TBS ENGINEERS PVT LTD Vs. J P MISHRA

JUDGEMENT

(1.) THE challenge by means of this Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the trial Court dated 7.7.2010 dismissing the suit for recovery of Rs. 8,47,868/- filed by the appellant/plaintiff against the respondents/defendants. THE suit was dismissed although the appellant/plaintiff proved the bills and the supply of engineering valves to the respondents/defendants inasmuch as it was held that the suit was time barred. THE suit was held time barred if the limitation is taken from the date of each of the bills. THE five bills in question were dated 3.9.2002, 10.9.2002(2), 8.10.2002 and 21.10.2002 whereas the suit was filed on 8.12.2005. It was therefore held that the suit was filed after three years from September, 2002/October, 2002 and thus time barred.

(2.) THE facts of the case are that the appellant/plaintiff entered into business transactions with the respondents/defendants and thereby engineering goods/engineering valves were sold by the appellant/plaintiff to the respondents/defendants. THE business dealings commenced in the year 2001 and continued till September, 2003 when the last cheque was issued by the respondent Nos.1/3 in favour of the appellant/plaintiff. THE respondents/defendants are stated to have made payments of different bills but not with respect to five bills which are as under:- Date Bill No. Amount 03/09/02 TBS/00424/02-03 4211.00 10/09/02 TBS/00432/02-03 4,97,755.00 10/09/02 TBS/00433/02-03 8,102.00 08/10/02 TBS/00500/02-03 12,131.00 21/10/02 TBS/00523/02-03 7,729.00 TOTAL 5,29,928.00

(3.) I completely agree with the arguments raised on behalf of the counsel for the appellant/plaintiff inasmuch as the appellant/plaintiff proved that the parties were maintaining an open, mutual and current account and which contained entries even after the disputed bills which were of September/October, 2002. The last entry in the account is of 26.9.2003 showing payment by the respondents/defendants of a cheque of Rs. 27,864/-. The limitation in this case will therefore begin from 1.4.2004 and therefore the suit could have been filed as per Article 1 of the Limitation Act, 1963 upto 31.3.2007, whereas the suit has been filed on 8.12.2005. Once there is an open, mutual and current account, it is Article 1 of the Limitation Act, 1963 which will apply, and not Article 15, the trial Court thus has fallen into an error in taking the limitation from the date of each bill. In the facts of the present case, not only there is no evidence which was led on behalf of the respondents/defendants but in fact in the cross-examination of the only witness of the appellant/plaintiff, there was no cross-examination with respect to deposition made in para 4 of the affidavit with respect to the account being an open, mutual and current account.