The main legal point established in the judgment is the strict application of the limitation period for filing suits for recovery of goods sold and delivered as per the provisions of the Limitation Act.

Anil Kumar, J.

1. This is a suit for recovery of Rs. 31,42,825/- as due on 30th November, 2002 plus interest at 21% per annum filed by the plaintiff.

2. The plaintiff has contended that the plaintiff company had sold and delivered goods to M/s. Namit Plastics Pvt. Ltd, defendant No. 1 through defendants No. 2 & 3.

3. It is asserted that from time to time the plaintiff company as per the requirements of defendants No. 2 & 3 sold and supplied to them goods in the name of M/s Namit Plastics Pvt Ltd, defendant No. 1 and raised the bills.

4. The plaintiff is seeking recovery of the price of goods sold by invoices as detailed in para 11 of the plaint which are from 15th December, 2001 till 24th September, 2002. According to the plaintiff he had been maintaining running accounts and as on 31st July, 2002 the balance in the name of the defendant was Rs. 32,94,502/- whereas the balance in the name of defendant as per the account books of defendants was Rs. 31,40,321/-. Therefore, the defendant had confirmed a balance of Rs. 31,40,320/- as on 31st July, 2002.

5. According to the plaintiff an amount of Rs. 31,42,825/- was due on 24th September, 2002 which is still due and consequently the suit has been filed on 19th November, 2008.

6. On filing the plaint certain objections were raised by the registry on 19th November, 2008 and the plaint was returned. However, the suit was refilled on 3rd January, 2009. On account of objection it was again returned and again it was refilled on 6th January, 2009 and came up before the Court on 7th January, 2009.

7. The suit has been filed along with an application under Section 5 of the Limitation Act. In the application under Section 5 of the Limitation Act, the plaintiff has sought condonation of delay in filing the suit. It is contended that the suit is filed as per order dated 3th December, 2007 in Company Petition No. 389/2004. The plaintiff applicant has asserted that in case the delay in filing the suit is not condoned great harm shall be caused. It is further contended that the suit was handed over to the clerk for signature of the plaintiff and the draft was misplaced by the clerk of the counsel and only after the status was enquired by the plaintiff it was filed. The application is supported by the affidavit of the clerk.

8. According to the plaintiff the cause of action last arose on 30th November, 2002. Though the plaintiff has alleged in the other paras that an amount of Rs. 31,42,825/- was due on 24th September, 2002 then how the cause of action arose on 30th November, 2002 has not been explained.

9. Order VII Rule 6 of the Code of Civil Procedure contemplates that where the suit is instituted after the period of limitation prescribed by law, the plaint shall show the grounds upon which exemption from such law is claimed. No such averments have been made in the plaint.

10. The plaintiff is claiming price of goods sold and delivered to the defendants. Under Article 14 of the Limitation Act, 1963 for the price of goods sold and delivered where no fixed period of credit is agreed upon, the period of limitation is three years from the date of delivery of goods. Plaintiff has not averred any fixed period of credit. Though the plaintiff has alleged that he had a current account with the defendants, however, limitation for filing suit is not be computed under Article 1 of the Limitation Act, 1963 from the close of the year in which last item was entered in the account because a mutual open and current account contemplates reciprocal demands between the parties. There has not been any allegation of reciprocal demands by the defendants in the plaint, therefore, the limitation cannot be computed under Article 1 of the Act. The limitation has to be computed on the basis of Article 14 of the Act and the period of limitation starts from the date of delivery of goods. The plaintiff has not alleged any date of delivery but has given the date of invoices and in the circumstances, the date of de