High Court
Case Details
CRP 161/2003 BEFORE HON’BLE MR JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral)
Legal Reasoning
None appears for the parties even on second call. [2] This revision petition by the plaintiff, in Money Suit No.2/2000 , is directed against the judgment and decree dated 11th February, 2003 passed b y the learned Civil Judge (Senior Division), Kokrajhar in Money Appeal No.2/2002 , allowing the appeal preferred by the defendant by setting aside the judgment a nd decree dated 30th May, 2002 passed by the learned Civil Judge (Junior Divisio n) No.1, Kokrajhar in the aforesaid suit, whereby and whereunder the suit of the plaintiff was initially decreed. [3] The appellant as plaintiff, instituted the aforesaid suit for re covery of an amount of Rs.46,000/-, contending inter alia that though pursuant t o the supply order dated 1st July, 1992, stationary articles worth Rs.4399.40 ha ve been supplied and the bill dated 11th July, 1993 has been issued and thereaft er, a banker cheque dated 16th October, 1993 was issued for the said amount, the said cheque could not be encashed as the bank has refused to make the payment o n the ground that the validity of the cheque has expired. It has also been cont ended that the plaintiff thereafter, claiming the outstanding amount requested t he defendants on various dates, the last being on 7th February, 2000, for paymen t of the dues and as the defendants did not pay the same, notices dated 13th Jun e, 1996; 9th May, 1999 and 7th March, 2000 under Section 80 CPC were issued, des pite receipt which as the aforesaid amount has not been paid, suit for realizati on of the aforesaid amount, which includes the interest @ 10% per annum on Rs.43 99.40 with effect from 11th July, 1992 to 11th January, 2000, has been filed. The defendants contested the said suit by filling written statem [4] ent, contending inter alia that the suit of the plaintiff is barred by time bein g not filed within 3(three) years from the date of either supply or raising the bill or issuance of banker cheque. It has, however, been pleaded that the banke rs cheque dated 16th October, 1993 was issued, which the defendants did not pres ent for encashment within the validity period, and hence the bank has refused to make the payment. [5] ramed the following issues for determination: The trial Court, on the basis of the pleadings of the parties, f (cid:28)(1) Whether there is any cause of action for the present suit? (2) Whether the suit is maintainable in the present form? (3) Whether the suit is barred by limitation? (4) Whether the suit is bad for non-joinder of parties? (5) Whether the plaintiff has locus standi to file a suit for recovery of outst anding bills for supplied stationary articles to the defendants. (6) Whether the plaintiff is entitle to get decree as prayed for and interest a ccrued there from the defendants? (cid:29) The learned Civil Judge (Junior Division), upon appreciation of [6] the evidence, decreed the suit vide judgment dated 30th May, 2002 holding that t he plaintiff is entitled to the benefit of Section 18 of the Limitation act, 196 3 (in short, ’1963 Act (cid:29)) and hence, the suit is not barred by time, apart from h olding that the defendants did not pay the amount of Rs.4399.40, i.e. the value of the articles supplied. [7] Being aggrieved, the defendants preferred the appeal, which has been allowed vide judgment dated 11th February, 2003, by holding that the suit o f the plaintiff is barred by time, having not instituted within three years from the date when the amount fell due. It has also been held that there being no a cknowledgement in writing by the defendants of the liability, within the period of limitation, the benefit of Section 18 of the 1963 Act, cannot be extended to the plaintiff. Hence, the present appeal. [8] The plaintiff instituted the suit in the year 2000 for realizati on of a sum of Rs.4399.40, alongwith interest. The plaintiff in the plaint has admitted that the supply order was issued on 1st July, 1992 for supply of the ar ticles worth Rs.4399.40, pursuant to which he supplied the articles and bill was raised on 11th July, 1993. It is also the pleaded case of the plaintiff that t hereafter, though a banker cheque dated 16th October, 1993 was issued for the sa id amount, the same, however, could not be encashed because of the lapse of the period of validity due to negligence of the defendants. The plaintiff nowhere i n the plaint has pleaded that on receipt of the subsequent communications dated 11th July, 1992; 16th October, 1992; 31st March, 1994; 16th December, 1994; 13th June, 1996; 12th July, 1997; 11th June, 1998; 9th June, 1999 and 7th February, 2000, on which dates, according to the plaintiff, he demanded payments of the ou tstanding amount, the defendants have ever acknowledged the debt or outstanding liability. [9] Section 18 of the aforesaid 1963 Act provides for computation of a fresh period of limitation from the time when the liabilities is acknowledged by the defendant. Such acknowledgement, however, has to be before expiration o f the period of limitation for a suit. In the instant case, as discussed above, it is not the case of t [10] he plaintiff that there was any acknowledgement of the liability by the defendan ts within three years, either from the date of supply of goods or from the date of raising the bill or the date when the banker cheque was bounced. It is also not the case of the plaintiff that the aforesaid amount is due on a mutual, open and current account. There being no acknowledgement of the liability by the de fendants within the period of limitation prescribed, there is no question of com mencement of a fresh period of limitation under Section 18 of the 1963 Act. In view of the above, no illegality has been committed by the fi [11] rst appellate Court in dismissing the suit of the plaintiff. Hence, the appeal stands dismissed. No costs.