Delhi High Court
Avn Build Tech Pvt. Ltd. & Anr. vs Kla Construction Technologies ... on 21 September, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ C.R.P. 116/2012 with CM 16695-16696/2012
Date of Decision: 21.09.2012
AVN BUILD TECH PVT. LTD. & ANR. ...... Petitioner
Through: Mr. Ashish Mohan, Adv.
Versus
KLA CONSTRUCTION TECHNOLOGIES PVT. LTD. & ANR.
...... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This revision petition under Section 151 CPC is directed against
order dated 07.02.2012 to the extent, whereby application under Order
7 Rule 11 CPC filed by the petitioners, who are the defendants in the
suit, was dismissed.
2. The respondent had filed a suit for recovery based on certain
invoices/bills raised on the ground of some constructions done by it for
the petitioners. The petitioners filed application under Order 7 Rule 11
CPC seeking rejection of the plaint on the ground of limitation. The
said application came to be dismissed vide the impugned order. This
order is under challenge in the instant petition.
3. The main ground on which the application under Order 7 Rule
11 CPC was filed, and which is also the contention of learned counsel
for the petitioners, is that as per the bills dated 05.12.2005 and
13.03.2006, the subject matter of the suit, the limitation period of
recovery of amount was 7 days and, that being so, the time for filing of
the suit would commence on 12.12.2005 and 20.03.2006 respectively.
In this way of the matter, the limitation would expire on 13.12.2008
and 21.03.2009 respectively qua the bills dated 05.12.2005 and
13.03.2006. The present suit having been filed on 3 rd August, 2009, is
alleged to be expressly barred by limitation. It is the submission of
learned counsel for the petitioners that since the bills had specified
period of payment to be made within seven days, Article 18 of the
Limitation Act would not be applicable.
4. I have heard learned counsel for the petitioner and perused the
relevant records, including the impugned order.
5. A look at the two invoices/bills respectively dated 05.12.2005
and 13.03.2006 would show the existence of a term at their bottom in
the following manner:
"Interest will be charged @ 24% on A/c
remaining unpaid beyond 7 days from the due
date"
6. The interpretation that is sought to be given by learned counsel
for the petitioner to the aforesaid term, is apparently erroneous. A
plain reading would make it amply clear that interest was chargeable
@ 24% on account remaining unpaid beyond 7 days from the due date.
This clause nowhere limits the period of payment to be 7 days from the
date of the bill/invoice. This clause stipulates the period of payment as
7 days from due date without interest and thereafter with interest @
24% per annum. Thus, it cannot be said that any time, much less 7
days, had been fixed for payment of the amount.
7. Article 18 of the Limitation Act is clearly applicable to the
instant case. This reads as under:
Part II-Suits relating to contracts
____________________________________________________
Description of suit Period of Time from which period
Limitation begins to run
____________________________________________________
18. For the price of work Three years When the work is done
done by the plaintiff for
the defendant at his request,
where no time has been
fixed for payment
8. From the above Article it is noticed that the period of limitation
was 3 years from the date of doing of work and not from the date of
billing. According to the respondent, the work was completed on
08.09.2006, and the balance amount payable had become due only
thereafter. It means, according to the aforesaid clause, the payment
would become due with interest @ 24% after 7 days i.e. on
15.09.2006. In this view of the matter, the limitation would expire on
07.09.2009 or in any case on 14.09.2009. The suit having been filed
on 3rd August, 2009, is apparently not barred by limitation.
9. The next plea that is raised in the instant petition is that since
petitioner No. 2 Vikram Malhotra was added as defendant in December
2009, the suit qua him would be barred by limitation. This plea is
extraneous and misconceived. The suit having been filed on 3 rd
August, 2009, the amendment made subsequently, would have
retrospective effect from the date of filing and not from the date of
amendment, so far as the cause of action is concerned. I do not find
any infirmity or illegality in the impugned order. The petition has no
merit and the same is hereby dismissed.
M.L. MEHTA, J.
SEPTEMBER 21, 2012/awanish
