NORTHERN CONTRACTORS (P) LTD Vs. KAPUR TIMBER STORES

JUDGEMENT

(1.) This first appeal impugns the ex parte judgment and decree (dated 16th January, 2001 of the Court of the Additional District Judge, Delhi in Suit No.629/1993 (Old No.3000/1992)) against the appellant for recovery of Rs.4,40,419.25p along with costs and interest at the rate of 18% per annum from the date of institution of the suit till realization of the decretal amount. Notice of the appeal was issued and the delay of 20 days in filing the appeal condoned. The appeal was admitted for hearing on 05.05.2003 and the appellant / defendant directed to deposit the decretal amount and the respondent / plaintiff was permitted to withdraw the same by furnishing security. In compliance therewith, a sum of Rs.4,40,419/- is informed to have been deposited. The counsels have been heard.

(2.) The respondent / plaintiff had instituted the suit from which this appeal arises, for recovery of the principal outstanding balance of Rs.2,85,986.55p towards the price of goods sold by the respondent/plaintiff to the appellant/defendant. Summons of the suit were served on the appellant / defendant was contested the same by filing a written statement on 13.08.1996. Thereafter, the suit was adjourned from time to time for filing of replication by the respondent / plaintiff and for admission / denial of documents. However, the appellant / defendant stopped appearing in the suit with effect from 10.09.1997 and was vide order dated 26.11.1998 proceeded against ex parte and ex parte evidence led by the respondent / plaintiff. When the suit was listed for hearing ex parte arguments of the respondent / plaintiff, an application under Order 9 Rule 7 of the CPC for setting aside of the order dated 26.11.1998 proceeding ex parte against the appellant / defendant was moved and which was dismissed vide order dated 05.09.2000. The counsel for the appellant / defendant states that the said order was not challenged. The appellant / defendant did not appear before the Trial Court thereafter also. Though the appellant / defendant was ex parte but the learned Additional District Judge at the stage of final arguments, finding that written statement had earlier been filed by the appellant / defendant, framed the following issues on 09.10.2000 and vide impugned judgment decreed the suit as aforesaid:

(3.) The counsel for the appellant / defendant has mainly addressed on the aspect of the claim in suit being barred by time, by contending that the aspect of limitation under Section 3 of the Limitation Act, 1963 was to be looked into by the Court even if the appellant / defendant was ex parte. In this regard it is firstly contended, (a) that the suit as filed on 20.07.1992 was by M/s Kapur Timber Stores, a partnership firm through its partner Mr. Devender Kumar Kapur (it is not in dispute that the said firm was a registered firm under the Partnership Act and Sh. Devender Kumar Kapur was its registered partner); (b) that as per the respondent / plaintiff itself, the said firm was dissolved on 31.03.1993 but no intimation thereof was given to the Trial Court for a period of nearly five years till the application in this regard was filed in the year 1998 and when the plaint was permitted to be amended vide order dated 26.11.1998 making M/s Kapur Timber Stores through its sole proprietor Mr. Subhash Kapur as the plaintiff. (On enquiry, it is informed that Mr. Subhash Kapur was also earlier a registered partner of the partnership firm M/s Kapur Timber Stores); (c) that M/s Kapur Timber Stores through its sole proprietor Mr. Subhash Kapur in whose favour the decree has been passed, became the plaintiff only on 26.11.1998 and thus the suit as far as by the said sole proprietary, ought to have been deemed to have been instituted on 26.11.1998 or at best on 11.02.1998 when the application for amendment in this regard was filed; (d) that the suit for recovery of monies by the said sole proprietary firm as on 11.02.1998 or 26.11.1998 was barred by time. Attention in this regard is invited to Section 21(1) of the Limitation Act and it is contended that the respondent / plaintiff has not brought its case within the meaning of sub-Section (2) thereof. Reliance is placed on the judgment of the Division Bench of the Calcutta High Court in Usha Beltron Ltd. Vs. Nand Kishore Parasramka, 2001 AIR(Cal) 137 and in which case also the suit was filed by a firm and by amendment the sole surviving partner was substituted as sole proprietor and it was held that the suit would be deemed to be instituted on the date when the amendment was allowed and on which date, it was held to be barred by time. Reliance is also placed on Ramalingam Chettiar Vs. P.K. Pattabiraman, 2001 2 Supreme 133 laying down that where the substitution / impleadment order does not specify that the impleadment would take effect from the date of institution of the suit, the suit is deemed to have been instituted on the date of the filing of the impleadment application. It is contended that the order dated 26.11.1998 allowing the amendment in the present case also does not specify that the suit by M/s Kapur Timber Stores sole proprietary would be deemed to be instituted as on 20.07.1992 when the partnership firm had instituted the suit and thus the institution of the suit by the sole proprietary has to be deemed to be on 26.11.1998 or on 11.02.1998. Reference is yet further made to Sha Babulal & Co. Vs. B. Nagappa, 1983 AIR(Kar) 217 where the suit describing the plaintiff as a joint family firm was allowed to be amended to describe the plaintiff as a registered partnership firm and which was held to be a case of substituting a new party and finding the mistake to be not bona fide, Section 21 was held to apply and the suit held to be barred by time.