KRISHNA CHANDRA GUPTA Vs. M.P. MOTOR TRANSPORT

JUDGEMENT

(1.) APPELLANT /defendant feels aggrieved by the judgment and decree dated 4.1.1989 passed by I Additional District Judge, Satna in Civil Suit No. 15-B/1983 and challenges legality and validity thereof in this first appeal under Section 96 C.P.C.

(2.) THE respondent/paintiff had filed the present suit for recovery of Rs. 18002-76p. together with interest at the rate of Rs. 2/- per hundred per month and notice charge totalling Rs. 24,027-73 p. being the amount due to him, on account of tyres obtained by the appellant. The respondent/paintiff Claimed a decree for Rs. 24,000/- only. According to the respondent/paintiff, M/s. Vikrant Tyre Limited, Indore had handed over to them tyres for delivery to the appellant on various dates in the year 1980. The respondent/plaintiff had handed over receipts to the said Company, which were to be produced at the time of delivery. The Said Vikrant Tyre Company sent the receipt alongwith Hoondi & Invoice to the Bank at Satna to be presented to the appellant on payment of amount mentioned therein. The case of the respondent is that the tyres having reached Satna, delivery thereof should have been taken by the appellant on production of receipts. It is alleged that the appellant did not obtain receipts from the Bank, after making payment, but obtained tyres without giving receipts on the assurance that receipts would be subsequently given. Since the receipts were not obtained after making due payment from the Bank, the Bank returned receipts to M/s. Vikrant Tyre Limited, Indore. The appellant, however, made payment of Rs. 21,048-7 p. to the respondent on account of those tyres by Bank Draft, but refused to pay the balance of Rs. 18,002-73 p. Claiming the same to be discount in relation to those tyres. Since the said amount was not paid in spite of several requests, the respondent filed the present suit for recovery of the amount, as aforesaid. The defence of the appellant was that the respondent not being owner of the tyres, were not entitled to file the present suit. It was further submitted that the suit has become barred by Limitation in relation to six tyres delivered on 2.7.1980 & 21.7.1980. The learned A.D.J., on appreciation of evidence adduced by the parties, was of the opinion that though the original owner of tyres in question was Vikrant Tyres Limited, Indore, the respondent/paintiff had locus standi to file the present suit and recover the balance of the amount, as they were in custody of the said goods and were liable to the original owner. The learned Judge further held that the suit was not barred by limitation, inasmuch as, the amount paid by the appellant was in relation to all the 16 tyres and period of limitation, if calculated from the date of payment, would bring the suit within limitation. It is this judgment and decree, which is impugned in the present appeal.

(3.) AS regards suit having become barred by Limitation, para-9 of the written statement clearly mentions that it has become barred only in relation to 6 tyres covered by receipt Nos. 72267 dated 2.7.1980 & 72291 dated 21.7.1980. All payments admittedly made by the appellant were subsequent to the aforesaid two dates. The appellant does not state that while making the payment to the respondent, he made any specific request for its appropriation. Such a Claim is made for the first time by way of written statement. Since such a request should have been made to the respondent at the time of payment so as to create a right in favour of the appellant and it has not been made, the period of limitation would be taken to be running from the date the difference arose between the parties. It is a case where the appellant has made payment and has refused to make the payment of balance on the ground that it represented the discount to which he is entitled. In such a situation, the period of Limitation cannot be counted from the date of delivery, but would be counted from the date of the payment. Admittedly, the suit would not be barred if the period of Limitation is reckoned with from that date. Under the circumstances, the learned trial Judge committed no illegality in rejecting the objection and holding the Claim within time.