Page 1 of 7
Days‟. The total number of episodes were 52 and details of which have been given
from pages 4 to 14 of the plaint. In fact, I am told that there were 53 episodes as
one episode was repeated. The plaintiff used to provide services by getting
advertisement revenue in the periods (free commercial times) provided in the
episodes for telecast of the commercials. The method of payment to the plaintiff
was that either the defendant used to make payment to the plaintiff or on occasions
the plaintiff used to directly collect money from the advertisers. The plaintiff
contends that she successfully performed her obligations. It is further pleaded that
as per the running account and the bills raised upon the defendant, the defendant
used to make on account payments. The plaintiff also states that a number of
cheques given by the defendant were not deposited on the request of the defendant
inasmuch as the defendant did not have sufficient funds in her account to make the
payment. On the failure of the defendant to make payment of the dues, after
serving a notice, the subject suit for recovery came to be filed.
3. Though the defendant initially appeared, filed his written statement,
got issues framed, however, the defendant failed to lead evidence, and the right of
the defendant to lead evidence was ultimately closed by a learned Single Judge of
this Court vide order dated 28.11.2011. I am informed by the counsel for the
plaintiff that this order has become final as the same has not been challenged. The
CS(OS) No. 1177/2003 Page 2 of 7
defendant has failed to appear thereafter and did not appear even today for
arguments.
4. The plaintiff during the course of her evidence has proved on record
various invoices issued by her as also the telecast of the 53 episodes of serial
„School Days‟. The statement of account has also been proved and exhibited as
also the correspondence between the parties whereby the defendant was asked to
clear dues. Though the defendant in the written statement pleaded a case of
adjustment of various dues payable to him, however, the defendant has not stepped
into the witness box to prove his case.
5. Documents showing the telecast of the episodes of „School Days‟ as
also of the commercials therein have been proved and exhibited as Ex.PW1/8 to
Ex.P61. The bills which were drawn by the plaintiff on the defendant have been
proved and exhibited as Ex.PW1/5 to Ex.PW1/7. The originals of the cheques
which were issued by the defendant but not deposited by plaintiff have been filed
and proved as Ex.P13 to Ex. P17 and Ex.PW1/4. Other documents with regard to
telecast of the serial and also correspondence between the parties have also been
filed and proved, and some of which are Ex.P1 to Ex.P9. The legal notice/letters
demanding amounts have been proved and exhibited as Ex.P63, Ex.PW1/27 and
Ex.PW1/28. The corresponding postal receipts are proved and exhibited as
Ex.PW1/29 and Ex.PW1/30. The statements of account showing the debt due as
CS(OS) No. 1177/2003 Page 3 of 7
per the running account have been proved and exhibited as Ex.PW1/17 to
Ex.PW1/19.
6. Learned counsel for the plaintiff has argued that the suit is within
limitation inasmuch as the last payment made by the defendant was credited on
10.5.2000 for an amount of ` 1,95,600/-. Learned counsel for the plaintiff states
that such payment is in terms of Section 19 of the Limitation Act, 1963 and hence
brings the suit filed on 2.5.2003 within limitation. Reliance is placed, in this
regard, upon the judgment delivered by me in RFA No.144/2004 titled as M/s
Naraingarh Suger Mills Ltd. Vs. Krishna Malhotra decided on 12.3.2012 to
argue that the suit is within limitation as the payment which is made by the cheque
is towards total due at the foot of the account and therefore the entire amount due
at the foot of the account stands admitted. Reliance is placed upon para 6 of the
judgment in RFA No.144/2004 and which reads as under:-
"6. Learned counsel for the appellant argues that the suit was barred
by limitation, inasmuch as, the case of the respondent/plaintiff as put in
the cross-examination of the witness, DW1 of the appellant/defendant
was that the cheque was issued towards nine specific bills as found at
internal page no.three of the cross-examination. It is argued that once
the payments have been made towards a particular bunch of bills, the
suit would be governed by Article 14 of the Schedule of the Limitation
Act, 1963, i.e. the limitation period commenced from the date of each
bill. It is argued that the bills in this case are all prior to three years of
the filing of the suit on 21.2.2002 and, therefore, the subject suit will be
barred by time.
I am unable to agree with the contentions as raised on behalf of
the appellant, inasmuch as, Section 19 of the Limitation Act, 1963 has
rightly been relied upon by the trial Court to hold that a fresh period of
limitation commences once payment is made on account of the debt
due. In this case, the debt which was due to the respondent/plaintiff
was the total debt due including the nine bills which have been referred
to in the cross-examination of DW1 and, therefore, the payment of
cheque is towards part of the total debt due. Once the payment is made
towards part of the total debt due, Section 19 of the Limitation Act,
1963 comes into play whereby a fresh period of limitation starts on
payment having been made in writing and under the signatures viz. by a
cheque towards the part of debt due. A suggestion by the appellant
cannot change the fact that the cheque for ` 1,99,600/- was not towards
any specific bills, but was towards all dues/debt generally. What is
material is the aspect as to the giving of the cheque of `1,99,600/- by
the appellant generally towards the total debt due and not how the
respondent/defendant acted or appropriated the payment. The extension
of limitation arises from the factum of payment by the appellant under
Section 19 towards the debt due and not how the creditor appropriates.
After all when the payment by cheque was made, there was a total
figure of debt due at the foot of the statement of account and the cheque
issued was towards the total of the debt mentioned at the foot in the
statement of account. I, therefore, hold that the payment by means of
cheque dated 1.3.1999 was towards the debt due at the foot of the
statement of account and, therefore, the same extended the period of
limitation for a period of three years. The suit, therefore, could have
been filed till 28.2.2002, and since the same was filed on 21.2.2002 the
same is within limitation." (underlining added)
7. I agree with the arguments as urged on behalf of the plaintiff. The
plaintiff has proved the telecast of the episodes of the serial, raising of invoices, the
fact that commercials were in fact aired during the telecast of the episodes and
finally the statement of account showing that the debt was due and the suit is filed
within limitation as covered by the ratio of the judgment in RFA No.144/2004.
8. I am however not agreeable to grant the huge rate of 24% interest as
claimed by the plaintiff. The Supreme Court in the recent chain of judgments
reported as Rajendra Construction Co. v. Maharashtra Housing & Area
Development Authority and others, 2005 (6) SCC 678, McDermott International
Inc. v. Burn Standard Co. Ltd. and others, 2006 (11) SCC 181, Rajasthan State
Road Transport Corporation v. Indag Rubber Ltd., (2006) 7 SCC 700, Krishna
Bhagya Jala Nigam Ltd. v. G.Harischandra, 2007 (2) SCC 720 & State of
Rajasthan Vs. Ferro Concrete Construction Pvt. Ltd (2009) 3 Arb. LR 140 (SC)
has mandated that Courts must reduce the high rates of interest on account of the
consistent fall in the rates of interest in changed economic scenario. In my
opinion, plaintiff will be thus entitled to interest @ 9% per annum on the principal
amount due of ` 27,84,947.50/- for the period prior to the filing of the suit i.e. from
10.5.2000 till the date of filing of the suit. Plaintiff will also be entitled to
pendente lite and future interest till payment @ 9% per annum simple.
9. In view of the above, the suit of the plaintiff is decreed against the
defendant for a sum of ` 27,84,947.50/- alongwith interest @ 9% per annum
simple from 10.5.2000 till the date of filing of the suit. Pendente lite and future
interest till realization is also awarded @ 9% per annum simple to the plaintiff on
the amount of ` 27,84,947.50/-. Costs be calculated in terms of the rules of this
Court for being paid to the plaintiff. Decree sheet be prepared. Suit is decreed and
disposed of.
JULY 23, 2012 VALMIKI J. MEHTA, J.
Ne
