Free India Dry Accumulators Lt vs Uoi
2012 Latest Caselaw 3590 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI


+                           RFA No.554/2004

%                                                          29th May, 2012

         FREE INDIA DRY ACCUMULATORS LT           ...... Appellants
                  Through: Mr. Deo Prakash Sharma with
                           Mr. Umesh Gupta & Mr. Manoj Yadav, Advs.



                            VERSUS

         UOI                                              ..... Respondent

                      Through:     Mr. Jaswinder Singh, Adv.


CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA



    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal filed under Section 96 of the Code of

Civil Procedure, 1908 (CPC) impugns the judgment of the trial Court dated

29.5.2004 dismissing the suit for recovery of `2,09,504/- alongwith interest of

`5,40,225/-, totalling to `7,49,729/-.

2. At the outset, I must confess that after half an hour of arguments

by counsel for the appellant/plaintiff I am really unable to make much head or

tail of the case as is being argued by counsel for the appellant/plaintiff.

Sometime it is averred that the 17 bills which are the subject matter of the suit

and the present appeal were in fact subject matter of an arbitration proceedings

initiated by the appellant/plaintiff and for which there is an Award in favour of

the appellant/plaintiff, on other occasions it is said that there are no arbitration

proceedings and in fact arbitration proceedings were with respect to another

contract and in execution proceedings of the Award in those other proceedings

the amount of the subject bills was sought to be attached, and therefore, the

suit filed for the bills of 1978 in 1990 is within limitation because of the

acknowledgment made in the aforesaid execution proceedings. Thus what

exactly is being urged by counsel appearing on behalf of the

appellant/plaintiff, there is no clarity.

3. The facts of the case are that the appellant/plaintiff is seller of

batteries to the respondent/UOI. The amounts which are claimed in the suit

are with respect to 17 bills which are as under:-

            "S.No.     Bill No.             Date            Amount
            1.         13/78-79             29-4-78         18.483/00

            2.        4/78-79            29-4-78         12.599/00
           3.        5/78-79            29-4-78         20.508/00
           4.        4/78-79            29-4-78         12.599/00
           5.        6/78-79            29-4-78         12.599/00
           6.        10/78-79           29-4-78         7414/00
           7.        12/78-79           29-4-78         16.885/00
           8.        9/78-79            29-4-78         17.254/00
           9.        14/78-79           29-4-78         10.201/00
           10.       15/78-79           29-4-78         9.199/00
           11.       16/78-79           29-4-78         7.301/00
           12.       17/78-79           29-4-78         5.743.00
           13.       18/78-79           29-4-78         12.516/00
           14.       19/78-79           29-4-78         16.687/00
           15.       20/78-79           29-4-78         18.773/00
           16.       21/78-79           29-4-78         5.674/00
           17.       8/78-79            29-4-78         4.747/00
                                        Total           `2,09,504/00"

4. It was the case of the appellant/plaintiff that amounts of the 17

bills are due and therefore the decree as prayed for `2,09,504/- was claimed as

principal amount and interest of `5,40,225/- was claimed i.e. a total claim of

`7,49,729/- was made in the suit.

5. The respondent/defendant/UOI inter alia contended that the suit

was barred by limitation. It was also contended that in another contract of the

UOI with the appellant/plaintiff, there was an Award in favour of the UOI and

in execution proceedings the amounts of the 17 bills were sought to be

attached, and which attachment order was declined. It was pleaded that this

cannot amount to an acknowledgment to extend the limitation as per the

provision of Section 18 of the Limitation Act, 1963.

6. Before I turn to the basic issue which has been decided against

the appellant/plaintiff by the trial Court of the suit having been barred by

limitation, I must note that if I accept the statement made by counsel on behalf

of appellant/plaintiff as correct that with respect to these 17 bills which were

the subject matter of the present suit, there were earlier arbitration proceedings

initiated by the appellant/plaintiff itself and there was also an Award with

respect to these 17 bills, then, the subject suit is in fact a gross abuse of

process of law because the issue with respect to the disputed bills would

already be a subject matter of judicial proceedings and which have achieved

finality. I really fail to understand that if I accept this stand of the

appellant/plaintiff as urged through its counsel then how at all could this suit

have been filed. This suit was therefore liable to be dismissed on this short

ground itself.

7. On the issue of limitation, and which was issue no.2 as framed by

the trial Court, the trial Court has observed as under:-

"16. The onus of proving this issue was on the defendant. Thus question, which falls for determination, is whether the suit filed by the plaintiff is within the period of limitation.

17. A perusal of the entire record nowhere suggests as to on which date, the defendant has admitted in the execution case filed in the Hon'ble High Court that the bills were withheld by the Defendant/Union of India all through against their claims which were adjudicated in arbitration by the arbitrator. Both the parties to this litigation are silent on this aspect of this matter. In absence of any evidence available on record specially when the plaintiff has not at all proved any document to establish this fact and the defendant who is Union of India has also not trailed behind as the defendant has also not filed any document in this regard to prove the4 question of limitation which otherwise goes to the root of the matter. Thus the documents and the pleadings inter se the parties tend me to take judicial notice which otherwise are not disputed and rather admitted by the parties.

18. The plaintiff before filing the suit had issued a notice under section 80 of CPC to the Defendant. This notice is dated 17.4.1990. Relevant para 3 of the notice reads as follows:

"In view of the aforesaid, the said amount of `2,09,503/- because refundable to our aforesaid client on 6.11.86 when the Controller of Accounts confirmed that the decreed amount of `3,02,285/- was recovered by them from the other bills of our client."

19. Thus from a perusal of para 3 of this notice, it can be safely said that the plaintiff was in the knowledge that the amount of `2,09,504/- became refundable on 6.11.86. It is well settled that in order to recover any amount or debt, the period of limitation prescribed by law is three years. The plaintiff on 11.12.1990 filed the present suit. Thus the period of limitation started to run against the plaintiff from 6.11.1986 i.e. the date when the Controller of Accounts confirmed that the decretal amount of `3,02,285/- was recovered from the other bills of their client.

20. At this stage, the learned counsel for the plaintiff has contended that the amount of the 17 bills was withheld on account of inaction and negligence on the part of the defendant which otherwise is a Government body and as such the plaintiff cannot be deprived of the amount which otherwise is legally due to the plaintiff. I am not in agreement with contention of the learned counsel for the plaintiff for the following reasons. Firstly, there is no dispute about the fact that the 17 bills on the basis of which the plaintiff has filed the present suit for recovery of suit amount were refundable admittedly withheld by the defendant, secondly, the 17 bills date back to the year 1978- 79 and right from 1978 till December 1990 when the present suit was filed, the plaintiff slept over his rights and did not bother to get his rights agitated, thirdly, the plaintiff should have issued a notice to the defendant or should have initiated legal proceeding for recovery of the amount of the 17 bills but for the reasons best known to the plaintiff, he did not take any action, fourthly, the plaintiff should have got the matter referred to the arbitrator for getting the dispute settled. Thus in view of this, by no stretch of imagination, it can be said that because of fault on the part of the defendant, the plaintiff was not in a position to file the suit. The plea of the learned counsel for the plaintiff that the defendant neither made any payment not referred the matter to arbitration also does not cut much ice for the simple reason that it was the plaintiff whose bills were withheld and it was he who was seeking to recover the amount on the basis of the bills withheld by the defendant, thus it was for the plaintiff to have in initiated legal proceedings or should have got the matter referred to the arbitrator."

8. I completely agree with the findings and conclusions of the trial

Court inasmuch as surely with respect to amounts due of the bills of the year

1978 a suit cannot be filed after 12 years inasmuch as limitation for filing a

suit for recovery for supply of goods is 3 years. The only way in which

limitation could have been extended was that within a period of 3 years of the

date of the bills i.e. 29.4.1978 there is an acknowledgment in writing signed

by the respondent/defendant/UOI with respect to the 17 bills. Admittedly,

there is not a single sheaf of paper on record showing any alleged

acknowledgment as required under Section 18 of the Limitation Act, 1963.

The only ground which is urged on behalf of the appellant/plaintiff is that in

the execution proceedings in the year 1985, the respondent/defendant admitted

that amounts of these bills were payable and therefore this should be treated as

an acknowledgment in writing under Section 18 of the Limitation Act, 1963,

however, even this argument is on the face of it unacceptable because an

acknowledgment under Section 18 has to be within 3 years of the date on

which the amount became payable. Since in this case bills are of the year

1978, acknowledgment at best could have been on or before 29.4.1981. Any

alleged acknowledgment of 1985, cannot be an acknowledgment under

Section 18 of the Limitation Act, 1963.

9. In my opinion, the present suit as also the appeal is nothing but a

gross waste of judicial time and an endeavour to overreach the Court. In fact,

I must once again put on record that there was lack of clarity in the arguments

as were being urged on behalf of the appellant/plaintiff inasmuch as about 8 to

10 times different stands were taken up time and again either with respect to

the present suit and appeal being filed for the first time for the 17 bills and on

the other hand alternatively stating that in fact there were earlier arbitration

proceedings initiated by the appellant/plaintiff for these very 17 bills. Even

with respect to the acknowledgement most ambivalent arguments were raised,

when direct questions were put as to how acknowledgment within the period

of limitation of 3 years was given by the respondent/defendant/UOI. I

probably feel that the correct position is that appellant/plaintiff is trying to

take advantage of an alleged admission of payment due of the disputed 17 bills

in an execution proceedings although the bills were subject matter of arbitration

proceedings and an Award i.e. a due adjudication. The appellant/plaintiff must have

thought that advantage can be taken of UOI having committed a mistake of

admitting amounts due of the 17 bills (although there was due adjudication/Award

for these bills) in a collateral execution proceeding.

10. In view of the above, the appeal being wholly devoid of merit, is

dismissed with costs of `40,000/- in view of the ratio of judgment in the case of

Ramrameshwari Devi and Others v. Nirmala Devi and Others, (2011) 8

SCC 249 and in terms of Volume V of the Punjab High Court Rules and

Orders (as applicable to Delhi) Chapter VI Part I Rule 15. Costs shall be

paid within a period of 4 weeks from today. Decree sheet be prepared. Trial

Court record be sent back.

VALMIKI J. MEHTA, J MAY 29, 2012 ak