High Court Kerala High Court

Sajan Varghese vs Kerala State Electronic … on 12 January, 2010

Kerala High Court
Sajan Varghese vs Kerala State Electronic … on 12 January, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

AS.No. 277 of 2000(A)



1. SAJAN VARGHESE
                      ...  Petitioner

                        Vs

1. KERALA STATE ELECTRONIC DEVP.CORPN.LTD.
                       ...       Respondent

                For Petitioner  :SRI.P.GOPALAKRISHNAN NAIR

                For Respondent  :SRI.T.P.KELU NAMBIAR (SR.)

The Hon'ble MR. Justice HARUN-UL-RASHID

 Dated :12/01/2010

 O R D E R
 *CR*                     HARUN-UL-RASHID,J
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                          A.S. NO. 277 OF 2000
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             Dated this the 12th day of January, 2010

                              J U D G M E N T

The defendant in O.S.No.142 of 1994 on the file of the

Principal Sub Court, Thiruvananthapuram is the appellant. The

appeal is directed against the judgment and decree dated

30.06.1999. The plaintiff Kerala State Electronic Development

Corporation Ltd., filed the suit for recovery of Rs.87,364/-

together with interest at 20% due from the defendant. The court

below decreed the suit allowing the plaintiff to recover the sum of

Rs. 87,364/- with interest at 12%. Aggrieved by the decree and

judgment, the defendant had preferred this appeal. Parties

hereinafter referred to as plaintiff and defendant.

2. The suit is for recovery of the price of the goods

purchased by the defendant. The defendant had purchased 50

colour T.V. Sets from the plaintiff as per invoice Nos.102189-

102194 dated 27.12.1989. The defendant had availed credit

purchase facility for Rs.5,24,475/-. The defendant also purchased

one sterio tape recorder for Rs.1,725/- and a Black and While

T.V.Set worth Rs.2,300/-. It is pleaded that the defendant has

been making part payment on various dates till 26.2.1992. The

suit was filed for the outstanding balance.

A.S. No. 277 of 2000.

: 2 :

3. The suit is mainly contested on the question of bar of

limitation.

4. Admittedly, the defendant purchased T.V.Sets as per six

invoices. Ext.A1 series are the invoices. It is admitted that after the

purchase, the defendant had been making the payments towards the

price of the articles sold. According to the defendant the last cheque

payment was made on 15.3.1991. Hence the suit claim is barred by

limitation and therefore not enforceable.

5. In Paragraph 11 of the plaint it is averred that the defendant

has acknowledged the liability by the part payment on various dates

and last such payment was made on 26.2.1992 by remitting

Rs.10,000/-. There is no doubt that the plaint was proceeded on the

premise that the suit was barred by limitation but for part payment

made on 26.2.1992.

6. The plaintiff produced Exts. A2, A3 and A4, true copies of

ledger papers maintained by the plaintiff in the name of the

defendant. The part payment made by the defendant is credited to

in the accounts. The trial court applied Article 1 of the Limitation

Act, 1963. Article 1 reads as follows:

Description of suit Period of Time from which period

limitation begins to run

1. For the balance due on a Three years The close of the year in which
mutual, open and current account, the last item admitted or proved
where there have been reciprocal is entered in the account; such
demands between the parties. year to be computed as in the
account.

A.S. No. 277 of 2000.

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7. The court below examined the nature of the transaction and

took the view that the transaction is mutual, open and current

account. To consider the transaction as mutual, open and current

account, where they have been reciprocal demand between the

parties, the trial court held that the account maintained by the

plaintiff is a running account of which the limitation starts from the

close of the year in which the last item admitted or proved. The

account shows that the defendant was issuing cheques as well as

making cash payments on various dates during the period between

December 1989 to February, 1992. The trial court also noted that

the last payment was on 26.2.1992. The learned Judge held that the

account is carried over from 1989 to 1992, therefore the account is

current, open and mutual. The trial court observed that if the

plaintiff can recover the money based on the dishonoured cheque, it

is still open for him to recover the balance price of the delivered

goods. According to the court below the suit is perfectly

maintainable and is filed within the period of limitation and the same

falls under Article 1 of the Limitation Act.

8. The learned counsel for the appellant/defendant contented

before this court that Article 14 is squarely applicable in this case

and that Article 1 cannot have any application. The scope of Article

1 of the Limitation Act and its distinguishing characteristics are

examined by a Division Bench of this Court in UNION BANK LTD.

VS. N. RAGHAVAN NAIR (1958 KLR 706). This court held that the

A.S. No. 277 of 2000.

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distinguishing characteristics of a mutual account are (1) that there

should be two sets of independent transactions between the parties

in one of which one of the parties should hold the position of debtor

and the other that of creditor, and in the other, the reverse position;

(2) that the dealings should disclose independent obligations on both

sides, and not merely obligations on one side, the acts done by the

other being merely discharge of such obligation and (3) that each

party must be able to say to the other ‘I have an account against

you’. The first requirement as laid down by this court is that there

should be two independent transaction between the parties.

Admittedly, there is only one transaction in this case. The plaintiff

sold a few articles to the defendant on credit basis and the defendant

made part payments towards the said transaction. The plaintiff has

no case that there are two independent transaction between the

parties by which one of the party should held the position of a debtor

and the other that of a creditor and in the other, the reverse position.

The second requirement as held by this court that the dealings

should disclose independent obligation on both sides and not merely

obligations on one side, the acts done by the other side being merely

discharge of such obligation. I do not find that there is any

independent obligation on both sides. The acts done by the

defendant is only discharge of his obligation to the plaintiff i.e. to

discharge the amounts payable under the sale transaction. Going by

the dictum laid down by this court, and a reading of Article 1, I find

A.S. No. 277 of 2000.

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that the findings of the learned Judge that this is a case where

Article 1 has application cannot stand.

9. Admittedly, the suit is for recovery of the price of goods

purchased by the defendant. Under Article 14 of the Limitation Act,

the cut off date for starting the period of limitation is the date of

purchase or delivery of the goods by the defendant on credit . This is

a simple suit for recovery of the price of goods sold and not a suit for

accounts. Therefore the findings and reasons of the learned Judge

are unsustainable. The further question to be examined is the effect

of payment on account of debt. The learned counsel for the

plaintiff/respondent strenuously contented that there is sufficient

pleadings in the plaint which would go to show that the defendant

has acknowledged the debt by making part payment on various dates

and the last such payment was made on 26.2.1992. Since the last

payment was made within the period of limitation by issuing a

cheque it was argued that Section 19 is applicable and therefore the

decision of the court below decreeing the suit has to be sustained.

Section 19 of the limitation Act, 1963 reads as follows:

Effect of payment on account of debt or of interest on
legacy.– Where payment on account of a debt or of interest
on a legacy is made before the expiration of the prescribed
period by the person liable to pay the debt or legacy or by his
agent duly authorised in this behalf, a fresh period of
imitation shall be computed from the time when the payment
was made:

Provided that, save in the case of payment of interest
made before the 1st day of January, 1928, an
acknowledgment of the payment appears in the handwriting
of, or in a writing signed by, the person making the payment.

A.S. No. 277 of 2000.

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Explanation.- For the purposes of this section, –
a. where mortgaged land is in the possession of the
mortgagee, the receipt of the rent or produced of such
land shall be deemed to be a payment,’,
b, “debt” does not include money payable under a decree
or order of a court”.

10. The learned counsel for the plaintiff brought to my

attention Exts.A5 and A6 documents produced in support of his

claim for exemption from limitation. Ext.A5 is the cheque receipt dt.

26.2.1992 issued by the plaintiff to the defendant acknowledging the

receipt of the cheque. Ext.A6 dated 14.5.1999 is the certificate

issued by the Uco bank to the plaintiff. Ext.A6 certified that the

cheque for Rs. 10,000/- was cleared through Indian Oversees Bank,

Thiruvananthapuram. On the basis of these two documents, learned

counsel for the respondent/plaintiff contented quoting section 19

that the plaintiff is entitled to the benefit of a fresh period of

limitation. The cheque dated 26.2.1992 is the document relied on by

the plaintiff in order to save the suit from the period of limitation.

The payment specified in Ext.A5 and A6 was not endorsed by the

defendant and the plaintiff has not summoned the cheque issued by

the defendant in support of his case of fresh period of limitation. To

attract Section 19 of the Act the acknowledgment of payment shall

be in the handwriting or is a writing signed by the defendant

making the payment. In a similar situation, the Apex Court in SANT

LAL MAHTON VS. KAMLA PRASAD (AIR (38)1951 SUPREME

COURT 477) examined the question of limitation in the background

A.S. No. 277 of 2000.

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of Article 19 previously, (Article 20) of the Limitation Act. That was

a case where there was admission in the written statement filed on

behalf of the defendant 1 to 3 whereby the defendant admitted not

only that the payment specified in the plaint were actually made on

the respective dates but also asserted that there were other

payments made besides these, which reduce the debt still further

and for which the plaintiff did not give any credit to the defendants.

The trial judge in that case relied on the above said statement in the

written statement held that since the written statement was signed

by the defendant, it would fulfill all the requirement of a signed

acknowledgment as contemplated by the proviso to section 20.

11. The Apex Court in paragraph 10 of the judgment observed

that the written acknowledgment should be made prior to the expiry

of the period of limitation, it is, in our opinion, essential that such

acknowledgment whether made before or after the period of

limitation must be in existence prior to the institution of the suit,

that whether the suit is time barred or not has to be determined

exclusively with reference to the date on which the plaint is filed and

the allegations made therein. It was also observed that if the

plaintiff’s right of action is apparently barred under the statute of

Limitation Act, Order 7 Rule 6 of CPC makes it his duty to state

specifically in the plaint the ground of exemption allowed by the

Limitation Act, upon which he relies to exclude its operation and if

the plaintiff has got to allege in his plaint the facts which entitle him

A.S. No. 277 of 2000.

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to exemption, obviously these facts must be in existence at or

before the time when the plaint is filed, facts which come into

existence after the filing of the plaint cannot be called in aid to

revive a right of action which was dead at the date of the suit.

12. To claim exemption under section 19 of the Limitation Act

it is mandatory that the plaintiff must be in a position to allege and

prove the part payment and that such payment had been

acknowledged in writing in the manner contemplated by the section.

In the plaint itself there must be pleadings and the plaint shall also

be supported by proof showing that such payment had been

acknowledged in writing in the manner contemplated by section 19.

In this case, the pleadings is incomplete. The pleadings only state

that the defendant has acknowledged the debt by making part

payment. The pleadings does not contain averments that such

payment had been acknowledged in writing or the acknowledgment

of payment appears in the hand writing signed by the person making

the payment. Therefore the pleadings are not complete. More over

the plaintiff did not produce the proof in support of

acknowledgment. The pleadings and the proof at the time of filing

the suit is mandatory because whether the suit is time barred or not

is to be determined exclusively with reference to the date on which

the plaint is filed and the allegations made therein. Section 3 of

Limitation Act mandates that the court shall dismiss the suit which is

brought after the period prescribed under the schedule of the

A.S. No. 277 of 2000.

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Limitation Act. Therefore it is the duty of the plaintiff to state

specifically in the plaint the ground of exemption allowed by the

Limitation Act, whether it is under section 18, 19 or 20 as the case

may be. The further condition to attract the provision relates to

exemption is that if the plaintiff wanted to allege facts which entitle

him exemption obviously these facts shall be pleaded at the time

when the plaint is filed. Section 3 r/w Section 19 of the Act

therefore make it clear that the plaint shall not only contain the

pleadings but also shall be supported by documents which shall be

produced at the time of the filing of the suit in order to enable the

court to satisfy as to whether the suit is filed within time.

13. The Apex Court in the said case held that to claim

exemption under Section 20 of the Limitation Act, (presently Section

19) the plaintiff must be in a position to allege and prove not only

that there was payment of interest on a debt or part payment of the

principal, but that such payment had been acknowledged in writing

in the manner contemplated by that section, that the ground of

exemption is not complete without the second element, that unless

both these elements are proved to exist at the date of the plaint the

suit would be held to be time barred.

14. In the decision M/S. VIJAYAKUMAR SATISCHANDRA &

CO. VS. M/S. RAJGOPAL BADRINARAYAN MALPANI (1996 A I

H C 4163) a Division Bench of Bombay High Court held that the suit

for recovery of the price of goods purchased by the appellants,

A.S. No. 277 of 2000.

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Article 14 of the Limitation Act is the article to be applied and

further held that the cut off date for starting the period of limitation

is the date of purchase or delivery of the goods by the appellants/

defendants on credit.

15. The case on hand is a simple suit for recovery of balance

amount due towards the price of goods supplied by the plaintiff to

the defendant and is not a suit for accounts. In such a situation, the

article applicable is Article 14 of the Limitation Act subject to

acknowledgment if any, under section 19 of the Act. The essential

requirement in order to attract section 19 of the Limitation Act is

that the acknowledgment must be in existence prior to the

institution of the suit. In this case, as observed earlier the pleadings

in the plaint are insufficient in order to satisfy the requirement of

pleadings to attract section 19 of the Limitation Act. I also find that

there is no proof adduced by the plaintiff at the time of filing the

plaint in order to claim the ground of exemption. Since Ext.A5 and

A6 are not either acknowledged nor signed by the defendant,

Section 19 of the Act cannot have any application. To claim

exemption under section 19 of the Limitation Act, the plaintiff must

be in a position not only to plead but also to prove that there was

part payment of debt; that such payment had been acknowledged in

writing or signed in the manner contemplated by the said section.

The suit is of the year 1994. The proceedings of the suit continued

in appeal till date i.e. for the last more than 14 years. Since the

A.S. No. 277 of 2000.

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plaintiff failed to take any steps to summon the cheque issued by the

defendant in order to claim exemption under section 19, the suit has

to fail.

16. Learned counsel for the appellant defendant also invited

this court’s attention to the decision reported in K.C. PANGUNNI

VS. THE OFFICIAL LIQUIDATOR, WANDOOR JUPITOR CHITS

(P)LTD. IN ILR 1981(1) KERAL SERIES 420. The Division

Bench of this Court held that under section 19 of the Limitation Act

it is not every part payment that would save limitation but only

payment the acknowledgment of which appears in the handwriting

of, or in writing signed by the person making the payment.

In the result, judgment and decree passed by the court below

are set aside. Appeal allowed. The suit stands dismissed. There will

be no order as to cost.

( HARUN-UL-RASHID, JUDGE)

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