MUKHTIAR SINGH Vs. SANT RAM

JUDGEMENT

(1.) CM No.18589/2010( for exemption) Allowed subject to just exceptions. This second appeal has impugned the judgment and decree dated 15.7.2010 which had affirmed the finding of the Trial Judge dated 5.9.2009 whereby the suit filed by the plaintiff/appellant Mukhtiar Singh for recovery of Rs. 1,17,406.62 had been dismissed. The appellant/plaintiff had been non-suited on the ground of limitation by the Trial Judge. This has been affirmed in the impugned judgment.

(2.) THE plaintiff was carrying on business of building material in the name and style of M/s Ajit Timber. The defendant was in the business of construction of buildings; he used to take construction material on hire basis i.e. steel plates of different sizes. Last business dealings between the parties took place on 14.12.2003 on which date the final bill was submitted as per which the defendant owed a sum of Rs. 86328.40 to the plaintiff. Defendant did not pay up the amount; the suit was accordingly filed.

(3.) TRIAL Judge had framed seven issues. The oral and the documentary evidence led by the parties was examined. The statement of account, bill book, challan book proved by the plaintiff was relied upon. Although no specific issue on limitation has been recorded yet the court in view of the mandate of Section 3 of Limitation Act relying upon a judgment of the Supreme Court had addressed itself on the said issue. Article 26 of the Schedule-I of the Limitation Act 1963 was held applicable, as per which limitation for a suit of such a nature would be three years commencing from the date when the accounts are stated in writing signed by the defendant or by his duly authorized agent. Ex.PW-1/17 dated 1.10.2002 was the last bill signed by the defendant. Other bills relied upon by the plaintiff Ex.PW-1/18 to Ex.PW-1/32 were not acknowledged by the defendant. In Ex.PW-1/4, Ex.PW-1/14, Ex.PW-1/15 and Ex.PW-1/17 no date had been appended on the signatures. As such Ex.PW-1/17 dated 1.10.2002 was relied upon as the last acknowledgment by the defendant; the present suit filed on 21.1.2006 was held to be time barred. The Trial Judge in the alternate had also examined the contention and the argument raised by the defendant that this was a hire purchase agreement. In this context it had relied upon Ex.PW-1/12 i.e. the challan dated 4.9.2002 which again would make the suit of the plaintiff time barred having been filed on 21.1.2006. It was held that the plaintiff had failed to prove his claim in respect of the supply of articles for the period after 5.9.2002.