Municipal Corporation Of Delhi vs Bharat Overseas P. Ltd. & Anr
2015 Latest Caselaw 4841 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of decision: 9th July, 2015

+                              RFA No.368/2004

       MUNICIPAL CORPORATION OF DELHI           .... Appellant
                   Through: Ms. Biji Rajesh, Adv. for Mr.
                            Gaurang Kanth, Adv.

                               Versus

    BHARAT OVERSEAS P. LTD. & ANR.                       ..... Respondents

Through: None.

CORAM:-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This appeal under Section 96 of the Code of Civil Procedure (CPC),

1908 impugns the judgment and decree dated 23rd March, 2003 of the

Additional District Judge (ADJ), Delhi, of dismissal of Suit No.273/03/80

filed by the appellant for recovery of a sum of Rs.9,25,000/- jointly and

severally from the respondent No.1 Bharat Overseas Pvt. Ltd. (BOPL) and

from the respondent No.2 Jaipur Udyog Limited (JUL).

2. Notice of the appeal was issued. Only the respondent No.2 JUL

appeared in pursuance thereto. The appeal was admitted for hearing on 2 nd

March, 2005. The respondent No.1 BOPL could not be served in the

ordinary way and on the application of the appellant Municipal Corporation

of Delhi (MCD), was permitted to be served by publication, which was

effected. None however appeared for the respondent No.1 BOPL. There is

till date no formal order proceeding ex-parte against the respondent No.1

BOPL. The respondent No.1 BOPL is now ordered to be proceeded against

ex-parte. The appeal came up for hearing on 30th July, 2014, when none

appeared for the appellant MCD or for the respondent No.2 JUL and the

appeal was dismissed in default. The appellant MCD thereafter applied for

restoration and which was allowed on 26th August, 2014, without issuing

notice to the respondent No.2 JUL, which had been appearing and who was

absent on 26th August, 2014. After restoration, the appeal was again ordered

to be listed in the category of „Regular Matters‟ and being an old matter, was

directed to be taken up today. None has appeared for the respondent No.1

BOPL or respondent no.2 JUL today. The respondent No.2 JUL is also

proceeded against ex-parte.

3. The counsel for the appellant on enquiry, states that North Delhi

Municipal Corporation (NrDMC) is the successor of appellant MCD and she

is now appearing for NrDMC.

4. Though the Trial Court record was requisitioned in this Court and

received, but is informed to have been returned, on the dismissal of the

appeal in default on 30th July, 2014 and was not re-requisitioned while

restoring the appeal and as such is not available today. However, in the light

of what is recorded herein below, need therefor is not felt.

5. It may, at the outset be noticed that the respondent No.1 BOPL had

failed to appear before the Trial Court also and had been proceeded against

ex-parte. The respondent No.2 JUL though initially appeared before the

Trial Court and filed written statement but also stopped appearing thereafter

and was also proceeded against ex-parte. In the circumstances, the appellant

MCD had led ex-parte evidence before the Trial Court and the judgment of

dismissal of the suit of the appellant MCD is an ex-parte judgment.

6. The respondent No.2 in its written statement having taken a plea of

the suit claim being barred by time, the learned ADJ, in the ex-parte

judgment, examined the aspect of limitation and has dismissed the suit of the

appellant MCD holding the claim therein to be barred by time. Additionally,

it has also been held that the appellant MCD, in the ex-parte evidence, had

failed to prove that the suit had been instituted and the plaint filed by a duly

authorized person on its behalf.

7. The counsel for the appellant MCD, on the aspect of limitation, has

argued:

(i) that the appellant MCD on 26th February, 1974 deposited a sum

of Rs.8,90,240/- with the respondent No.1 BOPL who was the agent

of the respondent No.2 JUL as advance price for supply of cement;

(ii) that the respondent No.1 BOPL on 20th March, 1974, 21st

March, 1974, 17th May, 1974 and 6th March, 1975 supplied to the

appellant MCD cement of the value of Rs.1,31,932.29 paise,

Rs.56,674.51 paise, Rs.22,041.61 paise and Rs.34,437.18 paise

respectively i.e. for a total amount of Rs.2,45,085.59 only, leaving a

balance of Rs.6,51,602.95 paise out of the advance price paid and

against which no cement was supplied; and,

(iii) accordingly, on 19th May, 1980, the suit from which this appeal

arises was filed for recovery of the said principal amount together

with interest till the date of institution i.e. for a total sum of

Rs.9,25,000/-.

8. The learned Trial Court has proceeded on the premise of the period of

limitation applicable to the appellant MCD being of three years and the

counsel for the appellant MCD has not controverted the same. The suit was

admittedly filed beyond the prescribed period of limitation. The counsel for

the appellant MCD, before the Trial Court as well as today, relies on an

acknowledgement of liability dated 9th May, 1977. The Trial Court has held

it to be not an acknowledgement of liability within the meaning of Section

18 of the Limitation Act, 1963. It is the said finding of the Trial Court

which is under challenge in this appeal.

9. I have at the outset enquired from the counsel for the appellant MCD

that even if the aforesaid contention of the appellant MCD were to be

accepted, the suit having been instituted on 19th May, 1980, would be

beyond the period of three years from the alleged acknowledgement dated

9th May, 1977.

10. The counsel for the appellant MCD states that the suit in fact was

instituted on 7th May, 1980 i.e. well within three years of the

acknowledgement dated 9th May, 1977.

11. The endorsement on the impugned judgment as well as the decree

sheet, is of the suit having been instituted on 19th May, 1980. It may be

mentioned that the appellant MCD in the memorandum of appeal has not

controverted the said part of the judgment and decree showing the suit to

have been instituted on 19th May, 1980. The basis of the claim of the counsel

for the appellant MCD, of the suit having been instituted on 7 th May, 1980,

has been enquired.

12. The counsel for the appellant MCD states that her contention, of the

suit having been instituted on 7th May, 1980, is based on the copy of the

plaint which bears the said date.

13. However, the date of institution would not be the date which the plaint

bears but the date on which the plaint, though prepared earlier, was

ultimately filed in the Court and which as per the judgment and decree is

19th May, 1980. Accordingly, even if the contention of the appellant MCD

of there being an acknowledgement of liability dated 9 th May, 1977 were to

be accepted, the suit would still be barred by limitation.

14. However, for the sake of completeness, it is deemed appropriate to

deal with the argument of the acknowledgement also.

15. The alleged acknowledgement is in a letter dated 9th May, 1977

purported to have been written by the respondent No.2 JUL "to all stockists

of M/s Bharat Overseas Pvt. Ltd. and their sub-agents M/s Mukul Trading

Pvt. Limited and M/s Rajiv Trading Co. Pvt. Ltd.". I say "purported"

because it is a finding of the learned Trial Court that the appellant MCD in

its ex-parte evidence has not even proved the said letter. What has been

filed as Annexure A-9 to the memorandum of appeal also, is only a typed

copy of the said letter, showing the same to have been signed by the

Secretary of the respondent No.2 JUL by order of Board and alleged to have

been authenticated by the Chairman of the respondent No.2 JUL. It is not

the case of the appellant MCD that the original signed letter is the same as

the typed copy of the same. In any case, the Trial Court has held the same,

even if were to be believed, to be not an acknowledgement.

16. In the typed copy of the said letter, the respondent No.2 JUL is

purported to have stated as under:

"Dear Sirs,

This has reference to the discussions which your representatives namely Shri O.P. Lamba and others had with the members of our Board of Directors today. The view of the Board was conveyed to you that it would take a couple of months to take a decisions by the Company for taking over the liability of the advances obtained by the erstwhile Sale Selling Agents of the Company M/s. Bharat Overseas Private Limited and their sub-agents for supply of cement by the Company's cement works at Sawai Madopur.

You however insisted that a decisions must be taken today and the liabilities be adopted by the Company. The Board reconsidered the issue. The undersigned has now to revise you that the Board has decided that the Jaipur Udyog Ltd. accept in principle the liability of the Advances received by Messrs Bharat Overseas (Private) Limited and/or their sub- agents M/s. Rajiv Trading Co. Pvt. Ltd. and M/s. Mukal Trading Pvt. Ltd. for supply of cement from the Company's cement works at Sawaimadhopur."

17. In my view, all that the respondent No.2 JUL stated in the said letter is

that it has taken over the liability of the advances received by the respondent

No.1 BOPL, either itself or through its sub-agents. There is no

acknowledgement therein, of any liability to the appellant MCD.

18. The counsel for the appellant MCD in this regard relies on paras 20 &

21 of J.C. Budhraja Vs. Chairman, Orissa Mining Corporation Ltd. (2008)

2 SCC 444, where it has been laid down that acknowledgement may be

sufficient though it omits to specify the exact nature of the right or avers that

the time for payment has not yet come or is accompanied by a refusal to pay

or is coupled with a claim to set off or is addressed to a person other than a

person entitled to the right.

19. There can be no dispute about the said proposition. However, the fact

of the matter remains that the purported acknowledgement aforesaid, is not

at all with respect to the amount owed to the appellant MCD. The same is

only an acknowledgement of liability to refund the advances received by the

agents of the respondent No.2 JUL.

20. Even as per J.C. Budhraja supra, words used in the acknowledgment

must indicate the existence of jural relationship between the parties such as

that of debtor and creditor, and it must appear that the statement is made

with the intention to admit such jural relationship and of continuing such

relationship in regard to an existing liability. However, the document on

which the appellant MCD relies as an acknowledgment within the meaning

of Section 18 of the Limitation Act, 1963, is neither addressed to the

appellant MCD nor has any reference, of / to the appellant or of any jural

relationship with the appellant MCD or to any rights claimed by the

appellant MCD. The same thus, fails to satisfy the essential requirements of

an acknowledgment. Merely because the respondent No.2 JUL

acknowledged liability for the advances received by its agents does not

amount to acknowledgment of any liability to MCD or acknowledgment of

any jural relationship with appellant MCD.

21. The counsel for the appellant MCD of course argues that the need for

issuance of such letter arose only because it was the appellant MCD which

was pursuing the matter of refund and alternatively for supply of cement in

lieu thereof. However, the counsel for the appellant MCD on enquiry fairly

states that there is no evidence to the said effect and only an averment in the

plaint. Without any evidence and proof, no such contention can be raised.

22. There is thus no error in the finding returned by the learned ADJ on

the aspect of limitation.

23. I may at this stage record that the appellant MCD has neither pleaded

nor proved, as to on which date cement against the advance, alleged to have

been given, was to be supplied and from which date the period of three years

was to start running and has proceeded in the matter on the premise of the

limitation of three years having started running from 6 th March, 1975, when

the last instalment of cement was supplied. Else, it may be noted that the

relevant article would be Article 13, providing limitation of three years for

institution of a suit for the balance of money advanced in payment of goods

to be delivered, commencing from the date when the goods ought to have

been delivered. It is however not the case of the appellant MCD that the

goods were to be delivered at any time within three years prior to the

institution of the suit. On the contrary, annexures to the petition suggest that

the goods i.e. cement was to be supplied immediately after the date of

payment of advance. The suit claim, was barred by time on this account also.

24. In view of the findings aforesaid on the aspect of limitation, need is

not felt to address the other issue, of the appellant MCD having not proved

that the plaint was signed, filed and verified by a duly authorized person,

which was also decided against the appellant MCD. Suffice it is to state that

were the suit claim to be within time, as per United Bank of India Vs.

Naresh Kumar (1996) 6 SCC 660 the said aspect would not have come in

the way of decreeing the suit.

25. There is thus no merit in the appeal, which is dismissed.

Decree sheet be drawn up. No costs.

RAJIV SAHAI ENDLAW, J JULY 09, 2015 „bs‟..

(Corrected and released on 24th July, 2015).