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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.
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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
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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
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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.)
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