M/s. Standard Tent House and Another vs Rani Durgavati Vishwavidyalaya

N.K. Gupta, J.—The appellants have preferred the present first appeal against the order dated 22.9.2006 passed by the 9th Additional District Judge, Jabalpur in Civil Suit No. 1-B/2004 whereby the suit was dismissed under Order VII Rule 11(d) of CPC being barred by limitation. The appellants have preferred a civil suit before the trial Court that the appellant No. 1 is a partnership firm providing the material of tent house to the various offices etc. The appellant-firm provided such material to the respondent from time to time and his payment was made by the respondent from time to time. In the period of the year 1993-96 a payment of Rs. 1,45,861/- was due towards the respondent. That amount was nowhere paid though a demand was made by the appellants. The appellants also calculated the amount of interest, and thereafter they gave a written notice to the respondent. In spite of the notice, no amount was paid, and therefore a suit for payment of Rs. 3,43,163/- was instituted against the respondent.

The respondent has moved an application under Order VII Rule 11(d) of the CPC to reject the plaint. The application was moved on the basis of Article 18 of the Limitation Act that the suit was to be filed within three years from the date of transaction and the suit was filed in the year 2006 for the transaction done in the year 1993-96.

In reply to the application, the appellants denied the averments of the application and prayed that the application be dismissed and the right of filing written statement may also be closed.

The learned Additional District Judge, Jabalpur after considering the submissions made by the parties, rejected the plaint.

I have heard the learned counsel for the parties at length.

The only question in the present appeal which arises as to whether the suit was within the limitation or not.

The learned counsel for the appellants has submitted that an acknowledgment was made on 10.10.1999, and therefore a fresh limitation was obtained by the appellants. Thereafter a registered notice was given on 25.6.2005, and therefore after waiting for its reply a suit was filed. It was also submitted that Article 18 of the Schedule given in the Limitation Act shall not apply and in place of that Article 17 shall apply. The learned counsel for the appellants has placed his reliance upon the judgment of the Single Bench of this Court in the case of United Bank of India Vs. Suman Enterprises and Another,

On the other hand, the learned counsel for the respondent has submitted that the appellants claimed the transaction between the year 1993-1996 and the period of limitation was three years for that demand. Section 18 of the Limitation Act shall not be applicable in the present case, because no such acknowledgment has been done by any of the officers of the respondent as required under that provision. Also if it is accepted that an acknowledgment was done on 10.10.1999, then still the suit filed on 9.1.2006 was barred by limitation.

In the present case, it is apparent that the appellants supplied furnitures and tent material on rent from time to time. They could not show any document that an yearly contract was given to the appellants for such deployment of tent house articles, and therefore he could not maintain the account in such a manner. For each and every bill, a separate transaction was done by the appellant, and therefore limitation is to be counted for each and every transaction separately. According to the appellants, various bills were raised from 20.2.1993 to 25.1.1996. Under such circumstances, the last bill was given on 25.1.1996, and therefore according to the provisions of Section 18 of the Limitation Act, before expiration of the period prescribed for a suit, if any acknowledgment is made relating to liability of such claim, then limitation shall be computed from the date of acknowledgment. In the present case, last bill was raised on 25.1.1996, and therefore its limitation according to the Article 18 of the Schedule given in the Limitation Act was three years. It is made clear that Article 17 of the Limitation Act is related to sale of crops and hence it is not applicable in the present case. Therefore, the limitation was over on 24.1.1999. The alleged acknowledgment has been done after completion of the limitation, and therefore that acknowledgment cannot be accepted as the acknowledgment done u/s 18 of the Limitation Act.

Similarly, according to the provisions of Section 18 of the Limitation Act, acknowledgment must be clear and it should be done for the entire liability. Secondly, it should be done by a competent authority. On the letter dated 10.10.1999, one Assistant Engineer of the respondent has written that the payment of the bills is under consideration and the financial position of the University was not good. The payment will be made according to the procedure. It is nowhere established that the Assistant Engineer of the University was competent to do such type of acknowledgment. Secondly, no specific liability has been accepted in that note given by the Assistant Engineer, and therefore it was not an acknowledgment in the eye of law as required u/s 18 of the Limitation Act. Hence, the plea of acknowledgment suffers from three major defects. Firstly, the alleged acknowledgment has been done after completion of the period of limitation. Secondly, it is not proved that the acknowledgment was done by the competent officer of the University and thirdly it was not the acknowledgment under the eye of law. By wordings of the note, it cannot be said that the Assistant Engineer of the University has accepted any liability on behalf of the University, and therefore by a note given on 10.10.1999 no fresh limitation was received to the appellants.

In the alternate, if it is considered that a fresh limitation was received on 10.10.1999, still the suit was to be filed upto 9.10.2002 i.e. within three years from the date of the acknowledgment, but the suit was filed on 9.1.2006, and therefore it was apparently barred by limitation. The judgment of the Single Bench of this Court cited by the learned counsel for the appellants in the case of Suman Enterprises (supra) is not at all applicable in the present case due to factual difference in the case.

On the basis of the aforesaid discussion, it is apparent that the suit was barred by limitation. Article 18 of the Schedule of the Limitation Act was applicable in the matter. Three years limitation was granted to the appellants, but that limitation was over on 24.1.1999. The alleged acknowledgment is not at all an acknowledgment in the eye of law, and therefore no fresh limitation has been received to the appellants due to that note given by the Assistant Engineer on 10.10.1999. Under such circumstances, the learned Additional District Judge, Jabalpur has rightly rejected the plaint of the appellants, because the suit was barred by limitation. There is no basis by which the present appeal can be accepted. Consequently, the first appeal filed by the appellants is hereby dismissed with cost.

The appellants shall bear the cost of the respondent as well as their own. The Advocate fee shall be quantified at Rs. 5000/- for each of the parties, if certified. A copy of this judgment and the appellate decree (if any) be sent to the trial Court along with its record for information.