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Judgment
B. Rajendran, J.—The revision petitioner is the first defendant in the under Chapter suit filed by the first respondent herein under Order XXXVII Rule 1 of CPC for recovery of a sum of Rs. 1,06,925/- with interest at the rate of 12% per annum. On notice in the suit, the first defendant/revision petitioner has filed I.A. No. 3167 of 2012 in O.S. No. 7654 of 2011 praying to grant leave to defend the suit. The application seeking leave was resisted by the plaintiff/first respondent herein by filing a counter. The court below, after hearing the argument of both sides and on consideration of the materials placed on record, dismissed the application seeking leave to defend, which gave rise to the filing of the present Civil Revision Petition by the first defendant in the suit. The Plaintiff/first respondent herein has filed the suit contending that they are carrying on freight forwarding business to various destinations around the world. During the course of such business, the second defendant/second respondent herein had an arrangement with the plaintiff to avail their service and through the second defendant, the first defendant/revision petitioner herein approached the plaintiff/first respondent herein for carriage of their goods to Verona, Italy. The Plaintiff/first respondent herein has completed such contractual obligations and raised an invoice dated 15.02.2008 for Rs. 1,06,925/- on the defendants, but they have not paid the amount inspite of several reminders. Under those circumstance, the plaintiff has filed the suit.
The first defendant/revision petitioner filed I.A. No. 3167 of 2012 in O.S. No. 7654 of 2011 seeking leave to defend. In the affidavit filed in support of the petition, it was mainly contended that the suit is barred by limitation. According to the first defendant/revision petitioner, there was no contract between the plaintiff/first respondent and the first defendant/revision petitioner and therefore, the suit itself is not maintainable. It was also the case of the first defendant/revision petitioner that they had a contract with M/s. Hi-line Shipping Services for transporting 136 boxes of finished leather shoes for women by air to Verona and for such service, the first defendant/revision petitioner also paid the invoice amount of Rs. 1,54,233/- to the said Hi-line Shipping Services. Only on receipt of the summons in the suit, the first defendant/revision petitioner came to know that the said M/s. Hi-line Shipping Services approached the second defendant/second respondent herein for forwarding the goods, which in turn engaged the services of the plaintiff/first respondent herein. In any event, since the first defendant/revision petitioner has paid the amount for transportation of the goods to M/s. Hi-line Shipping Services, they need not pay any amount to the plaintiff/first respondent herein. It was mainly contended that even assuming that the first defendant/revision petitioner is liable to pay some amount, the invoice was dated 15.02.2008 and the suit was filed beyond the period of three years and therefore, unless leave is granted to the first defendant/revision petitioner to defend, they will not be in a position to agitate the legal grounds for consideration of the Court.
The learned counsel appearing for the first defendant/revision petitioner would contend that even according to the plaintiff/first respondent herein, the suit transaction was completed on 15.02.2008, whereas the suit was filed only in the year 2011, beyond the period of three years. Therefore, the suit itself is barred by limitation. The court below relied on Ex. P7, statement of account and erroneously concluded that as per the statement of account produced by the plaintiff/first respondent herein, payments have been made to show that it is a running transaction and therefore, the question of limitation would not arise. In this context, the learned counsel for the first defendant/revision petitioner relied on the statement of account produced by the plaintiff/first respondent herein to point out that even though a transaction dated 15.02.2008 is indicated thereon and the last transaction said to have taken place on 16.12.2010, the very same amount is shown as the balance at the end of the statement. Further, for every payment alleged to have been made, there should be a corresponding credit amount but that is absent in the statement of account. In the statement of account, entries are made for the year 2009-2010 and again 2009 and it cannot be called as a continued or running account. This vital point has not been considered by the court below. The defence pleaded and raised by the first defendant/revision petitioner is a plausible defence and therefore, the court below ought to have given an opportunity to the first defendant/revision petitioner to defend the suit instead of dismissing the application filed seeking leave to defend.
Per contra, the learned counsel for the plaintiff/first respondent herein mainly contend that the liability of the first defendant/revision petitioner has been proved by producing documentary evidence especially the invoice which was directly raised in the name of the first defendant/revision petitioner. The contract was directly entrusted to the first defendant/revision petitioner and therefore, the court below is right in dismissing the application seeking leave to defend. As regards the statement of account, he would only say that the statement produced is as per the regular Books of Accounts and ledger account and it cannot be doubted. Therefore, the learned counsel for the plaintiff/first respondent prayed for dismissal of this Civil Revision Petition.
Before the trial court, the second defendant/second respondent herein remained ex-parte.
I heard the counsel for the first defendant/revision petitioner as well as the plaintiff/first respondent herein and perused the records. In this Civil Revision Petition, this Court has to examine whether the first defendant/revision petitioner has raised a plausible or a triable defence warranting interference by this Court.
A specific defence was raised by the counsel for the first defendant/revision petitioner that even according to the plaint, the last transaction was made 15.02.2008 but the under Chapter suit was filed only on 23.12.2011, thus the suit was hopelessly barred by limitation and it was filed beyond three years. Therefore, according to the counsel for the first defendant/revision petitioner, a legal question relating to limitation of the suit has been raised but without considering it, the court below dismissed the application seeking leave to defend.
The court below rejected the contention relating to limitation on the ground that the account maintained by the plaintiff/first respondent herein is a running transaction, to which payments have been made subsequently by the first defendant/revision petitioner herein and therefore the suit is maintainable. When we examine the alleged running account, the day book copy produced by the plaintiff/first respondent, it would indicate that the last transaction indicated therein took place on 25.11.2009, which relates to the payment of Rs. 3,888/- allegedly made by the first defendant/revision petitioner herein. In the interregnum, there were several transactions shown in the statement account, not only with the first defendant/revision petitioner but with several third persons and all those transaction would indicate that a sum of Rs. 3,888/- was received uniformly for several months. In those transaction, for the identical amount of Rs. 3,888/- received, both debit and credit entries have been made however, the original amount still remain intact. Can this be called a running account or running transaction? Apart from that, it was pointed out that the statement shows entries from 2008 and it goes to 2009 and 2010. After entries relating to 2010, again, the entries relating 2009 have been inserted or crept in. Therefore, it was contended on behalf of the first defendant/revision petitioner that the statement of account cannot be relied on, it was produced for the purpose of filing the suit and its authenticity is very much doubtful. When such a plea was raised by the first defendant/revision petitioner, the court below ought to have granted leave to the first defendant/revision petitioner to examine the validity or otherwise of the statement of account produced by the plaintiff/first respondent herein to prove the liability on the part of the first defendant/revision petitioner. In fact, the court below, only on the basis of the statement of account rejected the contention of the first defendant/revision petitioner with regard to maintainability of the suit. The first defendant/revision petitioner also produced certain documents to show that there was no direct contract or contact between the first defendant/revision petitioner and the plaintiff/first respondent herein. In those circumstance, I am of the view that the first defendant/revision petitioner has raised a triable and plausible defence and they should be given an opportunity to defend the suit. At the same time, while granting leave to the first defendant/revision petitioner to defend, this Court feels that the interest of the plaintiff/first respondent has to be safeguarded by directing the first defendant/revision petitioner to deposit some amount. Accordingly, the first defendant/revision petitioner is directed to deposit a lumpsum of Rs. 20,000/- (Rupees Twenty Thousand Only) to the credit of the suit in O.S. No. 7654 of 2011 on the file of the learned XVI Assistant Judge, City Civil Court, Chennai within a period of four weeks from the date of receipt of a copy of this order, failing which, the order passed in this Civil Revision Petition shall stand revoked automatically and consequently the order passed by the court below will stand confirmed. In the result, the Civil Revision Petition is allowed by setting aside the order dated 13.03.2013 made in I.A. No. 3167 of 2012 in O.S. No. 7654 of 2011 on the file of the XVI Assistant Judge, City Civil Court, Chennai subject to the condition relating to deposit of Rs. 20,000/- by the first defendant/revision petitioner herein within a period of four weeks from the date of receipt of a copy of this order as mentioned above. No costs. Consequently, connected miscellaneous petition is closed.