M/S. Lalit Associates vs Reckkit And Benkiser (India) ...
2012 Latest Caselaw 2868 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RFA No.446/2004

%                                                         1st May, 2012

M/S. LALIT ASSOCIATES                                ...... Appellant
                   Through:              Mr. Arvind Kumar Gupta, Advocate
                                         with Mr. Rahul Mangla, Advocate.

                            VERSUS


RECKKIT AND BENKISER (INDIA) LIMITED                      ...... Respondent
                 Through:   None.

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 filed

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

impugned judgment of the trial Court dated 24.4.2004 dismissing the suit

of the appellant/plaintiff and also the counter claim filed by the

respondent/defendant. Whereas the appellant/plaintiff claimed a sum of

Rs. 3,07,228/-, the respondent/defendant made counter claim of Rs.

4,71,822/-.

2.             Both the suit as well as counter claim have been dismissed by

the Court as being barred by limitation. Following are the observations of
RFA No.446/2004                                               Page 1 of 5
 the Court under the issue No.1 as to whether the suit of the plaintiff is

within time:-

     "Issue No.1

     6.      The onus to prove this issue was on the plaintiff. This suit
     was filed by pltf. on 5.3.03. A perusal of the plaint shows that
     distributorship of the pltf. was terminated in the year 1998. The
     documents filed by parties in this case show that goods were last
     sent to defendant only in the year 1998. The list of damaged stock
     filed by the pltf. is also of the year 1998. All letters etc. are either
     of 1998 or prior to 1998. The suit for recovery of dues the pltf.
     could have been filed within three years from the date, when the
     amount became due. Even if it is considered that the pltf. was
     having mutual running and current account with the defendant, the
     suit could have been filed within three years from the close of
     financial year. It has not been stated as to what was the financial
     year of the defendant. Presuming that financial year of the deft.
     was from 1st April to 31st March of the next year, which is the
     normal financial year, the period of three years of limitation would
     have started from 1.4.99 and would have ended on 31.3.02. The
     limitation could be saved by acknowledgment of the deft. about
     the amount due, if made within the period of limitation. Plaintiff's
     witness PW.1 Gajanand, who is partner of the pltf. firm, in his
     examination in chief filed by way of affidavit has stated in para 17
     that plaintiff requested may a times to deft. company for
     settlement of claims but of no avail. However, after persistent
     requests, deft. company supplied the account statement dt. 12.1.01,
     which was exhibited as Ex.PW1/B. According to the statement,
     the credit balance in favour of pltf. was ` 1,49,425.78/-. A perusal
     of Ex.PW1/B shows that it is a computerized sheet of paper
     showing some accounts. It is not signed by any person. The
     correctness of this account sheet has not been established by the
     pltf. by summoning the accounts of the defendants or by serving
     any notice to defendant for filing the ledger accounts. No question
     has been put to defendant's witness in cross examination that
     Ex.PW1/B was supplied by deft. company to the pltf. Two
     documents Ex.DW.1/P1 and DW.1/P2 which have been filed by
     defendant have been admitted by the defendant's witness and it
RFA No.446/2004                                                   Page 2 of 5
      has been stated by this witness that defendant's internal sales year
     used to be from 1st January of every year to 1st February of the
     next year DW.1 stated that these two documents show the
     transactions made with the pltf. A perusal of these two documents
     show that these were the ledger sheets as maintained in the
     computer of defendant company. The entries were w.e.f. Jan.
     1999 onwards to Oct.1999 and the credit amount show in
     Ex.DW.1/P2 as on October 1999 was ` 22,48,099.47, while the
     debit account was ` 26,00,664.42. Thus a debit balance of `
     3,52,564.95 was shown as against the plaintiff. These entries do
     not help the plaintiff in saving the limitation. Even the last date as
     shown in the ledger was October, 1999. If there had been some
     amount recoverable, the suit could have been filed maximum by
     October, 2002. Ex.PW.1/B which is stated to be the account sheet
     of the defendant cannot be considered as a proved document, as it
     has not been proved as to who provided this document to pltf. and
     whether this was correct record of the accounts of the defendant.
     In the absence of any acknowledgment given on the part of
     defendant of the due amount, the suit of the plaintiff is barred by
     limitation. The issue is decided against the plaintiff."

3.           A reading of the aforesaid paragraph shows that the dealership

agreement between the parties was terminated in the year 1998. The claims

of the appellant/plaintiff pertain to period prior to the year 1998. Each of

the claims will be a separate cause of action and therefore will have to be

filed within three years from arising of such cause of action/claims, and

since the suit has been filed much later on 5.3.2003, obviously all claims

prior to the year 1998 were ex facie time barred in the year 2003.

Appellant/plaintiff has also not filed its statement of account to show that

the account was open, mutual and current account. Even if I assume that

the account was open, mutual and current, limitation of three years under
RFA No.446/2004                                                 Page 3 of 5
 Article 1 of the Limitation Act, 1963 would have commenced w.e.f.

1.4.1999 and therefore limitation for filing of the suit would have expired

on 30.3.2002, and therefore the suit filed on 5.3.2003 was barred by

limitation.   The appellant/plaintiff relied in the trial Court upon the

statement of account issued by the respondent-company dated 12.1.2001,

Ex.PW1/B for extending the limitation, however, the trial Court has

disbelieved this document because it is only a computerized sheet of paper

and is not signed by any person.        The trial Court has observed that

correctness of this account sheet has not been established by the plaintiff by

summoning the account of the defendant or serving any notice to the

defendant for filing of the ledger accounts.

4.            I completely agree with the aforesaid conclusions of the trial

Court inasmuch as the suit was clearly barred by time on account of the

fact that claims of the appellant/plaintiff were of the year 1998 and prior

and the suit was filed much later than three years i.e. on 5.3.2003. The

statement of account, Ex.PW1/B, cannot be an acknowledgment of debt

under Section 18 of the Limitation Act, 1963 inasmuch as an

acknowledgment of debt under Section 18 has necessarily to be signed by

the person against whom it is sought to be proved and admittedly the

statement of account, Ex.PW1/B, is an unsigned document. I also agree


RFA No.446/2004                                                Page 4 of 5
 with the finding and conclusion of the trial Court that the said statement is

not proved. A reference to the paras 14 of the plaint and written statement

shows that when statement was made by the plaintiff with respect to this

statement of account, the respondent denied this in the written statement.

5.           In view of the above, I do not find that the trial Court has

committed any illegality and perversity in holding the suit to be barred by

limitation. Looking at from any angle for the claims of the year 1998, the

suit could not have been filed on 5.3.2003 even assuming that the suit was

based upon an open, mutual and current account, under Article 1 of the

Limitation Act, 1963 and which in any case, it is not.

6.           In view of the above, there is no merit in the appeal which is

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

Court record be sent back.




MAY 01, 2012                                 VALMIKI J. MEHTA, J.

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