Ashok Arora vs Dr. Nitin Misra & Ors
2018 Latest Caselaw 4082 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RFA No.367/2017

%                                                       18th July, 2018

ASHOK ARORA                                              ..... Appellant
                           Through:      Mr. Tushar Singh, Advocate.

                   versus
DR. NITIN MISRA & ORS.                                    ..... Respondents

Through:

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 under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit

impugning the judgment of the Trial Court dated 24.8.2016 whereby

trial court has dismissed the suit as barred by limitation.

2. The facts of the case are that the appellant/plaintiff

claimed that he supplied/sold a Light B Laser Machine to the

respondents/defendants. This machine was sold to the

respondents/defendants as per the invoice dated 26.8.2005. The

machine was installed at the place of the respondents/defendants at

Pathankot on 27.1.2006. The appellant/plaintiff claims that invoice

was of Rs.14,30,000/- of which only an amount of Rs.9 lacs was paid

and therefore for the balance amount of Rs.5.30 lacs with interest the

subject suit for recovery of Rs.18,45,000/- was filed. Interest is

claimed in the suit at 11% from 27.1.2007. Part of the suit amount

claimed, being a sum of Rs. 12 lacs, is the claim of the cost of a stand-

by machine supplied.

3. The subject suit has been admittedly filed on 11.8.2016.

In my opinion, once the sale was made and invoice drawn on

26.8.2005 and installation done in January, 2006, and that out of the

total invoice of Rs.14,30,000/- , Rs.9 lacs was received upto

28.8.2006, then the suit for recovery of money had to be filed within

three years from 27.1.2006 if not from the date of invoice of

26.8.2005. The suit which is filed on 11.8.2016 is therefore

hopelessly barred by limitation and has been rightly dismissed as time-

barred by the trial court.

4(i) Learned counsel for the appellant/plaintiff argues that the

appellant/plaintiff had supplied a standby machine costing Rs.12 lacs

to the defendants on 14.12.2006 but the same has not been returned

and therefore the appellant/plaintiff has claimed a total sum of

Rs.18.45 lacs with the sum of Rs.12 lacs being towards the

standby/additionally supplied machine, and the balance payable on the

earlier machine supplied as also interest @ 11% per annum from

27.1.2007, and therefore, it is argued that suit is within limitation.

(ii) I cannot agree with this argument urged by

appellant/plaintiff because even assuming there was entitlement of the

appellant/plaintiff to claim the price of the standby machine till

14.12.2006, the cause of action would have arisen on 14.12.2006 or

definitely within a year or two when the standby machine was not

returned. In any case, the complaint before the District Consumer

Disputes Redressal Forum was filed by the respondents/defendants on

30.1.2008, and therefore by 30.1.2008 it became clear to the

appellant/plaintiff that respondents/defendants would not be returning

even the standby unit. The District Consumer Disputes Redressal

Forum case in any case was dismissed on 16.3.2011. The present suit

is not filed either within three years of filing of the consumer

complaint by the respondents/defendants in the year 2008 or its

dismissal on 16.3.2011, and when it had become clear to the

appellant/plaintiff that even the standby unit is not being returned, and

therefore the subject suit filed on 11.8.2016 was therefore definitely

barred by time.

5. It is also to be noted that there does not arise any issue of

application of Section 14 of the Limitation Act, 1963 for giving any

benefit to the appellant/plaintiff inasmuch as there was no claim of

recovery of money filed by the appellant/plaintiff in the District

Disputes Redressal Forum case which was filed by the

respondents/defendants alleging that defective machine was supplied

by the appellant/plaintiff. It is conceded before this Court that in the

reply filed by the appellant/plaintiff in District Disputes Redressal

Forum case of the respondents/defendants, there is no money decree

which was prayed to be passed or that the District Disputes Redressal

Forum had held that it was not the proper court to pass a money decree

in favour of the present appellant and against the present respondents.

It is therefore held that appellant/plaintiff cannot take benefit of the

period of time spent in the proceeding before the State Consumer

Disputes Redressal Forum from 2.9.2011 to 22.11.2013.

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

JULY 18, 2018/ Ne                      VALMIKI J. MEHTA, J