Delhi High Court
Xs Infosol Pvt. Ltd. vs M/S Gls Technologies Pvt. Ltd. & ... on 16 January, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 33/2018
% 16th January, 2018
XS INFOSOL PVT. LTD. ..... Appellant
Through: Mr. Saurabh Upadhyay and
Mr.Vipul Sharma, Advocates.
versus
M/s GLS TECHNOLOGIES PVT. LTD. & ORS. ..... Respondents
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. Appl. No. 1439/2018 (for exemption)
Exemption allowed, subject to all just exceptions.
C.M. stands disposed of.
RFA No. 33/2018 and C.M. Appl. No. 1440/2018 (for delay)
1. This Regular First Appeal is filed under Section 96 of the
Civil Procedure Code, 1908 (CPC) impugning the judgment of the
trial court dated 10.7.2017 by which the trial court has rejected the
plaint on account of being barred by limitation. The suit filed was a
suit for recovery of money for balance payment due with respect to
services performed.
2. The facts of the case are that appellant/plaintiff filed the
subject suit for recovery of an amount of Rs.2,35,398/- on the basis
that appellant/plaintiff did work of DNS configuration and Reporting
for the respondents/defendants and had raised a bill dated 7.11.2012
for an amount of Rs.9,85,398/-. Out of this total amount of the bill a
sum of Rs.2,00,000/- was paid in advance prior to the bill and
thereafter after payments of Rs.1,00,000/- and Rs.2,00,000/- were
made on 12.1.2013 and 13.2.2013. Appellant/plaintiff ultimately
served a legal notice dated 13.8.2014 and thereafter filed the subject
suit for recovery on 16.5.2017.
3. Trial court has held the suit to be barred by the limitation
as filed on 16.5.2017, inasmuch as admittedly the only payment which
is admitted to be made by the respondents/defendants is on 13.2.2013,
and hence the suit filed beyond three years from 13.2.2013, i.e on
16.5.2017, was barred by limitation.
4. The subject suit is a suit for services provided by the
appellant/plaintiff and with respect to which the Bill dated 7.11.2012
was raised and last payment under which was made on 13.2.2013. If
the suit was a suit for recovery of price of goods not paid for then the
suit would have been governed by Article 14 of the Limitation Act,
1963 and which provides limitation to be three years from the date of
delivery of goods. The present suit would be governed by Article 113
of the Limitation Act and because there is no Article provided for sale
of services, however, when we have to apply Article 113 of the
Limitation Act in the facts of the present case the same will have to be
on the same principles contained in Article 14 of the Limitation Act
with respect to providing for sale of goods because sale of goods and
services more or less stand on the same footing.
5. Since the admitted position is that the bill was raised on
7.11.2012, last payment of which was made on 13.2.2013 therefore
subject suit for recovery could have been filed till 13.2.2016, but the
same was filed on 16.5.2017, and therefore the trial court committed
no error in holding that the suit is time barred.
6. Learned counsel for the appellant/plaintiff has sought to
place reliance upon a judgment of the Supreme Court in the case of
Major (Retd.) Inder Singh Rekhi Vs. Delhi Development Authority,
(1988) 2 SCC 338 to argue that cause of action arises when a legal
notice is served. Reliance placed by counsel for the appellant/plaintiff
on the judgment in the case of Major (Retd.) Inder Singh Rekhi
(supra) is misplaced because the judgment in the case of Major
(Retd.) Inder Singh Rekhi (supra) was dealing with the legal position
as to when is a petition under Section 20 of the old Arbitration Act,
1940 to be filed with respect to work done under a works contract, and
in this regard the Supreme Court has observed that on disputes arising
would the cause of action arise for filing of a petition under Section 20
of the Arbitration Act for reference of the disputes to arbitration, and
that such petition under Section 20 of the Arbitration Act for reference
of the disputes to arbitration should be filed within three years of
arising of disputes. Clearly therefore the judgment of the Supreme
Court in the case of Major (Retd.) Inder Singh Rekhi (supra) has no
application to the facts of the present case, inasmuch as, the cause of
action with respect to sale of goods and services are governed by
Article 14 read with Article 113 of the Limitation Act which would
have the effect that limitation would commence from the date of
providing of goods and/or services or if any payment is made under
the said contract within the scope of Sections 18 and 19 of the
Limitation Act then within three years of the last date of payment.
7. In view of the aforesaid discussion, the trial court has
committed no error in rejecting the plaint as being time barred. There
is no merit in the appeal and the same is hereby dismissed.
JANUARY 16, 2018 VALMIKI J. MEHTA, J
AK
