F.C.C. Projects Pvt. Ltd. vs Ashish Bhardwaj

Aruna Suresh, J.—The respondent was the plaintiff in the court below who had filed the suit for recovery against the appellant herein for a

sum of Rs. 6,97,524/- under Order XXXVII of the Code of Civil Procedure, 1908. Leave to defend was given to the appellant and, Therefore,

appellant filed the written statement contesting the suit. The decree has been passed in favor of the respondent herein along with interest and costs.

The case set-up by the respondent was that he had supplied the shuttering material to the appellant from time to time under agreement dated

20.11.1995 for its project at Gaon Rampurphool, Bhatinda, Punjab. This material was supplied to the appellant at his godown through

invoices/challans and the material returned by the appellant was accounted for. The payments given by the appellant, from time to time, were also

give due credit. A balance of Rs. 6,97,524/- was outstanding which the appellant had failed to pay despite repeated demands. According to the

respondent the appellant had even failed to pay the costs of unreturned goods and was, thus, liable to pay for that as well. It was stated that last

payment of Rs. 50,000/- was received on 1.4.1997, where after no payment was made by the appellant and this inaction of the appellant forced

the respondent to file the said suit. In the written statement, the appellant took the preliminary objection that the suit was hit by law of limitation as it

was time barred; courts at Delhi had no territorial jurisdiction; the entire payment as per the last bill of the respondent bearing No. 1557 dated

31.7.1996 had already been made and, Therefore, nothing was payable by the appellant to the respondent. The appellant also denied execution of

agreement dated 20.11.1995. According to it, it was merely an authority letter which was delivered blank and was subsequently filled up by the

respondent and was, thus, a false and fabricated document. Insofar as return of the balance material is concerned, the plea was that the respondent

failed to lift his goods from the site at Bhatinda for which the appellant could not be held responsible. Following issues were framed by the trial

court on the basis of pleadings:

Whether the plaintiff entered into a written agreement dated 20.11.1995 with the defendant as alleged in the plaint? OPD.

Whether this Court has jurisdiction to try and entertain the present suit. Whether any cause of action arose in Delhi? OPD

Whether the present suit filed on 31.03.2000 is within limitation? OPP

To what amount, if any, the plaintiff is entitled to recover and if so at what rate of interest? OPP

Relief.?

The respondent examined two witnesses in support of his case, namely, himself and one official from Indian Overseas Bank. In the intervening

period, the appellant was proceeded ex-parte and no formal application for setting aside the ex-parte order was moved on its behalf. Thus, the ex-

parte order against the appellant remained unchallenged. However, the appellant participated in the proceedings thereafter and argued the matter.

No evidence was even led by the appellant. The learned trial court has decided the issues in favor of the respondent. He agreed that balance

amount of Rs. 6,97,524/- was due and payable by the appellant to the respondent which was not paid. The appellant had also not returned certain

material and adding the value thereof, decree in the sum of Rs. 9,40,363/- has been passed against the appellant with interest @ 12% p.a., both

pendente lite and future, from the date of filing of the suit till realization. Costs of the suit are also awarded.

In the absence of any evidence by the appellant, learned Counsel for the appellant, while arguing the case, was conscious of his limitations.

Therefore, the entire thrust of his argument was on Issue No.3. His submission was that even as per the facts appearing on record, the suit filed by

the respondent on 31.3.2000 was barred by limitation. Therefore, in this appeal, we are concerned with the findings of the learned ADJ on this

issue.

According to the appellant, the respondent had raised the last bill dated 31.8.1996 and three years period counted there from would expire on

1.9.1999, whereas the suit was filed on 31.3.2000, much after the expiry of the limitation period. He submitted that admittedly no work was done

after the raising of the last bill, which bill was settled and, Therefore, nothing was payable either. He also submitted that there was no

acknowledgment of debt on the part of the appellant and even if payment of Rs. 50,000/- was made on 13.3.1997, it would not bring the suit

within the period of limitation. He submitted that payment made on 13.3.1997 was not the part-payment, but payment towards full and final

settlement of the accounts. Therefore, if the respondent was disputing that account had not been settled with this payment, it could not be treated

as part- payment and, thus, provisions of Section 19 of the Limitation Act, 1963 also would not apply. In the alternative, he submitted that even if

the limitation is to be counted from the payment by bank draft dated 13.3.1997, the three years period would expire on 12.3.2000 whereas the

suit was filed on 31.3.2000. According to him, the learned ADJ did not take into consideration the specific plea taken in the written statement that

the aforesaid bank draft was delivered to the respondent against receipt on 15.3.1997 and the respondent had nowhere averred in the plaint as to

when the said draft was received by him. Therefore, there was no fault on the part of the appellant if the draft was deposited by the respondent

after 15 days of the delivery thereof by the appellant to the respondent and he could not save the limitation on this account. Learned Counsel

referred to various judgments in support of his aforesaid submissions, which are as follows:

(i) Afsar Sheikh and Another Vs. Soleman Bibi and Others,

This case was cited on the principle that the respondent could not prove the case beyond pleadings.

(ii) Narayana Pillai Vs. Narayanan Vanajakshi,

To support the plea that where goods were delivered to the respondent from time to time on account, the cause of action may be one for all the

items delivered and the starting point of limitation in respect of each item on account must be taken to be the date of delivery of goods under that

item of the account and last date of delivery cannot be taken to be the date of delivery of the goods on earlier occasions.

(iii) Attadi Venketi Vs. Bharatam Ramulu and Sons,

In support of the plea that where the suit is filed for price of the goods sold and delivered and no fixed period of credit was agreed upon, Article

14 of the Limitation Act would apply and not Article 1 and, Therefore, limitation would start from the date of delivery of the goods.

(iv) Sant Lal Mahton Vs. Kamala Prasad,

This case was cited by the appellant to buttress the submission that a question as to whether a suit is time barred or not has got to be determined

exclusively with reference to the date on which the plaint is filed and the allegations made therein.

Learned Counsel for the respondent on the other hand, submitted that even if the last bill raised was on 31.8.1996 and the material supplied,

that was not the end of the transaction. As the material was returned by the appellant to the respondent in piecemeal from time to time, i.e. on

26.12.1996, 5.1.1997, 9.1.1997, 4.3.1997 and even on 5.12.1997. This was proved through the documents on record which went unrebutted.

He also submitted that the successive bills issued showed the balance carried forward from the last bills and, Therefore, these bills were in the

nature of running account and limitation could not be determined on the basis of each delivery treating that as a separate transaction. He also

submitted that dispatch register was produced in the court showing that bills were sent. He, thus, submitted that the learned trial court rightly held

that the suit filed was within the limitation period.

Perusal of the discussion on Issue No. 3 in the impugned judgment would show that the learned ADJ has held the suit to be within limitation on

two counts:

(a) payment given to the respondent by the appellant vide demand draft dated 13.3.1997, which was realized only on 1.4.1997. He has held that

the demand draft in question was got prepared at Bhatinda, which is dated 13.3.1997, and is payable at Delhi. Therefore, it could not have been

given to the respondent on 13.3.1997. The draft is valid for 3/6 months. If the respondent had chosen not to present it for a month or so, still he

would be within his right to get it encased within the validity period of the draft. Therefore, technically speaking, at least a period of three months

from the date of the draft was available to the respondent. Since there was no conclusive evidence when the draft was given, statement of the

respondent that it was realized only on 1.4.1997 had to be believed as there was no effective cross-examination on this aspect. If limitation is to be

reckoned from this date, the suit was filed within the limitation period as it was filed on 31.3.2000.

(b) The bills, carbon copies of which have been placed on record by the respondent indicate that transaction between the parties went on till

31.12.1997, which would further enhance the period of limitation and bring the suit within the limitation period.

What is to be kept in mind, while discussing this issue of limitation, is that the appellant was ex-parte before the trial court. It did not lead any

evidence. There is no cross-examination of the respondent''s witnesses. Therefore, the statement of the respondent and the documents produced

by the respondent have gone unchallenged and that material is to be taken into consideration, as it is, while considering the submission of both the

parties on the issue of limitation.

Insofar as the first reason given by the learned ADJ to hold that the suit is within the period of limitation is concerned, two objections are raised

by the appellants against this reasoning, namely:

1) Draft dated 13.3.1997 was delivered on 15.3.1997. On the other hand, the respondent had nowhere averred in the plaint as to when the said

draft was received by him. Therefore, such a draft could have been encased within few days thereof and limitation of three years should have been

counted from the expiry of those few days, i.e. to say 19/20th March 19978 and not with effect from 1.4.1997 when the amount was realised by

the respondent. However, this argument is of no avail to the appellants. Though the appellants had stated in the written statement that the bank

draft was delivered to the respondent on 15.3.1997, no evidence is produced to prove this fact. On the other hand, it has come on record that the

draft was encased only on 1.4.1997.

2) The other ground of attack, namely, encashment of this demand draft does not extend the limitation, needs serious consideration. Learned

Counsel for the appellants has predicated his case on Sections 18 and 19 of the Limitation Act by submitting that those provisions have no

application as, according to him, payment of Rs. 50,000/-, which was made on 13.3.1997, was full and final payment and since it was not a part

payment, provisions of Section 19 of the Limitation Act would not apply.

This submission proceeds on the basis that the payment of Rs. 50,000/- given vide demand draft dated 13.3.1997 was against last bill dated

31.8.1996 and it was made in full and final settlement of accounts. However, the appellants could succeed on this argument only if it was proved

by the appellant that it was not a part payment but payment towards full and final settlement of the accounts. It is stated at the cost of repetition that

no such evidence is led by the appellant. What has come on record is the payment of Rs. 50,000/- made vide demand draft dated 13.3.1997,

which is encased on 1.4.1997. Therefore, it will be treated as a part payment, more so when the respondent filed the statement of account showing

the balance due and, thus, provisions of Section 19 of the Limitation Act would be applicable.

That apart, the second reason given by the learned ADJ to hold the suit to be within limitation clinches the entire issue. The learned ADJ has held

that the bills, carbon copy whereof have been proved, indicate that transactions between the parties went on till 31.12.1997. We have gone

through the records and agree with this conclusion of the trial court. Counting the limitation from this date would definitely bring the suit within

limitation, which was filed on 31.3.2000. None of the judgments cited by learned Counsel for the appellants would come to his rescue as the

present case is a case of total lack of evidence insofar as the appellants are concerned.

We are, Therefore, of the opinion that the learned ADJ has rightly held that the suit filed by the respondent was within the period of limitation.

This appeal is, Therefore, devoid of any merit and is accordingly dismissed with costs. The accompanying application also stand dismissed.