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Judgment
Valmiki J Mehta, J.—This case is on the Regular Board of this Court since 2.1.2012, and today the matter is effective item no.11 on the Regular Board. No one appears for the respondent although it is 1.00 P.M. I have therefore heard counsel for the appellant and after perusing the record am proceeding to dispose of the appeal.
The challenge by means of this Regular First Appeal filed u/s 96 of the Code of Civil Procedure, 1908 is to the impugned judgment of the Trial Court dated 13.3.2003 dismissing the suit of the appellant/plaintiff for recovery of Rs. 4,95,026/-, and which amount was claimed from the respondent/defendant/distributor of the goods of the appellant/plaintiff-company who was the supplier of electrical home appliances.
The suit has been dismissed by the Trial Court without giving any findings on merits inasmuch as the suit has been held to be barred by limitation. It has been held that the suit was governed not by Article 1 of the Limitation Act, 1963 (hereinafter referred to as ''the Act'') which deals with an open, mutual and current account but by Article 14 of the Act. A reference has been made by the Trial Court to the judgment of the Supreme Court in the case of The Hindustan Forest Company Vs. Lal Chand and Others, .
A reference to the impugned judgment shows that there is absolutely no discussion as to why the statement of accounts in the present case is not an open, mutual and current account in terms of the ratio of the judgment of the Supreme Court in the case of Hindustan Forest Company (supra). As per the ratio of the judgment in the case of Hindustan Forest Company (supra) once there are shifting balances, there is an open, mutual and current account. The statement of accounts has been filed and exhibited by the appellant/plaintiff before the Trial Court as Ex.PW1/11 to Ex.PW1/13, which really is only one document of three pages, though three separate exhibit marks have been given. A reference to the first page, Ex.PW1/11 shows that there were credit balances in favour of the respondent/defendant and against the appellant/plaintiff. Thereafter, there are debit balances against the appellant/plaintiff-company. Clearly in the facts of the case, it has been established that there was an open, mutual and current account on account of shifting balances in terms of the ratio in the case of the Hindustan Forest Company (supra). The Trial Court therefore fell into an error in holding that the suit was governed by Article 14 of the Act and not by Article 1 of the Act.
The admitted and proved last bill by which the goods were supplied to the respondent/defendant by the appellant/plaintiff is Ex.PW1/6 dated 30.7.1998. Limitation as per Article 1 begins from end of the financial year in which the last entry is proved or admitted. The last entry being proved/admitted being dated 30.7.1998, limitation commences on 1.4.1999. The suit against the respondent/defendant could therefore have been filed upto 31.3.2002. The suit was however filed well before on 21.8.2001. Clearly therefore, the suit is within the limitation. The findings of the Trial Court therefore with respect to issue no. 2 are set aside by which it was held that the suit was barred by limitation.
Since the Trial Court has not given any findings on merits, the suit is therefore remanded back to the Trial Court to decide the case on merits treating the suit to have been filed within limitation. Since the respondent/defendant has not been represented in this appeal, the Trial Court before hearing final arguments, will issue notice to the respondent/defendant. Accordingly, the impugned judgment and decree is set aside and the suit is held to be within limitation.
Appellant to appear before the District and Sessions Judge, Delhi on 15.2.2012, on which date, the District and Sessions Judge, Delhi will mark the suit for decision to a competent Court in accordance with law. Trial Court record be sent back so as to be available to the District and Sessions Judge, Delhi on 15.2.2012.