Posted On by &filed under Bombay High Court, High Court.


Bombay High Court
Hetal Enterprises vs New India Assurance Co. Ltd on 7 October, 2011
Bench: Anoop V.Mohta
                                            1                                sj-70-10.sxw


    dgm




                                                                               
             IN THE  HIGH COURT OF JUDICATURE AT BOMBAY




                                                       
                  ORDINARY ORIGINAL CIVIL JURISDICTION

                SUMMONS FOR JUDGMENT NO. 70  OF  2010
                                IN




                                                      
                   SUMMARY SUIT NO.2640    OF  2009




                                           
    Hetal Enterprises                                  ....   Plaintiffs
          vs               
    New India Assurance Co. Ltd.                                ....    Defendants
                          
    Mr. P.L. Mahadik  for the Plaintiffs.

    Mr. A.S. Vidyarthi for the Defendants. 
          


                                    CORAM:   ANOOP V. MOHTA, J.

DATE : October 07, 2011

ORAL JUDGMENT:

The matter was adjourned thrice for settlement, but it could not

be settled. The Defendants were willing to pay principal amount

only, however, the Plaintiffs’ insistence was also on reasonable interest

on the same. Therefore, by consent heard finally.

2 The Defendants though served not filed any reply to the

summons for judgment.

::: Downloaded on – 09/06/2013 17:49:32 :::

                                                2                                 sj-70-10.sxw




                                                                                   
    3      As per the averments made in the plaint, the Plaintiffs used to 




                                                           

supply various kinds of stationery goods to the Regional Office of

Defendants and always obtained due acknowledgment of delivery of

goods on the delivery chalan/bill/invoice ranging from 16.12.2005 to

19.12.2005. As per the invoice/agreement, the grace period was of 7

days from the date of delivery of goods failing which the Plaintiffs

entitled to claim interest at 19.5% on the principal amount. There is

no serious dispute with regard to the receipt of the goods and the

payment so raised and/or of any quality and/or quantity.

4 Even otherwise as per Article 18 of the Limitation Act,

acknowledgment for liability itself is sufficient. It is not necessary that

it should be accompanied by a promise to pay either expressly or even

by implication. [Food Corporation of India vs. Assam State

Cooperative Marketing & Consumer Federation Ltd. And ors.1 ] It

is also necessary to note that such letters and correspondences read

with the conduct of the parties which always form part of a chain

correspondences which are on record, and as not disputed, such a

Summary Suit is maintainable and so also the summons for

1 (2004) 12 SCC 360

::: Downloaded on – 09/06/2013 17:49:32 :::
3 sj-70-10.sxw

judgment. (Sections 35 and 39 of Evidence Act). The suit therefore

based upon such acknowledgments and receipts is maintainable. [See

Full Bench judgment in Jyotsna K. Valia vs. T.S. Parekh & Co.2]

5 The learned counsel appearing for the Defendants has raised

basically an objection that the Suit is barred by the limitation in view

of the admitted first delivery chalan/bill/invoice dated 16.12.2005.

The Suit was filed on 5.01.2009. As per Article 15 of Limitation Act, a

Suit for the price of goods sold and delivered need to be filed after the

expiry of a fixed period of grace. In the present case is 7 days.

Therefore, the commencement of the limitation will be after 7 days

from the date of the bill/delivery chalan. There is no dispute that the

limitation period of three years would have expired during the

Christmas vacation which was definitely upto 31 December 2008. The

Suit, therefore, as filed on the court opening day i.e. 5.01.2009, in the

present facts and circumstances, is within limitation.

6 Therefore, considering the uncontroverted averments made,

there is no reason not to accept the case of the Plaintiffs to grant

summons for judgment as prayed. There is no denial or defence to

2 2007 (3) Bom.C.R. 772

::: Downloaded on – 09/06/2013 17:49:32 :::
4 sj-70-10.sxw

the averments and the documents of the Plaintiffs.

7 In so far as the interest part is concerned, though the interest as

per the invoice is claimed at 19.5% as not paid within 7 days from the

date of delivery of goods, however, the learned counsel appearing for

the Plaintiffs fairly suggested to pass appropriate order about the rate

of interest. Therefore, I am inclined to restrict the same at 9% per

annum instead of 19.5% as mentioned in the statement of claims.

That will be also the future interest till realisation.

8 Resultantly, the summons for judgment is disposed of

accordingly. Decree be drawn accordingly. There shall be no order as

to costs.

(ANOOP V. MOHTA, J.)

::: Downloaded on – 09/06/2013 17:49:32 :::


Leave a Reply

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

10 queries in 0.181 seconds.